# Anuj Arya @ Dabbu v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 1915
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-31
- **Case number:** Criminal Misc. Bail Application No. 4349 of 2023
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anuj-arya-dabbu-v-state-of-u-p-ors-51908
- **Pages:** 5

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 164, 309 & 439 -
Indian Penal Code, 1860 - Sections 363,
366 & 376 - The Protection of Children
from Sexual Offences (POCSO) Act, 2012 -
Sections 5-L, 6, 29 & 35(2) - Application for
Bail - FIR - allegation of committing rape and
threatened
prosecutrix/child
to
face
dire
consequences - grounds of bail that, present
application is languishing in jail since long time
and has been falsely implicated as well as there
is inordinate delay in lodging FIR has not been
explained - court observed that, prosecutrix is a
minor child aged about 15 years on the date of
incident - considering the entire St.ment
recorded u/s 161 & 164 Crpc as well as evidence
available on record, she has levelled specific
allegation of committing rape against the present
applicant on the pretext of false promise of
marriage - hence, considering the facts and
circumstances of the case as well as the dictums
of the Apex Court, the bail application is rejected
- further, trial court directed to conclude the trial
within a period of nine months, direction issued
accordingly - however, applicant has a liberty to
file another bail application, if the trial is not
concluded within the stipulated time.
(Para - 9, 10, 16, 18, 19)

Bail Application Rejected. (E-11)

List of Cases cited:

## Text

5 All. Anuj Arya @ Dabbu Vs. State of U.P. & Ors.
1915

28. So far as the question of learned
counsel for opposite party No.2 having
concealed the facts of arrest of opposite
party No.2 from this fact is concerned, the
opposite party No.2 was arrested at 23:50
hours on 18.12.2023 and this Court has no
reason to presume that the learned counsel
for the opposite party No.2 had knowledge
of arrest of opposite party No.2, when he
advanced his submissions before this Court
when the case was taken up as fresh on
19.12.2023.

29. Therefore, the allegation of
concealment of fact is not correct either
against the applicant or against his learned
counsel.

30. The order dated 19.12.2023 has
been passed after taking into consideration
all the relevant facts and circumstances of
the case, as has been noted in the preceding
paragraphs of this order, including the facts
that the applicant has falsely alleged in the
F.I.R. that the accused persons had taken
possession of the land in dispute forcibly.
The learned Counsel for the applicant has
failed to make out any ground for
cancellation of the bail order dated
19.12.2023.

31. The application for cancellation of
bail order dated 19.12.2023 lacks merit and
the same is hereby dismissed.
----------
(2024) 5 ILRA 1915
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2024

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Criminal Misc. Bail Application No. 4349 of 2023

Anuj Arya @ Dabbu ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicants:
Surendra Kumar Mishra, Nikhil Dwivedi,
Raghvendra Pandey, Sudhir Kumar Singh

Counsel for the Opposite Parties:
G.A., Shiv Kumar Yadav

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 164, 309 & 439 -
Indian Penal Code, 1860 - Sections 363,
366 & 376 - The Protection of Children
from Sexual Offences (POCSO) Act, 2012 -
Sections 5-L, 6, 29 & 35(2) - Application for
Bail - FIR - allegation of committing rape and
threatened
prosecutrix/child
to
face
dire
consequences - grounds of bail that, present
application is languishing in jail since long time
and has been falsely implicated as well as there
is inordinate delay in lodging FIR has not been
explained - court observed that, prosecutrix is a
minor child aged about 15 years on the date of
incident - considering the entire St.ment
recorded u/s 161 & 164 Crpc as well as evidence
available on record, she has levelled specific
allegation of committing rape against the present
applicant on the pretext of false promise of
marriage - hence, considering the facts and
circumstances of the case as well as the dictums
of the Apex Court, the bail application is rejected
- further, trial court directed to conclude the trial
within a period of nine months, direction issued
accordingly - however, applicant has a liberty to
file another bail application, if the trial is not
concluded within the stipulated time.
(Para - 9, 10, 16, 18, 19)

Bail Application Rejected. (E-11)

List of Cases cited:

