Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Del) 1200

IN THE HIGH COURT OF DELHI AT NEW DELHI
Amit Mahajan, J.
Roshan Singh – Appellant
Versus
State Govt. of NCT of Delhi – Respondent
Bail Appln. 3767 of 2021
Decided On : 03-03-2023

Advocates appeared:
Mr. D.K. Pandey, Mr. R.K. Mishra and Mr. K.B. Patnayak, Advocates, for the Applicant.
Ms. Richa Dhawan, APP for State with SI Aarti, PS Bh. Dairy.
Mr. Saurabh Kansal, Mr.Divyam Aggarwal, Mr.Shaurya Sharma, Ms.Pallavi Kansal and Mr.Arjun Giri, Advocates for R-2.

The credibility of evidence, especially in cases involving sexual offenses, and the evaluation of prosecutrix's testimony are crucial in determining the grant of bail.

Headnote:
Bail - Criminal Law - Section 439 Cr.P.C., Section 376 IPC, Section 4 POCSO - [SUMMARY OF ACT SECTIONS REFERENCED AND DISCUSSED]
Fact of the Case:

The applicant filed for regular bail in a case involving allegations of sexual assault under Section 376 IPC and Section 4 POCSO. The prosecutrix alleged that the applicant forcefully made physical relations with her on multiple occasions. The applicant contested the allegations, citing contradictions in the prosecutrix's statements and her refusal to undergo certain tests.
Finding of the Court:

The court found contradictions in the prosecutrix's statements and noted the absence of conclusive evidence supporting the allegations. It considered the age of the parties, the nature of the allegations, and the completion of investigation and chargesheet filing. The court concluded that the applicant had made out a case for bail and granted bail with strict conditions.
Issues: Contradictions in prosecutrix's statements, age of the parties, sufficiency of evidence, and potential threat to the witness.
Ratio Decidendi: The court considered the credibility of the evidence, the impact of Section 29 of the POCSO Act, and the threshold of satisfaction required before granting bail. It emphasized the need for credible evidence and the evaluation of the prosecutrix's testimony during the trial.
Final Decision: The court allowed the bail application, directing the release of the applicant on bail with strict conditions to address potential concerns.

JUDGMENT

Amit Mahajan, J.

1. The present application has been filed under Section 439 of Code of Criminal Procedure, 1973 ("Cr.P.C.") on behalf of the applicant seeking regular bail in FIR No. 501/2020 dated 26.08.2020, registered under Section 376 Indian Penal Code,1860 ("IPC") r/w Section 4 of the Protection of Children from Sexual Offences Act, 2012 ("POCSO") at PS Bhalswara Dairy.

2. The FIR was registered on the complaint made by the prosecutrix/complainant, who alleged that she, herself, and the applicant are neighbours, living in the same locality and were friends with each other for around 3-4 months before the date of the incident. One night at around 1:00 a.m., the applicant had called the prosecutrix to his house, where he forcefully made physical relations with her. It is stated that both families had a compromise with regard to the said incident, and consequently, the applicant and the prosecutrix stopped talking to each other.

3. After the said incident, one fine day, the prosecutrix contacted the applicant, and they again started talking to each other for around a month. After that, the applicant allegedly called her to his house around 1:00 a.m. and forcefully tried to make physical relations with her. However, the prosecutrix's family was unaware of the said incident.

4. It is further alleged that on the intervening night of 25.08.202026.08.2020, at around 2:00 a.m., when the prosecutrix went to the terrace of her house to use the washroom, the applicant from his roof told her that somebody was lurking around the vehicle belonging to her family. Consequently, she quickly went outside to check the same, when the applicant grabbed her, took her to his house (room), and tried to make physical relations with her.

5. The prosecutrix's mother in order to find her went to the applicant's house, where the father of the applicant started looking for her in the whole house. As a result, the applicant's father found the prosecutrix in the applicant's room. After that, the applicant's father took the prosecutrix back to her house.

6. Subsequently, the prosecutrix informed her family members about the said incident, which resulted in the registration of the present FIR.

7. The prosecutrix was medically examined (MLC No. 161619/20) on 26.08.2020 at Babu Jagjivan Ram Memorial Hospital, Delhi.

8. Thereafter, the statement of the prosecutrix was recorded under section 164 of the Cr.P.C. by the learned Metropolitan Magistrate, Rohini Court, New Delhi, on 27.08.2020. After the completion of the investigation, chargesheet was filed against the applicant for the offences punishable under section 376 of the IPC and section 4 of the POCSO Act on 07.10.2020.

9. The prosecutrix's examination and cross-examination was recorded in the vulnerable witness room on 22.11.2022.

10. Learned Counsel for the applicant submits that the charge sheet has been filed, and there is no material on record or evidence supporting the allegations. He submits that the entire case of the prosecution rests on the statement made by the prosecutrix, which is contradictory in nature.

11. He further submits that the prosecutrix was not a minor at the time of the incident.

12. He states that learned Additional Sessions Judge, by order dated 16.09.2020, had allowed the application for conducting the ossification test on the prosecutrix, but she refused the same. Hence, the benefit of her refusal for the same should go in favour of the applicant.

13. He further submits that the applicant and the prosecutrix were known to each other for a very long period of time, and the allegations were made when the parents of the prosecutrix came to know about their relationship. The applicant and the prosecutrix had stopped talking to each other until a month before the date of the incident.

14. He also states that the allegations levelled are of such nature which are not possible to have taken place. It is also stated that the prosecutrix had refused to undergo an