# Jag Mohan S/O Ram Lal v. State Of U.P

- **Citation:** (2016) 6 ILRA 187
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-06-09
- **Bench:** Dr. Vijay Laxmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jag-mohan-s-o-ram-lal-v-state-of-u-p-44054
- **Pages:** 10

## Headnote

judgment of the Additional Sessions Judge, Lucknow, which found the appellant guilty under Sections 354 and
376 IPC.

Para 3-5: The prosecution's case is that on October 22, 2009, the appellant raped the victim in a field. Her
brother and another witness arrived and saw the appellant fleeing. The Trial Court sentenced the appellant to
7 years for rape and 6 months for outraging modesty, based on the credible testimony of seven witnesses.

Para 6-7: The appellant argued that the initial FIR only mentioned Section 354 IPC and cited medical
inconsistencies. The State countered that the police initially pressured the family to omit the rape charge to
avoid social "stigma," leading the complainant to later petition the SSP to include the actual facts of rape.

Para 8-9: The Court defines the legal ingredients of Section 354 (assault with intent to outrage modesty) and
Section 375 (the definition of rape), emphasizing that "modesty" is an attribute of female dignity and
"consent" is the central issue in rape.

Para 10-12: The Court finds the victim's testimony clear and cogent, supported by her brother and a neighbor.
It rejects the defense's claim of false implication due to a "water distribution dispute," noting a lack of
evidence for such a motive.

Para 13: Based on school records and the Principal's testimony, the Court confirms the victim was a minor
(approx. 15 years old) at the time of the incident.

Para 14-17: The Court addresses investigative lapses, such as the failure to record a Section 164 CrPC
statement and the loss of the victim's clothing. It rules that "shoddy investigation" by the police should not
result in the acquittal of a guilty person if the ocular evidence is strong.
188 INDIAN LAW REPORTS ALLAHABAD SERIES

Para 18-20: Citing various Supreme Court precedents, the Court reiterates that criminal justice must not fall
victim to the negligence or "designedly defective" actions of investigating officers.

Para 21-23: The Court concludes that the witnesses' statements successfully cover any investigative lacunae.
It notes the accused failed to prove any enmity during his Section 313 CrPC statement and reaffirms that
since the girl was a minor, her consent was legally immaterial.

Para 24: The Court dismisses the lack of medical injuries as proof of innocence, noting that a three-day gap
between the incident and the exam allowed minor abrasions to heal.

Para 25-26: The Court highlights the psychological trauma of rape, stating it "degrades the very soul." It
affirms that the Trial Court properly appreciated the evidence in convicting the appellant.

Para 27-28: Regarding the sentence, the Court maintains the 7-year imprisonment. It notes that while a
harsher sentence might be desirable, it cannot enhance the penalty without a formal petition from the State
or a show-cause notice, which would further delay the 6-year-old case. The appeal is dismissed.

List of Citations:
Karnel Singh v. State of M.P. (1995) 5 SCC 518
Surendra Paswan v. State of Jharkhand (2003) 12 SCC 360
Ram Bihari Yadav v. State of Bihar and Ors. (1998) 4 SCC 517
Amar Singh v. Balwinder Singh and Ors. (2003) 2 SCC 518
Sukhvinder Singh v. State of Punjab (2014) 12 SCC 490
State of West Bengal v. Mir Mohammad Omar and Ors. (2000) 8 SCC 234
The State of Rajasthan v. Noore Khan (2000) 5 SCC 30
The State of Punjab v. Gurmit Singh & Ors. (1996) 2 SCC 384

## Text

6 All. Jag Mohan S/O Ram Lal Vs State Of U.P.

187
----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.06.2016

BEFORE

THE HON'BLE DR. VIJAY LAXMI, J.

Criminal Appeal No.- 285 Of 2011

Jag Mohan S/O Ram Lal ...Appellant
Versus
State Of U.P. ...Respondent

Counsels for the Appellant:
Shri Shishir Chauhan, Shri Manoj Kumar Dixit, Ms. Badrus Sahar, Shri Bhanu Pratap Singh

Counsel for the Respondent:
G.A., Shri Mohd. Asif Khan

Held -
Para 1-2: The Court heard arguments from the appellant's counsel and the State (A.G.A.) regarding the
judgment of the Additional Sessions Judge, Lucknow, which found the appellant guilty under Sections 354 and
376 IPC.

