# Chandra Prakash Sharma v. State of U.P. & Anr

- **Citation:** (2022) 5 ILRA 1147
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-07
- **Case number:** Criminal Misc. Bail Application No. 37253 of 2021
- **Bench:** Sanjay Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-prakash-sharma-v-state-of-u-p-anr-48443
- **Pages:** 4

## Headnote

Law
-
Criminal
Procedure
Code,1973 - Sections 161, 164 & 439 -
Indian Penal Code,1860 - Sections 354,
375, 376, 376(a) & 376(b) - Protection of
Children From Sexual Offences (POSCO)
Act -2012 - Sections 5 & 6 - Constitution
of Indian, 1950 - Article 21 - Application for
Bail - allegation of sexual offence - with a girl
child aged about 8 years - Rape is a heinous
crime - not only against the victim but also
against the society as well violates the
fundamental rights of victims - it is the duty of
court to maintain trust of a common man /
victims to take right decision at right time - plea
of accused about that depth of penetration shall
not be acceptable in an offence of rape - Bail
application rejected. (Para -6, 7, 8)

Bail Application Rejected. (E-11)

List of Cases cited:-

## Text

5 All. Chandra Prakash Sharma Vs. State of U.P. & Anr.
1147
centuries is "satya" (truth) and the same has
been put under the carpet by the petitioner.
Truth constituted an integral part of the
justice-delivery
system
in
the
preIndependence
era,
however,
postIndependence period has seen drastic
changes
in
our
value
system.
The
materialism has overshadowed the old
ethos and the quest for personal gain has
become so intense that those involved in
litigation do not hesitate to take shelter of
falsehood,
misrepresentation
and
suppression
of
facts
in
the
court
proceedings. In the last 40 years, the values
have gone down and now a litigants can go
to any extent to mislead the court. They
have no respect for the truth. The principle
has been evolved to meet the challenge
posed by this new breed of litigants. Now it
is well settled that a litigant, who attempts
to pollute the stream of justice or who
touches the pure fountain of justice with
tainted hands, is not entitled to any relief,
interim or final. Suppression of material
facts from the court of law, is actually
playing fraud with the court. The maxim
supressio
veri,
expression
faisi,
i.e.
suppression of the truth is equivalent to the
expression of falsehood, gets attracted.

69. Keeping in view the aforesaid
authoritative enunciation of law by Hon'ble
the Supreme Court, in our view, the
appellants do no deserve any relief from
this Court, as they are not only guilty of
concealment of material facts from the
Court but had also indulged in forum
shopping. They made efforts at all level to
mislead the Court.

70. For the reasons mentioned above,
we do not find any merit in the appeals and
the writ petition. The same are dismissed
with cost of Rs.1,00,000/- to be deposited
by the appellants (except the Mission) with
the Mission within one month from today.
----------
(2022)05ILR A1147
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.04.2022

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Criminal Misc. Bail Application No. 37253 of
2021

Chandra Prakash Sharma ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Virendra Pratap Singh, Sri Anurag Rai,
Sri Birendra Singh

Counsel for the Opposite Parties:
G.A.

Criminal
Law
-
Criminal
Procedure
Code,1973 - Sections 161, 164 & 439 -
Indian Penal Code,1860 - Sections 354,
375, 376, 376(a) & 376(b) - Protection of
Children From Sexual Offences (POSCO)
Act -2012 - Sections 5 & 6 - Constitution
of Indian, 1950 - Article 21 - Application for
Bail - allegation of sexual offence - with a girl
child aged about 8 years - Rape is a heinous
crime - not only against the victim but also
against the society as well violates the
fundamental rights of victims - it is the duty of
court to maintain trust of a common man /
victims to take right decision at right time - plea
of accused about that depth of penetration shall
not be acceptable in an offence of rape - Bail
application rejected. (Para -6, 7, 8)

Bail Application Rejected. (E-11)

List of Cases cited:-

1. Madan Gopal Kakkad Vs Naval Dubey & anr.,
(1992 vol. 3 SCC 204).
1148 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Sanjay Kumar
Singh, J.)

1- Heard Mr. Virendra Pratap Singh,
learned counsel for the applicant, Mr.
Rabindra Kumar Singh learned Additional
Government Advocate assisted by Mr. Ajay
Singh, learned Brief holder representing the
State.

2- By means of this application under
Section 439 of Cr.P.C., applicant, who is
involved in Case Crime No. 219 of 2021,
under Sections 354, 376 IPC and Sections
5/6 POCSO Act, police station Bansgaon,
district Gorakhpur seeks enlargement on
bail during the pendency of trial.

3- As per prosecution case, in brief,
the complainant, who is mother of the
victim lodged the first information report
on 16.07.2021 at 17:07 hours with regard to
an incident which took place on 16.07.2021
against the applicant Chandra Prakash
Sharma for the alleged offence under
Sections 354, 376 IPC and Sections 5/6
POCSO Act alleging inter alia that today on
16.07.2021, her daughter aged about 8
years went beside her house to pluck guava
from guava tree where the applicant was
kissing her daughter by sitting her on his
lap and thereafter raped her by took off her
panty. She came home and told the entire
incident to her and her mother-in-law.
Thereafter, on the same day, i.e., on
16.07.2021, the victim was medically
examined in which doctor opined that
sexual violence cannot be ruled out. Victim
in her statements under Section 161 and
164 Cr.P.C. has made allegation of rape
against
the
applicant
reiterating
the
prosecution case as mentioned in the first
information report. The statement of the
victim recorded under Section 164 Cr.P.C.
is reproduced herein below:-

"बयान अन्तगशत धारा 164 आज
भदनाूंक 28/07/2021 को उपरोक्त मुकदमा की
बाल पीभडता X को फोटो और हस्ताक्षर
प्रमाभणत कर थाना बाूंसगाूंव जनपद गोरखपुर के
भववेचक मय मभहला आरक्षी द्वारा बयान अन्तगशत
धारा 164 दूं.प्र.सूं. हेतु प्रस्तुत भकया गया है बाल
पीभडता की उम्र 7 वषश है तथा उसकी मनोदर्ा
जानने हेतु भनम्न प्रश्न प छे गये है बाल पीभडता
अपनी माूं के साथ न्यायालय मे उपन्धस्थत है \

प्रश्न : तुम्हारा नाम क्या है

उत्तर : X

प्रश्न : तुम्हारे भपता का नाम क्या है

उत्तर : सोन चौहान

प्रश्न : तुम भकस कक्षा मे पढती हो

उत्तर : कक्षा 2

प्रश्न : तुम आज भकस रूंग का कपडा
पहनी हो

उत्तर : लाल

प्रश्न : तुम्हारा उम्र क्या है

उत्तर : 7 वषश

प्रश्न : झ ठ बोलना गलत है या नही

उत्तर : गलत

बाल पीभडता बयान हेतु सक्षम है बाल
पीभडता का बयान प्रश्नोत्तर रूप मे अूंभकत भकया
जा रहा है \

प्रश्न : तुम्हारे साथ क्या घटना हुयी थी

उत्तर : बाल पीभडता प छने पर बता
रही है भक मै और मेरी दोस्त अूंभर्का अमरूद
खाने के भलये गये थे अूंभर्का पेड पर चढ गयी
और मै नीचे खडी थी तिी एक लडका मुझे खीूंच
भलया मै जब पीछे उसको देखी और भचल्लाने की
कोभर्र् की तो वह मेरा मुह दबा भदया और
र्ौचालय के पीछे ले गया अपना िी पैण्ट खोल
भदया और मेरा िी मेरा चढ्ढी खोल कर छ ने लगे
और अपना र् र् मेरे अन्दर डालने लगा मेरे साथ
गलत काम भकया मै भकसी तरह अपना हाथ
छुडा कर िाग आयी \

प्रश्न : क्या तुम लडका का नाम
जानती हो
5 All. Chandra Prakash Sharma Vs. State of U.P. & Anr.
1149

उत्तर : हा मेरी मम्मी बताई है उसका
नाम चन्द प्रकार् है

प्रश्न : कुछ और कहना है

उत्तर : मै जब िागने लगी तो वह
लडका मुझे पकडने का कोभर्र् भकया मेरी माूं
जब चन्द प्रकार् को डाटने के भलये पहुची तो
मेरी माूं को िी मारा

प्रश्न : घटना की स चना भकसको भदया

उत्तर : घटना के बारे मे मैने दादी को
बताया

ह. पीभडता ह. अप. उपरोक्त लेखबद्ध
बयान मेरे द्वारा पीभडता को पढकर सुनाया तथा
समझाया गया भजसे उसने अक्षरर्ः सही होना
बताया पीभडता ने अपना बयान अपनी स्वेच्छा से
देना बताया है बयान का अवलोकन भकया
गया।"

4- It is submitted by learned counsel
for the applicant that the applicant has been
falsely implicated in this case. No mark of
injury has been found on the body of the
victim and hymen of the victim was found
intact and no fresh injury or bleeding was
seen
at
the
time
of
her
medical
examination. The victim in her statement
under Section 164 Cr.P.C. has not stated
that the applicant has committed rape on
her, as such, no offence is made out against
him. The applicant does not have criminal
history to his credit. His bail application
has been wrongly rejected by the concerned
Court below. Lastly, it is submitted by
learned counsel for the applicant that the
applicant is languishing in jail since
17.07.2021 and in case, the applicant is
released on bail, he will not misuse the
liberty of bail and cooperate with the trial.

5- Per contra, learned A.G.A. assisted
by learned Brief Holder for the State
opposed the prayer for bail of the applicant
by contending that the first information
report was lodged by mother of the victim
on the narration of the incident by the
victim who is minor child aged about 8
years and is a student of Class 2. It is next
submitted that act committed by the
accused-applicant as mentioned in the
F.I.R. and disclosed by the victim in her
statement under Section 164 Cr.P.C. is a
heinous offence and comes within the
ambit of rape as defined under Section 375
I.P.C. as well as under the ambit of Sections
5/6 POCSO Act. There is no reason to
falsely implicate the applicant. Learned
A.G.A. next submitted that it is well settled
by the Apex Court in the case of Madan
Gopal Kakkad Vs. Naval Dubey and
another, (1992) 3 SCC 204 that even
slightest penetration of penis into vagina
without
rupturing
the
hymen
would
constitute rape. He further submitted that in
this case, the applicant not only violates the
victim's personal integrity, but leaves
indelible marks on the very soul of the
helpless child. Innocence of the applicant
cannot be ad-judged at pre-trial stage.
Hence, bail application of the applicant is
liable to be rejected.

6- Having heard learned counsel for
the parties, this Court is of the view that in
this case, a small innocent child aged about
8 years has been raped, who does not
understand its meaning. Little girls are
worshipped in our country, but the cases of
paedophilia are increasing. Rape is a
heinous crime. The victim suffers from
psychological effects of embarrassment,
disgust, depression, guilt and even suicidal
tendencies. Many cases go unreported. In
almost rape cases, the victim was unwilling
to report the name of the abuser. The
families of the victim remain silent about
the sexual offences in order to protect the
family image. The victim/female small
child experience sexual abuse once tend to
1150 INDIAN LAW REPORTS ALLAHABAD SERIES
be more vulnerable to abuse in adult life.
Healing is slow and systematic. Rape is not
only a crime against the victim, it is crime
against the society as well and is also
violative of victims most cherished of
fundamental rights, mainly right to life
contained in Article 21 of the Constitution
of India. In such a situation, if the right
decision is not taken from the Court at the
right
time,
then
the
trust
of
a
victim/common man will not be left in the
judicial system.

7- I also find that if rape is committed
by a man on a little girl under twelve years
of age, according the provisions of Section
376A-B of Indian Penal Code, he shall be
punished with rigorous imprisonment for a
term which shall not be less than twenty
years,
but
which
may
extend
to
imprisonment for life, which means that the
accused shall be in prison for the remainder
of his natural life, and with fine or with
death.

8- Having examined the matter in its
entirety I do not find any material or cogent
reason at this stage to presume the false
implication of the applicant. I am also of
the considered view that the depth of
penetration is immaterial in an offence
punishable under Section 376 I.P.C.

9- Having considered the facts and
circumstances of the case, nature of
offence, the gravity involved therein and
the manner in which the crime has been
committed, no case for bail is made out.

10- The application for bail is hereby
rejected.

11- However, it is clarified that the
observation, if any, made herein above shall
be strictly confined to the disposal of the
bail application and must not be construed
to have any reflection on the ultimate
merits of the case.

12- Office is directed to send the copy
of this order to the complainant as well as
concerned Court below within two weeks.
----------
(2022)05ILR A1150
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.02.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Crl. Misc. Application (Leave To Appeal) No. 86
of 2018
(U/s 372 Cr.P.C.)
in
Criminal Appeal (Against Acquittal) No. -- of
2017
(U/s 372 Cr.P.C.)

Virendra Singh ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Rajesh Yadav

Counsel for the Respondents:
G.A.

Criminal Law - Criminal Procedure Code,
Section - 313, 372, 378 (3) - Indian
Penal Code, Section - 302, 379, 511 -
Arms Act,1959 - Section - 25 - Leave to
Appeal - against order of acquittal by the trial
court merely on the ground that - all the eye
witnesses
are
related
witnesses
&
the
recovered weapon could not be connected
with crime - in the light of law down by the
Hon'ble Apex court - judgment of trial court
needs
no
interference
-
hence
Appeal
dismissed. (Para - 16, 18, 21)

Appeal Dismissed. (E-11)