Point of Law: Even slightest penetration of penis into vagina without rupturing the hymen would constitute rape.

JUDGMENT :

SANJAY KUMAR SINGH, J.

1. Heard Mr. Virendra Pratap Singh, learned counsel for the applicant, Mr. Rabindra Kumar Singh learned Additional Government Advocate assisted by Mr. Ajay Singh, learned Brief holder representing the State.

2. By means of this application under Section 439 of Cr.P.C. applicant, who is involved in Case Crime No. 219 of 2021, under Sections 354, 376 IPC and Sections 5/6 POCSO Act, police station Bansgaon, district Gorakhpur seeks enlargement on bail during the pendency of trial.

3. As per prosecution case, in brief, the complainant, who is mother of the victim lodged the first information report on 16.07.2021 at 17:07 hours with regard to an incident which took place on 16.07.2021 against the applicant Chandra Prakash Sharma for the alleged offence under Sections 354, 376 IPC and Sections 5/6 POCSO Act alleging inter-alia that today on 16.07.2021, her daughter aged about 8 years went beside her house to pluck guava from guava tree where the applicant was kissing her daughter by sitting her on his lap and thereafter raped her by took off her panty. She came home and told the entire incident to her and her mother-in-law. Thereafter, on the same day, i.e. on 16.07.2021, the victim was medically examined in which doctor opined that sexual violence cannot be ruled out. Victim in her statements under Section 161 and 164 Cr.P.C. has made allegation of rape against the applicant reiterating the prosecution case as mentioned in the first information report. The statement of the victim recorded under Section 164 Cr.P.C. is reproduced herein-below:

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mRrj% -------
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Á'u% rqe fdl d{kk esa iढ-rh gks\
mRrj% d{kk&2
Á'u% rqe vkt fdl jax dk diM+k iguh gks\
mRrj% yky
Á'u% rqEgkjk mez D;k gS\
mRrj% 7 o"kZ
Á'u% >wB cksyuk xyr gS ;k ugha\
mRrj% xyr
cky ihfM+rk c;ku gsrq l{ke gS cky ihfM+rk c;ku Á'uksRrj :i esa vafdr fd;k tk jgk gSA
Á'u% rqEgkjs lkFk D;k ?kVuk gq;h Fkh\
mRrj% cky ihfM+rk iwNus ij crk jgh gS fd eSa vkSj esjh nksLr vaf'kdk ve:n [kkus ds fy;s x;s FksA vaf'kdk isM+ ij pढ- x;h vkSj eSa uhps [kM+h Fkh rHkh ,d yM+dk eq>s [khap fy;k eSa tc ihNs mldks ns[kh vkSj fpYykus dh dksf'k'k dh rks og esjk eqag nck fn;k vkSj 'kkSpky; ds ihNs ys x;k viuk iS.V [kksy fn;k vkSj esjk Hkh pढ-h [kksydj Nwus yxs vkSj viuk 'kq'kq esjs vUnj Mkyus yxk esjs lkFk xyr dke fd;kA eSa fdlh rjg viuk gkFk NqM+kdj Hkkx vk;hA
Á'u% D;k rqe yM+dk dk uke tkurh gks\
mRrj% gka esjh eEeh crkbZ gS mldk uke pUæ Ádk'k gSA
Á'u% dqN vkSj dguk gS\
mRrj% eSa tc Hkkxus yxh rks og yM+dk eq>s idM+us dk dksf'k'k fd;k esjh eka tc pUæ Ádk'k dks MkVus ds fy, igaqph rks esjh eka dks Hkh ekjkA
Á'u% ?kVuk dh lwpuk fdldks fn;k\
mRrj% ?kVuk ds ckjs esa eSaus nknh dks crk;kA
gLrk{kj
ihfM+rk ¼viŒ½
mijksDr ys[kc} c;ku esjs }kjk ihfM+rk dks iढ-dj lquk;k rFkk le>k;k x;k ftls mlus v{kj'k% lgh gksuk crk;k ihfM+rk us viuk c;ku viuh LosPNk ls nsuk crk;k gS c;ku dk voyksdu fd;k x;kA**

4. It is submitted by learned counsel for the applicant that the applicant has been falsely implicated in this case. No mark of injury has been found on the body of the victim and hymen of the victim was found intact and no fresh injury or bleeding was seen at the time of her medical examination. The victim in her statement under Section 164 Cr.P.C. has not stated that the applicant has committed rape on her, as such, no offence is made out against him. The applicant does not have criminal history to his credit. His bail application has been wrongly rejected by the concerned Court below. Lastly, it is submitted by learned counsel for the applicant that the applicant is languishing in j