Allahabad High Court
X Minor vs State Of U.P. And 3 Others on 22 April, 2025
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:60689
Court No. - 78
Case :- CRIMINAL REVISION No. - 3195 of 2024
Revisionist :- X Minor
Opposite Party :- State Of U.P. And 3 Others
Counsel for Revisionist :- Dinesh Yadav,Narendra Kumar,Prem Prakash Yadav
Counsel for Opposite Party :- Akhilesh Kumar,G.A.,Vrat Sheel
Hon'ble Sanjay Kumar Singh,J.
1. The present criminal revision under Section 102 of Juvenile Justice (Care and Protection of Children) Act, 2015 has been preferred against the judgment and order dated 24.05.2024 passed by learned Special Judge (POCSO Act), Azamgarh in Criminal Appeal No. 20 of 2024 whereby the learned Judge rejected the appeal preferred against the order dated 23.01.2024 passed by Juvenile Justice Board, Azamgarh rejecting the bail application of the revisionist in Case Crime No. 264 of 2023, under Sections 363, 366, 376,120-B IPC and ¾ of Protection of Children from Sexual Offences Act, police station Raunapar, district Azamgarh.
2. Heard learned counsel for the revisionist, learned Additional Government Advocate representing the State, learned counsel for the first informant and perused the record.
3. As per prosecution case, in brief, the first informant, who is the mother of the victim lodged a first information report on 17.08.2023 at 13.15 hours at the police station Raunapar, district Azamgarh that his minor daughter (hereinafter referred to as "the victim") has been enticed away by the revisionist with the help of Vikki Kanujia and Bade Kanujia in the night of 02.07.2023 and they took her to Varanasi and thereafter to Mumbai on the pretext of marriage, but when the victim asked for marriage, the revisionist refused.
4. Learned counsel for the revisionist, assailing the impugned orders, submits that the revisionist was a juvenile on the date of the alleged incident dated 02.07.2023 and he has been declared juvenile vide order dated 19.01.2024 of Juvenile Justice Board treating the age of revisionist as 17 years 08 months and 20 days on the date of alleged incident. Learned counsel for the revisionist further submits that there is an inordinate delay in lodging of the first information report as for the alleged incident dated 02.07.2023, the first information report has been lodged on 17.08.2023 for which no plausible explanation has been tendered by the prosecution. Placing reliance upon the medical report of the victim, learned counsel for the revisionist submits that in the medical report, no spermatozoa was found, which belies the entire prosecution story. The revisionist has remained confined in juvenile home since 24.08.2023.
5. It is further submitted that the revisionist does not have any criminal antecedent to his credit. Lastly, it is submitted that there is no material on record for believing that the release of revisionist is likely to bring him into association with any known criminal or expose him to moral, psychological danger, therefore, aforesaid impugned orders are not sustainable and liable to be set aside and revisionist is entitled to be released on bail in view of Section 12 of Juvenile Justice (Care and Protection of Child) Act, 2015.
6. Learned Additional Government Advocate for the State as well as learned counsel for the informant vehemently opposed the present revision by contending that merely because the revisionist is a juvenile, it would not entitle him to bail without going into the gravity of the offence and the nature of the crime. Much emphasis has been given by contending that the revisionist is a person of criminal mind and is also an imminent danger to the public at large. It is also contended that the bail sought for has been rightly refused in view of Section 12(1) of Juvenile Justice (Care and Protection of Child) Act, 2015.
7. After lodging of the first information report on 17.08.2023, the statement of the victim was recorded on 21.08.2023 under Section 164 Cr.P.C. in which she has specifically stated that she has been enticed away by the revisionist to Mumbai on 02.07.2023 on the pretext of marriage where three friends of the revisionist were also present. Revisionist as well as his friends namely Bade, Vikki and one unknown person committed rape upon her. Thereafter, she came to her house alone.
8. So far as the contention of learned counsel for the applicant that for the alleged incident dated 02.07.2023, the first information report was lodged on 17.08.2023, it is relevant to mention here that the victim was taken away to Mumbai on the pretext of marriage where she was subjected to rape by the revisionist as well as his friends namely Bade, Vikki and one unknown person. Thereafter, the victim came back to her house and thereafter FIR has been lodged.
9. Hon'ble Supreme Court in a catena of judgements has held that merely delay in lodging the first information report is not fatal for the prosecution, if the same has been explained properly. In the instant case, it has specifically been stated by the victim that she was taken to Mumbai where rape was committed upon her by the four accused persons including the revisionist. Thereafter, she came back to her house at Azamgarh and narrated the incident to her mother and thereafter the first information report has been lodged by the mother of the victim. Therefore, the delay has properly been explained in this case.
10. In Tara Singh and others Vs. State of Punjab, AIR 1991 SC 63, Hon'ble Supreme Court held that mere delay in lodging the FIR by itself cannot give scope for an adverse inference leading to rejection of the prosecution case outright.
The Court further held thus:
" It is well-settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report."
11. In Zahoor and others Vs. State of U.P., AIR 1991 SC 40, Hon'ble Supreme Court held that mere delay by itself is not enough to reject the prosecution case unless there are clear indications of fabrication.
12. Hon'ble Supreme Court in State of Punjab Vs. Gurmit Singh and others, 1996 SCC (2) 384 Hon'ble Supreme Court held 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 or 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 only after giving it a cool thought that a complaint of sexual offence is generally lodged.
