Delhi High Court: In an application filed under Section 439 of the Code of Criminal Procedure, 1973 (‘CrPC’), wherein the applicant was seeking grant of regular bail in the case registered under Section 376 of the Penal Code, 1860 (‘IPC’) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’), the Single Judge Bench of Anup Jairam Bhambhani J., rejected the bail application, as allegations in the present case required cogent answers before they could be discarded.
Background
The petitioner was a school-teacher of the rape survivor/ student. The petitioner had called her and asked her to meet him at Rithala Metro Station on the pretext of providing her with some notes for an exam. Later, the petitioner convinced her to accompany him to his home for some extra notes. It was alleged that the petitioner offered her some water and snacks, after which she fainted, and the petitioner committed forceful sexual intercourse upon her. It was also alleged that after regaining consciousness, the petitioner showed her an objectionable video recording of the incident and also threatened her that he would make the video viral if she told anyone about the incident. The petitioner had allegedly committed sexual intercourse with her four more times at his residence and seven times at the hotel, using the threats of making the objectionable video viral. The last incident was said to have occurred on 24-06-2022. Thereafter, the survivor filed the complaint and First Information Report (‘FIR’) was registered against the petitioner.
Decision
The Court said that the survivor’s statement recorded under section 164 Cr.PC. supported the prosecution’s case and affirmed the allegations made against the petitioner in the FIR. Further, the Court said that it is a settled law that it is permissible to return a finding of conviction based even solely on the testimony of a prosecutrix, provided that the prosecutrix is found to be trustworthy and her testimony credible. The Court said that there was no reason to disbelieve the statement of the survivor.rded.
The Court noted that during a certain phase, when the alleged act was committed, the survivorwas a ‘minor’ as shown by her Class II School Leaving Certificate and Class IX marksheet. Therefore, the Court said that her consent with respect to the offences alleged to have been committed prior to the survivor turning ‘major’ was irrelevant. The Court also noted that the forensic evidence also indicated that the petitioner’s DNA matched the survivor’s DNA. The Court said that there was no explanation which belies what was seen in the CCTV footage showing the petitioner and the survivor entering the hotel room.
Further the Court said that it cannot be ignored that there was a teacher- student relation between the petitioner and the survivor and if the alleged offences comes to be proved during the trial, it would take an egregious and aggravated form under section 376(2)(f) of the IPC and section 5(f) of the POCSO Act. The Court also considered it appropriate to say that, at this stage, when the Court was considering a bail petition, no final conclusions were sought to be drawn, one way or the other, however, it can be only be said that the allegations in the present case required cogent answers before they can be discarded. The Court said that considering the circumstances of the case, and the relative social standing of the petitioner and the societal milieu, it was not sure that the petitioner would not influence the witnesses or attempts to flee from justice or prejudice the trial of the case, if he would be enlarged on bail.
Therefore, the Court dismissed the bail application and refused to grant bail to the petitioner at this stage.
[Babu Lal Bhawariya v. State of NCT of Delhi, 2023 SCC OnLine Del 3629, Order Dated: 19-06-2023]
Advocates who appeared in this case :
For the Petitioner: Senior Advocate Suruchi Aggarwal, Advocate Jughal Wadhwa, Advocate Rishabh Wadhwa, Advocate Prashant Sodhi, Advocate Risabh bhalla, Advocate Harshit Sharma;
For the Respondents: Additional Public Prosecutor Amit Sahni, Senior Advocate Sunil Dalal, Advocate Manisha Saroha, Advocate Nikhil Beniwal.
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