Allahabad High Court: In a bail application filed by the accused for offences under Sections 363, 366, 376, 506 of the Penal Code, 1860 (‘IPC’) and Section 3 read with Section 4 of POCSO Act, Sanjay Kumar Singh, J. held that since the acts of the accused exceeded the stage beyond attempt to commit it, he is guilty of the offence punishable under Section 376 IPC. Even if it is assumed that there was no penetration, even then the accused is liable to be punished under Section 376 read with 511 IPC as even slightest penetration of male organ into the female parts amounts to rape.
In the case at hand, the daughter of an informant aged about 17 years was enticed away by the applicant. Thereafter, the applicant left her daughter outside her village. Her daughter told her that the applicant forcibly made physical relation with her and also, threatened her of dire consequences in case she reported the matter to the police.
The accused submitted that an FIR has been lodged on 31-8-2022 and the victim was medically examined on 31-8-2022 for which no plausible explanation has been tendered by the prosecution. Further, referring the statement under Section 164 CrPC of the victim, the accused contended that she explained that the accused took off her Paijami as well as his pant and lie down upon her. This does not come with the purview of Section 375(c) IPC because the said provision will attract if the said manipulation was to cause penetration, whereas in the present case as per statement under Section 164 CrPC of the victim, no penetration was done, therefore, said provision is not attracted.
After perusing the statement of the victim under Section 164 of Code of Criminal Procedure Code, 1973 (‘CrPC’), the Court said that it is clear that the applicant forcibly took her to a deserted place, kept her in a room throughout the night and committed rape on her and thereafter next day, in the night he left the victim outside the village.
Further, after examining the report of the Medical Board, the Court noted that the age of the victim is 17 years. No injury was found either on the body or private part of the victim, but hymen of the victim was found torn and healed.
After a plain reading of offence of rape under Section 375 IPC, the Court said that it shows that intercourse with a woman below eighteen years, with or without her consent, amounted to rape and mere penetration is sufficient to prove such offence. The expression ‘penetration’ denotes ingress of male organ into the female parts, however, slight it may be. Since, the victim was in confinement of the accused for about one and a half days and there was specific allegations that he committed misdeed with her. Thus, the Court held that since the acts of the accused exceeded the stage beyond attempt to commit it, he is guilty of the offence punishable under Section 376 IPC. However, even if it is assumed that there was no penetration, even then the accused is liable to be punished under Section 376 read with 511 IPC. Further, it also said that the Supreme Court in many of its decisions has held that even slightest penetration of male organ into the female parts amounts to rape.
The Court noted that while appreciating the evidence of the prosecutrix, the Courts must keep in mind that the values prevailing in the country, particularly in rural India. It would be unusual for a woman to come up with a false story of being a victim of sexual assault to implicate an innocent person. In our country, a woman, victim of sexual aggression, would rather suffer silently than to falsely implicate somebody. Any statement of a rape victim is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit.
Thus, the Court rejected the bail application.
[Asharam v State of U.P., 2023 SCC OnLine All 215, Order dated 30-05-2023]
Advocates who appeared in this case :
Counsel for Applicant: Advocate Shyam Lal, Advocate Abhilasha Singh, Advocate Ashutosh Yadav;
Counsel for Opposite Party: Government Advocate Kanak Kumar Tripathi.