1. St. of H.P. Vs Asha Ram, (2005) 13 SCC 766,

2. Ganesan Vs St. represented by its Inspector of
Police, (2020) 10 SCC 573,

3. Vijay Vs St. of M.P. (2010) 8 SCC 191,
1916 INDIAN LAW REPORTS ALLAHABAD SERIES
4. St. of Mah. Vs Chandraprakash Kewalchand
Jain, (1990) 1 SCC 550,

5. St. of U.P. Vs Pappu, (2005) 3 SCC 594,

6. St. of Punj. Vs Gurmit Singh, (1996) 2 SCC 384,

7. St. of Orissa Vs Thakara Besra, (2002) 9 SCC
86,

8. Krishan Kumar Malik Vs St. of Har., (2011) 7
SCC 130.

9. Phool Singh Vs St. of M. P., (2022) 2 SCC 74,

10. Sham Singh Vs St. of Har., (2018) 18 SCC 34,

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri H.G.S. Parihar, learned
Senior
Advocate,
assisted
by
Sri
Raghvendra Pandey, learned counsel for the
applicant, Sri Aniruddh Kumar Singh,
learned AGA-I for the State and Sri Shiv
Kumar Yadav, learned counsel for the
informant/ complainant.

2. As per learned Senior Advocate, the
present applicant is in jail since 06.03.2022
in Case Crime No.107 of 2022, under
Sections 363, 366, 376 IPC and Section 5L/6
of POCSO Act, Police Station- Ashiana,
DistrictLucknow.

3. Learned counsel for the applicant
has submitted that the present applicant has
been falsely implicated in the case as he has
not committed any offence as alleged.
Attention has been drawn towards the
impugned FIR, which was lodged on
05.03.2022 for the alleged incident dated
12.12.2021 and the aforesaid inordinate
delay has not been explained.

4. As per the prosecution story, the
present applicant has allegedly established
physical relation with the prosecutrix/ child
forcefully without her consent and has
threatened her not to say anything to anyone
otherwise she will have to face dire
consequences. In her statement recorded
under Section 161 Cr.P.C., she has narrated
the prosecution story so indicated in the FIR
and has submitted that she was very afraid
from threatening so given by the applicant
but when she became pregnant, she told the
applicant about the fact, then he insisted her
to take medicine to get the foetus aborted.
However, she has not taken medicine. She
has stated that this incident was within the
knowledge of the family members of the
applicant, more particularly his father was
knowing this fact, who was Journalist by
profession and he has also threatened her for
dire consequences.

5. Further attention has been drawn
towards the statement of the prosecutrix/
child recorded under Section 164 Cr.P.C.
wherein she has stated that the present
applicant has established physical relation
with her consent on the pretext of promise
of marriage but when she became pregnant,
the applicant has denied to get married,
therefore, she made complaint to the family
members of the applicant about the
aforesaid fact but instead of helping her in
this traumatic situation, they also threatened
her for dire consequences in the same
manner the present applicant had threatened
her.

6. Learned counsel for the applicant
has drawn attention of this Court towards the
medical examination report, which indicates
that hymen was not intact but it has not been
indicated as to whether on account of
alleged rape, the hymen was not intact.
Learned Senior Advocate has further
submitted that the complainant/ informant
has recorded his statement wherein he has
5 All. Anuj Arya @ Dabbu Vs. State of U.P. & Ors.
1917
stated that when he came to know that his
daughter was not traceable from 22.11.2021,
he tried to find out her location; he came to
know on 24.11.2021 that she was in the
house of the father of the applicant. He
reached there and requested that his
daughter be permitted to go with him but the
applicant and his father refused to send the
daughter of the informant/ prosecutrix with
him saying that his son, the present
applicant, and the prosecutrix would get
married very soon. On that, he informed the
father of the applicant that his daughter was
minor, even then they refused to send his
daughter back to his home. Thereafter, the
informant has said that he will approach the
police; on that, they had taken his daughter
to his home. Learned counsel has stated that
if the aforesaid statements of the informant
and the prosecutrix are taken on its face
value, this Court would find that there are
apparent variation in those statements.
Learned counsel has also drawn attention of
this Court towards Annexure No.1 of the
supplementary affidavit, which is a certified
copy of the statement of the child wherein
she
has,
however,
levelled
specific
allegation against the present applicant but
the prosecution story is not consistent.

