Allahabad High Court
Ganesh Mishra vs State Of U.P.And Another on 20 March, 2023
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 75 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11868 of 2022 Applicant :- Ganesh Mishra Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Abhai Kumar Singh,Rahul Mishra,Sanjay Mishra Counsel for Opposite Party :- G.A.,Vivek Kumar Singh Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicant and Shri Rabindra Kumar Singh, learned Additional Government Advocate representing the State.
By means of this application under Section 439 of Cr.P.C., applicant, who is involved in Case Crime No. 166 of 2021, under Sections 376-D of I.P.C. and 5/6 Protection of Children from Sexual Offences Act, Police Station- Kayamganj, District- Fatehgarh (Farrukhabad), seeks enlargement on bail during the pendency of trial.
As per prosecution case, in brief, victim, who is aged about 15 years, herself lodged a first information report on 16.05.2021, against the present applicant Ganesh Mishra, Rahul @ Ajay and Rohit Fauji, with the allegations inter-alia that on 14.5.2021 at 11.00 PM when she came out of her house to attend the call of nature, at that time Rahul alias Ajay came there and took her to the house of Ganesh Mishra (applicant) where Ganesh and his friend Rohit Fauji were present. They forcibly made her to drink cold drink whereafter she started feeling drowsiness. Thereafter all the three accused persons committed rape on her one by one.
The main substratum of argument of learned counsel for the applicant is that applicant has been falsely implicated in this case. Placing reliance upon the medical report of the victim wherein hymen of the victim was found absent, learned counsel for the applicant submits that no such incident took place as alleged by the victim in the F.I.R. He further argued that victim was having love affair with co-accused Rahul @ Ajay, who took her to the house of the applicant on 14.05.2021 at about 11 PM. It is also pointed out that the statement of victim has already been recorded before the trial court, but there are some contradictions in her statement. The applicant is languishing in jail since 18.05.2021.
Per contra, learned Additional Government Advocate representing the State opposed the prayer for bail of the applicant by contending that there is specific allegation of gang rape against the accused persons including the applicant. The victim in her statements under Section 161 and 164 Cr.P.C., which were recorded during investigation as well as before the trial court has fully supported the prosecution case making allegation of rape against the accused persons. It is also pointed out that applicant has the criminal history of following eight cases to his credit:
1. Case Crime No. 736 of 2018, under Sections 147, 506, 427 IPC, Police Station Kayamganj, District Fatehgarh.
2. Case Crime No. 36 of 2019, under Sections 147, 372 IPC, Police Station Kayamganj, District Fatehgarh.
3. Case Crime No. 167 of 2019, under Sections 307, 504, 452, 34, 324 IPC, Police Station Kayamganj, District Fatehgarh.
4. Case Crime No. 02 of 2020, under Sections 354, 504 IPC and Section 8 of POCSO Act, Police Station Kayamganj, District Fatehgarh.
5. Case Crime No. 55 of 2020, under Section 3 of U.P. Goonda Act, Police Station Kayamganj, District Fatehgarh.
6. Case Crime No. 174 of 2021, under Section 10 of U.P. Goonda Act, Police Station Kayamganj, District Fatehgarh.
7. Case Crime No. 275 of 2020 under Section 3(1) U.P. Gangster Act, Police Station Kayamganj, District Fatehgarh.
8. Case Crime No. 230 of 2020, under Sections 323, 324, 504 IPC, Police Station Kayamganj, District Fatehgarh.
As per first information report the victim is aged about about 15 years whereas as per ossification test report she is found aged about 17 years. Admittedly, the victim is minor. After the incident when the victim was produced before the doctor for her medical examination report, she has stated that the present applicant Ganesh, Rahul and Rohit have committed rape on her one by one. In her statement under Section 164 Cr.P.C., she has stated that on the fateful day at 11.00 PM, she had gone to toilet and while she was returning, accused Rahul alias Ajay came there on motorcycle, gagged her mouth, threatened her and took her to the house of Rohit Fauji. The gate of the house was opened by the present applicant Ganesh Mishra and took her to the first floor and committed rape on her.
