# Rajesh (In Jail) v. State of U.P. & Ors

- **Citation:** (2023) 5 ILRA 434
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-10
- **Case number:** Crl. Misc. Bail Application No. 10336 of 2022
- **Bench:** Sanjay Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-in-jail-v-state-of-u-p-ors-50218
- **Pages:** 5

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 439 - Indian
Penal Code, 1860 - Section 376 - 3⁄4
POCSO Act-victim in her statement both
under section 161 and 164 Cr.PC has
made serious allegation of rape against
the
victim-After
investigation
charge
sheet has been submitted u/s 376AB of
IPC and presumption u/s 29 of the POCSO
Act shall also be drawn against the
applicant-allegation of the prosecution is
not supported by the medical examination
5 All. Rajesh Vs. State of U.P. & Ors.
435
report of the victim is not relevant where
the female child is aged about 7 yearsChildren are ignorant of the act of the
rape and become easy prey for lusty
brutes.(Para 1 to 17)

B. In the Indian setting, refusal to act on
the testimony of a victim of sexual assault
in the absence of corroboration as a rule,
is adding insult to injury. To do so is to
justify the charge of male chauvinism in a
male dominated society.(Para 11)

The application is rejected. (E-6)

List of Cases cited:

## Text

434 INDIAN LAW REPORTS ALLAHABAD SERIES

16. Learned counsel has placed
reliance on the judgement of this Court
passed in Shivam Vs. State of U.P.,
whereby it is held that if the applicant has
agitated the provisions of Section 482
Cr.P.C. and has failed, he cannot be
enlarged on anticipatory bail. Learned
counsel has next stated that the applicant
and co-accused persons have outraged the
modesty of two women and had even torn
off the clothes of the informant. The said
allegations stand fortified by the statements
of the informant and the victim recorded
under Section 164 Cr.P.C. The other coaccused have not been enlarged on
anticipatory bail, rather they have been
enlarged on regular bail by Session Judge,
Moradabad vide order dated 4.5.2022. The
applicant is not entitled for anticipatory bail
as he is used to filing several applications
at various forums and has delayed the trial
since 2020. He is not cooperating and the
matter is pending since last three years.

Conclusion:

17. The prosecution story as alleged
in the FIR stands fortified by the fact that
the FIR has been instituted by an order of
the SSP, Moradabad. The applicant has
already agitated the provisions of Section
482 Cr.P.C. and has failed that too on
8.3.2022. Much water has fallen down the
Ganges since then and it is the applicant,
who has stalled the trial at one pretext or
the other by moving several applications
and this is the fourth anticipatory bail
application. The proceedings under Section
82 Cr.P.C. have been initiated against the
applicant.

18. Considering the facts and
circumstances of the case and also the
arguments advanced by the learned counsel
for
the
parties,
and
taking
into
consideration the judgement of Lavesh
(supra) and Shivam (supra) and also the
fact that the applicant was refused the
protection u/s 438 Cr.P.C. twice, this Court
finds that the arguments tendered at bar
pertain to regular bail application and
cannot be agitated u/s 438 Cr.P.C.,
therefore, I do not find it a fit case for
granting the anticipatory bail to the
applicant.

19. In view of the above, the present
anticipatory bail application is rejected.
----------
(2023) 5 ILRA 434
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.05.2023

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Crl. Misc. Bail Application No. 10336 of 2022

Rajesh ...Applicant (In Jail)
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Vijay Tripathi, Sri Ajay Pratap Singh, Sri
Prem Shankar, Sri Shailja Kant Tripathi, Sri
Utkarsh Singh

Counsel for the Opposite Party:
G.A., Sri Rajendra Kumar Srivastava

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 439 - Indian
Penal Code, 1860 - Section 376 - 3⁄4
POCSO Act-victim in her statement both
under section 161 and 164 Cr.PC has
made serious allegation of rape against
the
victim-After
investigation
charge
sheet has been submitted u/s 376AB of
IPC and presumption u/s 29 of the POCSO
Act shall also be drawn against the
applicant-allegation of the prosecution is
not supported by the medical examination
5 All. Rajesh Vs. State of U.P. & Ors.
435
report of the victim is not relevant where
the female child is aged about 7 yearsChildren are ignorant of the act of the
rape and become easy prey for lusty
brutes.(Para 1 to 17)

B. In the Indian setting, refusal to act on
the testimony of a victim of sexual assault
in the absence of corroboration as a rule,
is adding insult to injury. To do so is to
justify the charge of male chauvinism in a
male dominated society.(Para 11)

The application is rejected. (E-6)

List of Cases cited:

1. H.P. Vs Asha Ram (2006) Cri L.J. 139

2. Bharwada Bhoginbhai Hirjibhai Vs St. of Guj.
(1993) AIR SC 753

3. St. of A.P Vs Bodem Sundara Rao (1995) 6
SCC 230

4. Madan Gopal Kakad Vs Naval Dubey & anr..
(1992) SCR 2 921

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

1. Heard learned counsel for the
applicant, learned Additional Government
Advocate representing the State and learned
counsel appearing on behalf of the first
informant.