Para 3-5: The prosecution's case is that on October 22, 2009, the appellant raped the victim in a field. Her
brother and another witness arrived and saw the appellant fleeing. The Trial Court sentenced the appellant to
7 years for rape and 6 months for outraging modesty, based on the credible testimony of seven witnesses.

Para 6-7: The appellant argued that the initial FIR only mentioned Section 354 IPC and cited medical
inconsistencies. The State countered that the police initially pressured the family to omit the rape charge to
avoid social "stigma," leading the complainant to later petition the SSP to include the actual facts of rape.

Para 8-9: The Court defines the legal ingredients of Section 354 (assault with intent to outrage modesty) and
Section 375 (the definition of rape), emphasizing that "modesty" is an attribute of female dignity and
"consent" is the central issue in rape.

Para 10-12: The Court finds the victim's testimony clear and cogent, supported by her brother and a neighbor.
It rejects the defense's claim of false implication due to a "water distribution dispute," noting a lack of
evidence for such a motive.

Para 13: Based on school records and the Principal's testimony, the Court confirms the victim was a minor
(approx. 15 years old) at the time of the incident.

Para 14-17: The Court addresses investigative lapses, such as the failure to record a Section 164 CrPC
statement and the loss of the victim's clothing. It rules that "shoddy investigation" by the police should not
result in the acquittal of a guilty person if the ocular evidence is strong.
188 INDIAN LAW REPORTS ALLAHABAD SERIES

Para 18-20: Citing various Supreme Court precedents, the Court reiterates that criminal justice must not fall
victim to the negligence or "designedly defective" actions of investigating officers.

Para 21-23: The Court concludes that the witnesses' statements successfully cover any investigative lacunae.
It notes the accused failed to prove any enmity during his Section 313 CrPC statement and reaffirms that
since the girl was a minor, her consent was legally immaterial.

Para 24: The Court dismisses the lack of medical injuries as proof of innocence, noting that a three-day gap
between the incident and the exam allowed minor abrasions to heal.

Para 25-26: The Court highlights the psychological trauma of rape, stating it "degrades the very soul." It
affirms that the Trial Court properly appreciated the evidence in convicting the appellant.

Para 27-28: Regarding the sentence, the Court maintains the 7-year imprisonment. It notes that while a
harsher sentence might be desirable, it cannot enhance the penalty without a formal petition from the State
or a show-cause notice, which would further delay the 6-year-old case. The appeal is dismissed.

List of Citations:
Karnel Singh v. State of M.P. (1995) 5 SCC 518
Surendra Paswan v. State of Jharkhand (2003) 12 SCC 360
Ram Bihari Yadav v. State of Bihar and Ors. (1998) 4 SCC 517
Amar Singh v. Balwinder Singh and Ors. (2003) 2 SCC 518
Sukhvinder Singh v. State of Punjab (2014) 12 SCC 490
State of West Bengal v. Mir Mohammad Omar and Ors. (2000) 8 SCC 234
The State of Rajasthan v. Noore Khan (2000) 5 SCC 30
The State of Punjab v. Gurmit Singh & Ors. (1996) 2 SCC 384

(Delivered by Hon'ble Dr. Vijay Laxmi, J.)

1. Heard Shri Bhanu Pratap Singh, learned counsel for the appellant and Shri Mohd. Asif
Khan, learned A.G.A. for the State and gone through the evidence on record.

2. The challenge in this appeal is to the judgment rendered by Additional Sessions
Judge/FTC-9, Lucknow where the appellant was found guilty of offence punishable under Sections
354 and 376 of the Indian Penal Code, 1860 ( in short 'the IPC').

3. Prosecution version as unfolded during trial is as follows:-

 The victim (P.W.-1) had gone in the field for reaping Junahari (grass) at about 2.00 PM
on 22.10.2009 where the appellant came in the field, pulled her down and committed rape on her.
On her outcry, the complainant, Hari Ram Yadav, the brother of the victim rushed the scene of the
occurrence along with Harish Chandra, son of Bhagauti Yadav, of his village and had seen the
appellant running away therefrom.

