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The Delhi High Court has recently denied bail to a man accused of sexually assaulting a two-and-half-year-old girl although minor did not support the case of the prosecution and her father, who was the complainant, also turned hostile.

The court was dealing with a bail application by a man charged for offenses under Section 376 of the Indian Penal Code (IPC) and Section 6 of the Protection of Children from Sexual Offences Act (POCSO) for alleged sexual assault of the 2.5-year-old.

A bench of Justice Rajnish Bhatnagar said that the testimony of hostile witnesses cannot be disregarded in totality 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 favor 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 analyzed in depth at this stage. Although the complainant who is the father of the victim has turned hostile in his cross-examination on January 27, 2021, however, it is to be borne in mind that he was also cross-examined much after the recording of his examination-in-chief,” Justice Bhatnagar said.

The learned counsel for the petitioner argued that he was falsely implicated in the case and that during his cross-examination, the complainant (the girl’s father) has said that the petitioner had done nothing. It was also told that even the girl has not supported the case.

It was submitted that the 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 the 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 the petitioner did not do anything wrong with the girl.

However, Justice Bhatnagar said that it is not for the court to analyze 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 fact that the girl was barely three years old at the time of the incident and that she had fully supported the case and has leveled serious allegations against the petitioner in her examination-in-chief, court noted.

“Therefore, looking into the facts and circumstances of the case, the minority of child victims at the time of the alleged offense, 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,” Court ordered.

Hence, dismissed the Bail Application.

Case Title: Avinash v. State of NCT of Delhi