The court granted bail due to prima facie discrepancies in the prosecution's case, emphasizing the importance of witness credibility and the absence of medical evidence.

P.C.:

1. Heard Mr. Dave, learned Advocate for Applicant; Ms. Bajoria, learned APP for Respondent No.1- State and Mr. Thobde, learned appointed Advocate for Respondent No.2.

2. This is an Application under Section 439 of the Code of Criminal Procedure, 1973 seeking Regular Bail in connection with C.R. No. 992 of 2023 registered with Sakinaka Police Station for offences punishable under Sections 376, 376-AB and 506 of Indian Penal Code, 1860 readwith Sections 4, 8 and 12 of the Protection of Children from Sexual Offences Act, 2012. Applicant is incarcerated since 15.10.2023.

3. Briefly stated, First Informant is the mother of prosecutrix/victim aged 5 years. They reside alongwith First Informant’s sister and her daughter who is of the same age as that of prosecutrix. Prosecution case is that on 14.10.2023 at around 9:00/9:30 p.m. when prosecutrix was playing with her cousin and her friend i.e. Applicant’s daughter who is also of the same age in Applicant’s house in the room above Applicant who was lying in the said room and scrolling through his phone, touched her inappropriately in the presence of the other two minor girls. At that time, First Informant’s sister was also present in the house talking to Applicant’s wife in the room below. It is alleged that prosecutrix later in the night confided in her mother i.e. First Informant about the bad touch to her by the Applicant pursuant to which First Informant went to Applicant’s house and confronted him and thereafter approached the Sakinaka Police Station and lodged the FIR.

4. Mr. Dave, learned Advocate for Applicant would at the outset deny occurrence of any such incident and would submit that he is falsely implicated in the present crime due to previous enmity between the two families who are neighbours and the husbands of both the First Informant and her sister working in the Gulf countries. He would submit that in statements of both the minor girls i.e. prosecutrix and her cousin, they have stated that after the alleged incident they all i.e. Applicant, his wife, his daughter, prosecutrix, her cousin sister and her aunt went for having juice and returned late. He would submit that there are material contradictions in the narration of the alleged incident by the prosecutrix and as also her cousin sister which raises doubt about the prosecution story. He would submit that statement of Applicant’s daughter who was also present at the time of happening of the alleged incident is not recorded by the Investigating Officer which is a material lapse. Hence the ground of framing Applicant be considered.

4.1. He has drawn my attention to the statement of the maternal aunt of prosecutrix recorded on 02.11.2023 which is appended at page No.35 of the Application and would submit that there is once again material contradiction in her narration of the alleged incident and that of the prosecutrix. Rather there is nothing incriminating in that statement.

4.2. He would submit that the First Informant and her sister have denied medical examination of the prosecutrix victim which is evident from the remark of the Doctor of Rajawadi Municipal Hospital signed by both First Informant and her sister and appended at page No.42 of the Application. He would submit that in such cases of alleged sexual abuse particularly wherein victim is a child, medical examination plays a vital role in corroboration of the prosecution case as in absence of the same it is difficult for prosecution to prove its case against Applicant. He would submit that in one of the statement it is alleged that due to the bad touch there was an nail injury, but it was not seen by the First Informant as stated in her statement.

4.3. Next he would submit that during investigation statement of Applicant’s wife has not been recorded as also his daughter and this lapse is prima facie crucial in order to corroborate occurrence of the alleged incident. He would submit that in any event investigation of the matter is complete and charge-sheet has