The Allahabad High Court while rejecting bail to a man accused of raping a minor girl, said that in our country, a minor girl, victim of sexual aggression, would rather suffer silently than to falsely implicate somebody. 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.
A Single Bench of Justice Sanjay Kumar Singh passed this order while hearing a Criminal Misc Bail Application filed by Suraj Kumar Alias Vishwapratap Singh.
By means of the bail application, applicant Suraj Kumar alias Vishwapratap Singh, who is involved in Case under Sections 65(2), 351(2), 332(c) of BNS and Sections 3/4 POCSO Act, Police Station Cantt, District Prayagraj seeks enlargement on bail during the pendency of trial.
The facts of the case 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) BNS 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.
The FIR further alleges that when the informant shouted and called his wife, the applicant, by opening the door, ran away by pushing him, extending the threat of dire consequences. Thereafter, the informant took the assistance of women helpline number 1090.
The main substratum of argument of the counsel for the applicant is that in the case, first information report was lodged after a 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 FIR 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 FIR, 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, the applicant fled 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 to the medical examination report as recorded by the investigating officer in the 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.
It is submitted that the applicant was shown to be arrested on 06.09.2024 whereas correct fact is that on 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 case.
Lastly, it is submitted by the counsel for the applicant that there is no chance of the applicant 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 has been languishing in jail since 06.09.2024, therefore he is entitled to be released on bail.
On the other hand, AGA as well as counsel appearing on behalf of the complainant vehemently opposed the submissions of 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 allegations of outraging her modesty against the applicant giving.
Considering the gravity of the offence, the bail application of the applicant is liable to be rejected.
The Court observed that,
So far as the first contention of the 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.
From perusal of statements of the victim under Section 180 and 183 BNSS, it is clear that the applicant had forcibly taken her to another room, bolted the room and committed misdeed with her.
The 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 the 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.
The Court said that 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 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.
The Court further observed that,
In the case, the allegation against the applicant that he had committed misdeed with the victim comes under the stage beyond attempting to commit it, as such, the 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.
Whereas in this 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.
The 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 conclusions in two cases.
The Court must keep in mind while appreciating the evidence of the prosecutrix the values prevailing in the country, particularly in rural India. 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, the Court further said.
“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,” the Court also observed while rejecting the bail application.