High Court · 2025

1. Heard Sri Vivek Kumar Singh, learned counsel appearing for the revisionist and Sri Shiv Dutt Shukla, learned Additional Government Advocate appearing for the State.

2. Notice was issued to Opposite Party No. 2 by this Court vide order dated 6.2.2025 and as per the service report available in the order sheet, notice had been served upon Opposite Party No. 2. In spite of service of the notice on Opposite Party No. 2, no one has appeared on her behalf.

3. The instant criminal revision has been filed challenging therein, the order dated 21.11.2024 passed by the learned Additional Sessions Judge/F.T.C., Court No. 1, Meerut in Sessions Trial No. 866 of 2024 (State vs Tejveer) related to Case Crime No. 166 of 2024 whereby, the charges have been framed against the revisionist for the offences punishable under Sections 452, 354, 376, 504, 506 I.P.C. and 3/11 of the Prevention of Cruelty to Animals Act, 1960.

4. It has been contended on behalf of the revisionist that Section 375(b) of the Indian Penal Code provides that a man is said to have committed rape if he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina or urethra or anus of a woman or makes her to do so with him or any other person. It has further been contended that the statement of the victim had been recorded under Section 164 Cr.P.C. wherein, she had categorically stated that the revisionist has not committed rape on her and further in her entire statement there is no mention that the revisionist in any manner has inserted his finger into her vagina.

5. Learned counsel appearing for the revisionist has submitted that initially the Investigating Officer recorded statement of the victim under Section 161 Cr.P.C. wherein, it is mentioned that the revisionist had put his finger in her body but later on, the Investigating Officer again recorded her statement under Section 161 Cr.P.C. wherein, there is no mention that the revisionist in any manner has inserted his finger into her vagina. It has further been submitted that the statement of the victim had been recorded under Section 164 Cr.P.C. wherein, she had categorically stated that the revisionist has not committed any rape on her and further victim in the said statement has not stated that the revisionist has inserted his finger into her vagina.

6. Learned counsel appearing for the revisionist has argued that once the victim herself, in her statement recorded under Section 164 Cr.P.C., has not said that the revisionist has inserted his finger into her vagina and further she had categorically stated that the revisionist has not committed rape on her, there was no occasion for the trial court to frame charge against the revisionist for the offence punishable under Section 376 I.P.C.

7. Learned counsel appearing for the revisionist has thus concluded his arguments and has submitted that the order dated 21.11.2024 whereby, charge has been framed against the revisionist for the offence punishable under Section 376 I.P.C., on its face, is erroneous and therefore same may be set aside and the trial court may be directed to pass fresh order for framing of charges against the revisionist.

8. Learned Additional Government Advocate appearing for the State has opposed the present criminal revision but he could not justify, as to when the victim herself in her statement recorded under Section 164 Cr.P.C. had stated that the revisionist has not committed rape on her and further in the said statement there is no mention that the revisionist inserted his finger in her vagina, how the charge for the offence punishable under Section 376 I.P.C. can be framed against the revisionist.

9. I have considered the rival arguments advanced by the learned counsels appearing for the parties and have perused the documents annexed along with this criminal revision.

10. It transpires that the Investigating Officer initially recorded the statement of the victim under Section 161 Cr.P.C. on 24.6.2024. The relevant portion of the statement of the victim recorded on 24.6.2024 is extracted as under :- " ममनन बबथरम कन परदन सन झबक कर कहब कक इसन कयय मबर रहन हय तय उसनन बबथरम मन घघसकर मनरर कयलर भरकर उसनन मनरब बलबतकबर तय नहर ककयन लनककन मनरन शररर मन अपनर अगघलर दर। मनरर छबतर भरच दर और मघझन जमरन पर कगरबकर जय करब गयब वय उसनन मनरन सबथ ककयब। मनरन कहनन सन वय पतब नहह कम सन हट गयब और वह सन चलब गयब ममनन कपडन पहनन तय इतनन मन वय वह सन अपनन घर चलब गयब। "