2. By means of this application,
applicant Rajesh, who is involved in Case
Crime No. 14 of 2022, under Sections 376AB
of I.P.C., & under Section 5m/6 POCSO Act,
Police Station Dauki, District Agra, seeks
enlargement on bail during the pendency of
trial.

3. As per prosecution case in brief, the
informant who is mother of the victim lodged
a first information report on 14.01.2022 for
an alleged offence under Section 376 I.P.C.
and Section 3/4 of POCSO Act against the
applicant Rajesh making allegations inter-alia
that on 14.01.2022 at about 05:50 PM when
her daughter aged about 7 years had gone to
field, the applicant by alluring her for giving
Rs. 10/- bodily lifted her to the mustard field
and committed rape on her.

4. The main substratum of argument of
learned counsel for applicant is that the
applicant has been falsely implicated in this
case and that the allegation of the prosecution
is not supported by the medical examination
report of the victim as no injury was found on
her body and her hymen perineum was found
intact. Therefore, the applicant who is
languishing in jail since 15.01.2022 may be
enlarged on bail.

5. Per contra, learned Additional
Government Advocate vehemently opposed
the prayer for bail of the applicant by
contending that the victim in her statement
both under Section 161 and 164 Cr.P.C. has
made serious allegation of rape against the
applicant. Victim is minor child aged about 7
years, and the offence is heinous in nature,
therefore bail application of the applicant is
liable to be rejected.

6. Victim in her statement under
Section 164 Cr.P.C. has specifically stated
that when she had gone to fetch mustard from
the field, accused took her to the field in the
lap and inserted his penis into his vagina.

7. 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.

8. Modi in his book Modi Textbook
of
Medical
Jurisprudence
and
Toxicology, 23rd Edition, at page 897,
opined thus:
436 INDIAN LAW REPORTS ALLAHABAD SERIES

"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
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.

9. 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."

10. State Of Himachal Pradesh vs
Asha Ram, 2006 Cri.L.J. 139 was a case
in which High Court of Himachal Prdesh
has acquitted the accused Asha Ram on the
ground that no spermatozoa were found on
the
Salwar
and
underwear
of
the
prosecutrix
though
according
to
the
prosecution,
complete
act
of
sexual
intercourse was committed. Further no
evidence has come on record to show that
hymen was ruptured. The medical evidence
coming on record, as discussed above, is
highly unreliable and even otherwise it
does not establish that the victim was
subjected to sexual intercourse. Hon'ble
Supreme while setting aside the judgement
of the High Court, has held as under:

"We record our displeasure and
dismay, the way the High Court dealt
casually with the offence so grave, as in the
case at hand, overlooking the alarming and
shocking increase of sexual assault on the
minor girls. The High Court was swayed by
sheer insensitivity totally oblivious of
growing menace of sex violence against the
minors much less by the father. The High
Court
also
totally
overlooked
the
prosecution
evidence,
which
inspired
confidence and merited acceptance. It is
now 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 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 given circumstances. The
evidence of the prosecutrix is more reliable
than that of an injured witness. Even minor
contradictions
or
insignificant
5 All. Rajesh Vs. State of U.P. & Ors.
437
discrepancies in the statement of the
prosecutrix should not be a ground for
throwing
out
an
otherwise
reliable
prosecution case."

11. In the case of Bharwada
Bhoginbhai
Hirjibhai
Vs.
State
of
Gujarat, AIR 1983 SC 753, Hon'ble
Supreme Court held thus:

In the Indian setting, refusal to
act on the testimony of a victim of sexual
assault in the absence of corroboration as
a rule, is adding insult to injury. Why
should the evidence of the girl or the
woman who complains of rape or sexual
molestation be viewed with the aid of
spectacles fitted with lenses tinged with
doubt, disbelief or suspicion ? To do so is
to justify the charge of male chauvinism in
a male dominated society. We must analyze
the argument in support of the need for
corroboration and subject it to relentless
and remorseless cross-examination. And
we must do so with a logical, and not an
opiniated, eye in the light of probabilities
with our feet firmly planted on the soil of
India and with our eyes focussed on the
Indian horizon. We must not be swept off
the feet by the approach made in the
Western World which has its own social
milieu, its own social mores, its own
permissive values, and its own code of life.
Corroboration may be considered essential
to establish a sexual offence in the
backdrop of the social ecology of the
Western World. It is wholly unnecessary to
import the said concept on a turn-key basis
and to transplate it on the Indian soil
regardless of the altogether different
atmosphere, attitudes, mores, responses of
the Indian Society and its profile."

