# Pradum Singh v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 1963
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-31
- **Case number:** J. Criminal Misc. Bail Application No. 9723 of 2022
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pradum-singh-v-state-of-u-p-ors-51912
- **Pages:** 6

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 164, 309 & 439 -
Indian Penal Code, 1860 - Sections - 506,
375 & 376-AB - The Protection of Children
from Sexual Offences (POCSO) Act, 2012 -
Sections - 5, 6, 29 & 35(2) - Application for
Bail - FIR - allegation that applicant who is
neighbour of the informant has committed
offence of oral sex with her ten years old minor
girl - grounds of bail - present application is
languishing in jail since long time and St.ment of
prosecutrix recorded under pressure of her
family and he has been falsely implicated -
considering the totality of the facts, medical
examination report, St.ment of prosecutrix
recorded u/s 164 Cr.p.c. and provision of law,
court has not find any substance in the grounds
of bail and not inclined to grant bail to the
applicant - accordingly, bail Application rejected
- further, trial court directed to conclude the trial
within a period of nine months, direction issued
accordingly - however, applicant has a liberty to
file another bail application, if the trial is not
concluded within the stipulated time.
(Para - 17, 22, 24, 25)

Bail Application Rejected. (E-11)

List of Cases cited:

## Text

5 All. Pradum Singh Vs. State of U.P. & Ors.
1963
does not cooperate in the trial proceedings
properly, the learned Trial Court may take
appropriate coercive steps against such
witness, which is permissible under the
law. Further, no unnecessary adjournment
shall be given to any of the parties so that
the trial in question could be concluded
within the time so stipulated.

30. However, liberty is given to the
applicant to file another bail application, if
the trial is not concluded within the
aforesaid stipulated time.

31. Let copy of this order be provided
to the learned Trial Court through District
& Sessions Judge, Balrampur by the
Registry of this Court within three working
days for its strict compliance.
----------
(2024) 5 ILRA 1963
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2024

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN,
J.

Criminal Misc. Bail Application No. 9723 of 2022

Pradum Singh ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Alok Srivastava

Counsel for the Opposite Parties:
G.A., Aslam Javed Siddiqui, Munna Singh

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 164, 309 & 439 -
Indian Penal Code, 1860 - Sections - 506,
375 & 376-AB - The Protection of Children
from Sexual Offences (POCSO) Act, 2012 -
Sections - 5, 6, 29 & 35(2) - Application for
Bail - FIR - allegation that applicant who is
neighbour of the informant has committed
offence of oral sex with her ten years old minor
girl - grounds of bail - present application is
languishing in jail since long time and St.ment of
prosecutrix recorded under pressure of her
family and he has been falsely implicated -
considering the totality of the facts, medical
examination report, St.ment of prosecutrix
recorded u/s 164 Cr.p.c. and provision of law,
court has not find any substance in the grounds
of bail and not inclined to grant bail to the
applicant - accordingly, bail Application rejected
- further, trial court directed to conclude the trial
within a period of nine months, direction issued
accordingly - however, applicant has a liberty to
file another bail application, if the trial is not
concluded within the stipulated time.
(Para - 17, 22, 24, 25)

Bail Application Rejected. (E-11)

List of Cases cited:

1. Sonu Kushwaha Vs St. of up (Criminal Appeal
no. 5415/2018 decided on 18.11.2021),

2. Rajesh Ranjan Yadav Vs CBI through its
Director, (2007) 1 SCC 70,

3. St. of H.P. Vs Asha Ram, (2005) 13 SCC 766,

4. Ganesan Vs St. represented by its Inspector
of Police, (2020) 10 SCC 573,

5. Vijay Vs St. of M.P. (2010) 8 SCC 191,

6. St. of Mah. Vs Chandraprakash Kewalchand
Jain, (1990) 1 SCC 550,

7. St. of U.P. Vs Pappu, (2005) 3 SCC 594,

8. St. of Punj. Vs Gurmit Singh, (1996) 2 SCC
384,

9. St. of Orissa Vs Thakara Besra, (2002) 9 SCC
86,

10. Krishan Kumar Malik Vs St. of Har., (2011) 7
SCC 130.

11. Phool Singh Vs St. of M. P., (2022) 2 SCC
74,
1964 INDIAN LAW REPORTS ALLAHABAD SERIES
12. Sham Singh Vs St. of Har., (2018) 18 SCC 34,

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

1. Heard Shri Alok Srivastava, learned
counsel for the applicant, Shri Rajnish
Kumar Verma, learned A.G.A., however,
no one has appeared on behalf of the
informant/ complainant.

