Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 1439 (ALL)

Jaiveer v. State Of U. P.

2023-05-25

SANJAY KUMAR SINGH

body2023
JUDGMENT : 1. By means of this application under Section 439 of Cr.P.C., applicant, who is involved in Case Crime No. 587 of 2022, under Sections 376 of I.P.C. & Section 3/4 of the Protection of Children from Sexual Offences Act, 2012, Police Station-Tilahar District-Shahjahanpur, seeks enlargement on bail during the pendency of trial. 2. Heard Shri Manish Tiwary, learned Senior Counsel for the applicant and Shri Rabindra Kumar Singh, learned Additional Government Advocate representing the State. 3. As per the prosecution case in brief, informant who is father of the victim lodged First Information Report on 07.8.2022 against the applicant-Jaiveer alleging inter alia that on 07.08.2022 at about 1:00 pm, his daughter aged about 14-15 years had gone to attend the call of nature in the sugarcane field of Rajesh, where the accused-applicant with intention to commit rape forcible dragged her to the field of sugarcane and committed rape on her. His daughter came home crying and told the whole incident to her mother. 3.1.Victim was medically examined on 07.08.2022 at about 09:48 PM and at that time she told the doctor that when I had gone to attend the call of nature in the field, accused caught me and forcibly committed wrong by mouth. The statement of victim in Hindi is reproduced herein under:- ^^ihfM+rk ds vuqlkj og 'kkSp ds fy;s [ksr esa x;h Fkh rHkh vkjksih ogka ij idM+ fy;k vkSj tcjnLrh eqag ds }kjk xyr dke fd;kA 3.2. ictim in her statement under Section 161 Cr.P.C. dated 07.08.2022 has stated inter alia that the applicant caught hold of me and took me to the field with bad intention. When I screamed, he shut my mouth and tore my cloth (salwar). He tried to do misdeed with me and he did wrong in my mouth. The statement of victim in Hindi is reproduced herein under:- 3.3 Victim in her statement under Section 164 Cr.P.C. has stated inter alia that the applicant grabbed me from behind and removed my salwar. When I screamed, he covered my mouth from his hand and he did wrong thing in my mouth. He put his penis in my mouth. With great difficulty I could let go of myself. When I screamed, he covered my mouth from his hand and he did wrong thing in my mouth. He put his penis in my mouth. With great difficulty I could let go of myself. The statement of victim in Hindi is reproduced herein under:- 4.It is argued by the learned counsel for the applicant that as per medical examination report of the victim, there is no sign of use of force. As per supplementary report dated 08.08.2022 of the victim, she is aged about 17 years and there are no sign suggestive of penetration of oral cavity. There is inconsistency in the version given in the FIR and the statement of the victim before doctor as well as statement under Section 161 Cr.P.C. It is also submitted by the learned counsel for the applicant that considering the statement under Section 161 Cr.P.C. of the victim no offence of rape is made out, because several sexual act, which are done by mouth do not come under the definition of rape but considering her statement under Section 164 Cr.P.C., offence of rape is made out. In this regard, it is further submitted that the initial allegation of the victim against the applicant was gradually improved by the victim in her statement under Section 164 Cr.P.C., which was recorded after ten days of the occurrence and, therefore, the possibility of her being tutored cannot be ruled out. Lastly, it is submitted that there is no chance of the applicant fleeing away from the judicial process or tampering with the prosecution evidence. The applicant does not have any criminal history and has been languishing in jail since 08.8.2022. 5.On the other hand learned A.G.A. for the state opposed the prayer for bail of the applicant by contending that at the time of medical examination of the victim, doctor has also noted in column no 15F of medical examination report that it is a case of penetration by penis in the mouth of the victim. The statement under Section 161 Cr.P.C. of the victim has been recorded by audio and video means by woman constable, which has been made part of the case diary. Site plan was prepared by the investigation officer on the direction of victim. Father and mother have also supported the prosecution case. The statement under Section 161 Cr.P.C. of the victim has been recorded by audio and video means by woman constable, which has been made part of the case diary. Site plan was prepared by the investigation officer on the direction of victim. Father and mother have also supported the prosecution case. As per scholar register of Upper Primary School Talvipur, district Shahjanpur and statement of headmaster, the date of birth of the victim is 01.01.2008, according to which victim was aged about 14 years 7 month 8 days on the day of incident. Charge sheet dated 30.08.2022 has been submitted against the applicant. In view of Section 29 of POCSO Act, the presumption shall also be drawn against the accused unless contrary is proved by him. The offence under Section 375 (a) of I.P.C. is clearly made out against the applicant. Lastly it is submitted that the offence is heinous in nature. Considering the gravity of offence, the bail application is liable to be rejected. 6.Having heard the learned counsel for the parties and perusing the record in its entirety, I find that in view of Section 2(1)(d) of the POCSO Act, the victim is minor girl. The applicant is aged about 24 years. So far as the submission of the learned counsel for the applicant regarding the discrepancies and improvement in the statements of victim as pointed out are concerned, this court is of the opinion that the same cannot said to be material contradictions and do not go into the root of the matter so as to demolish the entire prosecution case, because the allegation of victim that the applicant committed wrong by mouth or in her mouth is there in all her statements. The meaning of what victim says is same in all three statements. It is well known that the every person has a different way of expressing their words and feelings in their local language. Victim in her statement under Section 164 Cr.P.C. has stated inter alia that the applicant put his penis in her mouth, which under the facts of the case cannot said to be material improvement rather it reinforces her initial version. The word used by the victim "Galat kaam kiya" denotes the sexual act in common parlance. Victim in her statement under Section 164 Cr.P.C. has stated inter alia that the applicant put his penis in her mouth, which under the facts of the case cannot said to be material improvement rather it reinforces her initial version. The word used by the victim "Galat kaam kiya" denotes the sexual act in common parlance. The statement of victim under Section 164 Cr.P.C. will certainly prevail over her statement recorded by doctor or police officer under Section 161 Cr.P.C. In order to constitute an offence of rape, it is not necessary that there should be complete penetration of penis in the vagina or mouth with emission of semen. Accordingly, Considering the cumulative effect of all the statements of the victim, I do not find force in the submission of learned senior counsel for the applicant that no offence of rape is made out. Considering the facts of the case, this Court is of the opinion that act of the accused-applicant comes under the preview of Section 375 (a) of I.P.C. As on date, I do not find any material on record to presume the false implication of the applicant and to disbelieve the statement of minor victim, which is primary for considering the bail application of accused in rape cases. 7.In the light of above discussion and having considered the facts that rape is the most hated, morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the minor victim. It shaken the spirit and very core of her life. Rape leaves a permanent scar on the life of the victim and further considering the provisions of Section 29 of POCSO Act as well as keeping in view the submissions advanced on behalf of parties as noted above, gravity of offence, role assigned to applicant and severity of punishment, I do not find any good ground to release the applicant on bail. 8.Accordingly, the bail application is rejected. 9.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. 10.Copy of this order be sent to the informant / complainant through Child Welfare Committee, Shahjahanpur and Trial Court for information.