# Ayodhya Prasad v. State Of U.P

- **Citation:** (2016) 5 ILRA 500
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-12
- **Bench:** Aditya Nath Mittal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ayodhya-prasad-v-state-of-u-p-43862
- **Pages:** 9

## Headnote

Conviction Under Sections 363, 366 & 376 IPC Upheld - Testimony of Prosecutrix Inspires Full
Confidence- Appellant convicted by VIth Additional Sessions Judge, Faizabad (Session Trial No. 129 of 1992)
for enticing away a minor girl aged about 12 years from her school on 29.03.1990 and committing rape;
victim PW-2 categorically stated she was enticed away on a bicycle, taken to Kanpur where she was subjected
to forcible rape for about one and a half months and was threatened upon resistance; brother of victim PW-3
(a child witness) independently corroborated that he was allured by Rs. 5/- to call his sister outside school;
FIR lodged on same day at 16:30 hours; victim recovered on 20.05.1990 and within two days appellant filed
surrender application before court - conduct of appellant going against him; no enmity between parties; no
element of artificiality or unnaturalness found; plea of consent repelled as victim specifically stated rape was
committed forcefully with threats; no consent proved by appellant; trial court judgment upheld on conviction.
(Paras 1-12)

Absence of Injuries No Ground to Disbelieve Prosecutrix - Sentence Modified- Contention that
absence of injuries on private parts of victim makes prosecution story doubtful, repelled relying upon settled
position of law; age of victim found to be below seventeen years at time of incident being student of Class-IV
- offences under Sections 363, 366 and 376 IPC proved; Held, sentence for Section 363 IPC subsumed in
Section 366 IPC conviction; considering that incident occurred in 1990 and 26 years have passed, sentence for
Section 376 IPC modified from five years R.I. to three years R.I. with fine of Rs. 10,000/- (default three
months imprisonment); conviction and sentence under Section 366 IPC of three years R.I. upheld; sentences
to run concurrently; period already undergone set off; appellant directed to surrender within two weeks.
(Paras 7-13)

Appeal Partly Allowed

Case Law Discussed:

## Text

500 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.05.2016

BEFORE

THE HON'BLE ADITYA NATH MITTAL, J.

Criminal Appeal No.- 349 Of 1994

Ayodhya Prasad ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for the Appellant:
Sri A.R. Siddiqi, Sri Abdul Raffey Siddiqi, Sri Kiran Kumar Butpori

Counsel for the Respondent:
Govt. Advocate
.................................

Conviction Under Sections 363, 366 & 376 IPC Upheld - Testimony of Prosecutrix Inspires Full
Confidence- Appellant convicted by VIth Additional Sessions Judge, Faizabad (Session Trial No. 129 of 1992)
for enticing away a minor girl aged about 12 years from her school on 29.03.1990 and committing rape;
victim PW-2 categorically stated she was enticed away on a bicycle, taken to Kanpur where she was subjected
to forcible rape for about one and a half months and was threatened upon resistance; brother of victim PW-3
(a child witness) independently corroborated that he was allured by Rs. 5/- to call his sister outside school;
FIR lodged on same day at 16:30 hours; victim recovered on 20.05.1990 and within two days appellant filed
surrender application before court - conduct of appellant going against him; no enmity between parties; no
element of artificiality or unnaturalness found; plea of consent repelled as victim specifically stated rape was
committed forcefully with threats; no consent proved by appellant; trial court judgment upheld on conviction.
(Paras 1-12)

Absence of Injuries No Ground to Disbelieve Prosecutrix - Sentence Modified- Contention that
absence of injuries on private parts of victim makes prosecution story doubtful, repelled relying upon settled
position of law; age of victim found to be below seventeen years at time of incident being student of Class-IV
- offences under Sections 363, 366 and 376 IPC proved; Held, sentence for Section 363 IPC subsumed in
Section 366 IPC conviction; considering that incident occurred in 1990 and 26 years have passed, sentence for
Section 376 IPC modified from five years R.I. to three years R.I. with fine of Rs. 10,000/- (default three
months imprisonment); conviction and sentence under Section 366 IPC of three years R.I. upheld; sentences
to run concurrently; period already undergone set off; appellant directed to surrender within two weeks.
(Paras 7-13)

Appeal Partly Allowed

Case Law Discussed:
1. Kaini Rajan v. State of Kerala, (2013) 9 SCC 113
2. Deelip Singh alias Dilip Kumar v. State of Bihar, (2005) 1 SCC 88
5 All. Ayodhya Prasad Vs State Of U.P.