13. Hon'ble Supreme Court in the case of Ram Naresh and others Vs. State of Chhatisgarh, AIR 2012, SC 1357, has held that the delay, if any, in lodging the FIR, if explained properly, is in no way fatal to the case of the prosecution.
14. The next submission of learned counsel for the revisionist that no spermatozoa was found in the medical report of the victim, has no leg to stand inasmuch as the victim was taken to Mumbai on 02.7.2023 and she reached there on 04.07.2023 where she was subjected to gang rape by the revisionist as well as his three accomplice. Thereafter the victim left Mumbai and reached her house at Azamgarh. After lodging of the first information report on 17.08.2023, vaginal smear was taken for the analysis of spermatozoa. In the Medical Examination report dated 25.08.2023 of the victim which was conducted at the District Women Hospital, Azamgarh, no spermatozoa was seen. Here it is relevant to mention that most of the sperm die within minutes after ejaculation inside the vagina or outside the woman's genital tract. Once sperm enter the woman's genital tract, the cervix and uterus, most die within 1-2 days, but some can survive up to 5 days and thus the longest that the sperm can survive in fertile cervical fluid or the uterus is five days. Studies have shown that most pregnancies can be attributed to intercourse that takes place within 1-2 days before ovulation and on the day of ovulation, but some pregnancies can happen after intercourse that happened up to 5 days before ovulation. Sperm do not typically survive for five days, even in fertile cervical fluid. A life span of 1-2 days is much more typical for sperm, even in fertile cervical fluid-less if there is no fertile cervical fluid. Once the semen dries out, the sperm are usually dead. So the sperm can live from several minutes to several days depending on their environment.
15. In the instant case, victim reached Mumbai on 04.07.2023 where she was subjected to gang rape and the first information report was lodged on 17.08.2023 and the medical report of the victim is dated 25.08.2023, therefore, merely on account of non-presence of sperm in the vagina of the victim, it cannot be construed that no rape was committed with the victim.
16. Hon'ble Supreme Court in Narayanamma vs State Of Karnataka, 1994 SCC (5) 728, JT 1994 (5) 436 has held as under:
"With regard to the vaginal smear examination conducted at a different hospital, Dr Reeta, PW 3 has reported that no spermatozoa was seen on it, and the absence of sperms has been viewed against the version of the prosecutrix. It was never elicited from the prosecutrix as to whether the two persons who committed rape on her had reached orgasm emitting semen in her private parts. No presumption can be made that penetration of penis in the private parts of a rape victim must necessarily lead to the discovery of spermatozoa. It is a question of detail and has to be put to test by cross-examination. Otherwise also there may be various other factors which may negative the presence of spermatozoa such as faulty taking of the smear, its preservation, quality of semen etc. The absence of spermatozoa prima facie could not be allowed to tell against the version of the prosecutrix."
17. Moreover the hymen of the victim was found old torn and healed.
18. Having considered the arguments so advanced by learned counsel for the parties, this Court is of the view that a juvenile offender who is above 16 years of age and below 18 years of age is not entitled as of right to be enlarged on bail. The Court has to see whether the opinion of the learned appellate Court as well as Juvenile Justice Board recorded in the impugned judgment and orders are in consonance with the provision of Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Section 12 of the aforesaid Act lays down three contingencies in which bail could be refused to juvenile. They are:-
(i) if the release is likely to bring him into association with any known criminal, or
(ii) expose him to moral, physical or psychological danger, or
(iii) that his release would defeat the ends of justice.
19. Having gone through the record, this Court finds that the victim is aged about 16 years. Statement of the victim has been recorded under Section 164 Cr.P.C, in which she has specifically assigned the role of committing rape upon her to the revisionist as well as co-accused and as on date there is nothing on record to disbelieve the statement of the victim. Since the age of revisionist is above 16 years and below 18 years and the offence of rape is heinous in nature, his trial is going on as an adult, therefore, in view of the legal position applicable to the present case, in case of conviction of the revisionist, he can be sentenced for more than three years except life or death. In case, the revisionist is released on bail, there is a strong possibility of his being in danger morally, physically or psychologically and he may again get involved in criminal activities. In the matter of bail of juvenile, the Court has to see literally through a prism having three angles, i.e. firstly, the angle of welfare and betterment of the child itself, secondly, the demands of justice to the victim and her family and thirdly, the concerns of society at large. Under the facts and circumstances of the case, in case revisionist is released on bail, then his release would defeat the ends of justice.
20. In the instant case, first information report has been lodged by the mother of the victim. In Indian society no mother will make such a false allegation ruining the future life of her minor daughter, because such allegation is destructive of the whole personality of the victim. A murderer destroys the physical body of the victim, but a rapist degrades the very soul of the helpless female. It is often stated that a woman who is raped undergoes two crises- the rape and the subsequent trial. While the first seriously wounds her dignity, curbs her individual, destroys her sense of security and may often ruin her physically, the second is no less potent of mischief inasmuch as it not only force her to re-live through the traumatic experience, but also does so in the glare of publicity in a totally alien atmosphere, with the whole apparatus and paraphernalia of the criminal justice system focused upon her.
21. In view of the above, the findings recorded by the learned Courts below are not erroneous and cannot be said to be unsustainable. The aforesaid impugned orders are not liable to be interfered with, which are wholly impeccable.
22. As a fall out and consequence of the above, the present criminal revision lacks merit and is accordingly rejected.
Order Date :- 22.4.2025
Kashifa
