The presumption of innocence, the sufficiency of evidence, and the purpose of pre-trial incarceration were central to the court's decision in granting bail.

JUDGMENT :

1. The present application for grant of regular bail is filed in FIR No. 0585/2020, registered at police station Naraina, under Sections 376D/406/120B/34 of the Indian Penal Code, 1860 (IPC).

2. It is alleged that the prosecutrix had known the co-accused namely Ajay Yadav @ Mangu for about 5-6 years. Ajay who called her to Delhi on the pretext of marrying her and under the influence of getting married the Prosecutrix came to Delhi with Cash amounting to Rs.1 Lakh Rupees and jewellery weighing about 20 tolas.

3. It is further alleged that on 27.08.2020 the brother of the co- accused, Ajay, namely, Shivratan @ Pintu also an accused in the present FIR helped the prosecutrix from running from her nani’s house and left her on a bus for Delhi from her village and upon reaching Delhi, prosecutrix met Co-accused Ajay and the present applicant who took her to their room (place of incident) in WZ-308, Naraina village and made forceful sexual relations with her. After the said incident both the accused persons took the bag containing jewellery and cash from prosecutrix and left her at the room stating that they will be need a bigger room to stay together after marriage but never returned back. In the evening after waiting at the room for co-accused and the present applicant to return, the prosecutrix reached her Mama’s residence in Chhatarpur, Delhi and the next day she informed him about the entire incident and thereafter on 30.08.2022 gave the complaint and the present FIR was registered.

4. Learned Counsel for the Applicant/accused submits that the Accused is 24-year-old young man and has been in continuous incarceration for a period of more than two years, (is in custody since 31.08.2020). The chargesheet in the present has already been filed and there is no material on record or any evidence in support of the allegations.

5. She states that there is no medical evidence placed on record to implicate the present applicant for an offence of Rape as alleged by the Prosecutrix and in this regard reliance is placed on FSL report which is on record which states that there is no male DNA found from the source of Exibit-1/A Right Vulval Swab and Smear, 1/C High Vaginal swab and smear, 1/D low vaginal swab and smear, 1/E Cervical swab and Smear, 1/F Rectal swab and smear 1/G Pubic hair did not match with the applicant’s sample.

6. She submits that the Prosecutrix is her examination has stated that she was never in touch with the present applicant and the only contact she had was with the co-accused Ajay and that too only telephonically before the alleged incident. The size of the room as stated by the prosecutrix was 8*8ft and the probability of presence of three people at the time of incident is highly improbable and that too when the co-accused Ajay was having physical relations with the prosecutrix in the same room.

7. She further submits that the conduct of the prosecutrix is not natural as she did not raise any hue or cry and rather when both the accused persons, that is, Ajay and the present applicant had alleged quarrel, she tried to pacify both of them. The reliance is placed upon the statement of the prosecutrix recorded under section 164 Cr.P.C. in which it is stated that the prosecutrix told the co-accused Ajay that the present applicant also had forceful sexual relations with her, he got angry and got into a quarrel with the applicant and in order to stop the quarrel she told them that there’s no need to fight and what’s done is done.

8. In support of his arguments learned Counsel for the applicant has also placed reliance on the following judgements: -

a. Arun Vs. The State of GNCT of Delhi MANU/DE/0974/2021

Whereby this Court has granted bail to the accused in view of different versions of Prosecutrix forthcoming before the Court;

b. Krishan Kumar Malik Vs. State of Haryana (2011) 3 SCC(Cri) 61

Whereby the Hon’ble Apex Court had granted bail considering that the size of the room was not prepared as per scale and the probability o