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2024 DIGILAW 1487 (ALL)

Anuj Arya @ Dabbu v. State of U. P.

2024-05-31

RAJESH SINGH CHAUHAN

body2024
JUDGMENT : RAJESH SINGH CHAUHAN, J. 1. Heard Sri H.G.S. Parihar, learned Senior Advocate, assisted by Sri Raghvendra Pandey, learned counsel for the applicant, Sri Aniruddh Kumar Singh, learned AGA-I for the State and Sri Shiv Kumar Yadav, learned counsel for the informant/ complainant. 2. As per learned Senior Advocate, the present applicant is in jail since 06.03.2022 in Case Crime No. 107 of 2022, under Sections 363, 366, 376 IPC and Section 5L/6 of POCSO Act, Police Station-Ashiana, District-Lucknow. 3. Learned counsel for the applicant has submitted that the present applicant has been falsely implicated in the case as he has not committed any offence as alleged. Attention has been drawn towards the impugned FIR, which was lodged on 05.03.2022 for the alleged incident dated 12.12.2021 and the aforesaid inordinate delay has not been explained. 4. As per the prosecution story, the present applicant has allegedly established physical relation with the prosecutrix/ child forcefully without her consent and has threatened her not to say anything to anyone otherwise she will have to face dire consequences. In her statement recorded under Section 161 Cr.P.C., she has narrated the prosecution story so indicated in the FIR and has submitted that she was very afraid from threatening so given by the applicant but when she became pregnant, she told the applicant about the fact, then he insisted her to take medicine to get the foetus aborted. However, she has not taken medicine. She has stated that this incident was within the knowledge of the family members of the applicant, more particularly his father was knowing this fact, who was Journalist by profession and he has also threatened her for dire consequences. 5. Further attention has been drawn towards the statement of the prosecutrix/ child recorded under Section 164 Cr.P.C. wherein she has stated that the present applicant has established physical relation with her consent on the pretext of promise of marriage but when she became pregnant, the applicant has denied to get married, therefore, she made complaint to the family members of the applicant about the aforesaid fact but instead of helping her in this traumatic situation, they also threatened her for dire consequences in the same manner the present applicant had threatened her. 6. 6. Learned counsel for the applicant has drawn attention of this Court towards the medical examination report, which indicates that hymen was not intact but it has not been indicated as to whether on account of alleged rape, the hymen was not intact. Learned Senior Advocate has further submitted that the complainant/ informant has recorded his statement wherein he has stated that when he came to know that his daughter was not traceable from 22.11.2021, he tried to find out her location; he came to know on 24.11.2021 that she was in the house of the father of the applicant. He reached there and requested that his daughter be permitted to go with him but the applicant and his father refused to send the daughter of the informant/ prosecutrix with him saying that his son, the present applicant, and the prosecutrix would get married very soon. On that, he informed the father of the applicant that his daughter was minor, even then they refused to send his daughter back to his home. Thereafter, the informant has said that he will approach the police; on that, they had taken his daughter to his home. Learned counsel has stated that if the aforesaid statements of the informant and the prosecutrix are taken on its face value, this Court would find that there are apparent variation in those statements. Learned counsel has also drawn attention of this Court towards Annexure No. 1 of the supplementary affidavit, which is a certified copy of the statement of the child wherein she has, however, levelled specific allegation against the present applicant but the prosecution story is not consistent. 7. Further submission of learned counsel for the applicant is that the present applicant is having no prior criminal history, therefore, he may be released on bail. Further, the applicant undertakes that if he is released on bail, he shall abide by all terms and conditions of the bail order and shall not misuse the liberty of bail and shall cooperate in the trial proceedings. 8. Sri Aniruddh Kumar Singh, learned AGA-I, has vehemently opposed the aforesaid bail application by submitting that the date of birth of the prosecutrix, as per her High School Mark-sheet, is 28.12.2006, therefore, on the date of incident, the prosecutrix was aged about 15 years. 8. Sri Aniruddh Kumar Singh, learned AGA-I, has vehemently opposed the aforesaid bail application by submitting that the date of birth of the prosecutrix, as per her High School Mark-sheet, is 28.12.2006, therefore, on the date of incident, the prosecutrix was aged about 15 years. He has further submitted that the present applicant is a named and main accused against whom the specific allegation has been levelled in the FIR, in the statements recorded under Sections 161 & 164 Cr.P.C. as well as in the evidence of the child/ prosecutrix recorded before the learned Trial Court. The prosecution story is intact against him without any relevant variation. He has further submitted that in POCSO matters, burden of proof under Section 29 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the POCSO Act”) shall lie upon the accused. He has further submitted that so far as the reason of delay so indicated by the child/ prosecutrix and her father is concerned, that explanation is quite reasonable inasmuch as the father of the applicant was an influential person and had allegedly given threatening for dire consequences, therefore, prompt FIR could not be lodged. However, after lodging the FIR, the prosecution version is intact. 