The significance of delay in filing the FIR, lack of supporting evidence, and voluntary actions of the complainant and the accused and his family are crucial factors in considering bail applications in cases dependent solely on the testimony of the prosecutrix.

JUDGMENT

Yogesh Khanna, J. - This petition is filed for grant of regular bail in case FIR No.127/2020, under Sections 376/506/509/342/323/34 IPC registered at PS Jama Masjid, Delhi.

2. The applicant is in judicial custody since 05.07.2020.

3. It is submitted by learned counsel for the petitioner there are material improvements in the statements of the prosecutrix i.e. in her complaint as also in her statement under Section 164 Cr.P.C. It is alleged in her statement under section 164 Cr.P.C. she has denied the place of incident of two dates.

4. Learned counsel for the petitioner says the incident of rape, as per the complaint was on 17.07.2016; second one was on 18.12.2016; third was July, 2019 and lastly on 27.02.2020. It is submitted by learned counsel for the petitioner that all along in the compliant the prosecutrix has been saying he committed rape upon the prosecutrix on pretext to marry but whereas in her MLC at page 131 of the paper book she gave the history she was raped on 19.07.2016 in Delhi at hotel Greenland but thereafter she had consensual sex for four years.

5. Further it is submitted even despite the petitioner being inside jail, she has been calling the brother-in-law of the petitioner as well the lawyer of the petitioner seeking information qua the filing and pendency of the bail application of the petitioner.

6. Further she also have been visiting the jail to meet the petitioner and had made infinite number of calls to the accused voluntarily and sending messages also to the accused, his sisters, brothers-in-law and other relatives and she has been harassing by demanding money and/or share in the property as security for signing the affidavit. She has also admitted of having deposited an amount of Rs.2,000/- in the account of the accused while he was in jail. The petitioner has transcript of tape recorded version of the talk the prosecutrix had with brother-in-law of the petitioner wherein she is forcing him to get her the money and to get the accused family sign an affidavit they have no issues in getting their son married to her.

7. It is the submission of learned counsel for the petitioner it is only because of her conduct the marriage could not take place and despite the fact the family of the accused was earlier intending to marry the accused to the prosecutrix; the photographs from page No.126 to 129 are proof to this fact where she has been integrated with the family of the accused but because of her conduct as also of her family members the accused had refused to marry.

8. In Vijayan V. State of Kerala, (2008) 14 SCC 763 it was held:

5. The present case wholly depends upon the testimony of the prosecutrix. The incident in the present case took place seven months prior to the date of lodging the complaint as a realisation dawned upon her that she has been subjected to rape by the appellant-accused. No complaint or grievance was made either to the police or the parents prior thereto. The explanation for delay in lodging the FIR is that the appellant-accused promised her to marry therefore the FIR was not filed. In cases where the sole testimony of the prosecutrix is available, it is very dangerous to convict e the accused, specially when the prosecutrix could venture to wait for seven months for filing the FIR for rape. This leaves the accused totally defenceless. Had the prosecutrix lodged the complaint soon after the incident, there would have been some supporting evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. If the prosecutrix has willingly submitted herself to sexual intercourse and waited for seven months for filing the FIR it will be very hazardous to convict on such sole oral testimony. Moreover, no DNA test was conducted to find out whether the child was born out of the said incident of rape and that the appellant-accused was responsible for the said child. In the face of lack of any other evidence, it is unsafe to convict the accuse