# Shameem Ahmad v. State of U.P. Opp. Party 386 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2021) 6 ILRA 385
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-06-21
- **Case number:** Bail No. 1419 of 2021
- **Bench:** Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shameem-ahmad-v-state-of-u-p-opp-party-386-indian-law-reports-allahabad-series-47112
- **Pages:** 6

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Section 439 - Indian
Penal Code, 1860-Section 376-applicationrejection- the version of complainant as
stated in First Information Report, the
statement of victim under Section 161
Cr.P.C. is quite similar to that version and
thereafter the statement recorded by the
Magistrate has also no deviation from the
allegation of rape-The material fact that
victim when came out of house in the night
at about 11.00 p.m. to urinate she was
caught hold by the accused and dragged in
the nearby maize field, where she was raped
by him- There is no deviation in the iteration
of the material facts in all the three
documents on record The parent themselves
came out of the house when the victim did
not come within a reasonably possible time,
in search of daughter and heard her cry
coming from the nearby maize field, father
saw the accused in torch light who ran away
from the spot- The argument of applicant
with
regard
to
consensual
sexual
intercourse does not stand on it's own legs,
because the statement of victim as to
"catching hold of her and dragging into
maize field" is not improbable-The physical
power of a man in comparison to that of a
18 years old girl is much more for
committing such terrible act of abduction
for the purpose of rape- - Looking into the
sensitivity of the of matter, possibility of
fleeing away of accused-applicant from the
process of the court, possibility of adversely
affecting the witnesses, prosecutrix, the
application is liable to be rejected. (Para 1
to 20)

B. On principle the testimony of a victim of
sexual assault stands on par with the
testimony of an injured witness. Just like
the testimony of the injured witness that of
the victim of sex offence is entitled to great
weight. But unlike the case of physical
assault, corroboration in the form of
eyewitness account of an independent
witness cannot be expected in sex offence,
having regard to the very nature of the
offence. (Para 16,17)

C. Gender violence is most often unseen and
is shrouded in a culture of silence. The
causes and factors of violence against
women include entrenched unequal power
equations between men and women that
foster
violence
and
its
acceptability,
aggravated by cultural and social norms,
economic dependence, poverty and alcohol
consumption, etc. In India, the culprits are
often known to the woman; the social and
economic "costs" of reporting such crimes
are high. General economic dependence on
family and fear of social ostracization act as
significant disincentives for women to
report any kind of sexual violence, abuse or
abhorrent behaviour. Therefore, the actual
incidence of violence agains

## Text

6 All. Shameem Ahmad Vs. State of U.P.
385
individuals
concerned
therein
have
developed
only
simultaneous
and
independent intentions or whether a
simultaneous consensus of their minds to
bring about a particular result can be said
to have been developed and thereby
intended by all of them, is a question that
has to be determined on the facts............."

15. If the present accused-applicant
had not allegedly stopped with other coaccused (his brothers) by catching hold the
deceased, he could have saved himself
from the stabbing of the knife by the coaccused Harishchandra Kharwar or could
have escaped from the scene of the
incident, could have saved his life. But this
could not happen because of the present
accused having caught and stopped the
deceased, consequently he was murdered.

16. In situation like that of the present
case, when some people, in a dispute with
another person start beating him, even
when one or more of them become so
violent and strike him with hand, kicks and
fist or strangulate him or do some fatal act
or wield lethal weapon in such a way to
ensure his death and those who are still
involved
in
the
incident
throughout
knowing
very
well
the
probable
consequences of the acts being done by
their companions (co-accused), and caught
hold the victim of the incident untill the
other participants in crime ensures the
victim's death or about to death by reason
of the injury sustained in the course of
evidences, the role and the liability of such
a person having caught & hold the victim
cannot be different from the intention of the
person committing murder and neither
should his liability separable.

17. On the basis of aforesaid
discussions, the facts and circumstances
and perusal of the materials on record, the
entirety of facts as emerging from the
statements of witness annexed with the
affidavit in support of the bail-application, I
find the prima facie case of prosecution
established against the present accusedapplicant. Further the manner, incident was
committed and the nature of the accused
persons apparent from the evidences, all are
sufficient together to show, the accusedapplicant is capable of tampering the
evidences and to affect the witness
adversely.

18. Without making comment as to
the merit of the case, I find no force in the
submission of learned counsel for the bailapplicant
and
the
bail-application
is
rejected at this stage.

19. Learned court below is directed to
expeditiously proceed with the trial of the
case as soon as practicably possible, within
one year from the date, certified copy of the
order is placed before it. In deciding the
case on merit, the trial court need not to be
swayed away with any observation made
by this Court in the order.

20. The present accused-applicant
may have right to avail remedy of bail
afresh after expiry of aforesaid period.
----------
(2021)06ILR A385
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.06.2021

BEFORE

THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Bail No. 1419 of 2021

Shameem Ahmad ...Applicant
Versus
State of U.P. ...Opp. Party
386 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Applicant:
Jitendra Singh

Counsel for the Opp. Party:
G.A.

A.
Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 439 - Indian
Penal Code, 1860-Section 376-applicationrejection- the version of complainant as
stated in First Information Report, the
statement of victim under Section 161
Cr.P.C. is quite similar to that version and
thereafter the statement recorded by the
Magistrate has also no deviation from the
allegation of rape-The material fact that
victim when came out of house in the night
at about 11.00 p.m. to urinate she was
caught hold by the accused and dragged in
the nearby maize field, where she was raped
by him- There is no deviation in the iteration
of the material facts in all the three
documents on record The parent themselves
came out of the house when the victim did
not come within a reasonably possible time,
in search of daughter and heard her cry
coming from the nearby maize field, father
saw the accused in torch light who ran away
from the spot- The argument of applicant
with
regard
to
consensual
sexual
intercourse does not stand on it's own legs,
because the statement of victim as to
"catching hold of her and dragging into
maize field" is not improbable-The physical
power of a man in comparison to that of a
18 years old girl is much more for
committing such terrible act of abduction
for the purpose of rape- - Looking into the
sensitivity of the of matter, possibility of
fleeing away of accused-applicant from the
process of the court, possibility of adversely
affecting the witnesses, prosecutrix, the
application is liable to be rejected. (Para 1
to 20)

B. On principle the testimony of a victim of
sexual assault stands on par with the
testimony of an injured witness. Just like
the testimony of the injured witness that of
the victim of sex offence is entitled to great
weight. But unlike the case of physical
assault, corroboration in the form of
eyewitness account of an independent
witness cannot be expected in sex offence,
having regard to the very nature of the
offence. (Para 16,17)

C. Gender violence is most often unseen and
is shrouded in a culture of silence. The
causes and factors of violence against
women include entrenched unequal power
equations between men and women that
foster
violence
and
its
acceptability,
aggravated by cultural and social norms,
economic dependence, poverty and alcohol
consumption, etc. In India, the culprits are
often known to the woman; the social and
economic "costs" of reporting such crimes
are high. General economic dependence on
family and fear of social ostracization act as
significant disincentives for women to
report any kind of sexual violence, abuse or
abhorrent behaviour. Therefore, the actual
incidence of violence against women in
India is probably much higher than the data
suggests, and women may continue to face
hostility
and
have
to
remain
in
environments where they are subject to
violence. This silence needs to be broken. In
doing so, men, perhaps more than women
have a duty and role to play in averting and
combating violence against women. (Para
18)

The application is rejected. (E-5)

List of Cases cited:

1. Sudha Singh Vs St. of U.P. & anr. (2021) AIR
SC 2149

2. Rameshwar Vs St. of Raj. (1952) AIR SC 54

3. Aparna Bhat & ors. Vs St. of M.P. & anr.
(2021) SCC SC 230

(Delivered by Hon'ble Vikas Kunvar
Srivastav, J.)

1. The case is called out through
video conferencing.

2. Learned counsel for the applicant,
Sri Pramod Kumar Yadav, Advocate
6 All. Shameem Ahmad Vs. State of U.P.
387
appears through video conferencing in
virtual hearing and learned A.G.A. for the
State, Sri Prem Prakash, Advocate also
appears through video conferencing in
virtual hearing.

3. The present bail application is filed
on
behalf
of
the
accused-applicant-
Monish, who is involved in Case Crime
No.169/2020 under Sections 376 of I.P.C.,
registered at Police Station - Makhi,
District- Unnao.

4. The occasion of present bail
application has arisen on rejection of bail
plea of applicant by learned Sessions
Judge, Unnao vide order dated 06.01.2021.

5. Stating the prosecution case against
the accused, in brief, learned counsel stated
the victim had gone out to urinate outside
the house at 11:00 P.M. when the accused
caught hold of her and raped her by
dragging into the maize field. Noticing that
she did not come back for a long time
attending the call of nature in the house, her
parents came out searching for her. They
throwing torch light in the direction of
victim's cry coming from the field called
her loudly, then the accused ran away
leaving the victim in a hurry.

6. On investigation, after lodging of
the first information report with above
facts, the charge-sheet against the accused
is submitted in the Court under Section 376
of the Indian Penal Code.

7. Learned counsel stated, accusedapplicant is in jail since 11.9.2020 for no
fault of him. He pressed the application for
release of the accused on bail on the ground
that the victim was over 18 years of age at
the time of incident and had consensual
sexual intercourse of with the accused.
False allegations have been made by her
against the accused under the pressure of
the parents. Her medical examination
confirmed her age over 18 years. Learned
counsel further argued that her medical
examination also did not confirm rape. Her
hymen is already old torned suggesting, she
is used to sexual intercourse. It has also
been argued that there are material
contradictions in her statements recorded
under
Section
161
Cr.P.C.
by
the
Investigating Officer and that recorded by
the Magistrate in Court under Section 164
Cr.P.C.
As
such,
learned
counsel
vehemently pressed that the allegation of
rape is neither supported with her statement
nor from medical evidence.

8. Learned counsel lastly argued that
the accused-applicant has no criminal
antecedent and therefore he should be
released on bail.

9. Learned A.G.A. opposing the
prayer for bail argued, the victim girl is
educated upto class 10. She was of 18 years
of age when the incident of rape with her
happened. Immediately, thereafter lodging
the first information report whatever fact
she had stated that finds no deviation and
the same is reiterated in statement recorded
under Section 161 Cr.P.C. and thereafter in
statement under Section 164 Cr.P.C. Since
there is no material contradiction in the
statement, therefore, the credibility of
allegation as to the rape committed on her
by the accused is established. So far as the
medical examination is concerned, the
same was done after four days from the
date of incident on 10.9.2020. Thereafter,
sign of rape could not be found, old torned
hymen is not sign of being a girl used to the
sexual intercourse. It generally torns up
with the age, the age of victim is 18 years,
which is material for this particular fact.
388 INDIAN LAW REPORTS ALLAHABAD SERIES

10. He lastly argued that the 18 years old
girl was an easy victim for a well grown adult
male of more than 23 years who was well
acquainted about her and her parents. The law
does not permit the medical evidence to over
ride the statement of the victim of rape if found
credible. Here the statements of the victim is
reliable and credible, therefore, the accused
cannot set forth his innocence. Moreover, he is
a local resident and competent to adversely
affect the witnesses as well as to coerce the
victim and her parents therefore the bail
application must be rejected, so as to provide
fair trial.

