# Suraj Kumar @ Vishwapratap Singh v. State of U.P. & Ors

- **Citation:** (2025) 1 ILRA 61
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-10
- **Case number:** Criminal Misc. Bail Application No. 39835 of 2024
- **Bench:** Sanjay Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suraj-kumar-vishwapratap-singh-v-state-of-u-p-ors-52901
- **Pages:** 6

## Headnote

Criminal Law - Bharatiya Nyaya Sanhita,
2023 - Sections 63, 65(2), 351(2) &
332(c) - Rape - The Protection of Children
from Sexual Offences Act, 2012 - Sections
3⁄4, 2(1)d, 29 - Bharatiya Nagarik Suraksha
Sanhita, 2023 - Sections 180, 183 - Bail -
As per FIR, informant woke up in morning,
not find his daughter on bed - Noticed that
another room locked from inside and
when peeped through window, he saw
applicant was committing rape upon his
daughter by pressing her mouth - When
informant shouted and called his wife,
applicant by opening door, ran away by
pushing him extending threat of dire
consequences. (Para 3)

Applicant submitted that FIR was lodged
after delay of 17 hours, without any
plausible explanation, informant in his
St.ment reiterated prosecution case but
there are contradictions in St.ments of
victim. (Para 4)

Held, from perusal of St.ments of victim, it
was clear that applicant had forcibly took
her to another room, bolted room and
committed misdeed with her. (Para 10)

As per medical examination report of
victim, there was no sign of any force was
concerned, it was misconceived as in
supplementary medico-legal examination
report, final opinion was reserved pending
on availability of FSL report, sexual
violence cannot be ruled out - No any
material on record to presume false
implication of applicant and to disbelieve
St.ments of minor victim, thus no any
ground to release applicant on bail. (Para
15, 18)

Bail application rejected. (E-13)

List of Cases cited:

## Text

1 All. Suraj Kumar @ Vishwapratap Singh Vs. State of U.P. & Ors.
61
the statement of victim and presume the
false implication of the applicant.

9. Considering the overall facts and
circumstances of the case as well as
keeping in view the submissions advanced
on behalf of parties as noted above, role
assigned to applicant, gravity of offence,
severity of the punishment and the manner
in which the offence has been committed,
as well as threat to the safety and dignity of
the victim, I do not find any good ground to
release the applicant on bail.

10. Accordingly, the bail application is
rejected.

11.
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.
----------
(2025) 1 ILRA 61
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.01.2025

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Criminal Misc. Bail Application No. 39835 of
2024

Suraj Kumar @ Vishwapratap Singh
 ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Akhilesh Kumar Dwivedi

Counsel for the Opposite Parties:
R.A. Ram, Shyam Chandra, G.A.

Criminal Law - Bharatiya Nyaya Sanhita,
2023 - Sections 63, 65(2), 351(2) &
332(c) - Rape - The Protection of Children
from Sexual Offences Act, 2012 - Sections
3⁄4, 2(1)d, 29 - Bharatiya Nagarik Suraksha
Sanhita, 2023 - Sections 180, 183 - Bail -
As per FIR, informant woke up in morning,
not find his daughter on bed - Noticed that
another room locked from inside and
when peeped through window, he saw
applicant was committing rape upon his
daughter by pressing her mouth - When
informant shouted and called his wife,
applicant by opening door, ran away by
pushing him extending threat of dire
consequences. (Para 3)

Applicant submitted that FIR was lodged
after delay of 17 hours, without any
plausible explanation, informant in his
St.ment reiterated prosecution case but
there are contradictions in St.ments of
victim. (Para 4)

Held, from perusal of St.ments of victim, it
was clear that applicant had forcibly took
her to another room, bolted room and
committed misdeed with her. (Para 10)

As per medical examination report of
victim, there was no sign of any force was
concerned, it was misconceived as in
supplementary medico-legal examination
report, final opinion was reserved pending
on availability of FSL report, sexual
violence cannot be ruled out - No any
material on record to presume false
implication of applicant and to disbelieve
St.ments of minor victim, thus no any
ground to release applicant on bail. (Para
15, 18)

Bail application rejected. (E-13)

List of Cases cited:
1. Ram Swaroop Vs St. of Raj., 2004 Law Suit
(SC) 293

2. Attorney General for India Vs Satish & anr.,
(2021) 4 SCC 712

3. St. of Punjab Vs Gurmit Singh & ors., (1996)
2 SCC 384

4. St. of Madhya Pradesh Vs Mahendra @ Golu,
(2022) 12 SCC 442
62 INDIAN LAW REPORTS ALLAHABAD SERIES
5. St. of A.P. Vs Bodem Sundara Rao, 1995 (6)
SCC 230

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

1-By means of this bail application,
applicant-Suraj Kumar alias Vishwapratap
Singh, who is involved in Case Crime No.
188 of 2024, under Sections 65(2), 351(2),
332(c) of B.N.S. and Sections 3/4 POCSO
Act, Police Station Cantt, District Prayagraj
seeks enlargement on bail during the
pendency of trial.