501
3. Santosh Kumar v. State of M.P., (2006) 10 SCC 595
4. State of Rajasthan v. N.K. (accused), decided on 30.03.2000 (SC)
5. Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635

(Delivered by Hon'ble Aditya Nath Mittal, J.)

1. The challenge in this appeal is the judgment and order dated 20.08.1994, passed by the
VIth Additional Sessions Judge, Faizabad in Session Trial No.129 of 1992, relating to Case Crime
No.63 of 1990, Police Station-Bewana, District-Faizabad, by which the appellant has been
convicted for the offence punishable under Sections 363, 366 & 376 I.P.C.

2. The brief facts of the case are that on 29.03.1990 when the daughter of the complainant
aged about 12 years had gone to School, the appellant had called her daughter through the son of
the complainant who was also studying in class-III in the same school and allured him by giving a
sum of Rs.5/- and asked him to send the victim outside the school. When the daughter of the
complainant came outside the school, she was enticed away by the appellant. She was informed
that he had gone to village Siura where she went but till then the appellant had gone somewhere
else alongwith her daughter. The matter was reported to the police on the same day at 16:30 hrs,
upon which the case at Crime No.63 of 1990, under Sections 363, 366 & 376 I.P.C. was registered.
The victim was recovered on 20.05.1990 by the police party from where she was sent for medical
examination and her statement was also recorded. After concluding the investigation, the chargesheet for the offence punishable under Sections 363, 366 and 376 I.P.C was submitted against the
appellant.

3. The prosecution has examined the complainant Smt. Parwati as PW-1, who has proved
the incident as well as the First Information Report as Ext. Ka-1. The victim has been examined as
PW-2, who has stated that she was enticed away by the appellant and she was also subjected to rape
forcefully by the appellant. Dinesh PW-3 is the brother of the victim who has also supported the
prosecution version and has stated that he was studying in Class-III while his sister was studying in
Class-IV and on the date of incident the appellant allured him by giving a five rupee note to buy
sweet in exchange for calling his sister, upon which he had called his sister outside the school from
where the appellant enticed her away on his bicycle. He informed the incident to his mother, on
which after making search, the First Information Report was lodged.

4. Dr. A.K. Srivastava, Radiologist has been examined as PW-4, who has conducted the XRays and has stated in his opinion that she was aged about seventeen years. The X-Ray report as
well as X-Ray plate have been proved by this witness as Ext. Ka-2. Constable Rakesh Bahadur
Singh PW-5 has proved the Chik F.I.R. and the entry of G.D. as Ext. Ka-3 and Ext. Ka-4. SubInspector Rudal Prasad Tyagi PW-6 has proved the investigation of the case as well as the recovery
of victim on 20.05.1990 and arrest of the accused. The site plan has been proved as Ext. Ka-5 and
the recovery memo as Ext. Ka-6. The site place of the spot from where the victim was recovered
has been proved as Ext. Ka-7 and the "Supurdaginama" and the charge-sheet have been proved as
Ext. Ka-8 and Ext. Ka-9.
502 INDIAN LAW REPORTS ALLAHABAD SERIES
5. Dr. Shushma Gupta, PW-7 has proved the medical examination of the victim and has
stated that vaginal sperm was taken for pathological test.

6. After prosecution evidence, the statement of the appellant under Section 313 Cr.P.C. was
recorded in which he has denied the charges and has stated that he has been falsely implicated on
the basis of suspicion because the victim used to come to his shop for purchasing.

