Allahabad High Court
Vishwanath vs State Of U.P. And Another on 6 May, 2025
Author: Siddhartha Varma
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:72659-DB
Reserved on 1st May, 2025
Delivered on 6th May, 2025
Court No. - 44
Case :- CRIMINAL APPEAL No. - 1150 of 2022
Appellant :- Vishwanath
Respondent :- State of U.P. and Another
Counsel for Appellant :- Brajendra Kumar, Kamlesh Kumar Tripathi,Naresh Kumar Pal
Counsel for Respondent :- Siddharth Singh
Hon'ble Siddhartha Varma,J.
Hon'ble Madan Pal Singh,J.
(Per-se Hon'ble Madan Pal Singh, J.)
Ref. Criminal Misc. Bail Application
1. Though earlier Mr. Siddharth Singh, Advocate was appearing on behalf of first informant but today when the matter is taken up in the revised call, no one appears on behalf of the first informant.
2. Heard Mr. Kamlesh Kumar Tripathi and Mr. Naresh Kumar Pal, learned counsel for the applicant-appellant, Mr. C.B. Dhar Dubey, learned A.G.A. for State and perused the record.
3. This bail application under Section 389 Cr.P.C. has been filed by the accused appellant-Vishwanath with the prayer to suspend the sentence of conviction and to release the applicant/appellant on bail in Sessions Trial No. 1910 of 2020 (State Vs. Vishwanath) arising out of Case Crime No. 147 of 2020, under Sections 376A, 376B I.P.C. and Section 5 (m)/6 POCSO Act, Police Station-Ayana, District-Auraiya during the pendency of the instant appeal.
4. Prosecution case in brief is that the first informant Santosh Kumar had given a written complaint to the In-charge of Police Station-Ayana, District-Auraiya alleging therein that on 13th September, 2020, leaving his wife, who is blind and his daughter (victim herein) aged about 11 years, he went to the village Katghara in the morning to give green gram bushes (Kachariya). When his wife had gone to the crossroads to fill water with Dinesh Chandra, who is handicapped, his daughter (victim) was at the tube-well of Vishwanath (accused-appellant herein), which was situated near his house/hut. When he returned to his house from village-Katghara at about 12 noon, his daughter (victim), was coming towards her hut from the tube-well. As usual, the first informant asked Vishwanath (accused-appellant) to smoke a bidi, then he went from there. When the daughter of the first informant came in front of him, her underwear was soaked with blood, seeing which he got scared and he took his daughter on motorcycle to Ayana Hospital for treatment along with the owner of coal furnace, namely, Kamal. The Doctor of the Ayana Hospital (Community Health Centre) referred the victim to the District Hospital, Auraiya for her better treatment. Whereafter, he took the victim to the District Joint Hospital Auraiya, where the doctors verbally informed him that his daughter had not been injured by wood or wire and he was asked to go to the police station. After that the first informant asked his daughter by coaxing her and when his wife asked the victim, she disclosed that Pal uncle i.e. the accused-appellant did a wrong thing by keeping his hand on his urination place, resultantly he came to know that the accused-appellant raped his daughter on the tube-well, due to which she had got injury on her urination place. On the basis of the above complaint, first information report, registered as Case Crime No. 147 of 2020, under Sections 376A, 376-B I.P.C. and Sections 5 (m)/6 POCSO Act and also Section 3 (2) (v) S.C./S.T. Act came to be registered against the accused-appellant. After statutory investigation under Chapter XII, the Investigating Officer had submitted the charge-sheet against the accused-appellant under the above sections in terms of Section 173 (2) Cr.P.C. On submission of the charge-sheet the cognizance was taken by the concerned and thereafter charges were framed against the accused-appellant under Sections 376A, 376-B I.P.C. and Sections 5 (m)/6 POCSO Act and also Section 3 (2) (v) S.C./S.T. Act. The prosecution has adduced as many as 8 prosecution witnesses including the documentary evidence. The defence has also produced Dr. Ajay kumar as D.W.-1 before the trial court, who had medically examined the victim on 13-9-2020. After conclusion of the trial, the impugned judgment and order of conviction has been passed against the accused-appellant against which he filed the instant criminal appeal.
