Delhi High Court denies bail to man accused of raping toddler

Delhi High Court denies bail to man accused of raping toddler despite complainant, father turning ‘hostile’

A Petition was filed by the petitioner under Sec-439 CR.P.C seeking regular bail in FIR under the offences punishable under Indian Penal Code (IPC), 1860 and Protection of Children from Sexual Offences Act (POCSO), 2012.

Brief facts of the case:

  1. A PCR call was made, regarding a neighbourhood man sexually assaulting caller’s 2.5-year-old daughter (victim), at Govind Puri Police Station.
  2. A case was registered against the petitioner/accused under Sec-376 of IPC and Sec-6 of POCSO Act, at Govind Puri Police Station.
  3. The prosecutrix was sent for medical examination and in the report, it was stated that there was 3*2cm hemtrauma over occipital region and bleeding from vagina.
  4. Now, in order to seek regular bail, the petitioner filed the present petition.

Petitioner’s Arguments:

  1. The learned counsel for petitioner contended that the petitioner was in judicial custody and has undergone more than 4 years.
  2. The learned counsel said that the petitioner has been falsely implicated in this case and the complainant has stated in his cross examination that petitioner has not done anything wrong with the prosecutrix.
  3. It was further contended that the medical examination report clearly mentioned a that no active bleeding was found and even at the time of Examination-in-Chief conducted before Special (POCSO), Saket Court, it was clearly stated by the doctor that there was no active bleeding in the private part of the victim.
  4. Lastly, they said that the main witnesses were examined as well as cross-examined and thus, no purpose will be served by keeping the petitioner in judicial custody.

Observation of the Court:

  1. Court sated that even if the victim has supported the case of prosecution in the cross-examination and the father of the victim has turned hostile but the testimony of hostile witnesses cannot be disregarded in toto and even otherwise this is not the stage to analyse the testimony of the victim and her parents in depth, as it may prejudice the case of the prosecution.
  2. Court also stated certain real-life considerations, which shall take into account at the time of deciding a bail application, which would tilt the balance against or in favour of the accused person.
  3. Court further stated that the victim in her examination-in-chief has fully supported the case of prosecution and levelled serious allegations against the petitioner. Here, it is pertinent to note that the victim was barely 3-years-old at the time of incident and though her cross-examination was done after 7-months of examination-in-chief.
  4. Court further said that there is no doubt that the victim has given some answers in negative in the cross-examination but one cannot lose sight of the fact that the cross-examination was conducted after 7-months of recording of examination-in-chief, so there is ought to be some inconsistencies and what is the effect cannot be analysed in depth at this stage. Hence, all these factors would be considered and scrupulously analysed during course of the trial as the detail analysis of the evidence of the prosecution witnesses at this stage would prejudice the case of either of the parties.
  5. Finally, by looking into the facts and circumstances of the case, Court held that the minority of child victim at the time of the alleged offences, the allegations against the petitioner which are grave and serious in nature coupled with the categorical statement made by the child-victim in her examination-in-chief and the medical evidence on record, there is no ground for bail was made out at this stage and the bail application was held dismissed.

Vaishali Jain, Advocate & Associate – POSH at Work & Riddhima Khanna

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