No Attempt Was Made To Lodge FIR Or Protest: Allahabad HC Grants Bail To Man Accused Of Raping & Forcing Daughter Into Prostitution

The Allahabad High Court has granted bail to a father who was accused of raping his daughter and putting her into a prostitution racket on the ground that the narration of the prosecution story by the victim appears to be exaggerated.

The Court held, "...factor of improbability also comes into picture, when conduct of victim’s mother is considered that she has not make any attempt to protest or lodge any FIR despite she was aware that her daughter was undergoing sexual assault for several years."

The Court has further directed the Ministry of Women and Child Development of Uttar Pradesh to make the Child Welfare Committee (CWC) and its members more competent, responsible, generous, and compassionate to deal with such cases.

A Single Bench of Justice Saurabh Shyam Shamshery said, “Still there is merit in the argument of learned counsel for applicant that narration of prosecution story by victim appears to be exaggerated. Victim has narrated number of incidents of rape by number of persons during a period of many years. However, she was not able to point out a single place of occurrence as well as a single date or month of occurrence. … The bail application is allowed. … Ministry of Women and Child Development, Government of U.P., Lucknow through its Secretary is directed to ponder on above referred issue by initiating process of interaction with all stakeholders in order to make Child Welfare Committee and its Members more competent, more responsible, more generous and more compassionate to deal with such cases, as the case in hand.”

The Bench while allowing the bail application directed the accused to be present on each and each day as and when required by the Trial Court during trial and that in case any application for exemption on vague is ground is filed, the same shall be a ground for the Trial Court to cancel the bail immediately.

Advocates Vijit Saxena and Rakesh Kumar Pandey appeared for the applicant/accused while AGA Paritosh Malviya appeared for the State.

Brief Facts -

The applicant had approached the High Court seeking enlargement on bail in connection to the case under Sections 354, 376(D)(B), 323, 328, 506, 366A, and 120B of the IPC and 5/6 of the POCSO Act. An FIR was lodged by the victim, a minor girl, aged about 17 years claiming that she suffered sexual ordeal for many years when she was a Class VI student and the first perpetrator who ravished her was her father i.e., the applicant, who repeatedly raped her and put her in a prostitution racket.

The victim narrated in the FIR how her father himself presented her before other men, who raped her, and described that even her relatives (uncles) also raped her and women of her family helped them in committing an act of rape. The victim and her mother were subjected to sedatives and the victim named 25 accused persons including her father, close relatives, her family friends, and other persons and women of her family, who helped in the crime.

The High Court after hearing the contentions of the counsel noted, “Applicant’s relationship with victim is not in dispute that he is the father of victim. According to statement of victim, which remained consistent in FIR and statements under Sections 161 and 164 Cr.P.C., the first alleged perpetrator was her father (applicant), when she was a student of Class VI and she repeated the offence thereafter also and further that he allegedly put victim to have physical relationship with other persons. The co-accused have allegedly raped her with consent of her father and even she was raped by her close relatives and other persons also. The allegations, therefore, are very serious against applicant as allegedly he has betrayed a pious relationship of father and daughter.”

The Court, however, observed that a factor of improbability comes into the picture, when the conduct of the victim’s mother is considered that she did not make any attempt to protest or lodge any FIR despite she was aware that her daughter was undergoing sexual assault for several years.

“… there is another factor which requires consideration that all the co-accused have been granted bail by this Court against whom very serious allegation of rape was levelled. In these circumstances, Court is inclined to grant bail to applicant also. … I propose to deal with the duties, responsibilities and statutory status of Child Welfare Committee”, said the Court.

The Court asserted that the victim requires very special and effective counselling by an experienced counsellor and that the CWC has a great responsibility when it is dealing with a case of a minor girl victim suffering mental and physical trauma from repeated assault for many years.

“In such cases victim should be dealt with extra care and responsibility and for that members of Child Welfare Committee required a trained support system, who can undertake counselling of such victims keeping in view their sufferings. … Effect of act/ offence of rape is not momentary but it got pasted on mind, heart, body and soul of the victim and the object of Child Welfare Committee is to undertake such endeavours to erase such memories by counselling and it should be done by well trained counsellors who have experience of treating such minor victims under proper guidance”, held the Court.

Accordingly, the Court granted bail to the accused.

Cause Title- XYZ v. State of U.P. and others

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