HIGH COURT OF DELHI 
% Reserved on: 28th November, 2023
Date of Decision:07thDecember, 2023
+ BAILAPPLN. 958/2023
ADITYA RAJ VERSUS STATE & ANOTHER 

CORAM
HON’BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT

• Section 439 CRPC Sections 354C, 354D, 376, 506 and 34 IPC Bail Sexual intercourse without consent Accused also uploaded indecent pictures of the complainant/prosecutrix on social media Counsel for the petitioner argued that the complainant /prosecutrix has taken different stands on 03 occasions within 24 hours as such the entire complaint of the complainant/prosecutrix is raising serious doubt to her version of committed of rape/sexual assault by the petitioner Complainant/prosecutrix was aged about 16 years and as per the Status Report, her date of birth was 30.06.2001. The petitioner is aged about 24 years. It is also pertaining to mention that the present FIR was also got registered in the year 2020 and as per the allegations made by the complainant/prosecutrix, the petitioner for the first time has committed the act of rape/sexual assault in the year 2017 as such there is a delay of 05 years in the registration of FIR which the prosecution required to explain during the trial – Arguments advanced by the Additional Public Prosecutor as referred hereinabove can be considered during the trial of the case particularly

 

Relevant Paras :

8. A coordinate bench of this court in Dharmander Singh @
Saheb V. The State (Govt. of NCT, Delhi) Bail Appl. 1559/2020
decided on 22.09.2022 has laid down the parameters that are to be
followed when considering bail of an accused person under the
POCSO Act. The relevant portion of the judgment reads as:
77. Though the heinousness of the offence alleged will beget the length ofsentence after trial, in order to give due weightage to the intent andpurpose of the Legislature in engrafting section 29 in this special statute to protect children from sexual offences, while deciding a bail plea at the post-charge stage, in addition to the nature and quality ofthe evidence before it, the court would also factor in certain real life considerations, illustrated below, which would tilt the balance against or in favour of the accused:
a. the age of the minor victim : the younger the victim, the more heinous the offence alleged;
b. the age of the accused : the older the accused, the more heinous the offence alleged;
c. the comparative age of the victim and the accused : the more their age difference, the more the element of
perversion in the offence alleged;
d. the familial relationship, if any, between the victim and theaccused : the closer such relationship, the more odious the offence alleged;
e. whether the offence alleged involved threat,
intimidation,violence and/or brutality;
f. the conduct of the accused after the offence, as alleged;

g. whether the offence was repeated against the victim; or
whetherthe accused is a repeat offender under the POCSO
Act orotherwise;
h. whether the victim and the accused are so placed that the
accused would have easy access to the victim, if enlarged on
bail: the more the access, greater the reservation in granting
bail;
i. the comparative social standing of the victim and the
accused:this would give insight into whether the accused is
in adominating position to subvert the trial;
j. whether the offence alleged was perpetrated when the
victim and the accused were at an age of innocence: an
innocent,though unholy, physical alliance may be looked at
with less severity;
k. whether it appears there was tacit approval-in-fact,
though not consent-in-law, for the offence alleged;
l. whether the offence alleged was committed alone or along
with other persons, acting in a group or otherwise;
m. other similar real-life considerations.
The above factors are some cardinal considerations, though
farfrom exhaustive, that would guide the court in assessing
the egregiousness of the offence alleged ; and in deciding
which way the balance would tilt. At the end of the day
however, considering the myriad facets and nuances of real-
life situations, it is impossible to cast in stone all
considerations for grant or refusal of bail in light ofsection
29. The grant or denial of bail will remain, as always, in the
subjective satisfaction of a court; except that in view of
section 29,when a bail plea is being considered after charges
have been framed,the above additional factors should be
considered.
9. A coordinate bench of this court in Praduman V. The State
(Govt. of NCT, Delhi) &Anr., Bail Appl. no. 2380/2021 decided on
05.10.2021 granted bail to the accused person on the ground that thestatements of the prosecutrix has contradictions. The relevant portion
of the judgment reads as:
20. A perusal of the above mentioned facts show that the
prosecutrix has given three different statements. In the
MLC which was conducted prior tothe FIR she does not
name the petitioner. The MLC was conducted because
prosecutrix who was below the age of 18 years was found to
be pregnant. The FIR was registered on the next day when
she named the petitioner. The statement of the prosecutrix
under Section 164 CrPC was recorded wherein she does not
name the petitioner.
X
X
22. Consensual sex has been in legal grey area because the
consent given by minor cannot be said to be a valid consent
in the eyes of law. The short question which arises is as to
whether the petitioner should be granted bail or not.
Whereas, what has become a trite and unfortunate practice
is that the Police are filing POCSO cases at the behest of the
family of a girl who object to her friendship and romantic
involvement with a young boy. The rigor of the law is
therefore being misapplied and subsequently misused. The
age of the petitioner and the prosecutrix, the photograph
which categorically pointed towards a relationship between
the two and the discrepancies in the statements given at the
time of the recordings of the MLC, the FIR and the
statement under Section 164 CrPCare all mitigating factors
which tilt the balance towards the grant of bail tothe
accused.
10. It is reflecting that the complainant/prosecutrix has taken 03
different stands in the complaint dated 18.10.2022 and the statement
under section 164 Cr.P.C. recorded on 19.10.2022 and at the time ofcomplainant/prosecutrix has also refused for internal medical
examination.
11. As stated hereinabove, the counsel for the petitioner argued that
the complainant/prosecutrix has taken different stands on 03 occasions
within 24 hours as such the entire complaint of the
complainant/prosecutrix is raising serious doubt to her version of
committed of rape/sexual assault by the petitioner. The
complainant/prosecutrix was aged about 16 years and as per the Status
Report, her date of birth was 30.06.2001. The petitioner is aged about
24 years. It is also pertaining to mention that the present FIR was also
got registered in the year 2020 and as per the allegations made by the
complainant/prosecutrix, the petitioner for the first time has
committed the act of rape/sexual assault in the year 2017 as such there
is a delay of 05 years in the registration of FIR which the prosecution
required to explain during the trial. The arguments advanced by the
Additional Public Prosecutor as referred hereinabove can be
considered during the trial of the case particularly, in light of thedifferent stands taken by the complainant/prosecutrix as mentioned
hereinabove.
12. The petitioner is stated to have deep roots in the society and is
not a flight risk. The investigation has already been completed and the
petitioner is in judicial custody since 13.11.2022. After considering all
facts, the petitioner is admitted to bail on furnishing personal bond in
the sum of Rs.25,000/- (Rupees Twenty Five Thousand only) with 02
sureties of the like amount to the satisfaction of the concerned trial
court.

 

 

 

To read the judgment click here :

ADITYA RAJ ….. Versus STATE & ANOTHER judgement the law literates

 

All rights reserved: (Vaibhav Tomar 𝔸𝕕𝕧)