No Reference Of Sexual Assault In Victim's Statement U/S 164 CrPC: Jharkhand High Court Grants Bail To POCSO Accused

The division bench comprising Justices Sujit Narayan Prasad and Navneet Kumar observed, "It appears from the record that the statement of the girl, immediately after recovery, was recorded before the Magistrate. We after going through the statement recorded under section 164 Cr.P.C. has found that there is no reference of commission of sexual assault. However, in course of trial, the victim, who has been examined as P.W. 1, on the Court query has deposed that she was subjected to sexual assault 2-3 times."

"We have considered the testimony of the I.O. in order to come to the conclusion with respect to the version of the victim, and found from paragraph 14 of the testimony of the I.O., who was examined as P.W. 6, wherein the I.O. has denied that mother of the victim has said about commission of sexual assault against her daughter,” the bench added.

The appellant, accused of abduction and sexual assault under Sections 366, 376(2)(n) of the Indian Penal Code, and Section 6 of the POCSO Act, had filed an interlocutory application under Section 389(1) of the Code of Criminal Procedure. The appellant sought the suspension of the sentence during the appeal, challenging the conviction passed by the Special Judge-POCSO Act, Dhanbad.

Based on the factual details of the case, the complainant's minor daughter was lured away by their neighbor, the Appellant, under the false pretense of marriage. The complainant firmly believed that not only the Appellant but also his brother, mother, sister, and two friends played a role in abducting her daughter. When the complainant confronted them regarding this incident, they not only hurled abusive language but also issued threats of harm.

Subsequently, a police case was registered against the accused individuals under Sections 366-A and 376 of the Indian Penal Code (IPC) and Section 4 of the Protection of Children from Sexual Offences (POCSO) Act.

The State Counsel argued that the prosecution had failed to establish the charge beyond a reasonable doubt, as concluded by the trial Court in the contested judgment. He pointed out that the victim's initial statement under Section 164 Cr.P.C. did not mention any sexual assault. However, during the trial, the victim changed her testimony, claiming she had been sexually assaulted 2-3 times. The State Counsel contended that the trial judgment did not consider the statement recorded under Section 164 Cr.P.C. or the victim's testimony during the trial, which contradicted her earlier statement to the investigating officer.

The appellant's counsel also emphasized this point, asserting that the trial Court neglected the victim's statement under Section 164 Cr.P.C., which held corroborative value. The defense argued that the victim's testimony seemed to have been embellished during the trial, indicating a possible inconsistency.

In light of these arguments, it was suggested that the victim's changing statements warranted a suspension of the sentence.

The high court, after thorough consideration, directed the release of the appellant on bail upon furnishing a bail bond of Rs. 10,000 with two sureties of the like amount, to the satisfaction of the Special Judge.

"In view thereof, the appellant named above, is directed to be released on bail on furnishing bail bond of Rs.10,000/- (Rupees Ten Thousand only) with two sureties of the like amount each to the satisfaction of learned Special Judge-POCSO Act, Dhanbad in Spl. POCSO Case No. 51 of 2022 arising out of Chirkunda P.S. Case No. 70 of 2022," the court said while allowing the IA.

The Court concluded by clarifying that any observation made in the judgment will not prejudice the case of the prosecution on merit since the appeal was lying pending for its consideration.

Counsel/s For the Appellant : Mr. Shadab Eqbal, Advocate Mr. Haroon Rasheed, Advocate Mr. Anshuman Om, Advocate

Counsel/s For the Respondent : Mr. Pankaj Kumar Mishra, A.P.P

LL Citation: 2023 Livelaw (Jha) 61

Case Title: Anil Saw vs The State of Jharkhand

Case No.: Cr. Appeal (DB) No. 336 of 2023

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