High Court · 2025

4. The main substratum of argument of learned counsel for the applicant is that applicant has been falsely implicated in the present case due to family dispute. Victim and her father both have been declared hostile during trial, therefore, applicant who is languishing in jail since 24.11.2023 may be enlarged on bail.

5. On the other hand, learned A.G.A. vehemently opposed the said submission by contending that as per medical certificate of victim, she was aged about 14 years whereas as per her educational certificate, she was aged about 12 years, 10 months and 22 days on the date of incident (i.e. 23.11.2023). During investigation victim and her minor brother aged about 7 years who is an eye witness of the incident, also made allegation of rape against the applicant. So far as, the statement of victim recorded before the Trial Court is concerned, it is argued that the examination-in-chief of the complainant was recorded as PW1 on 26.07.2024 before the Trial Court, in which she has supported the prosecution case making allegation of rape on her minor daughter against the applicant and at that time she was not declared hostile. Thereafter, she in her cross-examination, which was recorded on 31.08.2024 after one month and five days of her examination-in-chief has given some contradictory statement and has been declared hostile. Thereafter, victim’s father has also been declared hostile. In this regard, it is also submitted that considering the tone and tenor of the statement of those witnesses, possibility of winning over them from the accused side can not be ruled out.

6. Having heard the submission of learned counsel for the parties and perusing the record, I find that it is not in dispute that in view of the Section 2 (1) (d) of POCSO Act, victim is a very small child aged about 12-14 years and her brother who is eye witness of the incident is also a small boy aged about 7 years. F.I.R. was lodged by mother of victim on narration of the incident by the victim and her brother promptly within four hours on the same day. During investigation also, victim has made allegation of rape against the applicant giving vivid description of the incident that the applicant who is her Tau/uncle’s son came from behind and covered her mouth and made her lie down on the cot lying nearby, closed her mouth by pressing it with his hand and removed her lagging and then removed his black colour pant. After that he forcibly covered her mouth and raped her. Her brother shouted and tried to intervene, then he hit him. She has also stated that I had a lot of pain between my legs near the place where I urinate, there is still pain. A lot of blood came out from there. On perusal of medical examination report of victim, I find that she at the time of her medical examination has also made allegation of rape against the applicant. The doctor who has conducted her internal examination also recorded finding that slight bleeding PV present, as such prima facie allegation is corroborated with the medical report dated 24.11.2023 of the victim. So far as, the submission of learned counsel for the applicant is that PW-1and 2 have been declared hostile is concerned, I find that examination-in-chief and cross-examination of prosecution witnesses have not been recorded on the same day, whereas Hon'ble Apex Court in the case of Rajesh Yadav and Another Etc. Vs. State of U.P. Live Law (SC) 137 has settled the law giving directions that to avoid the possibility of influence over the prosecution witnesses, examination-in-chief and cross-examination of any prosecution witness must be recorded on the same day but in the present case the said direction has not been followed. Hence, the possibility of winning over the victim and her mother from the side of accused cannot be ruled out. The relevant paragraph nos. 25 and 39 of Rajesh Yadav (Supra) are quoted as under:- “Evidentiary Value of a Final Report:

