Asif vs State of Rajasthan

Prashant Kumar Agarwal, J.—Each of the accused-petitioner has moved separate application for grant of bail under Section 439 Cr.P.C. in respect of FIR No. 169/2014 registered at Police Station Bagar (District Jhunjhunu) for the offences under Sections 363, 366, 376-D, 354 read with Section 120-B IPC, Section 67 of Information Technology Act and Sections 4, 5 and 6 of Protection of Children from Sexual Offences Act, 2012.

The allegation against the petitioners is that they entered into a criminal conspiracy to kidnap and abduct the prosecutrix and to commit rape upon her and in pursuance of that conspiracy they kidnapped and abducted the prosecutrix and accused-petitioner Shri Shaukat Ali in presence of the other accused-petitioners committed rape upon the prosecutrix and also made video clips of the prosecutrix while committing rape upon her by using a mobile phone.

The bail applications filed by the accused-petitioners have been dismissed by the Sessions Judge, Jhunjhunu vide order dated 27.9.2014. It is to be noted that Coordinate Bench of this Court vide order dated 27.10.2014 directed the investigating officer to record the statement of prosecutrix under Section 164 Cr.P.C. and in compliance of the same her statement under Section 164 Cr.P.C. was recorded by the concerned Magistrate on 28.10.2014 and thereafter further statements of her parents were also recorded by the investigating officer under Section 161 Cr.P.C.

In support of the applications learned counsel for the petitioners jointly submitted as below:-

"(1) Although, in the FIR lodged by the prosecutrix and her statement recorded under Section 161 Cr.P.C. allegation of commission of aforesaid offences was levelled against the petitioners, but in her statement recorded under Section 164 Cr.P.C. in compliance of the order made by the Coordinate Bench of this Court, commission of any offence has been denied by the prosecutrix and she has specifically stated that accused-petitioner-Shri Shaukat Ali or his companions did not commit any offence with her and she lodged a false report under the pressure of her family members and, therefore, in view of the aforesaid statement which must prevail over the FIR and her statement recorded under Section 161 Cr.P.C., it is clear that no offence of any kind has been committed by the petitioners or any of them.

(2) According to the FIR lodged by the prosectrix herself and her statement recorded under Section 164 Cr.P.C. her age at the time of alleged incident was more than 18 years and this fact is very much relevant for the disposal of these applications.

(3) Even according to allegations made in the FIR and statement of the prosecutrix recorded under Section 161 Cr.P.C., allegation of commission of offence of rape has not been levelled against the accused-petitioners-Asif and Farooq Ali and their case is on better footing in comparison to accused-petitioner Shri Shaukat Ali.

(4) Even the parents of the prosecutrix in their further statements recorded under Section 161 Cr.P.C. have admitted that they pressurized their daughter to lodge false report against the petitioners."

On the other hand learned Public Prosecutor controverting the submissions made on behalf of the petitioners submitted as below:-

"(1) The prosecutrix, who is under the age of 18 years, in the FIR lodged by her has specifically made allegation against the petitioners for the commission of aforesaid offences and in her statement recorded under Section 161 Cr.P.C. immediately after registration of the FIR has also made allegation against them and, therefore, only by the reason that subsequently in her statement recorded under Section 164 Cr.P.C. she has resiled from the allegations made against the petitioners, it cannot be said at this stage of the proceedings that no offence has been committed by the petitioners or by any of them. There is no legal provision that statement recorded under Section 164 Cr.P.C. will prevail over the FIR or statement recorded under Section 161 Cr.P.C. It is for the trial Court to decide which statement of the prosecutrix is to be believed, if after investigation charge-sheet is filed against the petitioners.

(2) During investigation a mobile phone was recovered from the possession of accused-petitioner Farooq and the video clippings taken from the mobile phone shows that the prosecutrix was sexually assaulted and rape was committed upon her by the accused-petitioner-Shri Shaukat Ali. The video-clippings has been converted into the form of CD. during investigation.

(3) On medical examination of the prosecutrix her hyman was found to be freshly torned which also prima facie indicates commission of rape upon her.

(4) Documentary evidence collected during investigation shows the date of birth of prosecutrix to be 21.06.1997 and, therefore, at the time of alleged incident she was below the age of 18 years.

(5) It appears that the prosecutrix and her parents under the pressure and inflence of the accused-petitioners resiled from their previous statements recorded under Section 161 Cr.P.C. and, therefore, undue advantage cannot be given to the petitioners or any of them only by the reason that subsequently they are not supporting the prosecution case more particularly in view of the fact that the nature of allegation made against the petitioners is very serious and grave. Such offence is not against an individual but against whole of the society."

So far as learned counsel for the complainant is concerned, he submitted that the prosecutrix was having love affair with accused-petitioner-Shri Shaukat Ali and when this fact came into the knowledge of her parents she was pressurized by them to lodge false report against the petitioners and when the prosecutrix and her parents in their subsequently recorded statements have specifically admitted that no offence has been committed with the prosecutrix, the petitioners can not be denied benefit of bail only by the reason that allegations of commission of offences were made in the FIR and the statements recorded under Section 161 Cr.P.C.

I have considered the submissions made on behalf of the respective parties and the material made available for my perusal as well as the evidence collected during investigation which has been produced before me by way of case diary and the statement of prosecutrix recorded under Section 164 Cr.P.C. in compliance of the order made by the Coordinate Bench of this Court.

Although, the prosecutrix in her statement recorded under Section 164 Cr.P.C. has specifically stated that no offence of any kind has been committed with her and she lodged a false report under the pressure of her family members and her parents also in their further statements recorded under Section 161 Cr.P.C. have also resiled from their previous statements, but on consideration of overall facts and circumstances of the case, but without expressing any final opinion on the merit and demerit of the case, I do not find it a fit case in which benefit of bail is to be granted to the petitioners at this stage of the proceedings. As already stated specific allegation about commission of aforesaid offences was made by the prosecutrix in FIR lodged by her immediately after the commission of the alleged offences and her parents also supported her statement. During investigation mobile phone was recovered from the possession of one of the accused and the video clippings recorded during commission of the offence also support the allegation made by the prosecutrix in FIR and her statement recorded under Section 161 Cr.P.C. Similarly, her hyman was found to be freshly torned in her medical examination conducted on 13.9.2014 at 5.40 p.m. From the documentary evidence the age of the prosecutrix appears to be below 18 years. I am of the considered view that looking to the gravity of the offences which are crime against the whole of the society, all this evidence cannot be overlooked at this stage of the proceedings only by the reason that the prosecutrix in her statement recorded under Section 164 Cr.P.C. in compliance of the order made by the Coordinate Bench of this Court has not supported the prosecution case more particularly in view of the fact that there is no such legal position that at the stage of consideration of bail application moved on behalf of an accused statement recorded under Section 164 Cr.P.C. will prevail over the FIR and statement recorded under Section 161 Cr.P.C. I am of the view that the prosecution must be given opportunity to prove its case during trial if the investigating agency finds that the charge-sheet is to be filed against the petitioners or any of them.

Consequently, all the three bail applications under Section 439 Cr.P.C. are, hereby, dismissed.