LUCKNOW vs State Of U.P. Thru. Prin. Secy. Home Deptt. U.P. Lko. And

2. Heard Ms. Shrddha Srivastava, learned counsel for the applicant and Sri Badrul Hasan, learned AGA for the State of U.P. as well as perused the record.

3. By means of this application, the applicant has challenged the charge sheet filed by the prosecution in Case Crime No. 75 of 2022, under Sections- 376, 457 IPC and also the entire proceedings arising out of Case Crime No. 75 of 2022.

4. Brief facts of the case are as under:- (i) On 04.03.2022 at about 12.00 in the night, the accused/applicant entered the house of the prosecutrix/victim by climbing a tree and tried to outrage the modesty of the prosecutrix/victim, who was sleeping with her brother, and on alarm being raised by the prosecutrix/victim, the mother of victim and other family members, who were sleeping at different place, came and therefore the applicant ran away. (ii) The aforesaid the prosecutrix/victim at Police Station- Kotwali Dehat, District- Sitapur. incident was reported by father of (iii) Thereafter, the FIR of the incident was lodged on 16.03.2022 registered as Case Crime No. 0075 of 2022, under Sections- 457, 354 IPC. (iv) During investigation, the prosecutrix/victim was medically examined on 22.03.2022, as appears from Medico Legal Examination Report of Sexual Violence (in short "Medical Report") annexed at Page 49 of the paper book (Annexure No. 4 of the instant application). (v) A perusal of Medical Report indicates that the prosecutrix/victim took bath and changed her clothes before medical examination. (vi) The Medical Report also concerned, the prosecutrix/victim that before indicates levelled allegations against the doctor 2 A482 No. 8956 of 2025 applicant, as per which, the applicant committed rape with her. (vii) After due medical examination, the doctor concerned opined that "There is no sign of use of force. No recent forceful penetration injury is found. Sexual violence cannot be ruled out." (viii) It is to be noted that as per the statement of victim recorded before the Investigating Officer (in short "I.O.") in terms of Section 161 Cr.P.C., the applicant entered the house of the prosecutrix/victim at about 12.00 in the night of 04.03.2022 and tried to outrage her modesty. However, as per the statement of the prosecutrix/victim recorded before the Magistrate concerned in terms of Section 164 Cr.P.C., the applicant committed (rape) with the prosecutrix/victim. Relevant portion of the statement(s) of prosecutrix/victim recorded in terms of Section(s) 161 and 164 Cr.P.C. are extracted hereunder:- (a) Relevant portion of the statement of prosecutrix / victim recorded in terms of Section 161 Cr.P.C. "िदनांक 04.03.22 को समय करीब 12:00 बजे रात म(cid:517) जब म(cid:520) अपने घर पे सो रही थी तो िवप(cid:87)ी करन पु(cid:347) अशोक िसह िन० बिनयानी थाना कोतवाली देहात सीतापुर मेरे घर म(cid:517) घुस गया था म(cid:286)मी और भाई अलग कमरे मे सो रहे थे और पापा बेल पर मज(cid:622)री का काम करने बाहर गये थे करन ने मेरा हॉथ गलत िनयत से हाँथ पकडकर िखचा तो म(cid:520) िच(cid:289)लाने लगी तो मेरी म(cid:286)मी और मेरा भाई आ गये, म(cid:286)मी उसको पक(cid:237)ना चाही तो हॉथ छु डाकर भाग गया यही मेरा बयान है।" (b) Relevant portion of the statement of prosecutrix / victim recorded in terms of Section 164 Cr.P.C. "म(cid:520) और छोटा भाई कमरे म(cid:517) लेटे थे, छत के पीछे पेड लगा है उससे चढकर करन िसह आये और मेरे कमरे म(cid:517) आकर उसने मेरा हॉथ पक(cid:237)कर ख(cid:514)चा और खिटया के नीचे िलया िदया, िफर मेरा पैजामा उतारा तब तक मै न(cid:514)द मे थी उसने जब मेरे साथ गलत कािम िकया तब म(cid:520) न(cid:514)द से उठी और िच(cid:289)लाई। मेरा भाई टाय(cid:517)लेट गया था मै िच(cid:289)लाई तब मेरी म(cid:286)मी आ गयी उ(cid:281)ह(cid:523)ने उसे पकडने की कोिशश की लेिकन वो भाग गया घटना की िरपोट(cid:259) 5 तारीख को िलखी गयी थी"