7. Further submission of learned
counsel for the applicant is that the present
applicant is having no prior criminal history,
therefore, he may be released on bail.
Further, the applicant undertakes that if he is
released on bail, he shall abide by all terms
and conditions of the bail order and shall not
misuse the liberty of bail and shall cooperate
in the trial proceedings.

8. Sri Aniruddh Kumar Singh, learned
AGA-I, has vehemently opposed the
aforesaid bail application by submitting that
the date of birth of the prosecutrix, as per her
High School Mark-sheet, is 28.12.2006,
therefore, on the date of incident, the
prosecutrix was aged about 15 years. He has
further submitted that the present applicant
is a named and main accused against whom
the specific allegation has been levelled in
the FIR, in the statements recorded under
Sections 161 & 164 Cr.P.C. as well as in the
evidence of the child/ prosecutrix recorded
before the learned Trial Court. The
prosecution story is intact against him
without any relevant variation. He has
further submitted that in POCSO matters,
burden of proof under Section 29 of the
Protection
of
Children
from
Sexual
Offences Act, 2012 (hereinafter referred to
as "the POCSO Act") shall lie upon the
accused. He has further submitted that so far
as the reason of delay so indicated by the
child/ prosecutrix and her father is
concerned,
that
explanation
is
quite
reasonable inasmuch as the father of the
applicant was an influential person and had
allegedly
given
threatening
for
dire
consequences, therefore, prompt FIR could
not be lodged. However, after lodging the
FIR, the prosecution version is intact.

9. Having heard learned counsel for the
parties and having perused the material
available on record, at the very outset, I
would like to observe that the prosecutrix/
child, who was aged about 15 years on the
date of incident, recorded her statements
under Section 161 & 164 Cr.P.C. as well as
recorded her evidence before the court
concerned levelling specific allegation
against the present applicant of committing
rape with her. Though there is some
variation in her statement recorded under
Section 164 Cr.P.C. on some part but if the
entire statement recorded under Section 164
Cr.P.C. is read, the fact would emerge that
in such statement too, she has levelled
specific allegation of rape against the
present applicant.
1918 INDIAN LAW REPORTS ALLAHABAD SERIES

10. In the statement of the prosecutrix/
child recorded before the learned Trial
Court, she has levelled specific allegation
against the present applicant that he has
committed rape with her frequently by
alluring her for one reason or another and
also on the pretext of false promise of
marriage. This is the case where the
prosecutrix/ child is a minor girl, therefore,
the applicant with the intention to commit
rape with her has made false promise of
marriage, which was not possible. When
such promise of marriage was not legally
permissible and in the name of that false
promise of marriage, physical relation was
established with the minor girl, in that case,
prima facie, the offence in question would
be the offence of rape subject to final
determination by the learned Trial Court.

11. Section 29 of the POCSO Act
provides for presumption as to certain
offences. It provides that if a person is
prosecuted for violating any provision of
Sections 3, 5, 7 & 9 of the Act and where the
victim is a child below the age of 16 years,
the Special Court shall presume that such
person has committed the offence, unless the
contrary is proved.