25. Section 173(2) of the CrPC calls upon the investigating officer to file his final report before the court. It being a report, is nothing but a piece of evidence. It forms a mere opinion of the investigating officer on the materials collected by him. He takes note of the offence and thereafter, conducts an investigation to identify the offender, the truth of which can only be decided by the court. The aforesaid conclusion would lead to the position that the evidence of the investigating officer is not indispensable. The evidence is required for corroboration and contradiction of the other material witnesses as he is the one who links and presents them before the court. Even assuming that the investigating officer has not deposed before the court or has not cooperated sufficiently, an accused is not entitled for acquittal solely on that basis, when there are other incriminating evidence available on record. In Lahu Kamlakar Patil v. State of Maharashtra, (2013) 6 SCC 417, this Court held: "18. Keeping in view the aforesaid position of law, the testimony of PW 1 has to be appreciated. He has admitted his signature in the FIR but has given the excuse that it was taken on a blank paper. The same could have been clarified by the investigating officer, but for some reason, the investigating officer has not been examined by the prosecution. It is an accepted principle that non-examination of the investigating officer is not fatal to the prosecution case. In Behari Prasad v. State of Bihar [(1996) 2 SCC 317: 1996 SCC (Cri) 271], this Court has stated that non-examination of the investigating officer is not fatal to the prosecution case, especially,when no prejudice is likely to be suffered by the accused. In Bahadur Naik v. State of Bihar [(2000) 9 SCC 153: 2000 SCC (Cri) 1186] , it has been opined that when no material contradictions have been brought out, then non- examination of the investigating officer as a witness for the prosecution is of no consequence and under such circumstances, no prejudice is caused to the accused. It is worthy to note that neither the trial Judge nor the High Court has delved into the issue of non-examination of the investigating officer. On a perusal of the entire material brought on record, we find that no explanation has been offered. The present case is one where we are inclined to think so especially when the informant has stated that the signature was taken while he was in a drunken state, the panch witness had turned hostile and some of the evidence adduced in the court did not find place in the statement recorded under Section 161 of the Code. Thus, this Court in Arvind Singh v. State of Bihar, [(2001) 6 SCC 407: 2001 SCC (Cri) 1148], Rattanlal v. State of J&K [(2007) 13 SCC 18: (2009) 2 SCC (Cri) 349] and Ravishwar Manjhi v. State of Jharkhand [(2008) 16 SCC 561: (2010) 4 SCC (Cri) 50], has explained certain circumstances where the examination of investigating officer becomes vital. We are disposed to think that the present case is one where the investigating officer should have been examined and his non-examination creates a lacuna in the case of the prosecution."

39. Before we part with this case, we are constrained to record our anguish on the deliberate attempt to derail the quest for justice. Day in and day out, we are witnessing the sorry state of affairs in which the private witnesses turn hostile for obvious reasons. This Court has already expressed its views on the need for a legislative remedy to curtail such menace. Notwithstanding the above stated directions issued by this court in Vinod Kumar (supra), we take judicial note of the factual scenario that the trial courts are adjourning the cross examination of the private witnesses after the conclusion of the cross examination without any rhyme or reason, at the drop of a hat. Long adjournments are being given after the completion of the chief examination, which only helps the defense to win the mover at times, with the passage of time. Thus, we deem it appropriate to reiterate that the trial courts shall endeavor to complete the examination of the private witnesses both chief and cross on the same day as far as possible. To further curtail this menace, we would expect the trial courts to take up the examination of the private witnesses first, before proceeding with that of the official witnesses. A copy of this judgment shall be circulated to all the trial courts, to be facilitated through the respective High Courts.”

7. The Apex Court in State of U.P. Vs. Ramesh Prasad Mishra (1996) 10 SCC 360 has also settled the law if there are contradiction in the examination-in-chief and cross-examination of any prosecution witness, the conviction is also possible on the basis of examination-in-chief, if the same is of sterling quality and is being supported from other material on record and attending circumstances.

8. This Court is of the view that conclusion from the statement of any witness shall be drawn by the trial Court considering his/her statement in toto not in isolation. It is well settled that a man may tell lie but record and circumstances do not. Since the allegation of the prosecution and the defence of the accused are still open to be urged before the trial court, therefore, this Court in exercise of powers under Section 439 Cr.P.C. is not examining the statement of prosecution witnesses meticulously, so that it may not effect the merits of the trial. 9-Considering the gravity of offence of rape which is the most hated, morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim and severity of punishment, stage of trial as noted above I am not inclined to grant bail to the applicant. 10-Accordingly, the bail application is rejected. 11-It is made clear that any observation made in this order is for the limited purpose of disposal of bail application and shall not affect the merit of the trial. 12-However considering the detention period of the applicant, Superintendent of Police, Bijnor is directed to ensure the production of all the remaining prosecution witnesses on the dates fixed before the trial court, so that the trial of the applicant may be concluded at earliest. 13-The concerned trial court is directed that on appearance of the prosecution witnesses, their statement shall be recorded on the same day without granting any adjournment to either of the parties. 14-Copy of this order be communicated to Superintendent of Police, Bijnor as well as concerned trial court within a week for necessary information and compliance. Order Date :- 22.1.2025/AKT ASHOK KUMAR TRIPATHI High Court of Judicature at Allahabad

4. The main substratum of argument of learned counsel for the applicant is that applicant has been falsely implicated in the present case due to family dispute. Victim and her father both have been declared hostile during trial, therefore, applicant who is languishing in jail since 24.11.2023 may be enlarged on bail.