5. In the aforesaid background of the case, the instant application has been filed on the following main grounds, as indicated by Ms. Shrddha Srivastava, learned counsel for the applicant, which are as under:- (i) prosecutrix/victim recorded in terms of Section(s) 161 and 164 Cr.P.C. the statement(s) discrepancies There (ii) Medical opinion does not support the story/case of prosecution. (iii) Brother of prosecutrix/victim was not examined. (iv) The the prosecutrix/victim. applicant was previously acquainted with

6. In support of submissions, learned counsel for the applicant has placed reliance on the following judgments passed by the Hon'ble Apex Court. (i) Achin Gupta v. State of Haryana, (2025) 3 SCC 756, relevant paragraphs, referred, of the same are as under:- "19. It is now well settled that the power under Section 482CrPC has to be exercised sparingly, carefully and with caution, only where such exercise is justified by the tests laid down in the section itself. It is also well settled that Section 482CrPC does not confer any new power on the High Court but only saves the inherent power, which the Court possessed before the enactment of the Criminal Procedure Code. There are three 3 A482 No. 8956 of 2025 circumstances under which the inherent jurisdiction may be exercised, namely : (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice.

35. In one of the recent pronouncements of this Court in Mahmood Ali v. State of U.P. [Mahmood Ali v. State of U.P., (2023) 15 SCC 488] , authored by one of us (J.B. Pardiwala, J.), the legal principle applicable apropos Section 482CrPC was examined. Therein, it was observed that when an accused comes before the High Court, invoking either the inherent power under Section 482CrPC or the extraordinary jurisdiction under Article 226 of the Constitution, to get the FIR or the criminal proceedings quashed, essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive of wreaking vengeance, then in such circumstances, the High Court owes a duty to look into the FIR with care and a little more closely. It was further observed that it will not be enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not as, in frivolous or vexatious proceedings, the court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection, to try and read between the lines." (ii) Pradeep Kumar Kesarwani v. State of Uttar Pradesh and Another, 2025 SCC OnLine SC 1947, relevant paragraphs, referred, of the same are as under:- "20. The following steps should ordinarily determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:— (i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the materials is of sterling and impeccable quality? (ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false. (iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant? (iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal - proceedings, in exercise of power vested in it under Section 482 of the Cr. P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused. [(See: Rajiv Thapar v. Madan Lal Kapoor (Criminal Appeal No. 174 of 2013)]" (iii) Judgement dated 10.09.2025 passed in the case of Laxman Jangde vs. State of Chattisgarh Through the Station House Officer, Criminal Appeal No. of 2025 (Arising out of SLP (Crl.) No. 10377 of 2025), relevant paragraphs, referred, of the same are as under:- "6. Having considered the matter in depth, we find substance in the submission of learned senior counsel for the appellant. A plain reading of the evidence and other 4 A482 No. 8956 of 2025 materials on record reveal that the offence made out from such allegation do not satisfy the ingredients of either Section 375 of the IPC or Section 3(c) of the POCSO Act. Thus, to that extent, the conviction cannot be sustained. For the purpose of considering the same, we deem it appropriate to reproduce Section 375 of the IPC:- "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; or (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 comm 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." Section 3(c) of the POCSO Act is also reproduced hereinunder:- 5 A482 No. 8956 of 2025 "3. Penetrative sexual assault.—A person is said to commit "penetrative sexual assault" if— …. (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or …..."

7. We are of the considered opinion that what has come right from the beginning by way of complaint/FIR, subsequent deposition of the victim as also, the other witnesses, the so-called act of the appellant will come under the purview of Section 354 of the IPC and Section 9(m) of the POCSO Act. For the purpose of ready reference, Section 354 of the IPC is reproduced hereinunder:- "354. Assault or criminal force to woman with intent to outrage her modesty.— Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty, 1 [shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine]." Section 7 (Sexual assault) and Section 9(m) (Aggravated sexual assault) of the POCSO Act are also reproduced hereinunder:- "7. Sexual assault.— Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault." "9. Aggravated sexual assault.—(a) Whoever, being a police officer, commits sexual assault on a child— ……. (m) whoever commits sexual assault on a child below twelve years; or" ……."

8. The presumption by the Trial Court as upheld by the High Court that there was penetrative sexual assault, cannot be sustained for simple reason that the same is neither supported by the medical 6 report nor by the statement of the victim herself on three different occasions as also, that of the mother of the victim. From the said reading of all the three statements which have common thread, the direct allegation is of touching the private parts of the victim and also at the same time, the appellant touching his private organs. In such view of the matter, we find that the conviction recorded under Section 376 AB of the IPC and under Section 6 of the POCSO Act, cannot be sustained."