11. Heard the rival contentions of the
learned counsel for the applicant and the
learned A.G.A., Sri Prem Prakash, Advocate,
perused the version of complainant as stated in
First Information Report, the statement of
victim under Section 161 Cr.P.C. is quite
similar to that version and thereafter the
statement recorded by the Magistrate has also
no deviation from the allegation of rape. The
material fact that victim when came out of
house in the night at about 11.00 p.m. to urinate
she was caught hold by the accused and
dragged in the nearby maize field, where she
was raped by him. There is no deviation in the
iteration of the material facts in all the three
documents on record made Annexure Nos.1, 2
and 3 to the affidavit filed in support of the bail
application. This is not denied in the aforesaid
affidavit that the house from which the victim
girl came out is the dwelling house of the victim
and her parents. The parent themselves came
out of the house when the victim did not come
within a reasonably possible time, in search of
daughter and heard her cry coming from the
nearby maize field, father saw the accused in
torch light who ran away from the spot.

12. Factors laid down in various
judgment of Hon'ble the Supreme Court for
grant or refusal of bail are as follows:-

"(i) Whether there was a prima facie
or reasonable ground to believe that the
accused had committed the offence;

(ii) nature and gravity of accusations;

(iii) severity of the punishment in the
event of a conviction;

(iv) danger of the accused absconding
or fleeing, if granted bail;

(v)
character,
behavior,
means,
position and standing of the accused;

(vi) likelihood of repetition of the
offence;

(vii) reasonable apprehension of the
witnesses being influenced; and

(viii) danger of justice being thwarted
by grant of bail."

13. The bail applicant is a local
resident and competent to adversely affect
the witnesses as well as to coerce the
victim and her parents, the matter is
sensitive as it involves sexual assault and
rape with a teenage girl residing in a village
where generally the society is also not so
protective for a girl as against the sexual
offence.

14. Hon'ble the Supreme Court
further in the case of Sudha Singh Vs. The
State of Uttar Pradesh & Anr. reported in
AIR 2021 SC 2149 held as follows:-

"12. There is no doubt that liberty is
important, even that of a person charged
with crime but it is important for the courts
to recognise the potential threat to the life
and liberty of victims/witnesses, if such
accused is released on bail."

15. Learned counsel for the applicant
blamed the statement to be false, but prima
facie he seems to have this perception
under scepticism, otherwise the statements
of victim does not suffer from any basic
infirmity and the "probabilities factor" does
6 All. Shameem Ahmad Vs. State of U.P.
389
not render it unworthy of credence at this
stage of hearing on bail prayer where prima
facie satisfaction as to establishing the
prosecution
case
is
sufficient.
The
statement of victim and the prosecution
case as to the offence of rape is therefore
prima
facie
worthy
of
credence,
corroboration by medical evidence is not
necessary.

16. In Rameshwar Vs. State of
Rajasthan, AIR 1952 SC 54, it is held :-

"On principle the testimony of a victim
of sexual assault stands on par with the
testimony of an injured witness. Just like
the testimony of the injured witness that of
the victim of sex offence is entitled to great
weight. But unlike the case of physical
assault, corroboration in the form of
eyewitness account of an independent
witness cannot be expected in sex offence,
having regard to the very nature of the
offence."

17. The argument of learned counsel for
the applicant with regard to consensual
sexual intercourse does not stand on it's own
legs, because the statement of victim as to
"catching hold of her and dragging into maize
field" is not improbable. The physical power
of a man in comparison to that of a 18 years
old girl is much more for committing such
terrible act of abduction for the purpose of
rape. The victim was searched by the parents
from the voice of her cry coming from the
maize field. The statement made to the police
to the above effect stood affirmed before the
Magistrate also, where the girl was free to
admit, if she was consensual in the sex with
the accused. The affidavit in support of the
bail prayer lack pleading to the effect of any
such promiscuous character and nature of the
victim. The argument of learned counsel in
this regard is not tenable and the applicant
very well shown prima facie to have
committed the abduction and rape of the
victim.