11. The Investigating Officer again recorded statement of the victim under Section 161 Cr.P.C. on 27.6.2024. The relevant portion of the statement of the victim recorded under Section 161 Cr.P.C. on 27.6.2024 is extracted as under :- " उसकन बबद मम अअदर सन कचलबई तय वह जबरन मनरन बबथरम मम घघसकर मनरन सबथ छनडखबनर करनन लगब। और मघझन फशर पर कगरबकर मनरर छबतर पर व टबअगय कन बरच हबथ फन रनन लगब मनरन जयर जयर सन कचलबनन पर उक तनजवरर भबग गयब और भबगतन भबगतन कहकर गयब कक अगर सबलर कहर कशकबयत कक तय जबन सन मबर दद अगब। उसकन बबद ममनन अपनन कपडन पहनन और बबहर आकर दनखब कक गबय कब पमर टद ट गयब हम जजसकक कशकबयत लनकर मम थबनन आयर थर।"

12. Later on, the statement of the victim had been recorded under Section 164 Cr.P.C. on 29.6.2024. The relevant portion of the statement of the victim recorded under Section 164 Cr.P.C. on 29.6.2024 is extracted as under :- "तनजवरर बबथरम मम घघस आयब। उस समय घर पर कयई नहर थब। तनजवरर नन मनरर छबतर दबबई और मनरन सबथ बलबतकबर नहह ककयब पर टबअगय कन बरच हबथ फन रब ।ममनन इस घटनब कन बबरन मन अपनन पकत कय बतबयब ममनन उसर कदन थबनन मन कशकबयत कक कययकक मघझन अपनन इलबज हनतद मनरठ जबनब थब अगलन कदन मनरर कशकबयत जलखर गयर मनरब मनकडकल करबनन मकहलब पघजलस अपनन सबथ लन गयर थर मनरब जसफर कपटबई कब मनकडकल करबयब हम मनरर अअदरनर जच नहर करबयर और तनजवरर कय छयड कदयब यहर मनरब बयबन हम।"

13. From perusal of the aforesaid statements of the victim recorded under Section 161 Cr.P.C. and under Section 164 Cr.P.C., this Court prima-facie finds that the victim all along had stated that the revisionist has not committed rape on her. The victim in her statement recorded under Section 164 Cr.P.C. had categorically stated that the revisionist has not committed rape on her and further in the said statement there is no mention that the revisionist in any manner has inserted his finger into her vagina.

14. Now this Court proceeds to consider the provisions made under Section 375 I.P.C. For ready reference Section 375 I.P.C. is extracted as under :- "2[375. Rape.—A man is said to commit "rape" if he— (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:— First.—Against her will. Secondly.—Without her consent. Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly.—With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.—With or without her consent, when she is under eighteen years of age. Seventhly.—When she is unable to communicate consent. Explanation 1.—For the purposes of this section, "vagina" shall also include labia majora. Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non- verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1.—A medical procedure or intervention shall not constitute rape. Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."

15. This Court finds that the offence under Section 375(b) I.P.C. is made out only when a man in any manner inserts any part of his body in the vagina of a women. From the statements of the victim recorded under Section 161 Cr.P.C. and 164 Cr.P.C., this Court prima-facie finds that the victim at no point of time has ever stated that the revisionist has inserted his finger into her vagina. On the contrary the victim all along, in her statements, had categorically stated that the revisionist has not committed rape on her.

16. This Court is of the view that prima-facie, from perusal of the statements of the victim, recorded under Section 161 and 164 Cr.P.C., the offence punishable under Section 376 I.P.C. is not made out.

17. In view of the aforesaid reasons, this criminal revision is liable to be allowed and the matter is liable to be remanded to the trial court to pass fresh order for framing charges against the revisionist after hearing all the concerned parties.

18. Accordingly, this criminal revision is allowed. The impugned order dated 21.11.2024 passed by the learned Additional Sessions Judge/F.T.C., Court No. 1, Meerut in Sessions Trial No. 866 of 2024 (State vs Tejveer) is hereby set aside. The matter is remanded to the trial court to pass fresh order for framing of charges against the revisionist strictly in accordance with law.

19. It is made clear that it would be open for the trial court to consider each and every material available before it at the time of framing of charges against the revisionist.

20. It is also made clear that since this Court had recorded prima- facie findings in this order, the same are not conclusive and therefore, it would be open for the trial court to consider the entire matter afresh. Order Date :- 24.2.2025 Gaurav GAURAV PATEL High Court of Judicature at Allahabad

1. Heard Sri Vivek Kumar Singh, learned counsel appearing for the revisionist and Sri Shiv Dutt Shukla, learned Additional Government Advocate appearing for the State.

2. Notice was issued to Opposite Party No. 2 by this Court vide order dated 6.2.2025 and as per the service report available in the order sheet, notice had been served upon Opposite Party No. 2. In spite of service of the notice on Opposite Party No. 2, no one has appeared on her behalf.

3. The instant criminal revision has been filed challenging therein, the order dated 21.11.2024 passed by the learned Additional Sessions Judge/F.T.C., Court No. 1, Meerut in Sessions Trial No. 866 of 2024 (State vs Tejveer) related to Case Crime No. 166 of 2024 whereby, the charges have been framed against the revisionist for the offences punishable under Sections 452, 354, 376, 504, 506 I.P.C. and 3/11 of the Prevention of Cruelty to Animals Act, 1960.

4. It has been contended on behalf of the revisionist that Section 375(b) of the Indian Penal Code provides that a man is said to have committed rape if he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina or urethra or anus of a woman or makes her to do so with him or any other person. It has further been contended that the statement of the victim had been recorded under Section 164 Cr.P.C. wherein, she had categorically stated that the revisionist has not committed rape on her and further in her entire statement there is no mention that the revisionist in any manner has inserted his finger into her vagina.

5. Learned counsel appearing for the revisionist has submitted that initially the Investigating Officer recorded statement of the victim under Section 161 Cr.P.C. wherein, it is mentioned that the revisionist had put his finger in her body but later on, the Investigating Officer again recorded her statement under Section 161 Cr.P.C. wherein, there is no mention that the revisionist in any manner has inserted his finger into her vagina. It has further been submitted that the statement of the victim had been recorded under Section 164 Cr.P.C. wherein, she had categorically stated that the revisionist has not committed any rape on her and further victim in the said statement has not stated that the revisionist has inserted his finger into her vagina.

6. Learned counsel appearing for the revisionist has argued that once the victim herself, in her statement recorded under Section 164 Cr.P.C., has not said that the revisionist has inserted his finger into her vagina and further she had categorically stated that the revisionist has not committed rape on her, there was no occasion for the trial court to frame charge against the revisionist for the offence punishable under Section 376 I.P.C.

7. Learned counsel appearing for the revisionist has thus concluded his arguments and has submitted that the order dated 21.11.2024 whereby, charge has been framed against the revisionist for the offence punishable under Section 376 I.P.C., on its face, is erroneous and therefore same may be set aside and the trial court may be directed to pass fresh order for framing of charges against the revisionist.

8. Learned Additional Government Advocate appearing for the State has opposed the present criminal revision but he could not justify, as to when the victim herself in her statement recorded under Section 164 Cr.P.C. had stated that the revisionist has not committed rape on her and further in the said statement there is no mention that the revisionist inserted his finger in her vagina, how the charge for the offence punishable under Section 376 I.P.C. can be framed against the revisionist.

9. I have considered the rival arguments advanced by the learned counsels appearing for the parties and have perused the documents annexed along with this criminal revision.

10. It transpires that the Investigating Officer initially recorded the statement of the victim under Section 161 Cr.P.C. on 24.6.2024. The relevant portion of the statement of the victim recorded on 24.6.2024 is extracted as under :- " ममनन बबथरम कन परदन सन झबक कर कहब कक इसन कयय मबर रहन हय तय उसनन बबथरम मन घघसकर मनरर कयलर भरकर उसनन मनरब बलबतकबर तय नहर ककयन लनककन मनरन शररर मन अपनर अगघलर दर। मनरर छबतर भरच दर और मघझन जमरन पर कगरबकर जय करब गयब वय उसनन मनरन सबथ ककयब। मनरन कहनन सन वय पतब नहह कम सन हट गयब और वह सन चलब गयब ममनन कपडन पहनन तय इतनन मन वय वह सन अपनन घर चलब गयब। "