12. Hon'ble Supreme Court in State of
A.P. Vs. Bodem Sundara Rao, 1995 (6)
SCC 230 has cautioned the Courts while
dealing with the cases of sexual crime against
women in the following words:

"Sexual violence apart from being
a dehumanizing act is an unlawful intrusion
of the right to privacy and sanctity of a
female. It is a serious blow to her supreme
honour and offends her self esteem and
dignity. It degrades and humiliates the victim
and where the victim is a helpless innocent
child,
it
leaves
behind
a
traumatic
experience. The Courts are, therefore,
expected to deal with the cases of sexual
crime against women with utmost sensitivity.
Such cases need to be dealt with sternly and
severely."

13. In Madan Gopal Kakkad vs
Naval Dubey And another, 1992 SCR (2)
921, Hon'ble Supreme Court held:

Before parting with the judgment,
with deep concern, we may point out that
though all sexual assaults on female children
are not reported and do not come to light yet
there is an alarming and shocking increase of
sexual offences committed on children. This
is due to the reasons that children are
ignorant of the act of rape and are not able to
offer resistance and become easy prey for
lusty brutes who display the unscrupulous,
deceitful and insidious art of luring female
children and young girls. Therefore, such
offenders who are menace to the civilized
society should be mercilessly and inexorably
punished in the severest terms.

We feel that Judges who bear the
Sword of Justice should not hesitate to use
that sword with the utmost severity, to the full
and to the end if the gravity of the offences so
demand.

14. It is also not disputed that after
investigation charge-sheet have submitted
438 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 376AB of I.P.C., in which
minimum sentence of 20 years has been
provided. Apart from this presumption
under Section 29 of the POCSO Act shall
also be drawn against the accusedapplicant.

15. Though all sexual assaults on female
children are not reported and do not come to
light yet there is an alarming and shocking
increase of sexual offences committed on
children. This is due to the reasons that
children are ignorant of the act of the rape and
are not able to offer resistance and become
easy prey for lusty brutes who display the
unscrupulous, deceitful and insidious art of
luring female children and young girls.
Therefore, such offenders who are menace to
the civilized society should be mercilessly and
inexorably punished in the severest terms.

16. Considering the overall facts and
circumstances of the case as well as
keeping in view the submissions advanced
on behalf of parties, gravity of offence, role
assigned to applicant and severity of
punishment, I do not find any good ground
to release the applicant on bail.

17. Accordingly, the bail application
is rejected.
----------
(2023) 5 ILRA 438
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.05.2023

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Crl. Misc. First Bail Application No. 10374 of
2023

Prakash Narayan Sharma @ Babali
 ...Applicant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri V.P. Srivastava (Sr. Advocate), Sri Vijay
Kumar Mishra

Counsel for the Opposite Party:
Sri Sunil Srivastava, A.G.A., Sri Yogendra
Srivastava,
Sri
Deepak
Kumar
Kulshreshtha, Sri Shambhu Mani Tripathi

Criminal Law - Criminal Procedure Code,
1973 - Sections 161 & 164 - Indian Penal
Code, 1860 - Sections 147, 323, 354, 354K, 376, 406, 504 & 506 - Application for Bail
- FIR - applicant who is an active advocate and
victim was his client - victim used to visit him
for purpose of discussing cases and later on
both of them became intimated and their
intimacy was so open that she was comfortable
with applicant even in presence of applicant's
wife - due to certain monetary dispute,
consensual relationship between applicant and
victim become sour - considering the nature of
evidence placed on record, it appears that
applicant used to have photographs with
dignitaries including Judges to show him to be a
very influential person and victim was trapped in
the web of pornography created by applicant
and she was forced to act in terms of directions
of
applicant
including
to
have
physical
relationship with him - court finds that, it may
not be a case of honeytrap rather the applicant
has acted beyond relationship of an advocate
and client and entered in an arena where social
boundaries were broken and later on led to
various disputes and allegations - allegations of
pornography and rival claim on financial dispute
may be tilt towards applicant for consideration
of his bail application and since during trial
St.ment of victim has not been recorded till
date, therefore, at this stage if applicant gets
bail, he will definitely try to influence her -
accordingly, bail application rejected - directions
issued for record the St.ment of victim
expeditiously. (Para - 12, 13, 14, 15)

Bail Application Rejected. (E-11)

List of Cases cited: