High Court

Cr.P.C. as well as in the statement of her wife, they supported the FIR version.

5. In the statement of the victim recorded under Section 161 Cr.P.C., she stated that while she had gone to pluck flowers with his younger brother and sister, the named accused Ashraf @ Sher Khan caught hold of her, threw her inside a Hata, he also jumped inside the Hata (compound), took her to a room constructed in the corner of Hata, disrobed her and himself and started raping her. When she cried some one came there and the named accused ran away while taking his clothes.

6. The medico-legal examination of the victim was conducted on

14.08.2023 and before the Doctor also, she stated that Ashraf @ Sher Khan raped her. The hymen of the victim was reported to be torn.

7. In the statement of the victim recorded under Section 164 Cr.P.C., she stated that while she was plucking flowers, Sher Khan and Suraj (the applicant) came there, she was plucking flowers while standing on a wall. The applicant jumped inside the wall. Sher Khan pushed her from the wall and she fell inside. Her brother and sister got afraid and ran away. The applicant had shut her mouth and threatened her. He took her inside a vacant house and Sher Khan followed him. The applicant disrobed her and caught hold of her hands and mouth and threatened her. Sher Khan raped her. The applicant was also about to rape her when several persons came there, both of them ran away. Some person gave a shirt to her and she went home after wearing that shirt.

8. In the affidavit filed in support of the bail application, it has been stated that the applicant is innocent, he has been falsely implicated in the present case and he has no criminal history.

9. The State has filed a counter affidavit annexing therewith the material collected during investigation and a copy of the charge-sheet. The relevant extract of case diary has been annexed with the counter affidavit wherein it has been recorded that a video stored in a pen- drive was played in which it is seen that two persons were running away from a tin shade constructed inside the Hatha. One of those persons was fully naked and the other person was semi-naked.

10. A supplementary affidavit has been filed on behalf of the applicant annexing therewith copies of statement of the victim who has been examined by the trial Court as PW-2. Copy of statement of the informant, who has been examined as PW-1, has not been annexed with the supplementary affidavit. In her examination-in-chief, the victim has reiterated her statement recorded under Section 164 Cr.P.C. However, in her cross-examination, she resiled from her earlier statement and said that the applicants have not committed any misdeed with her. She stated that she had given her earlier statement under pressure of certain villagers.

11. The learned counsel for the applicant has submitted that as the victim has turned hostile, the applicant is entitled to be released on bail more particularly, when he is not named either in FIR or in the statement of the victim recorded under Section 161 Cr.P.C.

12. In the present case, the victim is a child aged 12 years and it is natural that when a child of such tender age goes through the trauma of rape, some discrepancies may occur in description of the incident given by her. Although she did not name the applicant initially, in her statement recorded under Section 164 Cr.P.C, she stated about the applicant's involvement and commission of the incident. She has stated that the applicant had shut her mouth while the named co- accused Sher Khan raped her and while the applicant was about to rape her, several persons came there and the accused persons ran away. Some person had given his shirt to cover her body. Two persons running away from the spot of incident have been seen in the CCTV footage, one of whom was naked and the other was half naked. Statement of the informant has already been recorded by the trial Court and the same has not been brought on record apparently because that statement would not support the applicant. The victim has also supported her earlier version in her statement recorded by the Court but subsequently during cross-examination, she has turned hostile.

13. In Ramesh v. State of Haryana: (2017) 1 SCC 529, the Hon'ble Supreme Court expressed its concern about the culture of the witnesses turning hostile, in the following words: - "39. We find that it is becoming a common phenomenon, almost a regular feature, that in criminal cases witnesses turn hostile. There could be various reasons for this behaviour or attitude of the witnesses. It is possible that when the statements of such witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 by the police during investigation, the investigating officer forced them to make such statements and, therefore, they resiled therefrom while deposing in the court and justifiably so. However, this is no longer the reason in most of the cases. This trend of witnesses turning hostile is due to various other factors. It may be fear of deposing against the accused/delinquent or political pressure or pressure of other family members or other such sociological factors. It is also possible that witnesses are corrupted with monetary considerations. * * *

44. On the analysis of various cases, the following reasons can be discerned which make witnesses retracting their statements before the court and turning hostile: (i) Threat/Intimidation. (ii) Inducement by various means. (iii) Use of muscle and money power by the accused. (iv) Use of stock witnesses. (v) Protracted trials. (vi) Hassles faced by the witnesses during investigation and trial. (vii) Non-existence of any clear-cut legislation to check hostility of witness.

45. Threat and intimidation has been one of the major causes for the hostility of witnesses. Bentham said: "witnesses are the eyes and ears of justice". When the witnesses are not able to depose correctly in the court of law, it results in low rate of conviction and many times even hardened criminals escape the conviction. It shakes public confidence in the criminal justice delivery system. It is for this reason there has been a lot of discussion on witness protection and from various quarters demand is made for the State to play a definite role in coming out with witness protection programme, at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. A stern and emphatic message to this effect was given in Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374 as well."

14. Having considered the aforesaid facts and circumstances of the case where the informant has supported the prosecution case in his examination by the trial Court and the victim has also supported the case in her examination-in-chief but subsequently, the minor victim has turned hostile, I am of the view that the peculiar facts observed in this case do not warrant exercise of discretion of this court by enlarging the applicant on bail.

15. The bail application is accordingly rejected. . Order Date :- 24.4.2025 -Amit K- [Subhash Vidyarthi, J.]

Cr.P.C. as well as in the statement of her wife, they supported the FIR version.

