Dismissed

Baliyan Singh @ Nepal Singh v. State of U.P. and 3 Others

Allahabad HC24 Apr 2023BAIL/56211/2022

Case brief

AI extract

What is this about?

In a bail application under Section 439 Cr.P.C., the Single Judge rejected the plea of an elderly applicant accused of raping a 12-year-old minor under Sections 376AB and 354 IPC. The court held that partial penetration satisfies the definition of rape and found no evidence of false implication, thus denying bail.

What did the court decide?

Bail application rejected; trial directed to be concluded expeditiously.

Baliyan Singh @ Nepal Singh Vs State of U.P… — Child Sexual Offences (POCSO) | Allahabad HC (2023)

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Court No. - 75

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 56211 of 2022 Applicant :- Baliyan Singh @ Nepal Singh Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Sanjay Kumar Verma Counsel for Opposite Party :- G.A.,Kanchan Chaudhary

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Hon'ble Sanjay Kumar Singh,J.

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Despite service of notice upon the informant/ opposite party no. 2, no one has put in appearance on her behalf.

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Heard Mr. Sanjay Kumar Verma, learned counsel for the applicant, learned Additional Government Advocate representing the State and Ms. Kanchan Chaudhary, learned counsel appearing on behalf of opposite party nos. 3 and 4.

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By means of this application under Section 439 of Cr.P.C., applicant Baliyan Singh @ Nepal Singh, who is involved in Case Crime No. 215 of 2022, under Sections 376AB, 354, 504 IPC and Section 5/6 POCSO Act, police station Husainganj, district Fatehpur, seeks enlargement on bail during the pendency of trial.

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As per prosecution case, in brief, informant, who is maternal grand-mother of the victim, lodged a first information report on 16.07.2022 for the alleged offence under Sections 354, 504 IPC and Sections 7, 8 POCSO Act against the present applicant making allegations inter alia that on 16.07.2022 at about 10:00 A.M., when her grand-daughter aged about 12 years was alone in the house, the applicant came to her house and started teasing and outraging her modesty. On the shrieks of the victim, when the informant's brother Chhotu reached the spot, applicant ran away.

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The main substratum of argument of learned counsel for the applicant is that the applicant, who is aged about 75 years, is neighbour of the informant and has been falsely implicated in this case due to ill-will and village rivalry. In fact, no such incident took place as alleged by the prosecution. Referring the

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medical examination report of the victim, it is pointed out that hymen of the victim has been found intact and not ruptured, therefore, no offence as defined under Section 375 IPC is made out. The applicant does not have any criminal history to his credit. Lastly, it is submitted by learned 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 is languishing in jail since 17.07.2022.

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Per contra, learned A.G.A. for the State as well as learned counsel for opposite party Nos. 3 and 4 opposed the prayer for bail of the applicant by contending that the victim is a minor child aged about 12 years and she in her statement under Section 164 Cr.P.C. has made serious allegation of rape upon the applicant. Thereafter, Section 376AB IPC has been added apart from Section 5/6 POCSO Act. Considering the gravity of the offence, the bail application of the applicant is liable to be rejected.

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Having heard learned counsel for the parties and examined the matter in its entirety, I find that there is no dispute that the victim is a minor child below the age of 12 years. For the offence punishable under Section 376AB IPC, minimum sentence provided under the Act is 20 years. The victim in her statement under Section 164 Cr.P.C. has made allegation of rape against the applicant giving vivid description of the incident. The disclosure made by the victim clearly comes under the purview of Section 375(c) IPC. So far as the submission of learned counsel for the applicant that hymen of the victim was found intact, this Court is of the view that to constitute the offence of rape, it is not at all necessary that there should be complete penetration of the male organ with emission of semen and rupture of hymen. Even partial or slightest penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt of penetration into the private part of the victim would be quite enough to constitute an offence of rape. As on date, I do not find any material on record to disbelieve the

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statement of the minor victim under Section 164 Cr.P.C. to presume false implication of the applicant.

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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.

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Accordingly, the bail application is rejected .

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It is made clear that the observation contained in the instant order is confined to the issue of bail and shall not affect the merit of the trial.

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However, considering the age of the accusedapplicant, the trial Court is directed to make an endeavour to conclude the trial of the applicant expeditiously without granting any unnecessary adjournment to either of the parties.

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Order Date :- 24.4.2023 Shubham

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Digitally signed by :- SHUBHAM KUMAR AGRAHARI High Court of Judicature at Allahabad

Baliyan Singh @ Nepal Singh v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Baliyan Singh @ Nepal Singh v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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