Allahabad High Court
Sonu vs State Of U.P. Thru. Prin. Secy. Home ... on 30 May, 2024
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:41063
Court No. - 11
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 5882 of 2024
Applicant :- Sonu
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Dept.Lko. And 3 Others
Counsel for Applicant :- Rajeshwar,Vijyant
Counsel for Opposite Party :- G.A.
Hon'ble Rajesh Singh Chauhan,J.
1. Heard Sri Rajeshwar, learned counsel for the applicant and Sri M.V.S. Chauhan, learned Additional Government Advocate for the State.
2. It has been informed that notice has been served upon the opposite party No.2 i.e. the victim/ complainant on 11.05.2024, but no one has appeared to address the Court on behalf of the victim/ complainant.
3. As per learned counsel for the applicant, the present applicant (Sonu) is languishing in jail since 26.07.2023 in Case Crime No.116 of 2023, under Section 376 I.P.C. and Section 3Kha/4 Protection of Children from Sexual Offences Act (in short POCSO Act), Police Station-Katka, District-Ambedkar Nagar.
4. Learned counsel for the applicant has submitted that the present applicant has been falsely implicated in this case as he has not committed any offence as alleged in the prosecution story.
5. Attention has been drawn towards the impugned First Information Report (in short F.I.R.), which has been registered under Section 354-Kha I.P.C. and Section 7/8 of the POCSO Act, but after recording the statements of the victim under Sections 161 & 164 Cr.P.C. the charge-sheet has been filed under Section 3Kha/4 of POCSO Act.
6. Learned counsel for the applicant has submitted that against the present applicant no allegation of committing rape has been levelled in the F.I.R. as well as in the statement of the prosecutrix recorded under Section 161 Cr.P.C. but the allegation of rape has been firstly levelled against the present applicant by the prosecutrix/ child while recording her statement under Section 164 Cr.P.C.
7. Attention of this Court has been drawn towards Annexure No.10 of the bail application, which is the evidence of the child as PW-2 recorded before the court concerned on 03.04.2024, wherein she has stated that the present applicant, who is her uncle, has started molesting her and had broken lace (Nara) of her Salwar but could not do anything further.
8.Therefore, learned counsel for the applicant has stated that in her deposition before the court she has not levelled allegation of rape though on the basis of the allegation the contents of Section 354-Kha I.P.C. and Section 7/8 of POCSO Act may, prima-facie, be found, however, the present applicant has not committed that offence too. The present applicant is having no prior criminal history of any kind whatsoever, therefore, he may be enlarged on bail.
9. Per contra, Sri M.V.S. Chauhan, learned Additional Government Advocate has submitted that the child/ prosecutrix is a minor girl of 12 years. The present applicant is her uncle. He has tarnished the pious relation of uncle and niece. He has further submitted that in the F.I.R. as well as in the statements recorded under Sections 161 & 164 Cr.P.C. as well as in her deposition before the learned trial court, she has constantly said that her uncle, the present applicant, tried to molest her and for the purposes of molesting her he has broken lace (Nara) of her Salwar. He has further submitted that specific allegation of committing rape has been levelled in her statement recorded under Section 164 Cr.P.C.
10. Sri Chauhan, has further submitted that even if the sexual intercourse is not committed but if there is any penetrative sex with the child or anyone or any other female or girl, it would tantamount to commit offence of rape and in the statement recorded under Section 164 Cr.P.C. she has stated that the present applicant has inserted his fingers into her Vagina.
11. Sri Chauhan has also submitted that while recording her evidence before the learned trial court, she has accepted that she has recorded her statement before the court under Section 164 Cr.P.C. and such statement and the photograph are correct.
12. Therefore, Sri Chauhan has stated that when the child/ prosecutrix has affirmed her statement recorded before the court under Section 164 Cr.P.C. wherein the specific allegation of rape has been levelled, prima-facie, the present applicant would be held guilty for committing offence of rape subject to the final outcome of the trial.
13. Sri Chauhan has drawn attention of this Court towards the medical examination report of the child/ prosecutrix showing para-23 thereof, which reads as under:-
"There are signs suggestive of recent forceful penetrative of vaginal, however, final opinion is reserved pending availability of FSL reports.
Several violence cannot be ruled out."
14. Sri Chauhan has stated that as per the opinion of the Doctor, there are signs suggestive of recent forceful penetration in Vagina and several violence cannot be ruled out. He has further submitted that the incident in question is of 6:10 p.m. on 15.06.2023 and the prompt medical examination has been conducted on 16.06.2023. He has also submitted that in terms of Section 29 of POCSO Act when a person is prosecuted for committing an offence of sexual assault against a minor, the special court trying the case "shall presume" the accused to be guilty.
15. Heard learned counsel for the parties and perused the material available on record.
16. 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, the Special Court shall presume that such person has committed the offence, unless the contrary is proved.
17. 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. 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."
18. 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 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.
19. 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.
20. 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.
21. Therefore, without interning into merits of the case, considering the facts that the child is aged about 12 years has levelled specific allegations against the present applicant to commit penetrative sex inserting fingers into her vagina, as well as having regards to the dictums of the Apex Court, as considered above, I am not inclined to grant bail to the present applicant.
22. Accordingly, the bail application is rejected. However, the observation of this order would not affect the trial as the trial proceedings would go on independently strictly as per law because this order has been passed only to decide the bail application.
23. Since the present applicant is in jail since 26.07.2023 and two prosecution witnesses have been examined 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 a 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.
24. However, liberty is given to the applicant to file another bail application, if the trial is not concluded within the aforesaid stipulated time.
25. Let copy of this order be provided to the learned Trial Court through District & Sessions Judge, Ambedkar Nagar by the Registry of this Court within three working days for its strict compliance.
[Rajesh Singh Chauhan,J.]
Order Date :- 30.5.2024
Suresh/