5. In the statement of the victim recorded under Section 161 Cr.P.C., she stated that while she had gone to pluck flowers with his younger brother and sister, the named accused Ashraf @ Sher Khan caught hold of her, threw her inside a Hata, he also jumped inside the Hata (compound), took her to a room constructed in the corner of Hata, disrobed her and himself and started raping her. When she cried some one came there and the named accused ran away while taking his clothes.

6. The medico-legal examination of the victim was conducted on

14.08.2023 and before the Doctor also, she stated that Ashraf @ Sher Khan raped her. The hymen of the victim was reported to be torn.

7. In the statement of the victim recorded under Section 164 Cr.P.C., she stated that while she was plucking flowers, Sher Khan and Suraj (the applicant) came there, she was plucking flowers while standing on a wall. The applicant jumped inside the wall. Sher Khan pushed her from the wall and she fell inside. Her brother and sister got afraid and ran away. The applicant had shut her mouth and threatened her. He took her inside a vacant house and Sher Khan followed him. The applicant disrobed her and caught hold of her hands and mouth and threatened her. Sher Khan raped her. The applicant was also about to rape her when several persons came there, both of them ran away. Some person gave a shirt to her and she went home after wearing that shirt.

8. In the affidavit filed in support of the bail application, it has been stated that the applicant is innocent, he has been falsely implicated in the present case and he has no criminal history.

9. The State has filed a counter affidavit annexing therewith the material collected during investigation and a copy of the charge-sheet. The relevant extract of case diary has been annexed with the counter affidavit wherein it has been recorded that a video stored in a pen- drive was played in which it is seen that two persons were running away from a tin shade constructed inside the Hatha. One of those persons was fully naked and the other person was semi-naked.

10. A supplementary affidavit has been filed on behalf of the applicant annexing therewith copies of statement of the victim who has been examined by the trial Court as PW-2. Copy of statement of the informant, who has been examined as PW-1, has not been annexed with the supplementary affidavit. In her examination-in-chief, the victim has reiterated her statement recorded under Section 164 Cr.P.C. However, in her cross-examination, she resiled from her earlier statement and said that the applicants have not committed any misdeed with her. She stated that she had given her earlier statement under pressure of certain villagers.

11. The learned counsel for the applicant has submitted that as the victim has turned hostile, the applicant is entitled to be released on bail more particularly, when he is not named either in FIR or in the statement of the victim recorded under Section 161 Cr.P.C.

12. In the present case, the victim is a child aged 12 years and it is natural that when a child of such tender age goes through the trauma of rape, some discrepancies may occur in description of the incident given by her. Although she did not name the applicant initially, in her statement recorded under Section 164 Cr.P.C, she stated about the applicant's involvement and commission of the incident. She has stated that the applicant had shut her mouth while the named co- accused Sher Khan raped her and while the applicant was about to rape her, several persons came there and the accused persons ran away. Some person had given his shirt to cover her body. Two persons running away from the spot of incident have been seen in the CCTV footage, one of whom was naked and the other was half naked. Statement of the informant has already been recorded by the trial Court and the same has not been brought on record apparently because that statement would not support the applicant. The victim has also supported her earlier version in her statement recorded by the Court but subsequently during cross-examination, she has turned hostile.

13. In Ramesh v. State of Haryana: (2017) 1 SCC 529, the Hon'ble Supreme Court expressed its concern about the culture of the witnesses turning hostile, in the following words: - "39. We find that it is becoming a common phenomenon, almost a regular feature, that in criminal cases witnesses turn hostile. There could be various reasons for this behaviour or attitude of the witnesses. It is possible that when the statements of such witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 by the police during investigation, the investigating officer forced them to make such statements and, therefore, they resiled therefrom while deposing in the court and justifiably so. However, this is no longer the reason in most of the cases. This trend of witnesses turning hostile is due to various other factors. It may be fear of deposing against the accused/delinquent or political pressure or pressure of other family members or other such sociological factors. It is also possible that witnesses are corrupted with monetary considerations. * * *

44. On the analysis of various cases, the following reasons can be discerned which make witnesses retracting their statements before the court and turning hostile: (i) Threat/Intimidation. (ii) Inducement by various means. (iii) Use of muscle and money power by the accused. (iv) Use of stock witnesses. (v) Protracted trials. (vi) Hassles faced by the witnesses during investigation and trial. (vii) Non-existence of any clear-cut legislation to check hostility of witness.

45. Threat and intimidation has been one of the major causes for the hostility of witnesses. Bentham said: "witnesses are the eyes and ears of justice". When the witnesses are not able to depose correctly in the court of law, it results in low rate of conviction and many times even hardened criminals escape the conviction. It shakes public confidence in the criminal justice delivery system. It is for this reason there has been a lot of discussion on witness protection and from various quarters demand is made for the State to play a definite role in coming out with witness protection programme, at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. A stern and emphatic message to this effect was given in Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374 as well."

14. Having considered the aforesaid facts and circumstances of the case where the informant has supported the prosecution case in his examination by the trial Court and the victim has also supported the case in her examination-in-chief but subsequently, the minor victim has turned hostile, I am of the view that the peculiar facts observed in this case do not warrant exercise of discretion of this court by enlarging the applicant on bail.

15. The bail application is accordingly rejected. . Order Date :- 24.4.2025 -Amit K- [Subhash Vidyarthi, J.]