# Govind v. State of U.P. Opp. Party

- **Citation:** (2022) 4 ILRA 1082
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-12
- **Case number:** Criminal Misc. Bail Application No. 4432 of 2019
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/govind-v-state-of-u-p-opp-party-48375
- **Pages:** 4

## Headnote

G.A., Sudhir Kumar Srivastava

A. Long detention in jail.-Mere long
detention in jail does not entitle an accused for
bail. It all depends upon the facts and
circumstances of the particular case.
Application rejected. (E-11)

List of Cases cited:-
Rajesh Ranjan Yadav Vs CBI through it's
Director (2007)1 SCC 70

## Text

1082 INDIAN LAW REPORTS ALLAHABAD SERIES
the certificate from the concerned Income-
Tax Authority. The aforesaid view has been
reiterated by this High Court in Review
Application No.1 of 2020 in First Appeal
From Order No.23 of 2001 (Smt. Sudesna
and others Vs. Hari Singh and another) while
disbursing the amount.

19. Fresh Award be drawn accordingly
in the above petition by the tribunal as per the
modification made herein. The Tribunals in
the State shall follow the direction of this
Court as herein aforementioned as far as
disbursement is concerned, it should look into
the condition of the litigant and the pendency
of the matter and judgment of A.V. Padma
(supra). The same is to be applied looking to
the facts of each case.

20. Record be sent back to the
Tribunal forthwith.
----------
(2022)04ILR A1082
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.04.2022

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Criminal Misc. Bail Application No. 4432 of 2019

Govind ...Applicant
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Bhola Singh Patel, Brij Mohan Sahai, Monika
Singh, Pawan Kumar Singh, Pravin Kumar
Verma

Counsel for the Respondents:
G.A., Sudhir Kumar Srivastava

A. Long detention in jail.-Mere long
detention in jail does not entitle an accused for
bail. It all depends upon the facts and
circumstances of the particular case.
Application rejected. (E-11)

List of Cases cited:-
Rajesh Ranjan Yadav Vs CBI through it's
Director (2007)1 SCC 70

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

1. Heard Sri B.M. Sahai, assisted by
Sri Pawan Kumar Singh, learned counsel
for the applicant, Sri Rajeev Kumar Verma,
learned AGA and Sri Sudhir Kumar
Srivastava,
learned
counsel
for
the
complainant.

2. Learned counsel for the applicant has
submitted that the present applicant is in jail
since 01.09.2017 in Case Crime No.410 of
2017, under Section 376 IPC and Sections
3/4 POCSO Act, Police Station Vikas Nagar,
District Lucknow. He has further submitted
that the present applicant has been falsely
implicated in the case as he has not
committed any offence as alleged. As per the
prosecution story so narrated in the FIR, the
present applicant has made oral sex with the
daughter of the complainant/ informant, who
is aged about eight years. As per the FIR,
when the daughter of the complainant was
vomiting after meal, the complainant asked
about the reason for vomiting, then she told
that the present applicant has made oral sex
with her.

3. Sri Sahai has submitted that the
entire prosecution story is false and
concocted inasmuch as the family of the
complainant was tenant of the present
applicant and when the present applicant
had told the complainant to vacate his
house, this false story was created.

4. Sri Sahai has drawn attention of
this Court towards Annexure No.RA-1 of
4 All. Govind Vs. State of U.P.
1083
the Rejoinder Affidavit, which is a typed
statement of PW-2, mother of the victim,
wherein she has stated that her husband
along with her daughter went to the police
station to lodge the FIR but what has been
written in the FIR was not known to her as
she was not informed about the narration of
the FIR. He has also drawn attention of this
Court towards Annexure No.RA-2 of the
Rejoinder Affidavit, which is an order
dated 18.11.2021 passed by this Court in
Criminal Appeal No.5415 of 2018, Sonu
Kushwaha Vs. State of U.P., relying upon
paras 17 & 21 thereof, which reads as
under:-

"17.
From
the
perusal
of
the
provisions of P.O.C.S.O. Act, it is clear that
offence committed by appellant neither falls
under Section 5/6 of P.O.C.S.O Act nor
under Section 9(M) of P.O.C.S.O. Act
because there is pentrative sexual assault
in the present case as appelalnt has put his
penis into mouth of victim. Putting penis
into mouth does not fall in the category of
aggravated
sexual
assault
or
sexual
assault. It comes into category of pentrative
sexual assault which is punishable under
Section 4 of P.O.C.S.O. Act.

