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

- **Citation:** (2023) 6 ILRA 320
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-25
- **Case number:** Crl. Misc. Bail Application No. 52553 of 2022
- **Bench:** Sanjay Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jaiveer-in-jail-v-state-of-u-p-anr-50462
- **Pages:** 4

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Sections 161,164 & 439
- Bail - Indian Penal Code, 1860 - Sections
376 - Rape, The Protection of Children
from Sexual Offences Act, 2012 - Sections
2(1)d , 3/4 & 29 - every person has a
different way of expressing their words
and feelings in their local language -
statement of victim under Section 164
Cr.P.C. will certainly prevail over her
statement recorded by doctor or police
officer under Section 161 Cr.P.C. - In order
to constitute an offence of rape, it is not
necessary that there should be complete
penetration of penis in the vagina or
mouth with emission of semen. (Para - 6)

Victim is minor girl - applicant aged about 24
years - Case of penetration by penis in mouth of
victim - statement of victim under Section 161
Cr.P.C. - recorded by audio and video means -
committed wrong by mouth or in her mouth -
what victim says is same in all three statements
- statement of victim under Section 164 Cr.P.C.
- applicant put his penis in her mouth - cannot
said to be material improvement - rather it
reinforces her initial version - word used by
victim " Galat kaam kiya" denotes the sexual act
in common parlance. (Para - 5, 6)

HELD:-Offence of rape made out. Act of
accused-applicant comes under the preview of
Section 375 (a) of I.P.C.. No material on record
to presume the false implication of the applicant
and to disbelieve the statement of minor victim,
which is primary for considering the bail
application of accused in rape cases. (Para - 6)

Bail application rejected. (E-7)

## Text

320 INDIAN LAW REPORTS ALLAHABAD SERIES
assistance on the subtle point of law
involved, by Mr. Utkarsh Birla and Mr.
Rakesh Kumar Singh, learned Counsel for
the parties.

15. In the circumstances, this Court
does not find any merit in the application.
It, accordingly, stands rejected.
----------
(2023) 6 ILRA 320
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.05.2023

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Crl. Misc. Bail Application No. 52553 of 2022

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

Counsel for the Applicant:
Sri Yashpal Yadav, Sri Lalji Yadav, Sri
Manish Tiwary (Sr. Advocate)

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Sections 161,164 & 439
- Bail - Indian Penal Code, 1860 - Sections
376 - Rape, The Protection of Children
from Sexual Offences Act, 2012 - Sections
2(1)d , 3/4 & 29 - every person has a
different way of expressing their words
and feelings in their local language -
statement of victim under Section 164
Cr.P.C. will certainly prevail over her
statement recorded by doctor or police
officer under Section 161 Cr.P.C. - In order
to constitute an offence of rape, it is not
necessary that there should be complete
penetration of penis in the vagina or
mouth with emission of semen. (Para - 6)

Victim is minor girl - applicant aged about 24
years - Case of penetration by penis in mouth of
victim - statement of victim under Section 161
Cr.P.C. - recorded by audio and video means -
committed wrong by mouth or in her mouth -
what victim says is same in all three statements
- statement of victim under Section 164 Cr.P.C.
- applicant put his penis in her mouth - cannot
said to be material improvement - rather it
reinforces her initial version - word used by
victim " Galat kaam kiya" denotes the sexual act
in common parlance. (Para - 5, 6)

HELD:-Offence of rape made out. Act of
accused-applicant comes under the preview of
Section 375 (a) of I.P.C.. No material on record
to presume the false implication of the applicant
and to disbelieve the statement of minor victim,
which is primary for considering the bail
application of accused in rape cases. (Para - 6)

Bail application rejected. (E-7)

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

1. By means of this application under
Section 439 of Cr.P.C., applicant, who is
involved in Case Crime No. 587 of 2022,
under Sections 376 of I.P.C. & Section 3/4
of the Protection of Children from Sexual
Offences Act, 2012, Police Station- Tilahar
District- Shahjahanpur, seeks enlargement
on bail during the pendency of trial.

