Parents Of Victim Have History Of Long Matrimonial Discord: Delhi HC Grants Bail To Person Who Was Alleged For Raping His Daughter

Referring to Section 29 of the POCSO Act, the Single Bench of Justice Amit Mahajan observed that “Certain considerations that have to be kept in mind while deciding the application in relation to offences under POCSO Act are; the age of the minor victim vis-à-vis the age of the accused, the family relationship, if any, between the victim and the accused, whether the accused is a repeated offender, the chances of the accused threatening the victim after being enlarged on bail etc.” (Para 33)

Facts of the case:

An FIR was registered on a complaint given by the victim, aged about 17 years, alleging that the applicant who is the father of the victim, attempted to commit rape upon her. It was alleged in the FIR that on the earlier occasion, that is the date of the alleged incident, the victim / complainant did not give any statement to the police, nor during the MLC about the incident of attempt to rape, since she was under threat from the applicant that if he goes to jail, he will get her killed. It was also alleged that the applicant took the victim outside on the pretext of having soda and compelled her to consume vodka to which she initially resisted but consumed later. It was alleged that after reaching home, when the victim was asleep, the accused inappropriately touched the prosecutrix's body and private parts. Her mother and brother had beaten up the accused and then registered police complaint leading to filing of FIR. At the first instance, the victim did not give any complaint, against the applicant, being under threat.

Later, at joint request, the parties were also relegated to mediation but the matter could not be settled. It was the case of the applicant that there was a drastic change in the statement of the victim after it was recorded at the time of the alleged incident and the same appears to be tutored.

Observation of High Court:

The Bench found that that the applicant and the mother of the victim have a long history of matrimonial discord.

The Bench also noticed that the victim was seventeen and a half years of age, studying in school, at the time of alleged incident and the allegation of touching her private parts and removing her clothes in order to commit rape was not mentioned to the police or was recorded in the MLC which was recorded on the day of the alleged incident.

On the alleged date of the offence, when the victim's uncle had called the police, the Bench found that the complainant had herself stated in writing and told the police officers that the applicant had done nothing wrong with her.

The victim also did not make any allegation against the applicant to the doctor during the medical examination as well, added the Bench.

Furthermore, the Bench observed that in her statement, the victim reiterated her stand to the concerned police authorities that the applicant had not sexually assaulted her, whereas on Apr 11, 2022, the victim switched her stance and levelled allegations against the applicant for the first time.

The Bench also affirmed that in cases where the victim is a child, her statement has to be scrutinized with great care and caution as children can be easily swayed away and are prone to tutoring, and there is a possibility that the statement is made at the behest of one of the parents.

The Bench cautioned that allegations like in the present case are of such nature when put to the accused, especially when he happens to be the father of the victim, that he would be inevitably be looked down upon by society and it would have far reaching social consequences.

Thus, the Bench observed that the delay between the alleged incident and the filing of the complaint, and the fact that the mother of the victim and the applicant who also happens to father of the victim, are litigating against each other due to matrimonial acrimony cannot be ignored by the Court while deciding the application for bail.

Considering that the presumption of guilt is not absolute and is rebuttable, the Bench referred to the case of Bhadresh Bipinbhai Sheth v. State of Gujarat [(2016) 1 SCC 152] to reiterate that “where the court is of the considered view that the accused has joined the investigation and is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided since, a great ignominy, humiliation and disgrace is attached to arrest”.

Hence, the High Court accepted the application and ordered that the applicant be admitted on bail on furnishing a bail bond for a sum of twenty-five thousand with one surety.

In the event of there being any FIR/DD entry / complaint lodged against the applicant, it would be open to the State to seek redressal by way of seeking cancellation of bail, clarified the High Court.

Counsel for Applicant: Jaideep Malik & Siddharth Soni

Counsel for Respondent: Pradeep Gahalot, N. Katju Marg, Gayatri Nandwasi & Mudita Sharda

Case Title: Sanjay Khatri vs. State of NCT of Delhi

Citation: 2024 LiveLaw (Del) 665

Case Number: Bail Application No. 1281/2022

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