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The quality and worthiness of statement of prosecutrix should be tested during trial: High Court of Delhi

Where there appear to be material contradictions in the statement of prosecutrix under Section 161 Cr.P.C. and different versions of prosecutrix are forthcoming. Further, where there are other materials placed on record like MLC, call detail record and in the peculiar facts and circumstances of the present case, this Court is of the opinion that petitioner deserves bail, however, without commenting on the merits of the prosecution case. This was held in ARUN v.   THE STATE GNCT OF DELHI. [Bail Appln. 1528/2021] in the High Court of Delhi by a single bench consisting of JUSTICE SURESH KUMAR KAIT.

Facts are that an FIR was registered against Petitioner by the prosecutrix and her mother, he was accused of committing offenses under Sections 370/376/342/366A/34 IPC and Section 6 of Prevention of Children from Sexual Offence Act, 2012. A bail application has been filed by the accused of the same.

The counsel for the petitioner submitted that the petitioner has been falsely implicated in this case on a fabricated and concocted story, whereas the fact is that the petitioner and prosecutrix worked as safai karamchari in Noida and they were having a love affair and the prosecutrix wanted to marry petitioner. Further submitted that the call detail record filed along with petition justify the same.

The learned Additional Public Prosecutor for State opposed the present petition and submitted that the statement of the prosecutrix was recorded wherein she stated that the petitioner had forcibly married her and thereafter, on that day made physical relations with her and thereafter, on four-five occasion. Further that the offense committed by the petitioner is heinous in nature and bail should thus be denied.

The court made reference to the judgment of Apex court in Mahipal Vs. Rajesh Kumar, wherein it was observed that “It is a fundamental premise of open justice, to which our judicial system is committed, that factors which have weighed in the mind of the Judge in the rejection or the grant of bail are recorded in the order passed. Open justice is premised on the notion that justice should not only be done but should manifestly and undoubtedly be seen to be done. The duty of Judges to give reasoned decisions lies at the heart of this commitment. Questions of the grant of bail concern both liberty of individuals undergoing criminal prosecution as well as the interests of the criminal justice system in ensuring that those who commit crimes are not afforded the opportunity to obstruct justice. Judges are duty-bound to explain the basis on which they have arrived at a conclusion”.

The court also made reference to the judgment of Apex court in Krishan Kumar Malik Vs. State of Haryana, wherein it was observed that “no doubt, it is true that to hold an accused guilty for commission of an offense of rape, the solitary evidence of prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality”.

Considering the facts of the case and the legal precedents, the court held that the prosecutrix changed her statements and made improvements in her statements and further taking into consideration the other material placed on record like MLC, call detail record and in the peculiar facts and circumstances of the present case, bail should be granted to the accused.

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