Gang Rape- "Traditionally Women Are Unsecured, Deprived Of Equal Rights & Tyrants Take Undue Advantage Of It": Allahabad HC Denies Bail

"Undue advantage of this environment are taken by tyrants of the society, who do not have fear and hesitation in making girl child, adolescent girls and minors, a victim of their lust," added the Court.

The Bench of Justice Vikas Kunvar Srivastav also made a mention of the Unfortunate Hathras Gang Rape & Murder case by stating thus:

"The nation has shockingly witnessed the Hathras gang rape case, where the victim faced extreme bestiality of the accused and ultimately died."

The Court further observed that just after the incident, the people of the locality, the police, all seem to had acted in protecting the accused-applicants from prosecution.

The facts in brief

A Man complained before the Special Court, POCSO Act under Section 156(3) Cr.P.C. alleging that his minor daughter aged about 16 years informed him telephonically that she was raped by two persons and they also administered her poison forcibly.

The complainant (father) rushed up along with his wife and brother, on the spot and the daughter, reiterated the incident and also told them that the accused persons filled up her vagina with soil.

Thereafter, she was brought her to his home, and after informing the police on their assurance, began to manage to take her to hospital. The entire family stayed waiting for the police for a long but she could not be taken to the hospital until she was alive and suffering severe pain, ultimately, she died.

As alleged by the father, the family members were threatened by the police official that they would be sent to jail and their report will not be registered nor the post mortem will be done unless his demand of Rs.15,000/- is not fulfilled.

However, even after getting 15,000/-, the SI didn't register an FIR, nor gave the post mortem report to the father, thereafter, the father approached the DM and SP, but his efforts went in vain.

Thus, an application under Section 156(3) Cr.P.C. was moved before the competent court, which was ultimately ordered by the Special Court (POCSO Act) and the first information report was got registered.

Court's observations

Going through the facts of the case, at the outset, the Court observed thus:

"Instead of providing justice to the victim or the families of the victim, the responsible people of the society, the law enforcement authorities start following the reverse course of action. Non-writing of first information report by the police, not conducting relevant medical examination by the doctors etc. are examples of this, which is nothing but negative activeness of such people and authorities to prevent the fact or pieces of evidence from coming to light usually in collusion with the accused."

Further, the Court observed that the narration of incident to the father and other witnesses is dying declaration, which needs no corroboration.

Perusing the Forensic Science Laboratory report, the Court observed that the chemical examination report confirmed the statement of the victim made to her family members when she was alive.

Also, the Court opined that the victim's version of administering her poison by the accused as stated by the witnesses also finds support as the viscera extracted from the dead body of the deceased for forensic examination was found containing poison like Aluminum phosphate, sufficient to cause death.

Regarding the utility of her statement made to her father, the Court observed that the narration of the incident of gang rape committed by the accused persons to her father, mother and uncle before her death, assumed the status of dying declaration explaining the cause of her death.

Significantly, the Court remarked:

"Whatever stated in dying declaration by the deceased with regard to the cause of her death and the commission of gang rape upon her, told to her mother, father and uncle, deserves to be believed and relied on with credibility."

Further, referring to Section 29 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, the Court stressed that it provides for a presumption as to certain offences and that where a person is prosecuted for violating any of the provisions under Sections 3, 5, 7 and 9 of the Act and where the victim is a child, below the age of 16 years, the Special Court shall presume that such person has committed the offence unless the counter is proved.

Lastly, the Court also made the following observations:

• The First Information Report was not got registered despite the fact that the father of the victim approached the police instantly in the night of the incident, he was told to wait so that the victim may be sent to the women hospital for medical examination.
• The victim died but the police reached only thereafter at 06:00 A.M. in the morning despite the fact stated by the victim to her parents that she was brutally with aggravation subjected to gang rape by both the accused and their criminal animus was so aggravated and heinous that they filled soil in her vagina and administered her poison, the Aluminum Phosphate to ensure her death.
• Therefore, the personal liberty of the accused is not to override, the right to life of the victim's family and for fair trial, the complainant would need a completely fear-free environment as a witness. He has the right to have a fair trial of the matter.

Lastly, noting that all these facts, if they are true, are sufficient to gather inference of high handedness of the accused-applicants affecting the things in their favour, the Court rejected their bail applications.

Case title - Dhermendra Yadav v. State Of U.P. & Anr along with Pankaj Kori v. State Of U.P. & Anr

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