# Khushabe Ali (In Jail) v. State of U.P - **Citation:** (2021) 8 ILRA 235 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2021-07-28 - **Case number:** Crl. Misc. Ist Bail Application No. 3179 of 2021 - **Bench:** Mohd. Aslam - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/khushabe-ali-in-jail-v-state-of-u-p-47200 - **Pages:** 4 ## Headnote A. Criminal Law - Code of Criminal Procedure, 1973-Section 439 - Indian Penal Code, 1860Sections 498-A, 323, 504, 506, 354 - Dowry Prohibition Act, 1961-Section 3⁄4-applicationgrant of bail-applicant and co-accused demanded dowry coupled with torture and beating her badly and subjected to unnatural intercourse by all accused-but in her statement u/s 164 Cr.P.C., victim confined herself regarding the demand of dowry and harassment and offence of sodomy was committed by her husband-no injury was found on the body of victim-no criminal history of the accused. (Para 1 to 12) The application is allowed. (E-5) ## Text 8 All. Khushabe Ali Vs. State of U.P. 235 The prosecution has failed to put its defence case. Eye witnesses P.W.-1, Km Pooja is the main injured in this case and her testimony carries much weight. 23. In Balwan and others Vs. State of Haryana, passed in Criminal Appeal No.1842 of 2014 Hon'ble Apex Court held that "normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain protect the real culprit. It is trite law that evidence of injured witness, being a stamped witness, is accorded a special status in law. This is as a consequence of the fact that injuries to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness would not want to let actual assailant go unpunished." 24. P.W.-1 Km. Pooja and P.W.-2 Km. Rinki have fully supported the prosecution case in their respective statements and their statements were fully corroborated by medical evidence as discussed above, and prosecution has succeeded to prove its case against the accused beyond reasonable doubt. 25. No other point was raised from the side of accused-appellant. 26. Hence, in my opinion, prosecution version is consistent and the conviction and sentence recorded by the learned trial court below is correct and it has rightly convicted the accused-appellant which does not call for any interference, as a result, the appeal is liable to be dismissed. 27. The appeal is accordingly, dismissed. ---------- (2021)08ILR A235 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 28.07.2021 BEFORE THE HON'BLE MOHD. ASLAM, J. Crl. Misc. Ist Bail Application No. 3179 of 2021 Khushabe Ali ...Applicant (In Jail) Versus State of U.P. ...Opposite Party Counsel for the Applicant: Sri Harish Kumar Yadav, Sri Keshari Nath Tripathi Counsel for the Opposite Party: A.G.A., Sri Pawan Kumar Shukla A. Criminal Law - Code of Criminal Procedure, 1973-Section 439 - Indian Penal Code, 1860Sections 498-A, 323, 504, 506, 354 - Dowry Prohibition Act, 1961-Section 3⁄4-applicationgrant of bail-applicant and co-accused demanded dowry coupled with torture and beating her badly and subjected to unnatural intercourse by all accused-but in her statement u/s 164 Cr.P.C., victim confined herself regarding the demand of dowry and harassment and offence of sodomy was committed by her husband-no injury was found on the body of victim-no criminal history of the accused. (Para 1 to 12) The application is allowed. (E-5) (Delivered by Hon'ble Mohd. Aslam, J.) 1. Heard Sri Keshari Nath Tripathi, learned counsel for the applicant, learned A.G.A for the State and informant counsel, Pawan Kumar Shukla and perused the record. 2. It has been argued by learned counsel for the applicant that applicant is 236 INDIAN LAW REPORTS ALLAHABAD SERIES innocent and he has been falsely implicated in the present case. It is further contended by learned counsel for the applicant that the F.I.R. was lodged on 08.09.2020, in Case Crime No. 337 of 2020, under Sections 498-A, 323, 504, 506, 354 I.P.C and read with Section 3/4 Dowry Prohibition Act, Police Station - Bhojpur, District - Moradabad. 3. It is contended by the learned counsel for the applicant that the F.I.R was lodged on 08.09.2020, in Case Crime No. 337 of 2020, under Sections 498-A, 323, 504, 506, 354 I.P.C and read with Section 3/4 Dowry Prohibition Act, Police Station - Bhojpur, District - Moradabad. After lapse of more than three months of the alleged incident, it was alleged that the accused/applicant and co-accused had demanded dowry coupled with torture and beating her badly resulting in breach of her modesty and it further alleged that the accused-applicant, while demanding dowry from her, she was also subjected to unnatural intercourse, as such, the victim has fully supported the version of the F.I.R The statement if victim under Section 161 Cr.P.C was recorded in which, she has stated before the Investigating Officer as to what was revealed by her counsel. It is further contended that the statement of the victim recorded under Section 164 Cr.P.C. wherein, the victim did not utter anything about the unnatural intercourse being done by accused except the intercourse done by the accused-applicant. It is contended that it is purely a family dispute, and the F.I.R of the alleged incident was lodged belatedly and no explanation thereof was given for the delay. It is further contended that as per amendment of Section 375 I.P.C the definition of 'rape' includes so many things also. It is contended that as per Explanation - 2 Appended to the Section aforesaid revealed about the sexual intercourse with his own wife and the wife shall not be under fifteen years of age is no "rape". It is further argued keeping in view of the above facts and circumstances of the case offence punishable under Section 315 I.P.C, is not made out. It contended that Section 315 of I.P.C was amended and was substituted by Criminal Law Amendment Act No. 13 of 2013 and the present case has taken place in the year 2020, therefore this case squarely covered by the aforesaid act. It is further alleged that there is no criminal history of the accused and has prayed that the accused-applicant be enlarged on bail. It has been lastly argued that she is languishing in jail since 17.11.2020, having no criminal history and that in case he is released on bail, he will not misuse the liberty of bail and will cooperate in trial. 