18. Hon'ble The Supreme Court in the
case of Aparna Bhat & Ors. Vs. State of
Madhya Pradesh & Anr. reported in 2021
SCC SC 230 in para 21 held as under:-

"21. Gender violence is most often
unseen and is shrouded in a culture of
silence. The causes and factors of violence
against women include entrenched unequal
power equations between men and women
that foster violence and its acceptability,
aggravated by cultural and social norms,
economic dependence, poverty and alcohol
consumption, etc. In India, the culprits are
often known to the woman; the social and
economic "costs" of reporting such crimes
are high. General economic dependence on
family and fear of social ostracization act as
significant disincentives for women to report
any kind of sexual violence, abuse or
abhorrent behaviour. Therefore, the actual
incidence of violence against women in India
is probably much higher than the data
suggests, and women may continue to face
hostility and have to remain in environments
where they are subject to violence. This
silence needs to be broken. In doing so, men,
perhaps more than women have a duty and
role to play in averting and combating
violence against women."

19. Looking into the sensitivity of the
of matter, possibility of fleeing away of
accused-applicant from the process of the
court, possibility of adversely affecting the
witnesses, prosecutrix, the application is
liable to be rejected.

20. Without making comment as to
the merit of the case, I find no force in the
submission of learned counsel for the bail-
390 INDIAN LAW REPORTS ALLAHABAD SERIES
applicant
and
the
bail-application
is
rejected at this stage.

21. The trial court is therefore
directed to record the statements of
prosecution witnesses within six months
from the date, certified copy is placed
before it. However, learned trial court
while deciding the case on merit need not
to swayed away with the observations
made in this order.
----------
(2021)06ILR A390
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.06.2021

BEFORE

THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Bail No. 5451 of 2018

Ajay Kumar ...Applicant
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Sudhakar Mishra, Atul Verma, Hari Krishna
Verma, Shitla Prasad Tripathi

Counsel for the Opp. Party:
G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 323, 427, 328, 376, 504,
506, 354-D, 392 & 406 , The Code of
criminal procedure, 1973 - Section 161 &
164 , Information Technology Act,2000 -
Section 67 - Publishing of information
which is obscene in electronic form -
Object of bail - neither punitive nor
preventative - to secure the appearance of
the
accused
person
at
his
trial
by
reasonable amount of bail - valuable right
of personal liberty and the fundamental
principle not to disbelieve a person to be
innocent unless held guilty and if he is not
arraigned with the charge of an offence
for which the law has put on him a reverse
burden of proving his innocence.(Para -
24,26 )

Accused - applicant was a bus driver - forcibly
making sexual contact with complainant -
filming by mobile videography - threatening with
illegal
demand
of
money
-
blackmailing
complainant - physically assault - told her senior
in the institution - statement recorded by the
Investigating Officer - affirms traumatic
situation created by complainant from his acts
and mischief and other witness - accused
applicant in jail - bail application before district
judge - rejected - hence present bail application.

HELD:-Without expressing any opinion on the
merits of the case and considering the nature of
accusation, complicity of the accused-applicant,
gravity of the offence and the severity of
punishment in case of conviction and the period
for which he is in jail, it would be better to leave
on the wisdom of the trial court all these things
on merit. Accused-applicant is entitled to be
released on bail. Trial court is directed to
conclude the evidence of the witnesses of both
the side and to decide the case expeditiously in
accordance with law.(Para - 27,28)

Bail application allowed. (E-6)

List of Cases cited:-

1. Sanjay Chandra Vs C.B.I., (2012) 1 SCC 40 -
[Spectrum Scam Case]

2. Dataram Singh Vs St. of U.P. & ors. , (2018)
3 SCC 22

(Delivered by Hon'ble Vikas Kunvar
Srivastav, J.)

1. The case is called out through
video conferencing.

2. Learned counsel for the bailapplicant Sri Atul Verma, Advocate and
learned A.G.A. for the State Sri Prem
Praksh, Advocate are connected through
video conferencing in virtual hearing of the
case.