So far as the contention of learned counsel for the applicant that since hymen of the prosecutrix was found missing, which suggest that no rape was committed with the victim, is totally misconceived. A hymen is a thin piece of mucosal tissue that surrounds or partially covers the external vaginal opening. It forms part of vulva or genitalia and is similar in structure to the vagina. In children, a common appearance of the hymen is crescent shaped. During puberty, estrogen causes the hymen to change in appearance and become very elastic.
In Satyapal Vs. State of Haryana (2009) 6 SCC 635, the prosecutrix was a minor girl aged about 11 years, who was subjected to rape by the accused persons. Accused was convicted under Section 376 IPC by the learned trial court and was sentenced to rigorous imprisonment for seven years and a fine with default stipulation. The appeal filed against the said order was also dismissed by Punjab and Haryana High Court. The High Court while dismissing the appeal opined that :
(i) "Hymen was found to be absent when the prosecutrix was medico-legally examined by Dr. Savita Bansal. Doctor further noticed that the same was represented by slightly swollen edges. Although, the doctor could not say definitely whether there was actually any attempt to commit sexual intercourse or not, yet since the edges of the vagina were swollen, therefore, an opinion was given that there could be a possibility of attempt and, accordingly, the possibility of the attempt to commit sexual intercourse could not be ruled out."
(ii) "Coming to the report of the FSL, as per which semen could not be detected on the clothes of the prosecutrix and the vaginal swabs, it may be noted that complete penetration of the penis with emission of semen is not necessary to constitute the offence of rape. Even partial penetration was sufficient to constitute the offence of rape. Absence of hymen is clear indication of the fact that there was penetration. It may be that the penetration was partial or that there was no emission of semen by the appellant."
(iii) "The prosecutrix has clearly stated in her deposition before the Court that the accused had inserted his male organ in her vagina. Moreover, the absence of hymen cannot be explained by any other circumstance than the sexual intercourse committed by the appellant with the prosecutrix."
Being dissatisfied with the order of the High Court, the accused Satyapal preferred appeal before the Supreme Court. Hon'ble Supreme Court while dismissing the appeal also took note of the evidence of doctor, who conducted medical examination of the victim therein, which are reproduced herein under:
"10. We may at this juncture notice the evidence of Dr. Savita Bansal (PW-6). In her deposition, she stated:
"On external examination, there was no bleeding or discharge on thigh or labia majora. Labia majora and minora were not properly developed. Posterior commissure and fourchette were intact.
Hymen was absent and represented by slightly swollen edges.
Per speculum examination was not possible. On her vaginal examination, it admitted only little finger easily. Two fingers were not possible to be admitted. So properly her vaginal examination was not possible. Vaginal rugosities were not well maintained."
She, in her cross-examination, clarified as to why she had reported that there was a possibility of an attempt, stating:
"I cannot say definitely with the aforesaid observation whether there was actually any attempt to commit sexual intercourse. Therefore, I cannot say whether there was a penetration or not. Since the edges of the vagina were swollen, therefore, I say that there could be a possibility of attempt and, therefore, I have said that possibility of the attempt to commit sexual intercourse cannot be ruled out.
Possibility of such a swelling, as in this case, may be due to other reasons also. It is not necessary that other signs are also available besides swelling if an attempt to rape is made. In this case, since the girl is minor, therefore, the other signs were not possible. As I have mentioned that hymen was absent, I mean that it was not freshly bleeding. There was no bleeding of the hymen at all. This amounts to absence of the hymen..."
In Ramesh Harijan Vs. State of U.P., (2012)5 SCC 777, the facts of the case was that one Smt. Batasi Devi lodged an FIR on 2.2.1996 in Haraiya Police Station alleging that her daughter Renu, aged 5-6 years, was found dead on her cot in Muradipur, the village of her maternal grandmother on 30.1.1996 at about 9.00 P.M. Initially, she had been told that her daughter died of paralysis and she was buried at the bank of Manorama river. Later on, she got information from Shitla Prasad Verma, Jata Shankar Singh and other persons of the same village that her daughter had been raped and killed by Ramesh, the appellant. She also made a request that the dead body of the child be exhumed and sent for post-mortem. Thereafter on the order of the concerned Sub-Divisional Magistrate, the dead body of Renu was dug out from the grave and sent for post-mortem on 3.2.1996. The autopsy was conducted by Dr. Ajay Kumar Verma and Dr. S.S. Dwivedi of District Hospital. In their opinion, death was due to shock and haemorrhage as a result of ante-mortem vaginal injuries.