7. In defence, no oral or documentary evidence has been adduced by the appellant.

8. After appreciating the evidence on record, learned trial court came to conclusion that the
offence punishable under Sections 363, 366 and 376 I.P.C. are proved beyond any doubt and
accordingly sentenced him.

9. Heard learned counsel for the appellant, learned Additional Government Advocate and
perused the record.

10. Learned counsel for the appellant has submitted that in the First Information Report,
the age of the victim has been mentioned as twelve years, while in the medical examination, she
has been found to be seventeen years of age. It has also been submitted that the victim was
consenting party because as per her statement, she moved to various places by different means of
transportation and nowhere she raised any alarm. She remained with him for about one and half
months after which the recovery has been shown, therefore, she was a consenting party.

11. On the other hand, learned Additional Government Advocate has defended the
impugned judgment and has submitted that there was no consent from the side of the victim.
Moreover, the victim was about seventeen years of age, as per medical examination report and the
appellant was about twenty eight years old. Therefore, the appellant was a mature person and might
be a married person at the time of incident and he better knew what would be the consequences of
enticing away the minor girl.

12. I have gone through the evidence on record and the judgment of the trial court and also
considered the rival submissions of both the counsel.

13. From the judicial decisions rendered by the Apex Court the law as regards the
credibility of the testimony of prosecutrix may be summarized thus:-

(i) There is no rule of law that corroboration is essential before there can be a
conviction solely on the testimony of the prosecutrix. But as a matter of prudence, the necessity of
corroboration must be present to the mind of the Judge.

(ii) There may be circumstances in a given case which might make it safe to
dispense with such a corroboration.
5 All. Ayodhya Prasad Vs State Of U.P.

503
(iii) On the other hand, there may be factors in a case tending to show that the
testimony of the prosecutrix suffers from infirmities in a manner so as to make it either unsafe or
impossible to base a finding of guilt to the same. Some of the salient factors of this type may briefly
be stated thus:

(a) circumstances showing on the part of prosecutrix an animus against the
accused;

(b) where the question of want of consent is material, circumstances tending to
show consent e.g. absence of material showing an attempt at resistance, absence of any marks of
struggle;

(c) attempt at improvement or exaggeration in the version as attempted by the
prosecutrix;

(d) conduct on the part of the prosecutrix inconsistency with the credibility of the
version e.g. omission to make a disclosure at the earliest opportunity;

(e) element of artificiality or unnaturalness in the story as attempted by the
prosecutrix, and

(f) absence of signs of rape in the findings of the medical examination or on
chemical analysis.

14. The evidence of the prosecution has to be appreciated in view of the settled position of
law.

15. It has also been submitted by learned counsel for the appellant that the victim was a
consenting party.

16. An inference as to consent can be drawn if only based on evidence or probabilities of
the case. Consent is also stated to be an act of reason coupled with deliberation. It denotes an active
will in the mind of a person to permit the doing of an act complained of. Section 90 I.P.C. refers to
the expression "Consent" and describes what is not consent.

17. For the purpose of Section 375, voluntarily participation is required after the exercise
of intelligence based on the knowledge of the significance and moral quality of the act but after
having fully exercised the choice between resistance and assent. Whether there was consent or not,
is to be ascertained only on a careful study of all relevant circumstances.

18. In the case of Kaini Rajan vs. State of Kerala reported in (2013) 9 SCC 113 Hon'ble
the Apex Court has interpreted the word "consent" as under:-
504 INDIAN LAW REPORTS ALLAHABAD SERIES
 "'Consent' is stated to be an act of reason coupled with deliberation. It denotes an active
will in the mind of a person to permit the doing of an act complained of. 'Consent', for the purpose
of Section 375, requires voluntary participation not only after the exercise of intelligence based on
the knowledge of the significance and moral quality of the act but after having fully exercised the
choice between resistance and assent. Whether there was consent or not, is to be ascertained only
on a careful study of all relevant circumstances. An inference as to consent can be drawn if only
based on evidence or probabilities of the case."

19. It has been further held that the consent is intended by Sections 375 and 376 IPC
should not be under a misconception of fact.