9. Having heard learned counsel for the parties and having perused the material available on record, at the very outset, I would like to observe that the prosecutrix/ child, who was aged about 15 years on the date of incident, recorded her statements under Section 161 & 164 Cr.P.C. as well as recorded her evidence before the court concerned levelling specific allegation against the present applicant of committing rape with her. Though there is some variation in her statement recorded under Section 164 Cr.P.C. on some part but if the entire statement recorded under Section 164 Cr.P.C. is read, the fact would emerge that in such statement too, she has levelled specific allegation of rape against the present applicant. 10. In the statement of the prosecutrix/ child recorded before the learned Trial Court, she has levelled specific allegation against the present applicant that he has committed rape with her frequently by alluring her for one reason or another and also on the pretext of false promise of marriage. 10. In the statement of the prosecutrix/ child recorded before the learned Trial Court, she has levelled specific allegation against the present applicant that he has committed rape with her frequently by alluring her for one reason or another and also on the pretext of false promise of marriage. This is the case where the prosecutrix/ child is a minor girl, therefore, the applicant with the intention to commit rape with her has made false promise of marriage, which was not possible. When such promise of marriage was not legally permissible and in the name of that false promise of marriage, physical relation was established with the minor girl, in that case, prima facie, the offence in question would be the offence of rape subject to final determination by the learned Trial Court. 11. Section 29 of the POCSO Act provides for presumption as to certain offences. It provides that if a person is prosecuted for violating any provision of Sections 3, 5, 7 & 9 of the Act and where the victim is a child below the age of 16 years, the Special Court shall presume that such person has committed the offence, unless the contrary is proved. 12. The Apex Court in re; State of H.P. Vs. Asha Ram, (2005) 13 SCC 766 , has observed in para-5, which reads as under: “5. We record our displeasure and dismay, the way the High Court dealt casually with an offence so grave, as in the case at hand, overlooking the alarming and shocking increase of sexual assault on minor girls. The High Court was swayed by the sheer insensitivity, totally oblivious of the growing menace of sexual violence against minors much less by the father. The High Court also totally overlooked the prosecution evidence, which inspired confidence and merited acceptance. It is now a well-settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital, unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. The testimony of the victim of sexual assault is vital, unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is also a well-settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case.” 13. The Apex Court in re; Ganesan Vs. State represented by its Inspector of Police, (2020) 10 SCC 573 , while considering the judgments of Vijay v. State of M.P. (2010) 8 SCC 191 , State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 , State of Uttar Pradesh Vs. Pappu, (2005) 3 SCC 594 , State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 , State of Orissa v. Thakara Besra, (2002) 9 SCC 86 and Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 , has observed that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. 14. In the case of Pappu (supra), the Apex Court has held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion and that consent should be free consent. 15. It has to be established that there was consent by her for that particular occasion and that consent should be free consent. 15. The Apex Court in re; Phool Singh v. State of Madhya Pradesh, (2022) 2 SCC 74 , has considered the judgment of Sham Singh vs. State of Haryana, (2018) 18 SCC 34 , wherein the Apex Court has observed that the testimony of the victim is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of the victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. 16. Therefore, considering the facts and circumstances of the present case as well as the dictums of the Apex Court, as considered above, I am not inclined to grant bail to the present applicant. 17. Accordingly, the bail application is rejected. 18. Since the present applicant is in jail since 06.03.2022 and the trial in POCSO cases should be conducted and concluded with expedition, preferably within a period of one year in terms of Section 35 (2) of the POCSO Act, therefore, I hereby direct the learned Trial Court to conclude the trial within a period of nine months from the date of receipt of copy of this order taking recourse of Section 309 Cr.P.C. by fixing short dates, if possible, fix dates on day-to-day basis to ensure that the examination of all prosecution witnesses and other witnesses from both the sides, if any, be completed expeditiously and if any of the witnesses does not cooperate in the trial proceedings properly, the learned Trial Court may take appropriate coercive steps against such witness, which is permissible under the law. Further, no unnecessary adjournment shall be given to any of the parties so that the trial in question could be concluded within the time so stipulated. 19. However, liberty is given to the applicant to file another bail application, if the trial is not concluded within the aforesaid stipulated time. 20. Let copy of this order be provided to the learned Trial Court through District & Sessions Judge, Lucknow by the Registry of this Court within three working days for its strict compliance.