The Allahabad High Court on Wednesday observed that “if there is a statement of a minor victim that either she and the accused have solemnised marriage or stayed as husband and wife, then there will be a presumption that during their stay together they had physical relationship except where the victim specifically denies so”.
The single judge bench of Justice Saurabh Shyam Shamshery ruled that since the consent of a minor victim is immaterial, the offence of rape can be made out against the accused.
The court held that in cases where the minor victim, in her statements recorded under Sections 161 and 164 of CrPC, that the fact of her marriage with the accused or their living arrangements as husband and wife but conspicuously keeps silent on the issue of physical relationship, it would be presumed that she and the accused had a normal relationship as husband and wife which also includes a physical relationship.
“Section 114 of Evidence Act provides that a court may presume existence of certain facts which includes human conduct likely to have happened,” highlighted the court.
The court held that in such matters, the Investigating Officer (IO) will have the liberty to form an opinion that the offence of rape is made out against the accused.
After hearing in detail the arguments put forth by the counsel for the rival parties as well as the Amicus Curiae, the high court answered the said question as follows:
The court also said the IO is under obligation to conduct a fair investigation and for that he has to follow the procedure prescribed under the statutes, however, he has the liberty to record statements of witnesses more than one time to unearth the truth.
The IO cannot record further statements of the victim only for the purpose of clarification or to dilute any statement of the victim recorded under Section 164 of CrPC with only object to make the accused culpable of an offence, the court clarified.
The court further said though during her counselling before the CWC, the victim may give a statement, it will not be considered a statement recorded under Section 161 as it cannot be a sole ground to dilute or to take a different view of the statement given by victim before the magistrate.
Medical evidence may be a factor to take a contrary view to the statement of the victim recorded under Sections 161 and 164 of CrPC by the IO, however, the IO has to record specific reasons in the final report/ charge sheet for such opinion/ view, court stressed.
Lastly, the court opined that if there had been a marriage between the victim and the accused, the IO can presume the existence of a physical relationship between them to make out a case of rape.
Read all the Latest India News and Karnataka Elections 2023 updates here
Comments
0 comment