2. Heard Shri Manish Tiwary, learned
Senior Counsel for the applicant and Shri
Rabindra Kumar Singh, learned Additional
Government Advocate representing the
State.

3. As per the prosecution case in
brief, informant who is father of the victim
lodged
First
Information
Report
on
07.8.2022 against the applicant-Jaiveer
alleging inter alia that on 07.08.2022 at
about 1:00 pm, his daughter aged about 1415 years had gone to attend the call of
nature in the sugarcane field of Rajesh,
where the accused-applicant with intention
6 All. Jaiveer Vs. State of U.P. & Anr.
321
to commit rape forcible dragged her to the
field of sugarcane and committed rape on
her. His daughter came home crying and
told the whole incident to her mother.

3.1. Victim was medically examined
on 07.08.2022 at about 09:48 PM and at
that time she told the doctor that when I
had gone to attend the call of nature in the
field, accused caught me and forcibly
committed wrong by mouth. The statement
of victim in Hindi is reproduced herein
under:-

पीडिता के अनुसार वह शौच के डिये खेत में गयी थी तभी
आरोपी वहाां पर पकड़ डिया और जबरदस्ती मुांह के द्वारा गित काम
डकया।

3.2. Victim in her statement under
Section 161 Cr.P.C. dated 07.08.2022 has
stated inter alia that the applicant caught
hold of me and took me to the field with
bad intention. When I screamed, he shut
my mouth and tore my cloth (salwar). He
tried to do misdeed with me and he did
wrong in my mouth. The statement of
victim in Hindi is reproduced herein
under:-

"मेरा नाम "X" D/o "Y" R/O की रहने वािी ह ां मैं
कक्षा 8 तक गाांव के ही प्राइमरी स्कूि में पढ़ी ह ां। मेरी उम्र िगभग 14 वर्ष
है आज डदनाांक 07.08.22 को दोपहर 1.00 बजे मैं खेत पर शौच के
डिए गयी थी। जब मैं धान के खेत में िेडिन कर रही थी तभी मेरे गाांव के
जयवीर S/O शेरबहादुर आ गया। डजसे देखकर मैं खड़ी हो गयी और
थानों के खेत से बाहर डनकि आयी। जयवीर अपने धानो मे स्प्रे करने आया
था। जब मैं धानों के खेत से डनकि आयी तभी जयवीर मुझे पकड़ डिया
और बुरी डनयत से गन्ने के खेत में िे गया। मैं डचल्िाई तो मेरा मुह बन्द
कर डिया। इसके बाद उसने मेरे कपड़े (सिवार) फाड़ डदये। मेरे साथ गित
काम करने की कोडशश की तथा उसने मेरे मुांह मे गित काम डकया। इसके
बाद मैं डकसी तरह छूटकर भागती हुयी अपने घर आयी और अपनी माां को
पूरी घटना बतायी।" डदनाांक 7.8.22।

3.3. Victim in her statement under
Section 164 Cr.P.C. has stated inter alia
that the applicant grabbed me from behind
and removed my salwar. When I screamed,
he covered my mouth from his hand and he
did wrong thing in my mouth. He put his
penis in my mouth. With great difficulty I
could let go of myself. The statement of
victim in Hindi is reproduced herein
under:-

"मेरा नाम "X" उम्र 15 वर्ष डपता का नाम "Y"
डनवासी जनपद शाहजहाांपुर मैं खेतो में िेडिन के डिये गयी थी तभी पीछे से
जयवीर ने मुझे दबोच डिया और मेरी सिवार डनकाि दी डफर मै तेजी से
डचल्िायी तब उसने मेरा मुांह हाथ से दबा डिया। मेरे मुांह मे उसने गित
काम डकया अपना डिांग मेरे मुांह में िाि डदया डफर बड़ी मुडककि से मैं
अपने को छुड़ा पायी इसके अडतररक्त मुझे कुछ नहीं कहना।

