The main legal point established in the judgment is the duty of doctors to take precautions in cases of medical termination of pregnancy of sexual assault victims and the importance of preserving crucial evidence.

JUDGMENT

Index to the Judgment

Facts Of The Case

Submissions Of The Applicant And The State

Analysis And Findings

Concern Of The Court

i. Negligence On The Part Of Doctor Resulting In Loss Of Crucial Piece Of Evidence

ii. Duty Of The Doctors To Take Precautions In Cases Of Medical Termination Of Pregnancy Of Sexual Assault Victims

iii. Directions

Swarana Kanta Sharma, J. The instant application under Section 439 of the Code of Criminal Procedure, 1973 (`Cr.P.C.') has been filed on behalf of applicant seeking regular bail in case FIR bearing no. 472/2020, registered at Police Station Kirti Nagar, Delhi for the offence punishable under Section 363 of the Indian Penal Code, 1860 (`IPC').

FACTS OF THE CASE

2. Briefly stated, the facts of the present case are that the father of prosecutrix had lodged a complaint with the police, whereby he had stated that upon returning home on 24.11.2020 at 1:30 PM, he had found that his daughter had gone missing. Thereafter, about two months later, the father of prosecutrix had produced her daughter i.e. prosecutrix before the investigating officer on 30.01.2021, after which, medical examination of prosecutrix was conducted at DDU Hospital, Hari Nagar. During the medical examination, UPT of prosecutrix was found to be positive and in her MLC, the prosecutrix stated that the present applicant/accused, i.e. Nabal Thakur had established physical relations with her without her consent. The statement of prosecutrix under Section 164 Cr.P.C. was recorded on 03.02.2021 and the present accused/applicant was arrested on 04.02.2021. Thereafter, the counselling of prosecutrix was conducted and she was produced before the Child Welfare Committee (CWC), Hari Nagar, and on 04.02.2021, permission for medical termination of pregnancy of prosecutrix was given by CWC and she was taken to DDU Hospital, Hari Nagar for carrying out the procedure. After investigation, chargesheet was filed by the police and charges were framed by the learned Trial Court under Sections 363/366/376(2)(n) of IPC.

SUBMISSIONS OF THE APPLICANT AND THE STATE

3. Learned counsel for the accused/applicant states that the applicant has been falsely implicated in the present case and he has been in judicial custody for more than 2 years and 5 months. It is stated that the prosecutrix and her father have already been examined before the learned Trial Court. It is argued that there are material contradictions in the statement of prosecutrix given to the concerned doctor at the time of her medical examination and in her examination-in-chief recorded before the learned Trial Court. It is further stated that the medical examination of the prosecutrix was not conducted properly and hence there is no material evidence which supports the case of the prosecution. It is further submitted that the brother of the present applicant, who is co-accused in the present case, has already been granted bail vide order dated 13.01.2022 passed by learned ASJ POCSO-01, Tis Hazari Court, Delhi.

4. Per contra, learned APP for the State argues that the allegations against the accused/applicant are serious in nature. It is stated that the medical examination of the prosecutrix supports the case of prosecution. It is further stated that the testimonies of the prosecutrix and her father clearly establishes the involvement of the applicant/accused in the present case.

ANALYSIS AND FINDINGS

5. This Court has heard arguments addressed by both sides and perused the material on record.

6. Succinctly, the case of prosecution is that the present accused/applicant, who used to reside near the house of prosecutrix, had called the prosecutrix to his house on some false pretext on 24.11.2020 and had then told her that he would not let her go till she attains the age of majority. It is alleged by the prosecutrix that she had stayed in the house of applicant/accused for about two months and the applicant had established physical relations with her on several occasions. Thereafter, on 22.01.202