Anand Kumar vs State (Nct Of Delhi)
2004 Latest Caselaw 1388 Del

JUDGMENT

B.N. Chaturvedi, J.

1. The petitioner seeks his release on bail in case FIR No. 250/2004 under Section 376 IPC.

2. The petitioner faces accusation of subjecting his 13 year old daughter to sexual abuse and rape. The prosecution version emanating from the statement of prosecutrix unfolds that her mother was a cancer patient who died in September 2003. After the death of her mother the petitioner under the influence of alcohol started sexually abusing the prosecutrix every evening. According to her he tore her clothes and attempted to make sexual relation with her. She tried her best to repel him but could not succeed. Her younger sister was a witness to all this and in the last week of February, 2004, states the prosecutrix in her report to the police, the petitioner succeeded in making relation with her. Thereafter, his visits to her became more violent which she could not stand and eventually on 2nd July, 2004 she Along with her younger sister went to school not to return home she along with her sister rather proceeded to one of her friend's place and spent night there. At school she narrated the entire incident to her teacher who in turn informed about the same to her relatives in Delhi. She Along with her younger sister was later taken along by her uncle. She reported the matter to the police on 28th July, 2004 and accordingly a case FIR under Section 376 IPC was registered against the petitioner at PS New Ashok Nagar, Delhi.

3. The prosecutrix was taken to the hospital for her medical examination. She however, did not agree to her internal medical examination.

4. Learned counsel for the petitioner argued that contrary to her statement to the police on the basis of which FIR was registered, in her subsequent statement under Section 164 Cr.P.C. before the Metropolitan Magistrate concerned she simply complained of not being provided with proper food by the petitioner with no allegation of alleged sexual assault and rape as reflected in her previous statement to the police. She contended that in view of refusal on the part of the prosecutrix to undergo internal medical examination there is no evidence of her being subjected to rape as alleged.

5. Learned APP opposed the petition by contending that accusation of sexual abuse and rape levelled against the petitioner by the prosecutrix as contained in her statement to the police is good enough to make out a case of rape against the petitioner to decline bail to him, absence of internal medical examination report notwithstanding. Learned counsel for the petitioner on the other hand argued that refusal on the part of the prosecutrix to undergo internal medical examination raises an adverse inference. Learned APP with the help of decisions of Supreme Court in State of Karnataka Vs. Mahabaleshwar Gourya Naik; 1992 Supp (3) Supreme Court Cases 179, Madan Lal Vs. State of Jammu and Kashmir; III (1997) CCR 90 (SC), Visveswaran Vs. State Rep. By SDM; 2003 (3) Crimes 32 (SC), State of Rajasthan Vs. Om Prakash; 2002 (2) Crimes 386 (SC) and Sudhansu Sekhar Sahoo Vs. State of Orissa; I (2003) CCR 76 (SC) maintained that a charge of rape is legally sustainable even in the absence of corrobarative medical evidence. He wondered if there could be any motive on the part of the prosecutrix in falsely implicating the petitioner in the present case. On behalf of the petitioner, on the other hand, it was pointed out that the complaint against the petitioner lodged by the prosecutrix was in a fit of rage as she felt neglected, hurt and lonely due to indifference of the petitioner towards her.

6. It is noticeable that before reporting the matter to the police on 28th July, 2004, the prosecutrix had earlier narrated the ordeal faced by her at the hands of the petitioner to her class teacher and relatives. Of course, in her subsequent statement under Section 164 Cr.P.C, the prosecutrix omits to reiterate her allegation of sexual abuse and rape by the petitioner, her statement initially made to the police preceded by narration of traumatic experience to her class teacher and others cannot be lost sight of.

7. With the filing of the chargesheet, the prosecutrix and other material witnesses are yet to be examined. Tampering with evidence by the petitioner, on his enlargement on bail, being not unlikely, request for bail is difficult to accede to. Plea for bail is, accordingly, declined and the petition is dismissed.