11. The Investigating Officer again recorded statement of the victim under Section 161 Cr.P.C. on 27.6.2024. The relevant portion of the statement of the victim recorded under Section 161 Cr.P.C. on 27.6.2024 is extracted as under :- " उसकन बबद मम अअदर सन कचलबई तय वह जबरन मनरन बबथरम मम घघसकर मनरन सबथ छनडखबनर करनन लगब। और मघझन फशर पर कगरबकर मनरर छबतर पर व टबअगय कन बरच हबथ फन रनन लगब मनरन जयर जयर सन कचलबनन पर उक तनजवरर भबग गयब और भबगतन भबगतन कहकर गयब कक अगर सबलर कहर कशकबयत कक तय जबन सन मबर दद अगब। उसकन बबद ममनन अपनन कपडन पहनन और बबहर आकर दनखब कक गबय कब पमर टद ट गयब हम जजसकक कशकबयत लनकर मम थबनन आयर थर।"

12. Later on, the statement of the victim had been recorded under Section 164 Cr.P.C. on 29.6.2024. The relevant portion of the statement of the victim recorded under Section 164 Cr.P.C. on 29.6.2024 is extracted as under :- "तनजवरर बबथरम मम घघस आयब। उस समय घर पर कयई नहर थब। तनजवरर नन मनरर छबतर दबबई और मनरन सबथ बलबतकबर नहह ककयब पर टबअगय कन बरच हबथ फन रब ।ममनन इस घटनब कन बबरन मन अपनन पकत कय बतबयब ममनन उसर कदन थबनन मन कशकबयत कक कययकक मघझन अपनन इलबज हनतद मनरठ जबनब थब अगलन कदन मनरर कशकबयत जलखर गयर मनरब मनकडकल करबनन मकहलब पघजलस अपनन सबथ लन गयर थर मनरब जसफर कपटबई कब मनकडकल करबयब हम मनरर अअदरनर जच नहर करबयर और तनजवरर कय छयड कदयब यहर मनरब बयबन हम।"

13. From perusal of the aforesaid statements of the victim recorded under Section 161 Cr.P.C. and under Section 164 Cr.P.C., this Court prima-facie finds that the victim all along had stated that the revisionist has not committed rape on her. The victim in her statement recorded under Section 164 Cr.P.C. had categorically stated that the revisionist has not committed rape on her and further in the said statement there is no mention that the revisionist in any manner has inserted his finger into her vagina.

14. Now this Court proceeds to consider the provisions made under Section 375 I.P.C. For ready reference Section 375 I.P.C. is extracted as under :- "2[375. Rape.—A man is said to commit "rape" if he— (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:— First.—Against her will. Secondly.—Without her consent. Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly.—With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.—With or without her consent, when she is under eighteen years of age. Seventhly.—When she is unable to communicate consent. Explanation 1.—For the purposes of this section, "vagina" shall also include labia majora. Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non- verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1.—A medical procedure or intervention shall not constitute rape. Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."

15. This Court finds that the offence under Section 375(b) I.P.C. is made out only when a man in any manner inserts any part of his body in the vagina of a women. From the statements of the victim recorded under Section 161 Cr.P.C. and 164 Cr.P.C., this Court prima-facie finds that the victim at no point of time has ever stated that the revisionist has inserted his finger into her vagina. On the contrary the victim all along, in her statements, had categorically stated that the revisionist has not committed rape on her.

16. This Court is of the view that prima-facie, from perusal of the statements of the victim, recorded under Section 161 and 164 Cr.P.C., the offence punishable under Section 376 I.P.C. is not made out.

17. In view of the aforesaid reasons, this criminal revision is liable to be allowed and the matter is liable to be remanded to the trial court to pass fresh order for framing charges against the revisionist after hearing all the concerned parties.

18. Accordingly, this criminal revision is allowed. The impugned order dated 21.11.2024 passed by the learned Additional Sessions Judge/F.T.C., Court No. 1, Meerut in Sessions Trial No. 866 of 2024 (State vs Tejveer) is hereby set aside. The matter is remanded to the trial court to pass fresh order for framing of charges against the revisionist strictly in accordance with law.

19. It is made clear that it would be open for the trial court to consider each and every material available before it at the time of framing of charges against the revisionist.

20. It is also made clear that since this Court had recorded prima- facie findings in this order, the same are not conclusive and therefore, it would be open for the trial court to consider the entire matter afresh. Order Date :- 24.2.2025 Gaurav GAURAV PATEL High Court of Judicature at Allahabad