Unless Minor Victim Specifically Denies, Existence Of A Physical Relationship Is To Be Presumed If Victim-Accused Solemnised Marriage: Allahabad HC

In a significant ruling, the Allahabad High Court has held that unless a minor victim denies explicitly the existence of physical relation, it can be presumed that the victim and accused, who lived as husband-wife or that they solemnised marriage, had established physical relation.

The Bench of Justice Saurabh Shyam Shamshery further held in those cases where the existence of a physical relationship between the minor victim and accused could be presumed, then a rape case could be made out as the fact of whether consent was given or not, is immaterial.

"Investigating Officer will have liberty in such a situation if he makes an opinion that offence of rape is made out since the accused has lived with a minor girl as husband and wife and, therefore, it would be presumed that they had a physical relationship as it is settled law that consent of the minor is immaterial," the Court said.

However, the Court did add that an Investigating Officer cannot record further statement/ Mazid Bayan of the victim only for the purpose of clarification or to dilute any statement of the victim recorded under Section 164 of CrPC with the only object to make the accused culpable of an offence. 

Significantly, the abovesaid was held by the bench while dealing with a bunch of bail pleas filed by a total of Rape/POCSO Accused. The Court, during the hearing of the cases, framed the following issue:

"Whether material collected during an 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 the victim recorded under Sections 161 and 164 Cr.P.C., wherein she has either denied or does not refer an allegation of physical relationship with accused with or without her consent?"

Importantly, the occasion to deal with the above-said issue arose before the Court as it noted that in many cases there were differences in the statements (recorded under 161, 164 CrPC and in Mazid Bayan) of the Minor Victim regarding the existence of a physical relationship between the accused and the victim.

In fact, in the majority of the cases, the Victim denied the existence of a physical relationship under her statements recorded under Sections 161 and 164 CrPC, however, in her Mazid Bayan/further statement, the allegation of a physical relationship was made.

Considering the submissions of rival parties and the Amicus Curiae, the Court held thus:

(i) An Investigating Officer is under obligation to conduct a fair investigation which is an equal right of an accused as well as of the victim and for that, the 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 the 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.

(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 18 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.

Against the backdrop of this, the Court allowed all the bail pleas holding that in the statements of the minor victim recorded under Sections 161, 164 CrPC and Mazid Bayan, there was no consistency in the allegations regarding the physical relationship between the minor victim and the accused.

Appearances

Amicus: Advocates Shamsher Singh and Sarfaraz Ahmad

For the accused: Senior Advocate I. K. Chaturvedi assisted by Advocate Saurabh Chaturvedi along with Advocates Ramesh Kumar, Arun Kumar Singh, Nimesh Kumar Shukla, Surendra Kumar Tripathi, Tufail Hasan, Ravi Prakash Singh, Dheeraj Kumar Tiwari, Puneet Kumar and Shahabuddin 

For the State: Additional Government Advocates Rishi Chaddha, Chandan Agarwal and Sunil Srivastava

Senior Advocate Daya Shankar Mishra assisted the Court

Case title - Ajay Diwakar vs. State Of U.P. And 3 Others along with connected bail pleas

Case Citation: 2023 LiveLaw (AB) 143

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