Complete Penetration With Emission Of Semen & Rupture Of Hymen Not Necessary To Constitute Rape: Allahabad HC

Observing thus, a bench of Justice Rajesh Singh Chauhan rejected the bail petition of a man accused of committing rape and oral sex with a 10-year-old girl.

As per the case of the prosecution, the Accused took away the victim with himself, and later on, both of them were found in a room without clothes. The girl child was rescued, and she alleged that the accused had oral sex with her and also “penetrated the penis in her way of urine”.

The accused, booked under Sections 376AB, 506 IPC and Section 5/6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, moved the HC seeking bail on the ground that he had been falsely implicated in the case as he had not committed any offence as alleged.

The counsel for the accused contended that putting the penis into the mouth does not fall in the category of aggravated sexual assault or sexual assault and that it comes into the category of penetrative sexual assault, for which the maximum sentence maybe seven years and the accused has already served about two years and two 3 months in jail

On the other hand, the AGA for the state argued that the minor girl had levelled specific allegations as aforesaid that as per the medical report, the hymen was found torned which supports the prosecution story. Hence, the accused may not be released on bail.

Perusing the statement of the victim under Section 161 & 164 CrPC, the Court noted that she had levelled specific allegations of oral sex with her and also that accused had “penetrated the penis in her way of urine”.

The Court also noted that the medical examination report supported her allegation wherein it had been verified that the penis was penetrated in the mouth of the victim/prosecutrix.

In this regard, the Court relied upon the Apex Court's judgment in the case of Phool Singh v. State of Madhya Pradesh LL 2021 SC 696, wherein it was observed that a rape accused could be convicted on the sole testimony of prosecutrix if she is found to be credible and trustworthy.

Against this backdrop, considering the totality of the facts and circumstances of the issue in question, the medical examination report, the statement of the prosecutrix recorded under Section 164 CrPC, and the provisions of law, i.e., Section 375 IPC, Section 5/6 of POCSO Act, the Court did not find it a fit case to grant bail to the Accused.

However, noting that the accused has been in jail since March 2022 and that the trial in POCSO cases should be conducted and concluded with an expedition, preferably within a period of one year in terms of Section 35 (2) of the POCSO Act, the Court directed the Trial Court to conclude the trial within a period of nine months from the date of receipt of a copy of this order.

Appearances

Counsel for Applicant: Alok Srivastava

Counsel for Opposite Party: G.A., Aslam Javed Siddiqui, Munna Singh

Case title - Pradum Singh vs. State Of U.P. Thru. Prin. Secy. Home Lko And 3 Others 2024 LiveLaw (AB) 387

Case citation: 2024 LiveLaw (AB) 387

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