21. The court below has awarded the
appellant to undergo 10 years rigorous
imprisonment and fine of Rs. 5000/- under
Section 6 of P.O.C.S.O. Act and under
Section 6 of P.O.C.S.O. Act, minimum
sentence is 10 years which may extend to
imprisonment for life whereas under
Section 4 of P.O.C.S.O. Act minimum
sentence is 7 years but which may extend to
imprisonment for life also. Learned court
below has awarded minimum sentence
provided under Section 6 of P.O.C.S.O. Act
and accordingly, it would be appropriate to
award the sentence to appellant under
Section 4 of P.O.C.S.O. Act, seven years of
rigorous imprisonment which is minimum
provided in that Section and fine of Rs. Rs.
5,000/-, in default, three months additional
simple imprisonment."

5. On the basis of aforesaid paras, Sri
Sahai has tried to submit that in the present
case, maximum sentence for the alleged
offence committed may be seven years and
the present applicant has already served
about four years and seven months in jail,
therefore,
considering
the
period
of
incarceration, the present applicant may be
released on bail.

6. Learned AGA has opposed the
aforesaid prayer of Sri Sahai and has
submitted that the offence in question is so
heinous in nature, therefore, the present
applicant may not be released on bail. He
has drawn attention of this Court towards
para-15 F, i.e. details regarding sexual
violence, of the medical examination
report, which provides that penis was
penetrated in the mouth of the victim.
Learned AGA has submitted that since this
is a case of oral sex so there might not be
any other injury on the body of the victim.

7. Learned AGA and learned counsel
for the complainant have further submitted
that the statement of the victim/prosecutrix
has been recorded under Section 164
Cr.P.C. wherein she has categorically
stated that she is a girl of eight years. Her
father is Chhotelal Kashyap. She studies in
Class-1. The applicant used to call her in
his house and show porn movies (gandigandi picture). In that picture, both the
male and female were naked. Thereafter, he
brought her to the roof and asked to take
his penis in her mouth. She explained that
the penis is the part which is used for
urination. Therefore, both the counsels for
the opposite parties have submitted that this
case shall fall within Section 3 (a) and
1084 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 4 (2) of the POCSO Act, which
provides maximum punishment for life
also. Therefore, the present bail application
may be rejected.

8. Heard learned counsel for the parties
and perused the material available on record.

9. At the very outset, it would be apt to
reproduce the relevant part of Section 375
IPC, Sections 3 (a) and 4 of the Protection of
Children from Sexual Offences Act, 2012
(hereinafter referred to as "POCSO Act"),
which reads as under:-

"375. Rape.-- A man is said to commit
"rape" if he--

(a) penetrates his penis, to any extent,
into the vagina, mouth, urethra or anus of a
woman or makes her to do so with him or any
other person; or

(b) inserts, to any extent, any object or a
part of the body, not being the penis, into the
vagina, the urethra or anus of a woman or
makes her to do so with him or any other
person; or

(c) manipulates any part of the body of a
woman so as to cause penetration into the
vagina, urethra, anus or any part of body of
such woman or makes her to do so with him
or any other person; or

(d) applies his mouth to the vagina,
anus, urethra of a woman or makes her to do
so with him or any other person, ....."

10. Sections 3 (a) & 4 of the POCSO
Act are as under:-

"3. Penetrative sexual assault. - A
person is said to commit "penetrative sexual
assault" if -

(a) he penetrates his penis, to any extent,
into the vagina, mouth, urethra or anus of a
child or makes the child to do so with him or
any other person; or"

"4. Punishment for penetrative sexual
assault. - [(1)] Whoever commits penetrative
sexual assault shall be punished with
imprisonment of either description for a term
which shall not be less than [ten years] but
which may extend to imprisonment for life,
and shall also be liable to fine.

