POCSO accused denied bail by Delhi High Court despite complainant-father turning hostile

The Delhi High Court has denied bail to a man accused of sexually assaulting a two-and-half year old girl despite the fact that victim did not support the case of the prosecution and her father, who was the complainant, also turned hostile..Single-judge Justice Rajnish Bhatnagar said that the testimony of hostile witnesses cannot be disregarded in toto and that at the time of deciding bail application, in addition to the nature and quality of evidence before it, the Court should also take into account certain real-life considerations which would tilt the balance against or in favour of the accused.“No doubt the victim has given some answers in negative in the cross-examination but one cannot lose sight of the fact that the cross-examination was conducted after 7 months of recording of her examination-in-chief, so there are ought to be some inconsistencies and what is the effect of those cannot be analysed in depth at this stage. Although the complainant who is the father of the victim has turned hostile in his cross-examination on 27.01.2021, however, it is to be borne in mind that he was also cross-examined much after recording of his examination-in-chief,” the Court said. .The Court was dealing with a bail application by a man charged for offences under Section 376 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act (POCSO Act) for alleged sexual assault of the 2.5 year old. The petitioner’s counsel argued that he was falsely implicated in the case and that during his cross-examination, the complainant (girl’s father) had said that the petitioner had done nothing. It was also told that even the girl has not supported the case.It was submitted that complainant stated in his cross examination that the petitioner/accused knew that the complainant's wife had left him and she was having an affair with someone else and petitioner had made fun of complainant on the same pretext and the complainant had gotten angry and slapped the petitioner. It was further submitted that the complainant had stated in his cross examination that petitioner did not do anything wrong with the girl. .Justice Bhatnagar, however, has said that it is not for the court to analyse the testimony of the victim and her parents in depth during bail, as it may prejudice the case of the prosecution.After noting a catena of factors that need to be considered while granting bail, the judge noted the fact that the girl was barely three years old at the time of the incident and that she fully supported the case of prosecution in her examination-in-chief.“Therefore, looking into the facts and circumstances of the case, the minority of child victim at the time of the alleged offence, the allegations against the petitioner which are grave and serious in nature coupled with the categorical statement made by the child victim in her examination-in-chief and the medical evidence on record, no ground for bail is made out at this stage and the bail application is, therefore, dismissed,” the Court ordered. .Advocates Tushar Datta and Varun Gupta appeared for the petitioner. Additional Public Prosecutor Neelam Sharma appeared for the State..[Read Order]