On the basis of the post-mortem report, Case Crime No. 22 of 1996 was registered against the appellant under Sections 302 and 376 IPC. After completing the investigation, the police filed the chargesheet against the appellant. After conclusion of the trial and considering the evidence on record, the trial court vide its judgment and order dated 2.2.1999 acquitted the appellant of both the aforesaid charges.
Being aggrieved by the order of trial court, the State preferred Criminal Appeal No. 1246 of 1999 which has been allowed by the Allahabad High Court vide judgment and order dated 23.3.2007 and the appellant has been convicted and sentenced of life imprisonment on both counts.
The accused preferred appeal before the Hon'ble Supreme Court, which came to be dismissed. Hon'ble Supreme Court while dismissing the appeal also took note of the injuries sustained by the prosecutrix/deceased, which are as follows:
"Admittedly, Renu, aged 5-6 years of age, died of vaginal injuries. The post-mortem report disclosed the following ante-mortem injuries:
(1) Contusion 4 cm x 2 cm over the right side face below the right ear lobules on upper part of the neck. (2) Contusion 5 cm x 3 cm over the left side face in front and above tragus of the left ear.
(3) Abraded contusion 4 cm X 3 cm over the back of the right shoulder joint and scapular region.
(4) Contusion 3 cm x 2 cm over the upper part of the left scapula and back portion of the shoulder tip.
(5) Abraded contusion 4 cm x 1 cm on each side of office and labia majora.
(6) Abraded with tearing of labia majora of both side 2 cm x 1 cm.
(7) Hymen absent, lower part of vagina badly lacerated and pubic lower part upper abdomen, and vaginal tear up to upper part of Guel orifice.
The internal examination of the supra pubic region on opening the abdomen revealed that blood and gases were present and the lower part of the uterus had a bloodstained tear 1 cm x 1 cm.
The cause of death was shock and haemorrhage.
Doctor opined that if a hard object like a human penis was inserted in the vagina it could have caused the injuries Nos. 6 and 7."
In this context, this Court feels that it would be quite appropriate to reproduce the opinion expressed by Modi in his book Modi Textbook of Medical Jurisprudence and Toxicology, 24th Edition, at page 639, which reads as under:
"To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with the emission of semen and the rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without the emission of semen, or even an attempt at penetration is quite sufficient for the purpose of law. It is, therefore, quite possible to commit legally, the offence of rape without producing any injury to the genitals or leaving any seminal stains.
Dealing with the offence of rape and its traumatic effect on victim of rape, Hon'ble Supreme Court in the case of State of Punjab Vs. Gurmit Singh, AIR 1996 SC 1393, Hon'ble Apex Court observed as under:
"Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.
Hon'ble Supreme Court in State Of Himachal Pradesh vs Asha Ram, 2006 Cri.L.J. 139 has held as under:
"We record our displeasure and dismay, the way the High Court dealt casually with the offence so grave, as in the case at hand, overlooking the alarming and shocking increase of sexual assault on the minor girls. The High Court was swayed by sheer insensitivity totally oblivious of growing menace of sex violence against the minors much less by the father. The High Court also totally overlooked the prosecution evidence, which inspired confidence and merited acceptance. It is now well settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is also well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case."
In the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, AIR 1983 SC 753, Hon'ble Supreme Court held thus:
In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion ? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical, and not an opiniated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the Western World which has its own social milieu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the Western World. It is wholly unnecessary to import the said concept on a turn-key basis and to transplate it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian Society and its profile."
Hon'ble Supreme Court in State Of Maharashtra vs Chandraprakash Kewal Chand Jain, 1990 AIR 658, 1990 SCR (1) 115 held thus:
A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage: "It is only in the rarest of rare cases if the Court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary."
Hon'ble Supreme Court in the case of State of Rajasthan Vs. Roshan Khan and others, (2014) 2 SCC 476 has held that where sexual intercourse by the accused is proved and the question is whether it was without consent of woman alleged to have been raped, and she states that she did not consent, the Court shall presume that she did not consent.
In the case of State of Karnataka Vs. Krishnappa 2000 (2) SCALE 610, Hon'ble Supreme Court pointed out that rape is not merely a physical assault, it is an offence which is destructive of the whole personality of the victim of crime and courts shoulder a great responsibility while trying an accused on charges of rape and must deal with such cases with utmost sensitivity.
Hon'ble Supreme Court in State of A.P. Vs. Bodem Sundara Rao, 1995 (6) SCC 230 has cautioned the Courts while dealing with the cases of sexual crime against women in the following words:
"Sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self esteem and dignity. It degrades and humiliates the victim and where the victim is a helpless innocent child, it leaves behind a traumatic experience. The Courts are, therefore, expected to deal with the cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely."
In Madan Gopal Kakkad vs Naval Dubey And another, 1992 SCR (2) 921, Hon'ble Supreme Court held:
"JUSTICE DEMANDS, THE COURT AWARDS"
Before parting with the judgment, with deep concern, we may point out that though all sexual assaults on female children are not reported and do not come to light yet there is an alarming and shocking increase of sexual offences committed on children. This is due to the reasons that children are ignorant of the act of rape and are not able to offer resistance and become easy prey for lusty brutes who display the unscrupulous, deceitful and insidious art of luring female children and young girls. Therefore, such offenders who are menace to the civilized society should be mercilessly and inexorably punished in the severest terms.
We feel that Judges who bear the Sword of Justice should not hesitate to use that sword with the utmost severity, to the full and to the end if the gravity of the offences so demand.
Perusal of the record shows that the applicant has step in the world of crime when he was minor and in a short span, he has a criminal history of eight cases. The Gangster Act has also been imposed upon the applicant in the year 2020.
In Ash Mohammad Vs. Shiv Raj Singh alias Lalla Babu and another, (2012)9 SCC 446, Hon'ble Supreme Court, held as under:
"We may usefully state that when the citizens are scared to lead a peaceful life and this kind of offences usher in an impediment in establishment of orderly society, the duty of the court becomes more pronounced and the burden is heavy. There should have been proper analysis of the criminal antecedents. Needless to say, imposition of conditions is subsequent to the order admitting an accused to bail. The question should be posed whether the accused deserves to be enlarged on bail or not and only thereafter issue of imposing conditions would arise. We do not deny for a moment that period of custody is a relevant factor but simultaneously the totality of circumstances and the criminal antecedents are also to be weighed."
Hon'ble Apex Court in the case of Neeru Yadav Vs. State of U.P. (2015)3 SCC 527, after referring a catena of judgement of Hon'ble Supreme Court on the consideration of factors for grant of bail, held as under:
" This being the position of law, it is clear as cloudless sky that the High Court has totally ignored the criminal antecedent of the accused. What has weighed with the High Court is the doctrine of parity. A historysheeter involved in the nature of crimes which we have reproduced herein above, are not minor offences so that he is not to be retained in custody, but the crimes are of heinous nature and such crimes, by no stretch of imagination can be regarded as jejune. Such cases do create a thunder and lightening having the effect potentiality of torrential rain in an analytical mind. The law expects the judiciary to be alert while admitting these kind of accused persons to be at large and, therefore, the emphasis is on exercise of discretion judiciously and not in a whimsical manner."
The aforesaid judgement has further been followed by the Apex Court in the case of Sudha Singh Vs. State of U.P. and another, 2021(4) SCC 781 and Indresh Kumar Vs. State of U.P. and another, 2022 Live law (SC) 610.
In this case a heinous crime has been committed and the accused must suffer for his consequences. A rapist not only violates the victim's personal integrity, but leaves indelible marks on the very soul of the helpless female. In this case a minor girl had been ravished by the three accused, who must have undergone a traumatic experience. As a matter of fact the crime is not only against the victim, it is against the whole society as well.
Having heard learned counsel for the parties and examined the matter in its entirety, I find that the allegation of gang rape is corroborated from the medical examination report of the victim as her hymen is missing. Further, the victim in her statements under Section 161 and 164 Cr.P.C. has made specific allegation of gang rape against the accused persons including the applicant and at this stage there is nothing on record to disbelieve her statement.
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, criminal history of the applicant and severity of punishment, I do not find any good ground to release the applicant on bail.
Accordingly, the bail application is rejected.
Order Date :- 20.3.2023Ishrat