4. Learned A.G.A. has opposed the prayer for bail and has contended that in F.I.R. the allegations of demand of dowry, harassment and breaching of modesty of the victim has been alleged and it is further alleged that brother-in-law and brother of the accused-applicant also used to breach the modest of the victim and committed unnatural offence upon the victim several times. 5. Learned A.G.A has not disputed the statement recorded under Section 164 Cr.P.C of the victim and the victim has not deposed that brother-in-law of the accused and brother of the accused committed sodomy on her. 6. I have perused the facts and material available on record and has found that it is matter of family dispute and initially in the F.I.R. the victim has alleged that applicant-accused with co-accused brother-in-law and brother has demanded 8 All. Khushabe Ali Vs. State of U.P. 237 dowry and has committed sodomy and modesty upon her, but in the statement recorded under Section 164 Cr.P.C, the victim has confined herself regarding the demand of dowry and breach of modesty and harassment and has also confined the act of sodomy and has stated that offence of sodomy was committed by her husband. 7. Section 375 Cr.P.C was substituted by Criminal Law Amendment Act 13 of 2013, where the 'rape' is defined as follows :- 8. The relevant portion of the said Section is reproduced as below : "375. Rape.--A man is said to commit "rape" if he - (a) Penetrate 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. under the circumstances falling under any of the following seven descriptions:- First. --- Against her will. Secondly. --- Without her consent. Thirdly. --- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly. --- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly. --- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly. --- With or without her consent, when she is under eighteen years of age. Seventhly. --- When she is unable to communicate consent. Explanation 1. --- For the purposes of the section, "vagina" shall also include labia majora. Explanation 2. Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act. Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1. --- A medical procedure or intervention shall not constitute rape. Exception 2. --- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape] [a] Substituted by the Criminal Law (Amendment) Act (No. 13 of 2013], S. 9 (3-2-2013)". 238 INDIAN LAW REPORTS ALLAHABAD SERIES 9. Exception 2, speaks that the sexual intercourse, with his own wife, the wife not being under fifteen years of age and from the perusal of Section 375-A, it includes unnatural offence also. 10. Keeping in view of all over the facts and circumstances of the case as well as the definition of "rape' as defined under Section 375, wherein the act of rape has been defined and is subjected to Exception no. 2 of the said act. No injury was found on the body of victim. I find that it to be a fit case for grant of bail to accused/ husband. 11. Considering the entire facts and circumstances of the case, submissions of learned counsel for the parties, nature of evidence and all attending facts and circumstances of the case, without expressing any opinion on merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed. 12. Let the applicant - Khushabe Ali involved in Case Crime No. 337 of 2020, under Sections 498-A, 323, 504, 506, 377 I.P.C & Section 3/4 of Dowry Prohibition Act, 1961, Police Station - Bhojpur, District - Moradabad, be released on bail on furnishing each a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions:- 1. The applicant shall not tamper with the evidence during the trial. 2. The applicant shall not pressurize / intimidate the prosecution witness. 3. The applicant shall appear before the trial court on the date fixed, unless personal presence is exempted. 4. The applicant shall not commit an offence similar to the offence of which she is accused, or suspected, of the commission of which she is suspected. 5. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or to any police officer or tamper with the evidence. 13. In case of breach of any of the above condition, the prosecution shall be at liberty to seek cancellation of bail in accordance with law. 14. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by learned counsel for the applicant along with a self attested identity proof of the said persons (preferably Aadhar Card) mentioning the mobile number (s) to which the said Aadhar Card is linked before the concerned Court/ Authority/ Official. 15. The concerned Court/ Authority/ Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing. ---------- (2021)08ILR A238 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 16.07.2021 BEFORE THE HON'BLE ANJANI KUMAR MISHRA, J. THE HON'BLE SHEKHAR KUMAR YADAV, J. Crl. Misc. Writ Petition No. 728 of 2021 Pramod Singh ...Petitioner Versus State of U.P. & Ors. ...Respondents Counsel for the Petitioner: