The Allahabad High Court has held that in the case of marriage between the accused and the minor girl, it is presumed that both of them had a physical relationship and that the consent of the minor is immaterial.

A Single Bench of Justice Saurabh Shyam Shamshery observed, “… whether the fact that they have admitted to live as married couple, with or without marriage, it would be presumed that normal relationship as husband and wife was in existence during their stay which also includes a physical relationship and that minor victim’s consent for physical relationship is immaterial. Section 114 of Evidence Act provides that a Court may presume existence of certain facts which includes human conduct likely to have happened. Therefore, Investigating Officer will have liberty in such a situation if he makes an opinion that offence of rape is made out since accused has lived with minor girl as husband and wife and, therefore, it would be presumed that they had physical relationship as it is settled law that consent of minor is immaterial.”

The Bench said that an Investigating Officer is under obligation to conduct fair investigation which is an equal right of an accused as well as of a victim.

Amicus Curiae Shamsher Singh and Sarfaraz Ahmad appeared on behalf of the applicant while AGAs Rishi Chaddha, Chandan Agarwal, and Sunil Srivastava appeared on behalf of the State.

In this case, the common question of law that arose for consideration before the Court was whether material collected during the investigation such as further/ subsequent / Mazid Bayan or a statement given by a victim (a minor girl) before the 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 allegation of physical relationship with accused with or without her consent.

The High Court after hearing the contentions of the counsel noted, “Another issue would arise when a minor victim has stated in her statements recorded under Sections 161 and 164 of Code that she had solemnized marriage with accused and/ or lived as husband and wife, however, she emphatically denied any physical relationship or conspicuously kept silent on this issue.”

The Court asserted that the Investigating Officer has the liberty to record statements of witnesses more than one time also and has the 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”.

“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. … 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 of Code being not recorded by a Police Officer investigating the case”, further noted the Court.

The Court said that any statement before the Child Welfare Committee cannot be a sole ground to dilute or to take a different view of statement given by the victim before Magistrate.

“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. … 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”, observed the Court.

Accordingly, the Court allowed the bail pleas.

Cause Title- Ajay Diwakar v. State of U.P. and 3 Others

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