The Delhi High Court granted bail to a man accused of sexually assaulting a 2-and-a-half-year-old girl because of 8 hours delay in filing FIR! The accused has been charged under section 376AB (rape on woman under 12 years of age) and section 6 (aggravated penetrative sexual assault) of the Protection of Children from Sexual Offences (POCSO) Act.
Background
It is alleged that on October 5, 2020 the accused in an intoxicated state was found in the ground floor where the minor girl was playing and the complainant saw that the accused had taken the victim on the side of the main gate and the zip of the pants of the petitioner was already open and he allegedly heard the petitioner insisting the victim to perform oral sex. On seeing this, neighbours gathered and beat up the accused and handed him over to the police.
The hearing
The accused contended that his medical report does not show any sign of intoxication and neither are there any abrasions reported to prove that the neighbours had beaten him. He submitted that the fact that there is a considerable delay of 8 hours in filing the FIR cannot be overlooked.
The court states that it looked at the CCTV footage wherein Complainant entered into the building and within a minute, he is seen catching hold of the petitioner and bringing him out. The court questioned that “If such type of heinous crime had taken place and that with a 2 ½ years old girl, why immediately the FIR was not registered”.
The court observed that the delay of 8 hours in filing FIR and no sign of beating and intoxication in MLC shows that no public beating took place as alleged. The court granted bail to the accused citing the delay in filing FIR.
This is quite contrary to the view taken by the apex court whereby it has set precedents on how delay in filing FIR should be considered on the basis of facts and circumstances. In Satpal Singh v State of Haryana (201) 8 SCC 714, the court held that delay in lodging FIR in sexual offences has to be considered with a different yard stick. In State of HP v. Prem Singh (2009) 1 SCC 420, the court had held, “So far as the delay in lodging FIR is concerned the delay in a case of sexual assault cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before the coming to the police station to lodge a complaint. In a tradition bound society prevalent in India, more particularly rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging FIR”.
In State of Maharashtra v Savala Sagu, the Bombay High Court had held that no mathematical time limit in lodging FIR can be fixed in cases of rape. In 2018, a bench of Justices R Bhanumati and Indira Banerjee had held that taken cognisance of the fact that tragedy of the mother who has seen her son being brutally attacked cannot be measured and hence held that delay on part of eye witness reeling under the shock of witnessing a crime, to register an FIR cannot be fatal to the prosecution case.
The complete order may be read here.
Related:
Holding hands and unzipping pants, not sexual assault under POCSO Act: Bombay HC
BREAKING: SC stays Bombay HC’s controversial POCSO judgment
Groping minor without physical contact, not sexual assault under POCSO Act: Bombay HC