2. As per learned counsel for the
applicant, the present applicant is in jail
since 31.03.2022 in Case Crime No.56 of
2022, under Sections 376AB, 506 IPC and
Section 5/6 of Ptotection of Children from
Sexual Offences (POCSO) Act, 2012,
Police Station- Asiwan, District- Unnao.

3. Learned counsel for the applicant
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 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
ten years. As per FIR, the present applicant,
who
is
the
neighbour
of
the
informant/complainant, in the evening at
9:30 P.M. when informant/complainant
was with her husband, the applicant came
and asked that his mother is calling the
prosecutrix/victim and after a lapse of
time, the complainant along with her
husband went for search of their daughter.
While searching, they heard some sound
coming from kothari of kanda and bhusa.
They found that the cloths of the child
were not on her body and the applicant
was also not wearing cloths. After
wearing cloths the child told that the
present applicant has made oral sex with
her and penetrated the penis in her way of
urine.

4. Learned counsel for the applicant
has submitted that the entire prosecution
story is false and concocted inasmuch as the
prosecution story creates doubt as there was
no independent eye witness account and
last seen evidence.

5. Learned counsel for the applicant
has also drawn attention of this Court
towards the 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 appellant 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 All. Pradum Singh Vs. State of U.P. & Ors.
1965
5,000/-, in default, three months additional
simple imprisonment."

6. On the basis of aforesaid paras, the
learned counsel for the applicant 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 two
years and two months in jail, therefore,
considering the period of incarceration, the
present applicant may be released on bail.

7. Learned counsel for the applicant
has further drawn attention of this Court
towards Annexure No.5 of the bail
application, which is the statement of the
prosecutrix recorded under Section 164 of
Cr.P.C., wherein her statement has been
recorded under pressure of her family
members.

8. Learned counsel for the applicant
has reiterated that the present applicant has
no previous criminal history, therefore, the
present applicant undertakes that he shall
not misuse the liberty of bail, if so granted
by this court and shall abide by all terms
and conditions of the bail order and shall
cooperate in the trial proceedings.

9. Learned A.G.A. has opposed the
aforesaid prayer of learned counsel for
the applicant 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 Annexure
No.5 of the bail application, which is the
statement of the prosecutrix recorded
under section 164 of Cr.P.C., wherein she
told that the present applicant has made
oral sex with her and penetrated the penis
in her way of urine. 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.

10. Learned AGA has further drawn
attention of this court towards Annexure
No.4, which is the copy of medical report.
Hymen was torned, which supports the
prosecution story, and also the statement
of the prosecutrix/victim recorded under
Section 164 Cr.P.C. has reiterated the
version of statement recorded under
section 161 Cr.P.C., therefore, the present
applicant may not be released on bail.

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

12. It is well settled that to constitute
an offence of rape complete penetration
of penis with emission of semen and the
rupture of hymen is not necessary. 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 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
1966 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

13. 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."

14. Having heard learned counsel for
the parties, having gone through the above
definition of 'rape' opined by the eminent
experts and having perused the material
available on record, at the very outset, I
would like to observe that the prosecutrix/
child, who was aged about 10 years but as
per her educational documents her age was
12 years on the date of incident, recorded
her statements under Section 161 & 164
Cr.P.C. levelling specific allegation against
the present applicant of committing rape
with her. Notably, after reading the entire
statement recorded under Section 164
Cr.P.C., the fact would emerge that in such
statement,
she
has
levelled
specific
allegation of oral sex with her and the
present applicant has penetrated the penis
in her way of urine.

15. 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 12
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.

16. 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."

17. Section 29 of the POCSO Act
provides for presumption as to certain
offences. It provides that if a person is
prosecuted for violating any provision of
Sections 3, 5, 7 & 9 of the Act and where
the victim is a child below the age of 16
years, the Special Court shall presume that
such person has committed the offence,
unless the contrary is proved.