5. On the other hand, learned A.G.A. vehemently opposed the said submission by contending that as per medical certificate of victim, she was aged about 14 years whereas as per her educational certificate, she was aged about 12 years, 10 months and 22 days on the date of incident (i.e. 23.11.2023). During investigation victim and her minor brother aged about 7 years who is an eye witness of the incident, also made allegation of rape against the applicant. So far as, the statement of victim recorded before the Trial Court is concerned, it is argued that the examination-in-chief of the complainant was recorded as PW1 on 26.07.2024 before the Trial Court, in which she has supported the prosecution case making allegation of rape on her minor daughter against the applicant and at that time she was not declared hostile. Thereafter, she in her cross-examination, which was recorded on 31.08.2024 after one month and five days of her examination-in-chief has given some contradictory statement and has been declared hostile. Thereafter, victim’s father has also been declared hostile. In this regard, it is also submitted that considering the tone and tenor of the statement of those witnesses, possibility of winning over them from the accused side can not be ruled out.

6. Having heard the submission of learned counsel for the parties and perusing the record, I find that it is not in dispute that in view of the Section 2 (1) (d) of POCSO Act, victim is a very small child aged about 12-14 years and her brother who is eye witness of the incident is also a small boy aged about 7 years. F.I.R. was lodged by mother of victim on narration of the incident by the victim and her brother promptly within four hours on the same day. During investigation also, victim has made allegation of rape against the applicant giving vivid description of the incident that the applicant who is her Tau/uncle’s son came from behind and covered her mouth and made her lie down on the cot lying nearby, closed her mouth by pressing it with his hand and removed her lagging and then removed his black colour pant. After that he forcibly covered her mouth and raped her. Her brother shouted and tried to intervene, then he hit him. She has also stated that I had a lot of pain between my legs near the place where I urinate, there is still pain. A lot of blood came out from there. On perusal of medical examination report of victim, I find that she at the time of her medical examination has also made allegation of rape against the applicant. The doctor who has conducted her internal examination also recorded finding that slight bleeding PV present, as such prima facie allegation is corroborated with the medical report dated 24.11.2023 of the victim. So far as, the submission of learned counsel for the applicant is that PW-1and 2 have been declared hostile is concerned, I find that examination-in-chief and cross-examination of prosecution witnesses have not been recorded on the same day, whereas Hon'ble Apex Court in the case of Rajesh Yadav and Another Etc. Vs. State of U.P. Live Law (SC) 137 has settled the law giving directions that to avoid the possibility of influence over the prosecution witnesses, examination-in-chief and cross-examination of any prosecution witness must be recorded on the same day but in the present case the said direction has not been followed. Hence, the possibility of winning over the victim and her mother from the side of accused cannot be ruled out. The relevant paragraph nos. 25 and 39 of Rajesh Yadav (Supra) are quoted as under:- “Evidentiary Value of a Final Report:

25. Section 173(2) of the CrPC calls upon the investigating officer to file his final report before the court. It being a report, is nothing but a piece of evidence. It forms a mere opinion of the investigating officer on the materials collected by him. He takes note of the offence and thereafter, conducts an investigation to identify the offender, the truth of which can only be decided by the court. The aforesaid conclusion would lead to the position that the evidence of the investigating officer is not indispensable. The evidence is required for corroboration and contradiction of the other material witnesses as he is the one who links and presents them before the court. Even assuming that the investigating officer has not deposed before the court or has not cooperated sufficiently, an accused is not entitled for acquittal solely on that basis, when there are other incriminating evidence available on record. In Lahu Kamlakar Patil v. State of Maharashtra, (2013) 6 SCC 417, this Court held: "18. Keeping in view the aforesaid position of law, the testimony of PW 1 has to be appreciated. He has admitted his signature in the FIR but has given the excuse that it was taken on a blank paper. The same could have been clarified by the investigating officer, but for some reason, the investigating officer has not been examined by the prosecution. It is an accepted principle that non-examination of the investigating officer is not fatal to the prosecution case. In Behari Prasad v. State of Bihar [(1996) 2 SCC 317: 1996 SCC (Cri) 271], this Court has stated that non-examination of the investigating officer is not fatal to the prosecution case, especially,when no prejudice is likely to be suffered by the accused. In Bahadur Naik v. State of Bihar [(2000) 9 SCC 153: 2000 SCC (Cri) 1186] , it has been opined that when no material contradictions have been brought out, then non- examination of the investigating officer as a witness for the prosecution is of no consequence and under such circumstances, no prejudice is caused to the accused. It is worthy to note that neither the trial Judge nor the High Court has delved into the issue of non-examination of the investigating officer. On a perusal of the entire material brought on record, we find that no explanation has been offered. The present case is one where we are inclined to think so especially when the informant has stated that the signature was taken while he was in a drunken state, the panch witness had turned hostile and some of the evidence adduced in the court did not find place in the statement recorded under Section 161 of the Code. Thus, this Court in Arvind Singh v. State of Bihar, [(2001) 6 SCC 407: 2001 SCC (Cri) 1148], Rattanlal v. State of J&K [(2007) 13 SCC 18: (2009) 2 SCC (Cri) 349] and Ravishwar Manjhi v. State of Jharkhand [(2008) 16 SCC 561: (2010) 4 SCC (Cri) 50], has explained certain circumstances where the examination of investigating officer becomes vital. We are disposed to think that the present case is one where the investigating officer should have been examined and his non-examination creates a lacuna in the case of the prosecution."

39. Before we part with this case, we are constrained to record our anguish on the deliberate attempt to derail the quest for justice. Day in and day out, we are witnessing the sorry state of affairs in which the private witnesses turn hostile for obvious reasons. This Court has already expressed its views on the need for a legislative remedy to curtail such menace. Notwithstanding the above stated directions issued by this court in Vinod Kumar (supra), we take judicial note of the factual scenario that the trial courts are adjourning the cross examination of the private witnesses after the conclusion of the cross examination without any rhyme or reason, at the drop of a hat. Long adjournments are being given after the completion of the chief examination, which only helps the defense to win the mover at times, with the passage of time. Thus, we deem it appropriate to reiterate that the trial courts shall endeavor to complete the examination of the private witnesses both chief and cross on the same day as far as possible. To further curtail this menace, we would expect the trial courts to take up the examination of the private witnesses first, before proceeding with that of the official witnesses. A copy of this judgment shall be circulated to all the trial courts, to be facilitated through the respective High Courts.”

7. The Apex Court in State of U.P. Vs. Ramesh Prasad Mishra (1996) 10 SCC 360 has also settled the law if there are contradiction in the examination-in-chief and cross-examination of any prosecution witness, the conviction is also possible on the basis of examination-in-chief, if the same is of sterling quality and is being supported from other material on record and attending circumstances.

8. This Court is of the view that conclusion from the statement of any witness shall be drawn by the trial Court considering his/her statement in toto not in isolation. It is well settled that a man may tell lie but record and circumstances do not. Since the allegation of the prosecution and the defence of the accused are still open to be urged before the trial court, therefore, this Court in exercise of powers under Section 439 Cr.P.C. is not examining the statement of prosecution witnesses meticulously, so that it may not effect the merits of the trial. 9-Considering the gravity of offence of rape which is the most hated, morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim and severity of punishment, stage of trial as noted above I am not inclined to grant bail to the applicant. 10-Accordingly, the bail application is rejected. 11-It is made clear that any observation made in this order is for the limited purpose of disposal of bail application and shall not affect the merit of the trial. 12-However considering the detention period of the applicant, Superintendent of Police, Bijnor is directed to ensure the production of all the remaining prosecution witnesses on the dates fixed before the trial court, so that the trial of the applicant may be concluded at earliest. 13-The concerned trial court is directed that on appearance of the prosecution witnesses, their statement shall be recorded on the same day without granting any adjournment to either of the parties. 14-Copy of this order be communicated to Superintendent of Police, Bijnor as well as concerned trial court within a week for necessary information and compliance. Order Date :- 22.1.2025/AKT ASHOK KUMAR TRIPATHI High Court of Judicature at Allahabad