7. Sri Badrul Hasan, learned AGA, on the contrary, opposed the instant application. He submitted as under:- (i) At this stage, mini trial is not permitted. (ii) The judgment of conviction can be passed only on the basis of testimony of prosecutrix/victim, who should be sterling witness, and the conclusion on the issue that as to whether the prosecutrix/victim is the sterling witness or not can only be arrived after her statement is recorded, 6 A482 No. 8956 of 2025 which includes cross-examination, before the trial court at appropriate stage. in the (iii) Based upon mere discrepancies statement(s) of prosecutrix/victim recorded in terms of Section(s) 161 and 164 Cr.P.C., the proceedings cannot be quashed. Reference in this regard has been made on the judgment passed by the Hon'ble Apex Court in the case of Hazrat Deen vs. State of Uttar Pradesh and Another, 2022 SCC OnLine SC 1781, wherein the Hon'ble Apex Court in paragraph 6 observed that "Discrepancies between the FIR and any subsequent statement under Section 164 of the CrPC may be a defence. However, the discrepancies cannot be a ground for discharge without initiation of trial".

8. Considered the aforesaid and perused the record.

9. Upon due consideration of the aforesaid and also the submissions advanced by learned counsel for the respective parties, this Court finds no force in the instant application. It is for the following reason(s):- (i) The evidence/testimony of the victim/injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded. Reference in this regard can be made to the following judgments. (a) Phool Singh vs. State of Madhya Pradesh, (2022) 2 SCC 74. (b) Deepak Kumar Sahu vs. State of Chhattisgarh, 2025 SCC OnLine SC 1610. (ii) In the instant case, the victim has supported the story of the prosecution according to which the applicant committed crime with her. (iii) The judgment of conviction can be passed only on the basis of testimony of prosecutrix/victim. (iv) The conclusion on the issue that as to whether the prosecutrix/victim is the sterling witness or not can only be arrived after her statement is recorded, which includes cross-examination, before the trial court at appropriate stage.

10. For the foregoing reasons, the instant application is dismissed. Cost made easy.

11. It is made clear that the trial court shall not be influenced by any of the observations made hereinabove and would consider the case on its own merits. (Saurabh Lavania,J.) November 10, 2025 Arun/- ARUN KUMAR GANGWAR High Court of Judicature at Allahabad, Lucknow Bench

2. Heard Ms. Shrddha Srivastava, learned counsel for the applicant and Sri Badrul Hasan, learned AGA for the State of U.P. as well as perused the record.

3. By means of this application, the applicant has challenged the charge sheet filed by the prosecution in Case Crime No. 75 of 2022, under Sections- 376, 457 IPC and also the entire proceedings arising out of Case Crime No. 75 of 2022.

4. Brief facts of the case are as under:- (i) On 04.03.2022 at about 12.00 in the night, the accused/applicant entered the house of the prosecutrix/victim by climbing a tree and tried to outrage the modesty of the prosecutrix/victim, who was sleeping with her brother, and on alarm being raised by the prosecutrix/victim, the mother of victim and other family members, who were sleeping at different place, came and therefore the applicant ran away. (ii) The aforesaid the prosecutrix/victim at Police Station- Kotwali Dehat, District- Sitapur. incident was reported by father of (iii) Thereafter, the FIR of the incident was lodged on 16.03.2022 registered as Case Crime No. 0075 of 2022, under Sections- 457, 354 IPC. (iv) During investigation, the prosecutrix/victim was medically examined on 22.03.2022, as appears from Medico Legal Examination Report of Sexual Violence (in short "Medical Report") annexed at Page 49 of the paper book (Annexure No. 4 of the instant application). (v) A perusal of Medical Report indicates that the prosecutrix/victim took bath and changed her clothes before medical examination. (vi) The Medical Report also concerned, the prosecutrix/victim that before indicates levelled allegations against the doctor 2 A482 No. 8956 of 2025 applicant, as per which, the applicant committed rape with her. (vii) After due medical examination, the doctor concerned opined that "There is no sign of use of force. No recent forceful penetration injury is found. Sexual violence cannot be ruled out." (viii) It is to be noted that as per the statement of victim recorded before the Investigating Officer (in short "I.O.") in terms of Section 161 Cr.P.C., the applicant entered the house of the prosecutrix/victim at about 12.00 in the night of 04.03.2022 and tried to outrage her modesty. However, as per the statement of the prosecutrix/victim recorded before the Magistrate concerned in terms of Section 164 Cr.P.C., the applicant committed (rape) with the prosecutrix/victim. Relevant portion of the statement(s) of prosecutrix/victim recorded in terms of Section(s) 161 and 164 Cr.P.C. are extracted hereunder:- (a) Relevant portion of the statement of prosecutrix / victim recorded in terms of Section 161 Cr.P.C. "िदनांक 04.03.22 को समय करीब 12:00 बजे रात म(cid:517) जब म(cid:520) अपने घर पे सो रही थी तो िवप(cid:87)ी करन पु(cid:347) अशोक िसह िन० बिनयानी थाना कोतवाली देहात सीतापुर मेरे घर म(cid:517) घुस गया था म(cid:286)मी और भाई अलग कमरे मे सो रहे थे और पापा बेल पर मज(cid:622)री का काम करने बाहर गये थे करन ने मेरा हॉथ गलत िनयत से हाँथ पकडकर िखचा तो म(cid:520) िच(cid:289)लाने लगी तो मेरी म(cid:286)मी और मेरा भाई आ गये, म(cid:286)मी उसको पक(cid:237)ना चाही तो हॉथ छु डाकर भाग गया यही मेरा बयान है।" (b) Relevant portion of the statement of prosecutrix / victim recorded in terms of Section 164 Cr.P.C. "म(cid:520) और छोटा भाई कमरे म(cid:517) लेटे थे, छत के पीछे पेड लगा है उससे चढकर करन िसह आये और मेरे कमरे म(cid:517) आकर उसने मेरा हॉथ पक(cid:237)कर ख(cid:514)चा और खिटया के नीचे िलया िदया, िफर मेरा पैजामा उतारा तब तक मै न(cid:514)द मे थी उसने जब मेरे साथ गलत कािम िकया तब म(cid:520) न(cid:514)द से उठी और िच(cid:289)लाई। मेरा भाई टाय(cid:517)लेट गया था मै िच(cid:289)लाई तब मेरी म(cid:286)मी आ गयी उ(cid:281)ह(cid:523)ने उसे पकडने की कोिशश की लेिकन वो भाग गया घटना की िरपोट(cid:259) 5 तारीख को िलखी गयी थी"

5. In the aforesaid background of the case, the instant application has been filed on the following main grounds, as indicated by Ms. Shrddha Srivastava, learned counsel for the applicant, which are as under:- (i) prosecutrix/victim recorded in terms of Section(s) 161 and 164 Cr.P.C. the statement(s) discrepancies There (ii) Medical opinion does not support the story/case of prosecution. (iii) Brother of prosecutrix/victim was not examined. (iv) The the prosecutrix/victim. applicant was previously acquainted with

6. In support of submissions, learned counsel for the applicant has placed reliance on the following judgments passed by the Hon'ble Apex Court. (i) Achin Gupta v. State of Haryana, (2025) 3 SCC 756, relevant paragraphs, referred, of the same are as under:- "19. It is now well settled that the power under Section 482CrPC has to be exercised sparingly, carefully and with caution, only where such exercise is justified by the tests laid down in the section itself. It is also well settled that Section 482CrPC does not confer any new power on the High Court but only saves the inherent power, which the Court possessed before the enactment of the Criminal Procedure Code. There are three 3 A482 No. 8956 of 2025 circumstances under which the inherent jurisdiction may be exercised, namely : (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice.

35. In one of the recent pronouncements of this Court in Mahmood Ali v. State of U.P. [Mahmood Ali v. State of U.P., (2023) 15 SCC 488] , authored by one of us (J.B. Pardiwala, J.), the legal principle applicable apropos Section 482CrPC was examined. Therein, it was observed that when an accused comes before the High Court, invoking either the inherent power under Section 482CrPC or the extraordinary jurisdiction under Article 226 of the Constitution, to get the FIR or the criminal proceedings quashed, essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive of wreaking vengeance, then in such circumstances, the High Court owes a duty to look into the FIR with care and a little more closely. It was further observed that it will not be enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not as, in frivolous or vexatious proceedings, the court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection, to try and read between the lines." (ii) Pradeep Kumar Kesarwani v. State of Uttar Pradesh and Another, 2025 SCC OnLine SC 1947, relevant paragraphs, referred, of the same are as under:- "20. The following steps should ordinarily determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:— (i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the materials is of sterling and impeccable quality? (ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false. (iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant? (iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal - proceedings, in exercise of power vested in it under Section 482 of the Cr. P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused. [(See: Rajiv Thapar v. Madan Lal Kapoor (Criminal Appeal No. 174 of 2013)]" (iii) Judgement dated 10.09.2025 passed in the case of Laxman Jangde vs. State of Chattisgarh Through the Station House Officer, Criminal Appeal No. of 2025 (Arising out of SLP (Crl.) No. 10377 of 2025), relevant paragraphs, referred, of the same are as under:- "6. Having considered the matter in depth, we find substance in the submission of learned senior counsel for the appellant. A plain reading of the evidence and other 4 A482 No. 8956 of 2025 materials on record reveal that the offence made out from such allegation do not satisfy the ingredients of either Section 375 of the IPC or Section 3(c) of the POCSO Act. Thus, to that extent, the conviction cannot be sustained. For the purpose of considering the same, we deem it appropriate to reproduce Section 375 of the IPC:- "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; or (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 comm 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." Section 3(c) of the POCSO Act is also reproduced hereinunder:- 5 A482 No. 8956 of 2025 "3. Penetrative sexual assault.—A person is said to commit "penetrative sexual assault" if— …. (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or …..."

