Presumption of guilt under POCSO, consistency of witness statements, attempt to influence witness as grounds for denying bail

JUDGMENT

Amit Sharma, J. The present application under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'CrPC') seeks bail in case FIR No. 340/2018 under Section 376 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO') registered at PS Govindpuri.

2. The present FIR was registered at the instance of the mother of the victim, who in her compliant stated as under:

i. She resides in Govindpuri with her mother, brother, sister-in-law, niece and daughter. She stated that her husband had left her 6 years ago and now she lived with her parents in the same building on rent.

ii. In the complaint it was alleged that an uncle named Shashim Das, i.e., the applicant, who resides on the 2nd floor of the same building had committed some wrongs with her daughter, the victim.

iii. It was alleged that the victim was bleeding with urine, on the evening of 04.10.2018 which was noticed by her grandmother. Thereafter she called her family doctor. After examination of the victim, the family doctor suggested that some wrong has been done to her and instructed her to call the police.

iv. Thereafter, when the victim's mother enquired from the victim if anything had happened, she was fearful.

v. It was further alleged in the complaint that on being asked whether her private parts had been touched by someone, the victim informed her mother that on 30.09.2018, she went to the applicant's house to play with his daughter, Priyanka. At first, they were watching television and thereafter, the applicant sent his daughter, Priyanka in a room to study and closed the door.

vi. It was alleged that the applicant inserted his finger in the victim's 'private part' and threatened that if she would disclose the incident to her mother or anyone else, the same would not be good for her.

3. The MLC of the victim was conducted. In the MLC of the victim, it was stated that she gave a history of sexual assault by her neighbour, i.e., the applicant two days prior to the MLC. She gave a history of penetrative assault. The applicant was interrogated on 05.10.2018 and he is alleged to have admitted to his involvement in the alleged offences. Thereafter, he was arrested and has been in judicial custody since 06.10.2018. On 09.10.2018, the statements of the victim and her mother under Section 164 of the CrPC were recorded, wherein they repeated the allegations made in the FIR. The age of the victim was verified from her first attendant school. Her date of birth is stated to be 14.07.2012, which means that on the date of incident, she was nearly 06 years old. Upon completion of investigation, a chargesheet was filed on 07.12.2018 under Section 376 of the IPC and Section 6 of the POCSO Act and the matter was committed to the Court of the learned District and Sessions Judge, South-East District, Saket.

4. Learned counsel appearing on behalf of the applicant submitted that the allegations made in the FIR are false inasmuch as the same was registered only to settle a personal score with the applicant. It was submitted that the complainant's elder sister used to run a spa at Kotla Mubarakpur, New Delhi and it had come to the knowledge of the applicant that the complainant and her sister used the said spa for illegal activities and even misused the applicant's and his daughter's identity for the said purposes. It was submitted that a quarrel happened between the two families when the applicant warned the complainant against indulging in illegal activities and in order to falsely implicate the applicant, the present FIR was registered.

5. It was submitted that the case against the applicant is also not sustainable on account of the material contradictions between the statements of the victim and her mother recorded under Sections 161 and 164 of the CrPC and their testimonies recorded before the learned Trial Court. It was submitted that s