5. In support of his case, learned counsel for the appellant has advanced his submissions that the accused-appellant is innocent and has been falsely implicated due to ulterior motive; there are contradictions in the version as unfolded in the first information report, statements of the victim i.e. P.W.-1 recorded under Sections 161 and 164 Cr.P.C. as also recorded before the trial court as P.W.-1; P.W.-1 (victim) and P.W.-2 first informant (father of the victim) are interested witnesses and the prosecution has not produced any independent witnesses, like-wise, Komal Lohar and Dinesh Pandit, who is handicapped to prove its case beyond reasonable doubt; There is delay in lodging the first information report and for the said delay no explanation has been given by the prosecution, since the victim had fallen down in bushes due to which she sustained injury in her private part either by wood or wire, as is evident from the testimonies of D.W.-1 Dr. Ajay Kumar, Dr. Seema Gupta P.W.4 and Dr. Nupur Mittal P.W.-8; no sperm was found on the private part of the victim as is evident from the medical examination report of the victim; and since the victim, who is stated to be 11 years old at the time of incident cannot give such statements minutely as stated in her statements recorded under Section 161, 164 and in examination-in-chief and cross-examination before the trial court.
6. It is lastly argued that the appellant is in jail since 16th September, 2020. It is also submitted that the accused-appellant has no previous criminal antecedents to his credit; the hearing of the appeal may take sufficiently long, therefore, the accused-appellant be enlarged on bail, pending disposal of the appeal.
7. On the other-hand, the learned A.G.A. submits that this is a case in which the accused-appellant has committed brutal rape upon a minor girl who was aged about 11 years at the time of incident. Such offence is heinous in nature; So far as the dispute arose between the accused-appellant and the first informant is concerned, no documentary evidence has been brought on record in support of the same; There are minor contradictions and inconsistencies. The victim all through in her statements recorded under Section 164 Cr.P.C. as also in her examination-in-chief and cross-examination has specifically stated that Pal Chacha (Pal uncle) has committed rape upon her due to which she cried and sustained injuries on her private part. Similarly, the first informant P.W.-2 i.e. father of the victim has supported the version of the victim; If the testimony of an eye witness is otherwise found trustworthy and reliable, the same cannot be disbelieved and rejected merely because certain insignificant, normal or natural contradictions have appeared into his testimony; The testimony of the victim, with whom such heinous offence is alleged to have been committed, is sufficient to prove the prosecution case as her testimony has been fully supported by the medical evidence and other prosecution evidence; The incident is dated 13th September, 2020 at about 12 noon and the first information report has been lodged i.e. 15th September, 2020 but two days delay in lodging of the same would not amount to disbelieve or discard such commission of crime; It is impossible to believe that as to how a girl who falls down on the bushes may sustain injury only in her private part and not on her other parts of the body; P.W.-4 and P.W. 8 have opined in their testimonies that the injury that was caused in the private part of the victim and the bleeding in her vagina was due to sexual assault; Since the incident occurred on the 13th September, 2020 and the medical examination of the victim was done on 19th September, 2020, it is possible that the sperm might have been removed from the victim's body. Even otherwise, in the report of Forensic Science Laboratory dated 12th November, 2021, which is at page-189 of the present criminal appeal, it has been disclosed that male dominant allele has been found on the body of the victim as well as from the place of occurrence.
8. So far as the exact recognition/identification of the accused-appellant by the victim is concerned, it is submitted by the learned A.G.A. that since accused-appellant was a neigbour and also friend of her father, she knew him very well and called him as "Pal Chacha" (Pal uncle) and because of it, she disclosed all through in her statements that the accused-appellant committed rape upon her. As such, the recognition/identification of the accused-appellant cannot be doubted..
9. It is lastly submitted by the learned A.G.A. that the question that since the victim is stated to be about 11 years of old at the time of incident, therefore, she could not narrate entire story minutely, has no legs to stand. The Evidence Act does not prescribe any minimum age for a witness and as such a child witness is a competent witness and his or her evidence cannot be rejected outrightly. The testimony of a child witness who is found to be competent to depose i.e. capable of understanding the questions put to it and able to give coherent and rational answers would be admissible in evidence. If testimony of a child witness is corroborative and consistent at every stages, her testimony cannot be discarded on the ground that she is a minor child witness.
10. On the accumulative strength of the aforesaid, learned A.G.A. submits that the accused-appellant who committed such heinous offence is not entitled to any relief and as such, his bail applicable is liable to be rejected.
11. Having considered the submissions advanced by the learned A.G.A. for the State that the testimony of the victim is trustworthy and fully reliable, which fully corroborates the medical evidence and perused the records but also without commenting upon merits of the case, we are of the view that accused-appellant is not entitled to be enlarged on bail during pendency of this appeal. The bail application of the accused-appellant is, accordingly, rejected.
12. Since the lower court records have already been received, we direct the office to get the paper books prepared, if not already prepared, within two months.
13. List the appeal in the month of October, 2025 for final hearing.
14. The written submissions filed on behalf of petitioner in the Court earlier is taken on record.
(Madan Pal Singh, J.) (Siddhartha Varma, J.)
Order Date :-06.05.2025
Sushil/-