20. In the case of Deelip Singh alias Dilip Kumar vs. State of Bihar reported in (2005) 1
SCC 88, Hon'ble the Apex Court has held that:-

 "In the matter of consent, the court has to see whether the person giving the consent had
gone it under fear of injury or misconception of fact and the court should also be satisfied that the
person doing the act i.e. alleged offender is conscious of the fact or should have reason but think
that but for the fear or misconception, the consent would not have been given."

21. When there is a plea of consent, in my opinion, the act of enticing away and rape is
admitted unequivocally. One cannot blow hot and cold at the same time. In a plea of consent, the
admission of incident is there and the accused has to prove the consent to secure his acquittal.

22. But at the same time, the victim should be in a position to give consent provided she is
not under that age, which has been mentioned in the relevant provisions. Further, the consent
should be free and should not be under threat or misrepresentation. "Consent" and "Complaint" of
offence cannot find place on the same coin. When the act is with consent, the question of complaint
does not arise. Similarly act of complaint does not involve consent.

23. From the evidence on record, I do not find the present case as case of consent.

24. In the present case, the victim has been cross-examined at length and in her crossexamination, she has specifically stated that the appellant had committed rape with her forcefully
and when she resisted, she was threatened. In the statement of victim nothing adverse has come that
she was ever consenting for sexual intercourse or abduction. From the evidence on record, it is not
proved that the sexual intercourse with the victim was done with her consent. Therefore, I do not
find any substance in the submission of learned counsel for the appellant that the victim was a
consenting party. But at the same time, I find substance in the submission of learned Additional
Government Advocate that the appellant was a matured person at the time of incident, aged about
twenty eight years. Therefore, he should have had knowledge of the consequence of committing
rape with a girl, who is not his wife. The million dollar question is that why the appellant had put
his pious mouth in the dirty dream. The question remained unanswered by learned counsel for the
appellant.
5 All. Ayodhya Prasad Vs State Of U.P.

505
25. Learned counsel for the appellant has further submitted that in the medical examination
report, no injuries were found on the body of the victim, therefore, the incident is doubtful.

26. In the case of Santosh Kumar vs. State of M.P. reported in (2006) 10 SCC 595, the
Hon'ble Apex Court has held that mere fact that no injuries were found on her private parts, cannot
be a ground to hold that no rape was committed upon her. Again in the case of State of Rajasthan
vs. N.K. (accused) decided on 30.03.2000, the Hon'ble Apex Court has held that the absence of
injuries and delay in the First Information Report cannot be a ground to disbelieve the prosecution
story, if otherwise found reliable.

27. In view of the above, I do not find substance in the submission of learned counsel for
the appellant.

28. In the case of Ranjit Hazarika vs. State of Assam reported in (1998) 8 SCC 635, the
Hon'ble Supreme Court has held as under:-

"The argument of the learned counsel for the appellant that the medical evidence
belies the testimony of the prosecutrix and her parents does not impress us. The mere fact that no
injury was found on the private parts of the prosecutrix or her hymen was found to be intact does
not belie the statement of the prosecutrix as she nowhere stated that she bled per vagina as a result
of penetration of the penis in her vagina. She was subjected to sexual intercourse in a standing
posture and that itself indicates the absence of any injury on her private parts. To constitute the
offence of rape, penetration, however slight, is sufficient. The prosecutrix deposed about the
performance of sexual intercourse by the appellant and her statement has remained unchallenged
in the cross-examination. Neither the non-rupture of the hymen nor the absence of injuries on her
private parts, therefore, belies the testimony of the prosecutrix particularly when we find that in the
cross-examination of the prosecutrix, nothing has been brought out to doubt her veracity or to
suggest as to why she would falsely implicate the appellant and put her own reputation at stake.
The opinion of the doctor that no rape appeared to have been committed was based only on the
absence of rupture of the hymen and injuries on the private parts of the prosecutrix. This opinion
cannot throw out an otherwise cogent and trustworthy evidence of the prosecutrix. Besides, the
opinion of the doctor appears to be based on "no reasons"."