18. The Apex Court in re; State of
H.P. Vs. Asha Ram, (2005) 13 SCC 766,
has observed in para-5, which reads as
under:-
5 All. Pradum Singh Vs. State of U.P. & Ors.
1967

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

19. The Apex Court in re; Ganesan
Vs. State represented by its Inspector of
Police, (2020) 10 SCC 573, while
considering the judgments of Vijay v.
State of M.P., (2010) 8 SCC 191, State of
Maharashtra
v.
Chandraprakash
Kewalchand Jain, (1990) 1 SCC 550,
State of U.P. Vs. Pappu, (2005) 3 SCC
594, State of Punjab v. Gurmit Singh,
(1996) 2 SCC 384, State of Orissa v.
Thakara Besra, (2002) 9 SCC 86 and
Krishan Kumar Malik v. State of
Haryana, (2011) 7 SCC 130 has observed
that to hold an accused guilty for
commission of an offence of rape, the
solitary evidence of the prosecutrix is
sufficient, provided the same inspires
confidence and appears to be absolutely
trustworthy, unblemished and should be of
sterling quality.

20. In the case of Pappu (supra), the
Apex Court has held that even in a case
where it is shown that the girl is a girl of
easy virtue or a girl habituated to sexual
intercourse, it may not be a ground to
absolve the accused from the charge of
rape. It has to be established that there was
consent by her for that particular occasion
and that consent should be free consent.

21. The Apex Court in re; Phool
Singh v. State of Madhya Pradesh, (2022)
2 SCC 74, has considered the judgment of
Sham Singh vs. State of Haryana, (2018)
18 SCC 34, wherein the Apex Court has
observed that the testimony of the victim is
vital and unless there are compelling
reasons which necessitate looking for
corroboration of her statement, the courts
should find no difficulty to act on the
testimony of the victim of sexual assault
alone to convict an accused where her
testimony inspires confidence and is found
to be reliable.

22. Considering the totality of the
facts and circumstances of the issue in
question, medical examination report,
statement of the prosecutrix recorded under
1968 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 164 Cr.P.C. and the provisions of
law i.e. Section 375 IPC, Section 5/6 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 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.

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

24. Since the present applicant is in
jail since 31.03.2022 and the trial in
POCSO cases should be conducted and
concluded with expedition, preferably
within a period of one year in terms of
Section 35 (2) of the POCSO Act, therefore,
I hereby direct the learned Trial Court to
conclude the trial within a period of nine
months from the date of receipt of copy of
this order taking recourse of Section 309
Cr.P.C. by fixing short dates, if possible, fix
dates on day-to-day basis to ensure that the
examination of all prosecution witnesses
and other witnesses from both the sides, if
any, be completed expeditiously and if any
of the witnesses does not cooperate in the
trial proceedings properly, the learned Trial
Court may take appropriate coercive steps
against such witness, which is permissible
under the law. Further, no unnecessary
adjournment shall be given to any of the
parties so that the trial in question could be
concluded within the time so stipulated.

25. However, liberty is given to the
applicant to file another bail application, if
the trial is not concluded within the
aforesaid stipulated time.

26. Let copy of this order be provided
to the learned Trial Court through District
& Sessions Judge, Unnao by the Registry of
this Court within three working days for its
strict compliance.

27. Before parting with, I appreciate
the efforts and research made by Shri
Piyush
Tripathi,
Research
Associate
attached with me, in finding out the
relevant case laws applicable in the present
case.
----------
(2024) 5 ILRA 1968
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2024

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Criminal Misc. Bail Application No. 10123 of
2022

Neeraj Raidas ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicants:
Vijay Kumar, Alok Kumar Mishra

Counsel for the Opposite Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections - 161, 164, 309 & 439 -
Indian Penal Code, 1860 - Sections - 323
& 376 - The Protection of Children from
Sexual Offences (POCSO) Act, 2012 -
Section - 3, 4, 29, 35(2) - Application for Bail
- FIR - allegation of committing rape forcibly -
grounds of bail that, applicant is languishing in
jail since long time, - prosecutrix is the
consenting party with the applicant, - her
St.ment was recorded under the pressure of her
family, - entire story is false, fabricated and
developed by the complainant - and he has no
any criminal history - court observed that, -