The Delhi High Court has granted bail to an alleged POSCO offender accused of raping a two-and-a-half-year-old child in view of the fact that there was a delay of 8 hours in the registration of FIR and that the contents of the complaint were not supported by the medical report (Shiv vs State).
The order of release on bail was passed by a single-judge Bench of Justice Suresh Kumar Kait.
The alleged offender (petitioner) was facing proceedings for the offences punishable under Sections 376 AB IPC and Section 6 of POCSO Act.
As per the complainant, the petitioner had taken the two and half-year-old girl child to one corner where he was found with the zip of his pants open. The complainant alleged that he heard the petitioner, who was intoxicated, insisting the child to perform oral sex.
On seeing this incident, the neighbours gathered at the spot and beat the petitioner who was subsequently handed over to the police, the complainant stated.
On the contrary, the petitioner asserted that there were major contradictions in the material placed on record by the prosecution as the FIR and the charge sheet were both self-contradictory in nature.
It was pointed out that the medical report of the petitioner showed that there were no signs of intoxication or beating and that there was a considerable delay of 8 hours in preparing the rukka.
The petitioner also contended that the alleged recording of the CCTV which was produced by the complainant was neither verified by the investigating officer nor was the DVR was ever seized.
The Court saw the CCTV footage in which the father of the child was seen to be outside the building.
The Court noted that within a minute, the complainant was seen catching hold of the petitioner and bringing him out.
The Court then questioned as to why the FIR was not immediately registered when such a heinous crime had taken place and the same was done after eight hours.
“If such type of heinous crime had taken place and that too with a 2 ½ years old girl, why immediately the FIR was not registered,” the Court remarked.
Further, considering that there was no sign of beating and intoxication in the medical report, the Court added that it showed that there was no public beating as alleged by the complainant.
“If the neighbours had beaten the petitioner and he was in a state of intoxication then the said fact should have come in the MLC, but the said MLC does not show any sign of bruises or abrasion, indicating that there was no public beating which was alleged in the FIR.”
In view of these facts, including the delay in FIR, and that there was no statement of the prosecutrix on account of her being two and a half-year-old, the Court opined that the petitioner deserved bail.
“In view of the aforesaid facts and the fact that the prosecutrix being 2 ½ years old, due to which her statement was not recorded, however, without commenting on the merits of the prosecution case and keeping in view the fact that there is a delay of 8 hours in registration of FIR, I am of the view that the petitioner deserves bail,” the Court opined.
Bail was granted on the petitioner furnishing a personal bond in the sum of Rs. 15,000 with one surety.
Advocates Pritish Sabharwal, Kunal Mittal, Sanjeet Kumar appeared for the petitioner.
APP Amit Chadha appeared for State.