29. In the present case, although no injuries have been found on her private parts or other
parts of the body, but in view of the above settled position of law, it cannot be said that in the
absence of injuries, the prosecution story can be disbelieved.

30. In the traditional non-permissive bounds of society of India, no girl or woman of selfrespect and dignity would depose falsely implicating somebody of ravishing her chastity by
sacrificing and jeopardizing her future prospect of getting married with suitable match. Not only
she would be sacrificing her future prospect of getting married and having family life, but also
would invite the wrath of being ostracized and outcast from the society she belongs to and also
from her family circle.
506 INDIAN LAW REPORTS ALLAHABAD SERIES
31. Much emphasis has been laid down that the victim was major at the time of incident,
therefore, the offences punishable under Sections 363 and 376 I.P.C. as well as Section 366 I.P.C.
are not proved. In the evidence, it has come that at the time of incident the victim was studying in
Class-IV and her brother was studying in Class-III in the same school. Although, in the medical
examination report, the age of the victim has been found to be seventeen years but in the statement
of her mother as well as statement of victim and her brother, they have told that she was aged about
twelve years. It is not disputed that the victim was studying in Class-IV at the time of incident. It
appears that the Doctor who had conducted the Radiological test has assessed the age on higher
side. A student of Class-IV cannot be said to be a major especially in the circumstances when the
mother of the victim, victim as well as her brother are stating that she was twelve years of age.
From all the evidence on record, it is proved that at the time of incident, she was below or about
seventeen years but definitely not more than seventeen years. Section 363 I.P.C. provides
punishment for kidnapping and Section 361 I.P.C. defines the kidnapping from lawful
guardianship. For committing an offence punishable under Section 363 I.P.C., it should be proved
that female was under eighteen years of age.

32. In the present case, the victim has been found to be under eighteen years of age. Apart
from it, it is also proved that she was enticed away from her school by giving allurement to her
brother. The brother of the victim has also been examined as PW-3 who has stated specifically that
he was also studying in Class-III in the same school. He has further stated that the appellant had
asked him to call his sister and he was given a sum of Rs.5/-. When he called his sister, she was
enticed away by Cycle and he intimated the incident to his mother. This witness was also aged
about thirteen years at the time of recording the statement and this witness has been cross-examined
at length.

33. Being the child witness, his statement appears to be very natural and it does not appear
that he has been tutored by anybody. It is also relevant to mention that there is absolutely no enmity
between the parties and even the appellant in his statement under Section 313 Cr.P.C. has not stated
that he has been falsely implicated due to enmity. He has simply stated that he has been falsely
implicated on the basis of suspicion. The girl was enticed away on 29.03.1990 and she was
recovered on 20.05.1990 and the First Information Report was lodged naming the appellant. The
perusal of case diary reveals that the police had made so many raids for searching the appellant and
if the appellant was present in the village during 29.03.1990 to 20.05.1990, it could have been
believed that he has been falsely implicated, but the appellant as per his surrender application
moved on 22.05.1990, in which he has stated that just to save himself from the police torture, he
wants to surrender before the court. Upon this surrender application, he has been taken into
custody. If there was mere suspicion upon the appellant, then he was required to explain his
absence from the date of occurrence i.e. 29.03.1990 to the date of application for surrender i.e.
22.05.1990. Undisputedly, the victim has been recovered on 20.05.1990 and just within two days,
he has moved the application for surrender stating that by rumours he has come to know that he is
named accused. This conduct of the appellant also goes against him because at the time of recovery
of the victim by the police personnel, the victim had stated that the appellant leaving her there, has
5 All. Ayodhya Prasad Vs State Of U.P.

507
gone to arrange money. From the evidence on record, it is proved beyond reasonable doubt that on
29.03.1990 the appellant had enticed away the victim in the manner as narrated by the prosecution.