2-Heard
Mr.
Akhilesh
Kumar
Dwivedi, learned counsel for the applicant,
Mr. Deepak Mishra, learned Additional
Government Advocate representing the
State, learned counsel appearing on behalf
of the informant/complainant and perused
the record.

3-The facts that formed the bedrock of
the instant bail application are that the
informant, who is father of the victim, got a
first
information
report
lodged
on
05.09.2024 at about 23:20 hours with
regard to an incident which took place on
the same day at about 05:30 hours for the
alleged offence under Sections 65(2),
351(2) B.N.S. and Sections 9/10 POCSO
Act
against
the
applicant
making
allegations inter-alia that in the morning,
when he woke up, he did not find his
daughter on the bed. However, he noticed
that another room was locked from inside
and when he peeped through the window,
he saw that the applicant was committing
rape upon his daughter by pressing her
mouth. F.I.R. further alleges that when the
informant shouted and called his wife,
applicant by opening the door, ran away by
pushing him extending threat of dire
consequences. Thereafter, the informant
took the assistance of women helpline
number 1090.

4-The main substratum of argument of
learned counsel for the applicant is that in
this case, first information report was
lodged after delay of 17 hours, without any
plausible explanation. It is next submitted
that though the informant in his statement
under Section 180 BNSS has reiterated the
prosecution case as mentioned in the F.I.R.
but
there
are
contradictions
in
the
statements of the victim recorded under
Section 180 and 183 BNSS. In this regard,
it is further pointed out that the informant,
in the F.I.R., has stated that the applicant
was committing rape upon his daughter
whereas the victim in her statement under
Section 180 BNSS has stated that the
applicant, after disrobing her forcefully,
started molesting and committed misdeed
with her. The victim in her statement under
Section 183 BNSS has stated that the
applicant, after disrobing her started
touching her inappropriately and when her
father came, applicant fled away from the
place of incident extending threat to her
father. On the strength of the aforesaid
facts, much emphasis has been given by
contending
that
the
victim,
in
her
statements, has not specifically stated that
there was any penetration of penis in her
vagina,
hence
there
was
no
sexual
intercourse, therefore, no offence of rape is
made out against the applicant. Referring
the medical examination report as recorded
by the investigating officer in case diary, it
is argued that no sign of any force was
found in the medical report, hence, the
prosecution case is not corroborated from
the
medical
evidence.
Referring
the
paragraph nos. 16 and 17 of the bail
application, it is submitted that the
applicant was shown to be arrested on
06.09.2024 whereas correct fact is that on
1 All. Suraj Kumar @ Vishwapratap Singh Vs. State of U.P. & Ors.
63
05.09.2024 at about 05:00 AM, the first
informant and his family members forcibly
dragged
him
inside
the
house
and
thereafter, they called the police and falsely
implicated in the present case. Learned
counsel for the applicant, in support of his
submission, placed reliance upon the
judgment of the Apex Court in the case of
Ram Swaroop vs. State of Rajasthan,
2004 Law Suit (SC) 293. Lastly, it is
submitted by the learned counsel for the
applicant that there is no chance of the
applicant of fleeing away from the judicial
process or tampering with the prosecution
evidence. The applicant has no criminal
antecedents to his credit. The applicant who
is a student of law is languishing in jail
since 06.09.2024, therefore he is entitled to
be released on bail.

5-On the other hand, learned A.G.A.
as well as learned counsel appearing on
behalf of the complainant vehemently
opposed the submissions of learned counsel
for the applicant by contending that the
victim was aged about 11 years, 7 months
and 27 days on the day of incident dated
05.09.2024, therefore as per Section 2(1)d
of POCSO Act, she is a small child. The
father of the victim is an eye witness of the
incident, which took place in his own
house. Much emphasis has been given by
contending
that
the
victim,
in
her
statements under Section 180 and 183
BNSS has supported the prosecution case
and made specific allegation of outraging
her modesty against the applicant giving
vivid description of the incident. It is also
contended that the act and conduct of the
applicant, as mentioned in the F.I.R. and
statements of the victim, clearly comes
under the preview of definition of rape.
Learned A.G.A. placing reliance upon the
judgment of the Apex Court in the case of
Attorney General for India vs. Satish
and Another, (2021) 4 SCC 712 submits
that to constitute an offence of rape,
penetration of penis is not required. It is
also submitted that in view of Section 29 of
POCSO Act, the Court shall presume that
the accused has committed offence unless
the contrary is proved by the offender.
Considering the gravity of the offence, bail
application of the applicant is liable to be
rejected.

