Can't Presume That 8 Yr Old Victim Made Allegations Of Oral Sex Under Parents' Influence: Allahabad HC Denies Bail To POCSO Accused

The Allahabad High Court today denied bail to a man who has been accused of committing oral sex with a 8 year old girl as it noted that mere long detention in jail does not entitle an accused for bail.

The Bench of Justice Rajesh Singh Chauhan further noted that the victim/prosecutrix was about 8 years at the time of incident, and therefore, the Court said, at the stage of bail, it cannot be presumed that she gave the statement about oral sex under the influence of her parents.

The case in brief

As per the prosecution's version, the accused-applicant committed oral sex with the daughter of the complainant/informant. Pursuant to the registration of an FIR, the accused was booked under Section 376 IPC and Sections 3/4 POCSO Act and arrested.

He is presently in jail since September 1, 2017 and had moved to the Court alleging that he had been falsely implicated in the case as he had not committed any offence as alleged.

It was the primary submission of his counsel that the prosecution story was false and concocted inasmuch as the family of the complainant was the tenant of the accused-bail applicant and when he asked them to vacate the house, the false story was created.

On the other hand, the AGA for the state submitted that the offence in question is so heinous in nature, therefore, the present applicant may not be released on bail. He drew Court's attention towards the medical examination report, which provided that penis was penetrated in the mouth of the victim.

The AGA and the counsel for the complianant further submitted that the case shall fall within Section 3 (a) and Section 4 (2) of the POCSO Act, which provides maximum punishment for life also.

aTaking into account Section 376 of IPC and Section 3 (a) and Section 4 (2) of the POCSO Act, the Court, at the outset, observed thus:

"In view of Section 3 (a) of POCSO Act, the applicant has committed penetrative sexual assault with the prosecutrix and as per Section 4 (2) of POCSO Act, if any person commits penetrative sexual assault on a child below sixteen years of age shall be punishable with imprisonment for a term which shall not be less than twenty years, but may extend to imprisonment for life. Therefore, in view of the aforesaid provision of law, the maximum punishment in the given circumstances may be awarded upto life. For the offence of rape, the punishment may extend to the imprisonment for life also."

Against this backdrop and noting that the victim/prosecutrix, in her statement recorded under Section 164 Cr.P.C., had categorically informed that the present applicant committed oral sex with her, the Court opined thus:

"The victim/prosecutrix was about 8 years at the time of incident, therefore, at the stage of bail, it cannot be presumed that she has given such statement under the influence of her parents. Besides, the medical examination report supports her allegation wherein it has been verified that the penis was penetrated in the mouth of the victim/prosecutrix....I do not find any substance in the arguments of learned counsel for the applicant, looking to the peculiar facts and circumstance of the present case, that the applicant has already served about four years and seven months' period in jail, so he may be enlarged on bail considering his period of incarceration. I am conscious about the fact that the guilt of any person can be established before the learned trial court and no observation should be given affecting the trial, but on the basis of aforesaid material available on record, prima facie, I am not inclined to grant bail to the present applicant."

Accordingly, the bail application was rejected on merits.

Case title - Govind v. State of U.P

Case Citation: 2022 LiveLaw (All) 173

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