4. It is argued by the learned counsel
for the applicant that as per medical
examination report of the victim, there is
no sign of use of force. As per
supplementary report dated 08.08.2022 of
the victim, she is aged about 17 years and
there are no sign suggestive of penetration
of oral cavity. There is inconsistency in the
version given in the FIR and the statement
of the victim before doctor as well as
statement under Section 161 Cr.P.C. It is
also submitted by the learned counsel for
the applicant that considering the statement
under Section 161 Cr.P.C. of the victim no
offence of rape is made out, because
several sexual act, which are done by
mouth do not come under the definition of
rape but considering her statement under
Section 164 Cr.P.C., offence of rape is
made out. In this regard, it is further
submitted that the initial allegation of the
victim against the applicant was gradually
improved by the victim in her statement
under Section 164 Cr.P.C., which was
recorded after ten days of the occurrence
and, therefore, the possibility of her being
tutored cannot be ruled out. Lastly, it is
submitted that there is no chance of the
applicant fleeing away from the judicial
process or tampering with the prosecution
322 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence. The applicant does not have any
criminal history and has been languishing
in jail since 08.8.2022.

5. On the other hand learned A.G.A.
for the state opposed the prayer for bail of
the applicant by contending that at the time
of medical examination of the victim,
doctor has also noted in column no 15F of
medical examination report that it is a case
of penetration by penis in the mouth of the
victim. The statement under Section 161
Cr.P.C. of the victim has been recorded by
audio
and
video
means by
woman
constable, which has been made part of the
case diary. Site plan was prepared by the
investigation officer on the direction of
victim. Father and mother have also
supported the prosecution case. As per
scholar register of Upper Primary School
Talvipur, district Shahjanpur and statement
of headmaster, the date of birth of the
victim is 01.01.2008, according to which
victim was aged about 14 years 7 month 8
days on the day of incident. Charge sheet
dated 30.08.2022 has been submitted
against the applicant. In view of Section 29
of POCSO Act, the presumption shall also
be drawn against the accused unless
contrary is proved by him. The offence
under Section 375 (a) of I.P.C. is clearly
made out against the applicant. Lastly it is
submitted that the offence is heinous in
nature. Considering the gravity of offence,
the bail application is liable to be rejected.

6. Having heard the learned counsel
for the parties and perusing the record in its
entirety, I find that in view of Section
2(1)(d) of the POCSO Act, the victim is
minor girl. The applicant is aged about 24
years. So far as the submission of the
learned counsel for the applicant regarding
the discrepancies and improvement in the
statements of victim as pointed out are
concerned, this court is of the opinion that
the same cannot said to be material
contradictions and do not go into the root
of the matter so as to demolish the entire
prosecution case, because the allegation of
victim that the applicant committed wrong
by mouth or in her mouth is there in all her
statements. The meaning of what victim
says is same in all three statements. It is
well known that the every person has a
different way of expressing their words and
feelings in their local language. Victim in
her statement under Section 164 Cr.P.C.
has stated inter alia that the applicant put
his penis in her mouth, which under the
facts of the case cannot said to be material
improvement rather it reinforces her initial
version. The word used by the victim "
Galat kaam kiya" denotes the sexual act in
common parlance. The statement of victim
under Section 164 Cr.P.C. will certainly
prevail over her statement recorded by
doctor or police officer under Section 161
Cr.P.C. In order to constitute an offence of
rape, it is not necessary that there should be
complete penetration of penis in the vagina
or
mouth with
emission
of
semen.
Accordingly, Considering the cumulative
effect of all the statements of the victim, I
do not find force in the submission of
learned senior counsel for the applicant that
no offence of rape is made out. Considering
the facts of the case, this Court is of the
opinion that act of the accused-applicant
comes under the preview of Section 375 (a)
of I.P.C. As on date, I do not find any
material on record to presume the false
implication of the applicant and to
disbelieve the statement of minor victim,
which is primary for considering the bail
application of accused in rape cases.

7. In the light of above discussion and
having considered the facts that rape is the
most
hated,
morally
and
physically
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)