6-Before proceeding further, it would
be apposite to quote Section 63 of Bhartiya
Nyaya Sanhita (B.N.S.).

Section 63 of B.N.S.

A man is said to commit "rape" if
he---

(a) penetrates 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:

(i) against her will;

(ii) without her consent;

(iii) 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;
64 INDIAN LAW REPORTS ALLAHABAD SERIES

(iv) 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;

(v) 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;

(vi) with or without her consent,
when she is under eighteen yearsof age;

(vii) when she is unable to
communicate consent.

7-Now coming to the instant case, so
far as the first contention of learned counsel
for the applicant with regard to delay in
lodging the first information report is
concerned, the same has been discussed by
Hon'ble the Apex Court in the case of
State of Punjab vs. Gurmit Singh and
Others, (1996) 2 SCC 384. The relevant
paragraph of the said judgment reads as
under:-

"In our opinion, there was no
delay in the lodging of the FIR either and if at
all there was some delay, the same has not
only been properly explained by the
prosecution
but
in
the
facts
and
circumstances of the case was also natural.
The courts cannot over-look the fact that in
sexual offences delay in the lodging of the
FIR can be due to variety of reasons
particularly the reluctance of the prosecutrix
of her family members to go to the police and
complain about the incident which concerns
the reputation of the prosecutrix and the
honour of her family. It is also after giving it
a cool though that a complaint of sexual
offence is generally lodged."

8-So far as the second contention of
learned counsel for the applicant that there
are contradictions in the statement of the
victim under Sections 180 and 183 of BNSS,
therefore prosecution case is liable to be
disbelieved is concerned, the same is
misconceived inasmuch as the victim, in her
statements under Section 180 and 183 of
BNSS, has specifically stated that the
applicant had committed misdeed with her
and also threatened her father for dire
consequences.

9-For better appreciation, the statements
of the victim under Section 180 and 183
BNSS are reproduced herein below:-

Statement of the victim under
Section 180 BNSS

"मैं गौरव पब्लिक स्कूि में पढ़ती ह ूँ क्िास 4 में पढ़
रही ह ूँ 3 वर्ष पूवष में स्कूि आते जाते समय सूरज नाम का िडका मेरा
पीछा करता था यह बात मैने अपनी मम्मी पापा को बताया तो मेरे पापा
मुझे स्कूि छोडने व िेने जाते थे ब्ि० 05/09/24 की सुबह 5 बजे
मैं वशरूम गयी थी वापस आयी तो सूरज मेरे घर में घुस आया और
मुुंह िबाकर कर पटक ब्िया और मेरे कपडे उतार ब्िये और जोर
जबरिस्ती कर अश्लीि हरकत करते हुए मेरे साथ गित काम करने
िगा और धमकी ब्िया ब्क इस बात को अगर ब्कसी से बताया तो जान
से मार िूूँगा मैं काफी डरी हुई थी मैं काफी िेर तक वशरूम से नहीं
आयी तो मेरे पापा मुझे इधरउधर ढूुंढन िगे तो िूसरा रूम बन्ि था। मेरे
ब्पता जी ने ब्िडकी से िेिा तो सूरज मेरे साथ मुूँह िबाकर गित काम
कर रहा था मेरे पापा ने िरवाजा जोरजोर से िटिटाया तो सूरज धमकी
िेते हुए बोिा ब्क अगर ये बात पुब्िस या ब्कसी को बताया तो जान से
मार िूुंगा मैंने िौडकर िरवाजा िोि ब्िया और सूरज धमकी िेते हुए
मुझे धक्का िेकर वहाूँ से भाग गया मेरे पापा ने पुब्िस को फोन ब्कया
हम िोग बहुत डरे हुए थे।"

Statement of the victim under Section
183 BNSS

"दिन ांक 05.09.2024 को मै सुबह 5.30 बजे
व शरूम गयी थी दिर जब व पस अपने कमरे मे ज ने लगी तो पीछे
1 All. Suraj Kumar @ Vishwapratap Singh Vs. State of U.P. & Ors.
65
से सूरज आय मेरे घर क िरव ज खुल थ सूरज ने मुझे पकड
दलय बेड पर पटक दिय । मेरे कपडे उत रे और मुझे छुने लग तभी
मेरे प प अच नक से आ गये तो उसने प प को ज न से म रने की
धमकी िी और भ ग गय ।"

10-From perusal of statements of the
victim under Section 180 and 183 BNSS, it
is clear that the applicant had forcibly took
her to another room, bolted the room and
committed misdeed with her.

11-This Court is of the view that the
meaning of what victim said in her above
noted statements recorded under Section
180 and 183 BNSS is same. Even
deposition of honest and truthful witnesses
may differ in some details because power
of observation, retention and reproduction
differ with individuals. It is well known
that every person has a different way of
expressing their words and feelings in their
local language. The disclosure made by the
victim clearly denotes the sexual act in
common parlance. It is well settled that the
minor discrepancies which do not shake the
basic version of the prosecution should not
be discarded. Hence contention of the
learned counsel for the applicant that there
are material contradictions and under the
facts of the case, no offence of rape is made
out are not liable to be accepted at this
stage.

12-The third contention of learned
counsel for the applicant that since the
victim,
in
her
statements,
has
not
specifically stated that there was any
penetration of penis in her vagina, as such,
no offence of rape is made out against the
applicant is concerned, this Court is of the
view that the said issue has already been
discussed by Hon'ble Supreme Court in the
case of State of Madhya Pradesh vs.
Mahendra alias Golu, (2022) 12 SCC
442, where the Supreme Court has laid
down the distinction between 'Preparation'
and 'Attempt'
to
commit
rape
and
explained the three stages of commission of
a crime, which are as under :-

"It is settled proposition of
Criminal Jurisprudence that in every
crime, there is first, Mens Rea (intention to
commit), secondly, preparation to commit
it, and thirdly, attempt to commit. If the
third stage, that is 'attempt' is successful,
then the crime is complete. If the attempt
fails, the crime is not complete, but law still
punishes the person for attempting the said
act. 'Attempt' is punishable because even
an unsuccessful commisson of offence is
preceded by mens rea, moral guilt, and its
depraving impact on the societal values is
no less than the actual commission."

13-In the instant case, the allegation
against the applicant that he had committed
misdeed with the victim comes under the
stage beyond attempt to commit it, as such,
applicant is guilty of the offence punishable
under Section 63 BNS. Even if, for the sake
of argument, it is assumed that there was no
penetration, even then the applicant is
liable to be punished under Section 65(2)
BNS as the victim is aged below 12 years.
The said act of the accused is covered by
the definition of rape provided under
Section 63 of BNS.

14-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 suprreme honour and
offends her self esteem and dignity. It degrades
66 INDIAN LAW REPORTS ALLAHABAD SERIES
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 severly."

15- The last contention of learned counsel
for the applicant that as per medical
examination report of the victim, there was no
sign of any force is concerned, the same is
misconceived as in supplementary medico-legal
examination report of the victim, final opinion
is reserved pending on the availability of FSL
report and sexual violence cannot be ruled out.
As on date, I do not find any material on record
to presume the false implication of the applicant
and to disbelieve the statements of minor
victim, which is primary for considering the
bail application of accused in rape cases.

16- In Ram Swaroop (Supra) relied
upon by the learned counsel for the applicant,
the nature of assault described by Pws 8 and 9
was inconsistant with medical report. Further
the version given by PW 8 in the course of
deposition was quite different from that he
mentioned in the FIR. Whereas in the instant
case, the statement of the victim and the
informant is intact. Therefore, said case is
distinguishable on the facts of this case, hence
the same is not helpful to the applicant. This
Court is also of the view that each case depends
on its own facts and a close similarity between
one case and another is not enough because
even a single significant detail may alter the
entire aspect. In the light of circumstantial
flexibility, one additional or different fact may
make a word of difference between conclusion
in two cases.

17-The Court must keep in mind while
appreciating the evidence of the prosecutrix the
values prevailing in the country, particularly in
rural India. It would be unusual for girl to come
up with a false story of being a victim of sexual
assault so as to implicate an innocent person. In
our country, a minor girl, victim of sexual
aggression, would rather suffer silently than to
falsely implicate somebody. Any statement of a
rape victim is an extremely humiliating
experience for her and until she is a victim of
sex crime, she would not blame anyone but the
real culprit.

18-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.

19-Accordingly, the bail application is
rejected.

20-It is clarified that observations made
herein above are limited to the extent of
determination of this bail application and will in
no way be construed as an expression on the
merits of the case.

21-The trial Court shall be absolutely free
to arrive at its independent conclusions on the
basis of evidence to be adduced by the parties.
----------
(2025) 1 ILRA 66
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.01.2025

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Criminal Misc. Bail Application No. 41474 of
2024

Sarvajeet Singh ...Applicant
Versus
State of U.P. ...Opposite Party