34. As far as the offence of rape is concerned, the statement of the prosecutrix is sufficient,
provided it inspires confidence. It is not disputed that the victim was known to the appellant much
prior to the incident, but it has also been established that at the time of incident she was studying in
Class-IV and she was about seventeen years of age. The victim in her statement categorically stated
the incident in a very natural way and has stated the journey from school to Kanpur. She has also
stated specifically that she was subjected to rape and upon resistance she was threatened and she
was kept for about one and half months at Kanpur. After one and half months the appellant brought
her at village Siura for managing some money where she was recovered by the police in the
presence of her mother. This witness has also been cross-examined at length, but nothing adverse
has come in her statement so as to show her consent to go with the appellant or to perform sexual
intercourse with her. In the cross-examination, she has also stated that whenever the appellant used
to go outside the house at Kanpur, she was threatened, therefore, she had not raised any alarm. She
has denied this suggestion that she has gone of her own will with the appellant. The victim has told
her age of fifteen years on the date of statement before the Court, but as has been discussed above,
she cannot be above seventeen years on the date of incident. The incident took place in the year
1990 while her statement had been recorded in the year 1993 i.e. after a gap of about three years.
The statement of the victim does not suffer from any infirmity in a manner so as to make it either
unsafe or impossible to base a finding of guilt.

35. Admittedly, there is no enmity with the appellant. There is evidence on record showing
the resistance and the threat of the appellant. Although three accused were named in the First
Information Report but the prosecution has levelled the allegation against the appellant only. In
these circumstances, there appears to be no improvement or exaggeration in the prosecution
version.

36. In the present case, the First Information Report has been lodged on the same day and
there is absolutely no delay in lodging the First Information Report. There is no previous litigation
between the parties by which it can be presumed that the appellant has been falsely implicated.
From perusal of the statement of the victim PW-2, I also do not find any element of artificiality or
unnaturalness and the statement of the victim inspires full confidence.

37. Learned trial court has also considered all aspects of the matter in detail and has
appreciated the evidence on record categorically touching each and every aspect of the matter. I do
not find any material contradiction in the statements of the witnesses. I also do not find any
impropriety in appreciation of evidence by the trial court or any glaring mistake.

38. From perusal of the evidence on record, I am also of the view that the prosecution has
succeeded in proving the guilt of the appellant beyond any reasonable doubt. Accordingly, the
conviction of the appellant for the offence punishable under Sections 363, 366 and 376 I.P.C. is
upheld.
508 INDIAN LAW REPORTS ALLAHABAD SERIES
39. As far as quantum of punishment is concerned, learned trial court has awarded three
years rigorous imprisonment for the offence punishable under Section 363 I.P.C., three years
rigorous imprisonment for the offence punishable under Section 366 I.P.C. and five years rigorous
imprisonment alongwith fine of Rs.1000/- for the offence punishable under Section 376 I.P.C.

40. As the appellant is being sentenced for the offence punishable under Section 366 I.P.C.,
therefore, in my opinion, there is no need to pass separate sentence for the offence punishable
under Section 363 I.P.C. From perusal of record, it transpires that the appellant was a matured
person at the time of incident and the victim was much younger than him. Possibility also cannot be
ruled out that the appellant was a married person at the time of incident because he was already
running a "Kirana" shop at the time of incident. Although the incident took place in the year 1990
for which about twenty six years have passed, therefore, considering the date of offence, the
present age of the appellant and other circumstances, the imprisonment of three years for the
offence punishable under Section 366 I.P.C. is upheld, but the punishment for the offence
punishable under Section 376 I.P.C. is modified to three years alongwith a fine of Rs.10,000/-. In
default of payment of fine, he shall further undergo with an imprisonment of three months.

41. The appeal is accordingly partly allowed. The appellant is sentenced for the offence
punishable under Sections 366 & 376 I.P.C. as aforesaid. Both the sentences shall run concurrently
and the period already undergone shall be set off.

42. The appellant is also directed to surrender before the court below within two weeks
from today, failing which, the trial court shall be at liberty to take coercive action against the
appellant.

43. Office is directed to send the certified copy of this judgment alongwith lower court
record to the court below for compliance, at an early date.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.05.2016

BEFORE

THE HON'BLE ADITYA NATH MITTAL, J.

Criminal Appeal No.- 357 Of 1996

Smt. Rameswari ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for the Appellant:
S.K. Shukla