12. The Apex Court in re; State of
H.P. Vs. Asha Ram, (2005) 13 SCC
766, has observed in para-5, which reads as
under:-

"5. We record our displeasure and
dismay, the way the High Court dealt
casually with an offence so grave, as in the
case at hand, overlooking the alarming and
shocking increase of sexual assault on
minor girls. The High Court was swayed by
the sheer insensitivity, totally oblivious of
the growing menace of sexual violence
against minors much less by the father. The
High Court also totally overlooked the
prosecution
evidence,
which
inspired
confidence and merited acceptance. It is
now a well-settled principle of law that
conviction can be founded on the testimony
of the prosecutrix alone unless there are
compelling
reasons
for
seeking
corroboration.
The
evidence
of
a
prosecutrix is more reliable than that of an
injured witness. The testimony of the victim
of sexual assault is vital, unless there are
compelling
reasons
which
necessitate
looking for corroboration of her statement,
the courts should find no difficulty in acting
on the testimony of a victim of sexual assault
alone to convict an accused where her
testimony inspires confidence and is found
to be reliable. It is also a well-settled
principle of law that corroboration as a
condition for judicial reliance on the
testimony of the prosecutrix is not a
requirement of law but a guidance of
prudence under the given circumstances.
The evidence of the prosecutrix is more
reliable than that of an injured witness.
Even minor contradictions or insignificant
discrepancies in the statement of the
prosecutrix should not be a ground for
throwing
out
an
otherwise
reliable
prosecution case."

13. The Apex Court in re; Ganesan
Vs. State represented by its Inspector of
Police, (2020) 10 SCC 573, while
considering the judgments of Vijay v. State
of M.P., (2010) 8 SCC 191, State of
Maharashtra
v.
Chandraprakash
Kewalchand Jain, (1990) 1 SCC 550,
State of U.P. Vs. Pappu, (2005) 3 SCC
594, State of Punjab v. Gurmit Singh,
(1996) 2 SCC 384, State of Orissa v.
Thakara Besra, (2002) 9 SCC 86 and
Krishan Kumar Malik v. State of
Haryana, (2011) 7 SCC 130, has observed
that to hold an accused guilty for
commission of an offence of rape, the
5 All. Veer Singh & Ors. Vs. State of U.P. & Anr.
1919
solitary evidence of the prosecutrix is
sufficient, provided the same inspires
confidence and appears to be absolutely
trustworthy, unblemished and should be of
sterling quality.

14. In the case of Pappu (supra), the
Apex Court has held that even in a case
where it is shown that the girl is a girl of
easy virtue or a girl habituated to sexual
intercourse, it may not be a ground to
absolve the accused from the charge of
rape. It has to be established that there was
consent by her for that particular occasion
and that consent should be free consent.

15. The Apex Court in re; Phool
Singh v. State of Madhya Pradesh,
(2022) 2 SCC 74, has considered the
judgment of Sham Singh vs. State of
Haryana, (2018) 18 SCC 34, wherein the
Apex Court has observed that the testimony
of the victim is vital and unless there are
compelling reasons which necessitate
looking for corroboration of her statement,
the courts should find no difficulty to act on
the testimony of the victim of sexual assault
alone to convict an accused where her
testimony inspires confidence and is found
to be reliable.

16. Therefore, considering the facts
and circumstances of the present case as
well as the dictums of the Apex Court, as
considered above, I am not inclined to grant
bail to the present applicant.

17. Accordingly, the bail application
is rejected.

18. Since the present applicant is in
jail since 06.03.2022 and the trial in
POCSO cases should be conducted and
concluded with expedition, preferably
within a period of one year in terms of
Section 35 (2) of the POCSO Act,
therefore, I hereby direct the learned Trial
Court to conclude the trial within a period
of nine months from the date of receipt of
copy of this order taking recourse of
Section 309 Cr.P.C. by fixing short dates, if
possible, fix dates on day-to-day basis to
ensure that the examination of all
prosecution witnesses and other witnesses
from both the sides, if any, be completed
expeditiously and if any of the witnesses
does not cooperate in the trial proceedings
properly, the learned Trial Court may take
appropriate coercive steps against such
witness, which is permissible under the
law. Further, no unnecessary adjournment
shall be given to any of the parties so that
the trial in question could be concluded
within the time so stipulated.

19. However, liberty is given to the
applicant to file another bail application, if
the trial is not concluded within the
aforesaid stipulated time.

20. Let copy of this order be provided
to the learned Trial Court through District
& Sessions Judge, Lucknow by the
Registry of this Court within three working
days for its strict compliance.
----------
(2024) 5 ILRA 1919
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2024

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV,
J.

Criminal Misc. Anticipatory Bail Application U/S
438 CR.P.C. No. 4767 of 2024

Veer Singh & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties