A petition is filed under section 439 Cr.P.C. for grant of bail in a FIR registered at Police Station Sangam Vihar for the offences punishable under section 376/506 IPC and section 6 of the POCSO Act.
The complaint states that prosecutrix was a 15 year old girl and Petitioner used to call her to his house and say that if she would not come, he would kill her. Further alleged that she went 5 times to the house of the petitioner who forcibly took off clothes. She did not tell anyone because of threats and fear. Finally, on 08.11.2017, she told her mother and thereafter, they filed a complaint on the basis of which an FIR was registered.
Our firm learned Counsel for petitioner submits that both the petitioner and prosecutrix are well known to each other and prosecutrix filed a false case against petitioner. Marriage of petitioner was solemnized and after marriage, prosecutrix resorted to such an extreme step of lodging an FIR against petitioner. The letters of the prosecutrix to the petitioner clearly establish the fact that petitioner and prosecutrix knew each other and she herself had written that, “she smokes, takes supari, chutki and wine. If a young girl of 15 years is exposed to all said things, it is apparent that she is matured enough to be doing what she is doing with the petitioner”. Prosecutrix had openly shown her liking by requesting petitioner to respond to her letters. She requested and invited petitioner to come to the
railing at 6 pm in the evening and opening of the letter admitted that they both knew each other. The said letters are written in her hand writing too.
Learned prosecutor accepts notice and submits that prosecutrix is minor and the alleged incident had taken place in a room on the top floor of the same building. The prosecutrix has supported prosecution case in her deposition made before the Trial Court. Thus, bail application deserves to be dismissed.
In the complaint, it is alleged that prosecutrix got to know the petitioner in November 2016 and prosecutrix has been to his house five times. The first complaint was made on November, 2017 and consequently, FIR was also registered on the said date. Thus, there is a delay of 11 months in lodging of the FIR but there is no explanation.
In November, 2018, prosecutrix alleged that she met the petitioner and on September,2017 and marriage of the petitioner was solemnized and November, 2017 the present FIR was registered.
The petitioner is in judicial custody since November, 2017 and the material witnesses have been examined i.e. victim/complainant & mother of the complainant/victim in her cross examination, prosecutrix could not explain
the delay for lodging the FIR. She could not tell the date and time of the incident. Moreover, the place of the incident is disputed one. The Flat at 4th floor belongs to an army officer who is residing along with his family, therefore, the possibility of incident of rape seems to be doubtful.
At page 87 of the petition, the bill of supply for electricity is evident that the room on the top floor belongs to Smt.Promila, wife of Bijender, who is an army officer.
Moreover, there are letters on record written by her and however, in the chargesheet, but not even a single response has been communicated by petitioner to prosecutrix.
Justice Suresh Kumar kait held that since the petitioner is in judicial custody from november,2017 the without commenting merits of the case, the present case is fit for bail and shall be released on his furnishing personal bond on sum of Rs.25,000/-.
The original order is attached: Bail Under 376 IPC