Allahabad High Court
Rajkumar vs State Of U.P. And 3 Others on 24 May, 2023
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:115575
Court No. - 76
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 17479 of 2023
Applicant :- Rajkumar
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Mahendra Singh
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
Heard Sri Mahendra Singh, learned counsel for applicant and learned A.G.A. for State.
Applicant has approached this Court by way of filing the present Criminal Misc. Bail Application under Section 439 Cr.P.C. in Case Crime No.04 of 2023 under Sections 363, 366, 376(3) I.P.C. and 3/4(2) of POCSO Act, Police Station- Wazirganj, District - Budaun after rejection of his Bail Application vide order dated 16.03.2023 passed by Special Judge (POCSO)/Additional Sessions Judge, Budaun.
In the present case, initially, F.I.R. was lodged by mother of victim (a minor girl) on 03.01.2023 against present applicant that he has enticed her minor daughter and kidnapped from her lawful guardianship on 17.12.2022, thereafter, she tried to trace her daughter and confronted the family members of applicant but they extended threats, therefore, there was a delay in lodging F.I.R.
Learned counsel for applicant submits that both the victim and applicant were recovered on 14.02.2023 i.e. after about seven weeks and victim gave her statement recorded under Sections 161 and 164 Cr.P.C. that she left her house on her own will and later on join company of the applicant and stay as husband and wife after solemnizing marriage, though there is no reference that physical relationship in her statement recorded under Section 164 Cr.P.C.
Learned counsel for applicant submits that it is a case of consensual relationship and according to Ossification test report, age of victim is about 18 years as on 16.02.2023 and he placed reliance on a judgment passed by this Court in Ajay Diwakar Vs. State Of U.P. And 3 Others (Criminal Misc. Bail Application No. -1777 of 2023) dated 03.05.2023. Learned counsel for applicant submits that applicant is behind the bars since 14.02.2023 and in case, he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
Learned A.G.A. for State has opposed the bail and submitted that according to education document i.e. High School certificate, is placed on record which is supported by statement of Principal that at the time of occurrence, victim was less than 15 years, however, he has not disputed that victim has not referred the act of physical relationship in her statement recorded under Section 164 Cr.P.C. though the applicant and victim stayed as husband and wife for about seven weeks and they were recovered together andand there will be a presumption about physical relationship between them also.
This Court has framed following issue for consideration in Ajay Diwakar(Supra), which is extracted hereinafter:-
"Whether material collected during investigation such as further/ subsequent / Mazid Bayan or a statement given by a victim (a minor girl) before Child Welfare Committee or that victim has stayed/ lived as wife and husband with accused, would be sufficient evidence for Investigating Officer to take a different or contrary view of statements of victim recorded under Sections 161 and 164 Cr.P.C., wherein she has either denied or does not refer allegation of physical relationship with accused with or without her consent?"
The above issue was answered in following terms:-
"Considering above referred submissions of rival parties, Amicus Curiae and above discussion on facts and law the question formulated above is answered as follows:
(i) An Investigating Officer is under obligation to conduct fair investigation which is an equal right of an accused as well as of victim and for that Investigating Officer has to follow procedure prescribed under the Code as well as Police Manual/ Regulation or procedure prescribed under any Special Act.
(ii) Investigating Officer has liberty to record statement of witnesses more than one time also. Mazid Bayan/ further statement can be recorded to unearth the truth and Investigating Officer has liberty to carry out investigation on its own way but in a legally permissible way till final report/ charge sheet is filed before Court concerned or under "further investigation".
(iii) Investigating Officer cannot record further statement/ Mazid Bayan of victim only for the purpose of clarification or to dilute any statement of victim recorded under Section 164 of Code with only object to make the accused culpable of an offence. [See, Dharmendra alias Patra (supra)]
(iv) Child Welfare Committee is under obligation to provide legal as well as psychological counseling to victim and during this process she may give statement before Child Welfare Committee, however, it would not be considered to be a statement recorded under Section 161 of Code being not recorded by a Police Officer investigating the case. Therefore, any statement before Child Welfare Committee cannot be a sole ground to dilute or to take a different view of statement given by victim before Magistrate.
(v) Medical evidence may be a factor to take a contrary view to the statement of victim recorded under Sections 161 and 164 of Code by Investigating Officer, however, Investigating Officer has to record specific reasons in final report/ charge sheet for such opinion/ view.
(vi) If there is a statement of victim that either they have solemnized marriage or stayed as husband and wife, then there will be a presumption that during stay they have physical relationship except where victim has specifically denied any physical relationship and since consent of minor victim is immaterial, therefore, offence of rape can be made out.
(vii) Above factors may be taken into consideration while hearing a bail application. "
In the present case, according to educational document, victim was a minor girl aged about less than 15 years at the time of occurrence and the said document cannot be disputed at this stage. Victim has admitted in her statement recorded under Sections 161 and 164 Cr.P.C. that she stayed along with applicant for about seven weeks as husband and wife, therefore, there would be a presumption in the light of Ajay Diwakar(Supra) that there was a physical relationship also.
There is another factor which goes against applicant at this stage that he is prior acquainted with victim and till date her statement has not been recorded during trial, therefore, at this stage, no case for bail is made out, hence, prayer for bail is rejected.
However, this application is disposed of with a direction to learned Trial Court to record the statement of victim preferably within a period of three months from today, thereafter, applicant will have liberty to file a fresh bail application before learned Trial Court.
Registrar(Compliance) to take steps.
Order Date :- 24.5.2023
P. Pandey
