# Asharam (In Jail) v. State of U.P. & Anr

- **Citation:** (2023) 6 ILRA 323
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-30
- **Case number:** Crl. Misc. Bail Application No. 57301 of 2022
- **Bench:** Sanjay Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/asharam-in-jail-v-state-of-u-p-anr-50463
- **Pages:** 10

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 161, 164, 439 -
Bail, Section 53A - Examination of person
accused of rape by medical practitioner,
Indian Penal Code, 1860 - Sections 363,
366, 376, 506 , The Protection of Children
From Sexual Offences Act, 2012 - Section
3/4 - In a case under section 376 IPC, the
delay, if explained properly, is not fatal to
the prosecution case - 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. (Para - 11,36)

(B) Criminal Law - distinction between
'Preparation' and 'Attempt' to commit
rape - stages of commission of a crime -
first, Mens Rea (intention to commit),
secondly, preparation to commit it, and
thirdly, attempt to commit - Attempts are
punishable because they are preceded by
mens rea, moral guilt, and their impact on
societal values is greater than the actual
commission. (Para - 26)

(C) Criminal Law - Indian Penal Code,
1860 - Section 376/511- even slightest
penetration of male organ into the female
parts amounts to rape. (Para - 29)

Abduction, misdeed and threat to victim's life -
Victim (minor) aged about 17 years - in
confinement of applicant - for about one and a
half day - specific allegations - committed
misdeed with her - applicant first took off her
Paijami - thereafter disrobed himself and lie
down upon her - no penetration of male organ
into the vagina - next day, in the night left
victim outside the village - FIR lodged with
inordinate delay. (Para - 15,17,25)

HELD:-Delay in lodging FIR properly explained
by prosecution. Applicant's actions exceed stage
beyond attempt, punishable under Section 376
IPC. No good ground to release the applicant on
bail. (Para -11,27,41)
324 INDIAN LAW REPORTS ALLAHABAD SERIES
Bail application rejected. (E-7)

List of Cases cited:

## Text

6 All. Asharam Vs. State of U.P. & Anr.
323
reprehensible crime in a society, as it is an
assault on the body, mind and privacy of
the minor victim. It shaken the spirit and
very core of her life. Rape leaves a
permanent scar on the life of the victim and
further considering the provisions of
Section 29 of POCSO Act as well as
keeping in view the submissions advanced
on behalf of parties as noted above, gravity
of offence, role assigned to applicant and
severity of punishment, I do not find any
good ground to release the applicant on
bail.

8. Accordingly, the bail application is
rejected.

9. It is made clear that the observation
contained in the instant order is confined to
the issue of bail and shall not affect the
merit of the trial.

10. Copy of this order be sent to the
informant / complainant through Child
Welfare Committee, Shahjahanpur and
Trial Court for information.
----------
(2023) 6 ILRA 323
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.05.2023

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Crl. Misc. Bail Application No. 57301 of 2022

Asharam ...Applicant (In Jail)
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri
Shyam
Lal,
Abhilasha
Singh,
Sri
Ashutosh Yadav

Counsel for the Opposite Parties:
G.A., Sri Kanak Kumar Tripathi

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 161, 164, 439 -
Bail, Section 53A - Examination of person
accused of rape by medical practitioner,
Indian Penal Code, 1860 - Sections 363,
366, 376, 506 , The Protection of Children
From Sexual Offences Act, 2012 - Section
3/4 - In a case under section 376 IPC, the
delay, if explained properly, is not fatal to
the prosecution case - 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. (Para - 11,36)

(B) Criminal Law - distinction between
'Preparation' and 'Attempt' to commit
rape - stages of commission of a crime -
first, Mens Rea (intention to commit),
secondly, preparation to commit it, and
thirdly, attempt to commit - Attempts are
punishable because they are preceded by
mens rea, moral guilt, and their impact on
societal values is greater than the actual
commission. (Para - 26)

(C) Criminal Law - Indian Penal Code,
1860 - Section 376/511- even slightest
penetration of male organ into the female
parts amounts to rape. (Para - 29)

Abduction, misdeed and threat to victim's life -
Victim (minor) aged about 17 years - in
confinement of applicant - for about one and a
half day - specific allegations - committed
misdeed with her - applicant first took off her
Paijami - thereafter disrobed himself and lie
down upon her - no penetration of male organ
into the vagina - next day, in the night left
victim outside the village - FIR lodged with
inordinate delay. (Para - 15,17,25)

HELD:-Delay in lodging FIR properly explained
by prosecution. Applicant's actions exceed stage
beyond attempt, punishable under Section 376
IPC. No good ground to release the applicant on
bail. (Para -11,27,41)
324 INDIAN LAW REPORTS ALLAHABAD SERIES
Bail application rejected. (E-7)

List of Cases cited:

1. Digamber Harinkhede & anr. Vs St. of M.P.,
Criminal Revision No. 1687 of 2013

2. Santosh Vs St. of Kerala, 2021 (3) KLJ 927
(Kerala High Court)

3. ChhefulsonSnaitang Vs St. of Meghalaya,
Criminal Appeal No. 5 of 2020

4. Ram Naresh & ors. Vs St. of Chhatisgarh, AIR
2012, SC 1357

5. Tara Singh & ors. Vs St. of Punj., AIR 1991
SC 63

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

7. St. of M.P. Vs Mahendra @ Golu, (2022)12
SCC 442

8. St. of Kerala Vs Kundumkara Govindan, 1969
Cr.L.J

9. Ranjit Hazarika Vs St. of Assam, (1988)8 SCC
635

10. Madan Gopal Kakkad Vs Naval Dubey,
(1992) 3 SCC 204

11. Radha Krishna Nagesh Vs St. of A.P., (2013)
11 SCC 688

12. St. Of H. P. Vs Asha Ram, 2006 Cri.L.J. 139

13. BharwadaBhoginbhaiHirjibhai Vs St. of Guj.,
AIR 1983 SC 753

14. St. of A.P. Vs Bodem Sundara Rao, 1995 (6)
SCC 230

(Delivered by Hon'ble Sanjay Kumar
Singh, J.)

1. Heard Shri Ashutosh Yadav.
learned counsel for the applicant and Shri
Rabindra Kumar Singh, learned Additional
Government Advocate representing the
State.

2. By means of this application under
Section 439 of Cr.P.C., applicant Asharam,
who is involved in Case Crime No.303 of
2022, under Sections 363, 366, 376, 506
IPC and 3⁄4 of POCSO Act, police station
Rajpura,
district
Sambhal,
seeks
enlargement on bail during the pendency of
trial.

3. In short compass the facts of the
case are that on 29.8.2022, the mother of
the victim has given an application to the
Superintendent
of
Police,
(Public
Grievance Cell), Sambhal to the effect that
in respect of abduction, misdeed and threat
to her daughter's life, she has given an
application at the police station Rajpura,
but neither her report has been lodged by
the police nor victim was sent for medical
examination. The report further alleges that
on 24.8.2022, the minor daughter of
informant aged about 17 years was enticed
away by the applicant in respect whereof
she made an application at the police
station. Thereafter, applicant left her
daughter outside her village. Her daughter
told her that the applicant forcibly made
physical relation with her and also
threatened her of dire consequences in case
she reports the matter to the police.

4. It is contended by learned counsel
for the applicant that in respect of the
incident
dated
24.8.2022,
the
first
information report has been lodged on
31.8.2022 and the victim was medically
examined on 31.8.2022 for which no
plausible explanation has been tendered by
the prosecution.

5. Learned counsel for the applicant
further submits that the informant in her
6 All. Asharam Vs. State of U.P. & Anr.
325
statement under Section 161 Cr.P.C. has
stated inter alia that on 24.8.2022 when her
minor daughter had gone to field, she was
enticed away by the applicant and on the
next day i.e., on 25.08.2022, he left her
daughter outside the village. Her daughter
told her that the applicant forcibly made
physical relation with her. When second
statement of the informant was recorded,
she reiterated her earlier statement and has
also stated that her daughter told her that
the applicant disrobed her and committed
misdeed/rape upon her. On being enquired,
she stated that her daughter took bath and
washed her clothes. On the basis of the
aforesaid statement, it is argued that since
victim took bath and washed her clothes,
therefore, it could not be ascertained as to
whether any sexual intercourse was done or
not.

6. Referring the statement under
Section 164 Cr.P.C. of the victim, much
emphasis has been given by contending
that the victim has stated that the applicant
has committed misdeed with her. On
putting query about the misdeed, she
explained that the applicant took off her
Paijami as well as his pant and lie down
upon her. Much emphasis has been given
by contending that disclosure made by the
victim in her statement under Section 164
Cr.P.C. does not come with the purview of
Section 375(c) IPC because the said
provision
will
attract
if
the
said
manipulation was to cause penetration
whereas in the present case as per statement
under Section 164 Cr.P.C. of the victim, no
penetration was done, therefore, said
provision is not attracted.

7.

Referring
to
the
medical
examination report of the victim, it is
argued that there was no injury on the
private
part
of
the
victim
and
in
supplementary report, no spermatozoa was
found and the doctor was of the opinion
that no positive opinion can be given about
sexual abuse. In support of his submission,
learned counsel for the applicant has relied
upon the following decisions:

1. Criminal Revision No. 1687
of 2013, (Digamber Harinkhede and
another Vs. State of Madhya Pradesh),
decided on 16.12.2018. (M.P. High Court).

2. Santosh Vs. State of Kerala,
2021 (3) KLJ 927 (Kerala High Court)

3. Criminal Appeal No. 5 of
2020 (Chhefulson Snaitang Vs. State of
Meghalaya), decided on 14.3.2022)

8. Learned counsel for the applicant
next submitted that medical examination of
the applicant was also not conducted so as
to rule out as to whether sexual offence was
done or not which are mandatory as per
Section
53A
Cr.P.C.
The
medical
examination of the victim was also done
after seven days on 31.08.2022. Since the
victim is an illiterate girl, therefore, her
ossification test was conducted, according
to which, she is aged about 17 years,
therefore, there may be marginal error of
two years on either side.

9. Lastly, it is submitted by the
learned counsel for the applicant that there
is no chance of the applicant of fleeing
away
from
the
judicial
process
or
tampering with the prosecution evidence.
The applicant is languishing in jail since
08.9.2022.

10. Opposing the prayer for bail of the
applicant Shri Rabindra Kumar Singh,
learned Additional Government Advocate
submits that considering the allegations
made by the victim in her statement under
Section 164 Cr.P.C., offence under Section
326 INDIAN LAW REPORTS ALLAHABAD SERIES
376 is made out against the applicant and
considering the gravity of the offence, the
bail application of the applicant is liable to
be rejected.

11. So far as the first contention of the
learned counsel for the applicant that the
FIR has been lodged with inordinate delay
for which no plausible explanation has
been given, is concerned, I find that the
first information report itself speaks that
the same has been lodged on the basis of an
application made to the Superintendent of
Police, Public Grievance Cell on 29.8.2022
wherein it has been stated that in respect of
coaxing her minor daughter, she has given
an application at the police station Rajpura,
but her FIR has not been lodged. From the
perusal of the FIR itself it is clear that the
first information report has been lodged
after the intervention of the Superintendent
of Police. Therefore, I am of the opinion
that delay in lodging the first information
report has properly been explained by the
prosecution. Further in a case under section
376 IPC, the delay, if explained properly, is
not fatal to the prosecution case.

12. Hon'ble Supreme Court in the
case of Ram Naresh and others Vs.
State of Chhatisgarh, AIR 2012, SC
1357, has held that the delay, if any, in
lodging the FIR, if explained properly, is
in no way fatal to the case of the
prosecution.

13. In Tara Singh and others Vs.
State of Punjab, AIR 1991 SC 63, Hon'ble
Supreme Court held that mere delay in
lodging the FIR by itself cannot give scope
for an adverse inference leading to
rejection of the prosecution case outright.

14. Hon'ble Supreme Court in State
of Punjab Vs. Gurmit Singh and others,
1996 SCC (2) 384 Hon'ble Supreme Court
held as under:

In our opinion, there was no
delay in the lodging of the FIR either and if
at all there was some delay, the same has
not only been properly explained by the
prosecution
but
in
the
facts
and
circumstances of the case was also natural.
The courts cannot over-look the fact that in
sexual offences delay in the lodging of the
FIR can be due to variety of reasons
particularly
the
reluctance
of
the
prosecutrix or her family members to go to
the police and complain about the incident
which concerns the reputation of the
prosecutrix and the honour of her family. It
is only after giving it a cool thought that a
complaint of sexual offence is generally
lodged.

15. Second contention of learned
counsel for the applicant is that since there
was no penetration of male organ into the
vagina, no offence under Section 376 IPC
is made out against the applicant. This
contention of the learned counsel for the
applicant is totally misconceived inasmuch
as the victim in her statement under Section
161 Cr.P.C has stated that when she had
gone to Forest to fetch grass, accusedapplicant forcibly took her and committed
mis-deed with her and also threatened her
of dire consequences. Further in her
statement under Section 164 Cr.P.C. the
victim has stated that on 24.8.2022 at about
3.00 PM when she had gone to cut grass,
the accused came there and forcibly took
her to a deserted place in a room through
Kachha road where he committed misdeed
with her. On a specific query by the Court
about misdeed, the victim has stated that
the accused took off her Paijami and
thereafter he also has taken down his Pant
and lie down upon her. On the next day, i.e.
6 All. Asharam Vs. State of U.P. & Anr.
327
25.8.2022, at about 12.00 in the night, he
left her outside the village.

16. For better appreciation, the
statements of the victim under Section 161
and 164 Cr.P.C. are reproduced herein
below:

"बयान किया कि मेरा नाम "X" पुत्री
"Y" .......... जनपद सम्भल िी रहने वाली ह ूं।
मेरी उम्र लगभग 17 वर्ष है। मै पढी ललखी नही
ह ूं। ददनाूंि 24.08.2022 िो लगभग समय 3
बजे िे िरीब मै जूंगल में अिेली घास लेने िे
ललये गयी थी तभा अचानि पीछे से मेरे ही
गाूंव िा रहने वाला आशाराम s/o महेन्द्र ने मेरी
पीछे से िौललया भर ली और मुझे डराधमिािर
अपने साथ मेरी बबना मजी िे जबरदस्ती मुझे
अपने साथ ले गया। जहा पर उसने मेरे साथ
गलत िाम मेरी बेइज्जती भी िी और मुझसे
िहा कि अगर त ने किसी िो इस बात िे बारे
में बताया तो तुझे और तेरे घरवालो िो जान से
मार द ूंगा। ददनाूंि 25.08.2022 िो वह मुझे गाूंव
िे बाहर छोडिर भाग गया। किर जैसेतैसे मैने
अपने घर आिर यह सारी बात अपनी माूं से
बतायी। यही मेरा बयान है।

बयान पीडडता "X" अन्द्तगषत धारा
164
सीआरपीसी..........पीडडता
"X"
उम्र
लगभग 17 वर्ष पुत्री "Y" ननवासी ........... जजला
सम्भल ने सशपथ बयान किया कि ददनाूंि
24.08.2022 िो ददन 03 बजे मै घास िाटने
गयी थी आशाराम वहाूं आ गया वह मेरे गावूं
िा ही है मै बचपन से उसे जानती ह ूँ उस वक्त
घटना िे दौरान वहाूं और िोई नही था
आशाराम ने मुझे पीछे से पिड़ ललया और
बाईि पर बैठा ललया और िच्चे रास्ते बहुत द र
ले गया था हमे पहुचते हुये वहाूँ अन्द्धेरा हो
गया था मैं अपनी मजी से नही गयी थी वहाूं
एि िमरे मे आशाराम लेिर गया था िमरे में
िोई और नहीूं था वहाूं आशाराम ने मेरे साथ
गन्द्दा िाम किया गन्द्दा िाम िे मतलब
प छने पर पीडडता ने बताया कि मेरी
पजामी उतारी और उसने अपनी पेन्द्ट
उतारी और मेरे ऊपर लेट गया था इसिे
आगे क्या किया मुझे नही पता किरददनाूंि
25.08.2022 िी शाम िो लगभग 12 बजे मुझे
गाूंव िे बाहर छोड गया था पुललस ने बयान
ललया था मेडडिल भी हुआ है मुझे और िुछ
नही िहना है "

17. From the perusal of the statement
of the victim under Section 164 Cr.P.C it is
clear that the applicant forcibly took her to
a deserted place, kept her in a room
throughout the night and committed rape
on her and thereafter next day, in the night
he left the victim outside the village.

18. As per report of the Medical
Board comprises Chief Medical Officer,
Orthopedic
Surgeon
and
Radiologist,
Sambhal, the age of the victim is 17 years.
Although, as per medical report of the
victim , no injury was found either on the
body or private part of the victim, but
hymen of the victim was found torn and
healed.

19. Criminal Revision No. 1687 of
2013, (Digamber Harinkhede and another
Vs. State of Madhya Pradesh), Santosh Vs.
State of Kerala, and (Chhefulson Snaitang
Vs. State of Meghalaya)(Supra) relied upon
by the learned counsel for the applicant are
not at all applicable to the facts of the present
case and therefore, are no help to the
applicant.
328 INDIAN LAW REPORTS ALLAHABAD SERIES

20. Digamber Harinkhede and
another Vs. State of Madhya Pradesh)
(supra) was a case in which as per admitted
case of the prosecution, the accused therein
pressed the breast of the prosecutrix, but
the learned trial court framed the charge
under Section 376 (1) IPC, which was set
aside by the High Court of Madhya
Pradesh.

21. In Santosh Vs. State of Kerala,
(Supra) the Kerala High Court while setting
aside the conviction of the appellant therein
under Section 11(i)read with section 12,
9(I)(m) read with Section 10, 3(C) read
with section 5(m) and 6 of Protection of
Children from Sexual Offences Act, 2012;
Section 376(2)(i) and Section 377 IPC, he
was sentenced under Section 376(1) read
with Section 375(c), 354 and 354A(1)(i)
IPC.

22. In Chhefulson Snaitang Vs.
State of Meghalaya (Supra) the victim in
her cross-examination stated that "it is a
fact that the accused person did not
penetrate his male organ inside my vagina
but he just rubbed from the top of my under
wear". The Division Bench of High Court
of Meghalaya at Shillong while upholding
the conviction of the appellant therein, held
as under:

" Even if the victim's evidence in
her cross-examination is taken at face
value, it would not imply that there was no
penetrative sex. If it be accepted that at the
relevant time the victim was wearing her
underpants and the appellant rubbed his
organ from over her underpants, there was
no difficulty in penetration. Penetration for
the purpose of Section 375 of the Penal
Code does not have to be complete. Any
element of penetration would suffice for the
purpose of the relevant provision. Further,
Section
375(b)
of
the
Penal
Code
recognises that insertion, to any extent , of
any object into the vagina or urethra would
amount to rape. Even if it be accepted that
the appellant herein forced his organ into
the vagina or urethra of the victim despite
the victim wearing her underpants, it would
still amount to penetration for the purpose
of Section 375(b) of the Penal Code.

In any event, by virtue of Section
375(c) of the Penal Code, when a person
manipulates any part of the body of a
woman so as to cause penetration into,
inter alia, the vagina or urethra, the act
would amount to rape. There is sufficient
evidence of such penetration in the present
case.

23. The aforesaid decision in
Chhefulson
Snaitang
Vs.
State
of
Meghalaya is of no help to the applicant
rather it is in favour of the prosecution.

24. As per FIR version, the incident in
question took place on 24.8.2022 and
medical examination of the victim was
done on 31.8.2022, i.e. after one week of
the incident. In the medical report, hymen
of the victim was found torn and healed,
which goes to suggest that victim was
subjected to rape.

25. Admittedly, victim in the case in
hand is minor aged about 17 years. A plain
reading of offence of rape under Section
375 IPC shows that intercourse with a
woman below eighteen years, with or
without her consent, amounted to rape and
mere penetration is sufficient to prove such
offence.
The
expression
'penetration'
denotes ingress of male organ into the
female parts, however, slight it may be.
Since, the victim was in confinement of the
applicant for about one and a half day and
there was specific allegations that he
6 All. Asharam Vs. State of U.P. & Anr.
329
committed misdeed with her and on query
by the investigating officer, she has
explained that the applicant first took off
her Paijami and thereafter disrobed himself
and lie down upon her. It is not the case of
the applicant-accused that after he was
trying to commit rape, someone has
intervened or came to the place to save the
victim as a result thereof he could not
complete the act.

26. Hon'ble Supreme Court in the
case of State of Madhya Pradesh Vs.
Mahendra alias Golu, (2022)12 SCC 442
laid
down
the
distinction
between
'Preparation' and 'Attempt' to commit rape
and
explained
the
three
stages
of
commission of a crime, which are as under:

"It is settled preposition of Criminal
Jurisprudence that in every crim, there is first,
Mens Rea (intention to commit), secondly,
preparation to commit it, and thirdly, attempt to
commit. If the third stage, that is 'attempt' is
successfu, then the crime is complete. If the
attempt fails, the crime is not complete, but law
still punishes the person for attempting the said
act. 'Attempt' is punishable because even an
unsuccessful commission of offence is preceded
by mens rea, moral guilt, and its depraving
impact on the societal values is no less than the
actual commission."

27. In the instant case since the acts of
the applicant exceeded the stage beyond
attempt to commit it, he is guilty of the
offence punishable under Section 376 IPC.

28. Even if, for the sake of argument,
it is assumed that there was no penetration,
even then the applicant is liable to be
punished under Section 376/511 IPC.

29. Moeover, Hon'ble Supreme Court
in a plethora of judgements held that even
slightest penetration of male organ into the
female parts amounts to rape.

30. High Court of Kerala while
examining the ingredients of the offence of
rape, in State of Kerala Vs. Kundumkara
Govindan, 1969 Cr.L.J, held as under:

31. "The crux of the offence under
Section 376 IPC is rape and it postulates a
sexual intercourse. The word "intercourse"
means sexual connection. It may be defined
as mutual frequent action by members of
independent organization. By a metaphor the
word "intercourse" like the word "commerce"
is applied to the relation of sexes. In
intercourse there is temporary visitation of
one organization by a member of the other
organization for certain clearly defined and
limited objects. The primary object of the
visiting organization is to obtain euphoria by
means of a detent of the nerves consequent on
the sexual crisis. There is no intercourse
unless the visiting member is enveloped at
least partially by the visited organization, for
intercourse
connotes
reciprocity.
In
intercourse between thighs the visiting male
organ is enveloped at least partially by the
organism visited, the thighs; the thighs are
kept together and tight."

31. In Ranjit Hazarika Vs. State of
Assam (1988)8 SCC 635, it has been held
by the Hon'ble Supreme Court that nonrupture of hymen or absence of injury on
victim's private parts does not belie the
testimony of the prosecutrix. The evidence
of a victim of sexual assault stands at par
with the evidence of an injured witness.
Just as a witness who has sustained an
injury is the best witness in the sense that
he is least likely to exculpate the real
offender, the evidence of a victim of a sex
offender is entitled to great weight, absence
of corroboration notwithstanding."
330 INDIAN LAW REPORTS ALLAHABAD SERIES

32. In Madan Gopal Kakkad Vs.
Naval Dubey (1992) 3 SCC 204, it has
been held as under:

"Thus to constitute the offence of
rape, it is not necessary that there should
be complete penetration of penis with
emission of semen and rupture of hymen.
Partial penetration of the penis within the
labia majora or the vulva or pedenda with
or without emission of semen or even an
attempt at penetration is quite sufficient for
the purpose of the law. It is, therefore, quite
possible to commit legally the offence of
rape without producing any injury to the
genitals or leaving any seminal stains."

33. In Radha Krishna Nagesh Vs.
State of Andhra Pradesh (2013) 11 SCC
688, Hon'ble Supreme Court held as under:

"The mere fact that the hymen
was intact and there was no actual wound
of her private parts is not conclusive of the
fact that she was not subjected to rape.
According to PW-9, there was a definite
indication of attempt to rape the girl. Also,
later semen of human origin was traceable
in the private parts of the girl, as indicated
by the FSL report. This would sufficiently
indicate that she had been subjected to
rape. Penetration itself proves the offence
of rape, but contrary is not true, i.e. even if
there is no penetration, it does not
necessarily mean that there is no rape.

34. Modi in his book Modi Textbook
of Medical Jurisprudence and Toxicology,
23rd Edition, at page 897, opined thus:

"To constitute the offence of
rape, it is not necessary that there should
be complete penetration of the penis with
the emission of semen and the rupture of
hymen. Partial penetration of the penis
within the labia majora or the vulva or
pudenda with or without the emission of
semen, or even an attempt at penetration is
quite sufficient for the purpose of law. It is,
therefore, quite possible to commit legally,
the offence of rape without producing any
injury to the genitals or leaving any
seminal stains. In such a case the Medical
Officer should mention the negative facts in
his report, but should not given his opinion
that no rape had been committed. "

At page 928: In small children,
the hymen is not usually ruptured, but may
become red and congested along with the
inflammation and bruising of the labia. If
considerable violence is used, there is often
laceration of the fourchette and the
perineum.

35. In Parikh's Textbook of Medical
Jurisprudence
and
Toxicology,
the
following passage is found:

"Sexual intercourse: In Law, this
term is held to mean the slightest degree of
penetration of the vulva by the penis with
or without emission of semen. It is,
therefore, quite possible to commit legally
the offence of rape without producing any
injury to the genitals or leaving any
seminal stains."

36. State Of Himachal Pradesh vs
Asha Ram, 2006 Cri.L.J. 139 was a case
in which High Court of Himachal Prdesh
has acquitted the accused Asha Ram on the
ground that no spermatozoa were found on
the
Salwar
and
underwear
of
the
prosecutrix
though
according
to
the
prosecution,
complete
act
of
sexual
intercourse was committed. Further no
evidence has come on record to show that
hymen was ruptured. The medical evidence
coming on record, as discussed above, is
highly unreliable and even otherwise it
6 All. Asharam Vs. State of U.P. & Anr.
331
does not establish that the victim was
subjected to sexual intercourse. Hon'ble
Supreme while setting aside the judgement
of the High Court, has held as under:

"We record our displeasure and
dismay, the way the High Court dealt
casually with the offence so grave, as in the
case at hand, overlooking the alarming and
shocking increase of sexual assault on the
minor girls. The High Court was swayed by
sheer insensitivity totally oblivious of
growing menace of sex violence against the
minors much less by the father. The High
Court
also
totally
overlooked
the
prosecution
evidence,
which
inspired
confidence and merited acceptance. It is
now 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 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 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."

37. In the case of Bharwada
Bhoginbhai
Hirjibhai
Vs.
State
of
Gujarat, AIR 1983 SC 753, Hon'ble
Supreme Court held thus:

In the Indian setting, refusal to
act on the testimony of a victim of sexual
assault in the absence of corroboration as
a rule, is adding insult to injury. Why
should the evidence of the girl or the
woman who complains of rape or sexual
molestation be viewed with the aid of
spectacles fitted with lenses tinged with
doubt, disbelief or suspicion ? To do so is
to justify the charge of male chauvinism in
a male dominated society. We must analyze
the argument in support of the need for
corroboration and subject it to relentless
and remorseless cross-examination. And
we must do so with a logical, and not an
opiniated, eye in the light of probabilities
with our feet firmly planted on the soil of
India and with our eyes focussed on the
Indian horizon. We must not be swept off
the feet by the approach made in the
Western World which has its own social
milieu, its own social mores, its own
permissive values, and its own code of
life. Corroboration may be considered
essential to establish a sexual offence in
the backdrop of the social ecology of
the
Western
World.
It
is
wholly
unnecessary to import the said concept
on a turn-key basis and to transplate it
on the Indian soil regardless of the
altogether
different
atmosphere,
attitudes,
mores,
responses
of
the
Indian Society and its profile."

38. Hon'ble Supreme Court in State
of A.P. Vs. Bodem Sundara Rao, 1995 (6)
SCC 230 has cautioned the Courts while
dealing with the cases of sexual crime
against women in the following words:
332 INDIAN LAW REPORTS ALLAHABAD SERIES

"Sexual violence apart from
being a dehumanizing act is an unlawful
intrusion of the right to privacy and
sanctity of a female. It is a serious blow to
her supreme honour and offends her self
esteem and dignity. It degrades and
humiliates the victim and where the victim
is a helpless innocent child, it leaves
behind a traumatic experience. The Courts
are, therefore, expected to deal with the
cases of sexual crime against women with
utmost sensitivity. Such cases need to be
dealt with sternly and severely."

39. So far as the last contention of the
learned counsel for the applicant that
medical examination of the applicant was
not conducted as per Section 53A Cr.P.C,
is concerned, it is to be noted that since the
accused was arrested on 08.9.2022, i.e.
after fifteen days of the incident, therefore,
the investigating officer did not think it
necessary to get him examined under
Section 53A Cr.P.C.

40. The Court must keep in mind
while appreciating the evidence of the
prosecutrix the values prevailing in the
country, particularly in rural India. It would
be unusual for a woman to come up with a
false story of being a victim of sexual
assault so as to implicate an innocent
person. In our country, a woman, victim of
sexual aggression, would rather suffer
silently than to falsely implicate somebody.
Any statement of a rape victim is an
extremely humiliating experience for a
woman and until she is a victim of sex
crime, she would not blame anyone but the
real culprit.

41. Considering the overall facts and
circumstances of the case as well as
keeping in view the submissions advanced
on behalf of parties, gravity of offence, role
assigned to applicant and severity of
punishment, I do not find any good ground
to release the applicant on bail.

42. Accordingly, the bail application
is rejected at this stage.

43. It is clarified observations made
herein above are limited to the extent of
determination of this bail application and
will in no way be construed as an
expression on the merits of the case. The
trial court shall be absolutely free to arrive
at its independent conclusions on the basis
of evidence to be adduced by the parties.
----------
(2023) 6 ILRA 332
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE VINOD DIWAKAR, J.

Criminal Appeal No. 2097 of 2019
AND
Criminal Appeal No. 1794 of 2019

Chintu @ Kuldeep ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Surya Pratap Singh Parmar, Sri Ajay
Kumar Pandey, Sri Sheshadri Trivedi, Sri
Shyam Bihari Tripathi, Sri Suresh Chandra
Yadav, Sri Vipin Kumar, Sri Satish Trivedi
(Sr. Advocate)

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 452, 376, 386, 506 & 302 -
Punishment for murder - Appeal against
conviction - Life imprisonment - Relevancy