[(2)
Whoever
commits
penetrative
sexual assault on a child below sixteen years
of age shall be punished with imprisonment
for a term which shall not be less than twenty
years, but which may extend to imprisonment
for life, which shall mean imprisonment for
the remainder of natural life of that person,
and shall also be liable to fine.

(3) The fine imposed under sub-section
(1) shall be just and reasonable and paid to
the victim to meet the medical expenses and
rehabilitation of such victim.]"

11. Therefore, it is clear that a man is
said to have committed rape if he
penetrates his penis into the mouth of a
woman.
Section
376
IPC
provides
punishment for rape, which would be not
less than ten years but may extend to the
imprisonment for life and shall also be
liable to fine.

12. Further, in view of Section 3 (a)
of
POCSO
Act,
the
applicant
has
committed penetrative sexual assault with
the prosecutrix and as per Section 4 (2) of
POCSO Act, if any person commits
penetrative sexual assault on a child below
sixteen years of age shall be punishable
with imprisonment for a term which shall
not be less than twenty years, but may
extend to imprisonment for life. Therefore,
in view of the aforesaid provision of law,
the maximum punishment in the given
circumstances may be awarded upto life.
For the offence of rape, the punishment
may extend to the imprisonment for life
also.
4 All. Nirmala Vs. State of U.P.
1085

13. The victim/prosecutrix in her
statement recorded under Section 164
Cr.P.C. has categorically informed that the
present applicant committed oral sex with
her. The victim/prosecutrix was about 8
years at the time of incident, therefore, at
the stage of bail, it cannot be presumed that
she has given such statement under the
influence of her parents. Besides, the
medical examination report supports her
allegation wherein it has been verified that
the penis was penetrated in the mouth of
the victim/prosecutrix.

14. To me, mere long detention in jail
does not entitle an accused for bail. Further,
it
all
depends
on
the
facts
and
circumstances of each case as there is no
straight jacket formula for granting bail.
Therefore, period of long incarceration may
be considered as one of the grounds for
granting bail, but it depends upon facts and
circumstances of the particular case. The
Hon'ble Apex Court in re; Rajesh Ranjan
Yadav v. CBI through its Director,
(2007) 1 SCC 70, has observed as under:-

"...... None of the decisions cited can
be said to have laid down any absolute and
unconditional rule about when bail should
be granted by the Court and when it should
not. It all depends on the facts and
circumstances of each case and it cannot
be said there is any absolute rule that the
mere fact that the accused has undergone a
long period of incarceration by itself would
entitle him to be enlarged on bail."

15. Considering the totality of the
facts and circumstances of the issue in
question,
medical
examination
report,
statement of the prosecutrix recorded under
Section 164 Cr.P.C. and the provisions of
law i.e. Section 375 IPC, Section 3 (a) and
Section 4 of POCSO Act, I do not find any
substance in the arguments of learned
counsel for the applicant, looking to the
peculiar facts and circumstance of the
present case, that the applicant has already
served about four years and seven months'
period in jail, so he may be enlarged on bail
considering his period of incarceration. I
am conscious about the fact that the guilt of
any person can be established before the
learned trial court and no observation
should be given affecting the trial, but on
the basis of aforesaid material available on
record, prima facie, I am not inclined to
grant bail to the present applicant.

16. Accordingly, the bail application
is rejected on merits.

17. Before parting with, it is expected
that the trial shall be concluded with
expedition. Further, the learned trial court
may take all coercive measures as per law
if either of the parties do not co-operate in
the trial properly. The learned trial court
shall fix short dates to ensure that trial is
concluded at the earliest.

18. Let the copy of this order be
provided to the learned trial court through
District & Sessions Judge, Lucknow by the
Registry of this Court within a week for its
compliance.
----------
(2022)04ILR A1085
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 27.04.2022

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Crl. Misc. Bail Application No. 12363 of 2021

Nirmala ...Applicant
Versus
State of U.P. ...Opp. Party