7. We are of the considered opinion that what has come right from the beginning by way of complaint/FIR, subsequent deposition of the victim as also, the other witnesses, the so-called act of the appellant will come under the purview of Section 354 of the IPC and Section 9(m) of the POCSO Act. For the purpose of ready reference, Section 354 of the IPC is reproduced hereinunder:- "354. Assault or criminal force to woman with intent to outrage her modesty.— Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty, 1 [shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine]." Section 7 (Sexual assault) and Section 9(m) (Aggravated sexual assault) of the POCSO Act are also reproduced hereinunder:- "7. Sexual assault.— Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault." "9. Aggravated sexual assault.—(a) Whoever, being a police officer, commits sexual assault on a child— ……. (m) whoever commits sexual assault on a child below twelve years; or" ……."

8. The presumption by the Trial Court as upheld by the High Court that there was penetrative sexual assault, cannot be sustained for simple reason that the same is neither supported by the medical 6 report nor by the statement of the victim herself on three different occasions as also, that of the mother of the victim. From the said reading of all the three statements which have common thread, the direct allegation is of touching the private parts of the victim and also at the same time, the appellant touching his private organs. In such view of the matter, we find that the conviction recorded under Section 376 AB of the IPC and under Section 6 of the POCSO Act, cannot be sustained."

7. Sri Badrul Hasan, learned AGA, on the contrary, opposed the instant application. He submitted as under:- (i) At this stage, mini trial is not permitted. (ii) The judgment of conviction can be passed only on the basis of testimony of prosecutrix/victim, who should be sterling witness, and the conclusion on the issue that as to whether the prosecutrix/victim is the sterling witness or not can only be arrived after her statement is recorded, 6 A482 No. 8956 of 2025 which includes cross-examination, before the trial court at appropriate stage. in the (iii) Based upon mere discrepancies statement(s) of prosecutrix/victim recorded in terms of Section(s) 161 and 164 Cr.P.C., the proceedings cannot be quashed. Reference in this regard has been made on the judgment passed by the Hon'ble Apex Court in the case of Hazrat Deen vs. State of Uttar Pradesh and Another, 2022 SCC OnLine SC 1781, wherein the Hon'ble Apex Court in paragraph 6 observed that "Discrepancies between the FIR and any subsequent statement under Section 164 of the CrPC may be a defence. However, the discrepancies cannot be a ground for discharge without initiation of trial".

8. Considered the aforesaid and perused the record.

9. Upon due consideration of the aforesaid and also the submissions advanced by learned counsel for the respective parties, this Court finds no force in the instant application. It is for the following reason(s):- (i) The evidence/testimony of the victim/injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded. Reference in this regard can be made to the following judgments. (a) Phool Singh vs. State of Madhya Pradesh, (2022) 2 SCC 74. (b) Deepak Kumar Sahu vs. State of Chhattisgarh, 2025 SCC OnLine SC 1610. (ii) In the instant case, the victim has supported the story of the prosecution according to which the applicant committed crime with her. (iii) The judgment of conviction can be passed only on the basis of testimony of prosecutrix/victim. (iv) The conclusion on the issue that as to whether the prosecutrix/victim is the sterling witness or not can only be arrived after her statement is recorded, which includes cross-examination, before the trial court at appropriate stage.

10. For the foregoing reasons, the instant application is dismissed. Cost made easy.

11. It is made clear that the trial court shall not be influenced by any of the observations made hereinabove and would consider the case on its own merits. (Saurabh Lavania,J.) November 10, 2025 Arun/- ARUN KUMAR GANGWAR High Court of Judicature at Allahabad, Lucknow Bench