4. Learned Sessions Judge after careful appraisal of the evidence on record found that the
appellant had committed the offence of outraging the modesty of women and rape and sentenced
him to suffer rigorous imprisonment for a period of 7 years and fine of Rs.2000/- for the offence
6 All. Jag Mohan S/O Ram Lal Vs State Of U.P.

189
under Section 376 I.P.C and rigorous imprisonment for six months and fine of Rs. 100/- for offence
under Section 354 IPC.

5. On completion of investigation, the charge sheet was submitted under Sections 354 and
376 IPC. The accused faced trial. In order to establish accusation, the prosecution examined 7
witnesses. The accused pleaded innocence and false implication. According to him, a false case
was posed against him due to enmity. The trial court found evidence of the victim, the complainant
and Harish Chandra to be cogent and credible and accordingly as noted above, it found the accused
guilty.

6. In support of the appeal, learned counsel for the appellant submitted that the trial court
failed to take notice of first FIR of 22.10.2009 which was lodged under Section 354 IPC and
inconsistencies in the evidence of the witnesses and in any event no case under Section 376 IPC is
made out. Strong reliance is placed on the first FIR dated 22.10.2009 and the medical evidence to
contend that at the most the offence can be in the terms of Section 354 IPC.

7. Per contra, learned counsel for the respondent-State submitted that the trial court has
analyzed the evidence in great detail and had rightly concluded that offence punishable under
Sections 354 and 376 IPC was fully proved.The first FIR was lodged by the complainant, the
brother of the victim on 22.10.2009 making allegation against the accused of using criminal force
to outrage modesty of the victim. According to Learned AGA, the prosecution has fully explained
the circumstances under which the complainant was misguided and compelled by the police of the
PS concerned to lodge the FIR on 22.10.2009 only under Section 354 IPC in place of Section 376
IPC. It was fully proved by the complainant, P.W.-2, the victim P.W.-1 and Harish Chandra P.W.-3
that they were compelled by the Darogaji at police station on 22.10.2009 to lodge a report under
Section 354 IPC in place of Section 376 IPC who told them that otherwise it would cast stigma on
her sister and will create obstruction in her marriage. When no action was taken by the police for
two days, the application was given by the complainant to the SSP stating actual facts about the
commission of rape on the sister of the complainant. The police of the Thana concerned did not
permit the complainant to write actual facts in the first FIR on 22.10.2009. Thus, the FIR was made
by the complainant to the SSP on 24.10.2009 and the action was taken by the police thereafter. It is
argued by learned AGA that there is nothing on record to disbelieve this version of the prosecution.

8. Coming to the question as to whether Sections 354 and 376 of the IPC have any
application, it is to be noted that the provision of Section 354 makes penal assault or use of criminal
force to a woman to outrage her modesty. The essential ingredients of the offence under Section
354 IPC are as under:

(a) That the assault must be on a woman.

(b) That the accused must have used criminal force on her.
190 INDIAN LAW REPORTS ALLAHABAD SERIES

(c) That the criminal force must have been used on the woman intending thereby to
outrage her modesty.

What constitutes an outrage to female modesty is nowhere defined in IPC. The
culpable intention of the accused is the crux of the matter. The reaction of the woman is very
relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated
with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The
act of pulling a woman, coupled with a request for sexual intercourse, is such as would be an
outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is
sufficient to constitute the offence without any deliberate intention having such outrage alone for
its object. The Shorter Oxford Dictionary (Third Edn.) defines the word 'modesty' in relation to
woman as follows:

"Decorous in manner and conduct;

not forward or lower; Shame-fast;

Scrupulously chast."

9. The definition of rape is contained in Section 375 IPC as under:

375. Rape.--A man is said to commit "rape" who, except in the case hereinafter
excepted, has sexual intercourse with a woman under circumstances falling under any of the six
following 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 sixteen years of age.
6 All. Jag Mohan S/O Ram Lal Vs State Of U.P.

191
10. In the instant case, the prosecution case was fully supported by victim by her statement
and nothing has been brought out in her cross-examination from which any doubt could be raised
about her veracity. The statement of the victim, P.W.-1 is found to be clear, cogent and specific
proving charges under Section 354 and 376 IPC. Her statement receives ample corroboration from
testimony of Hari Ram Yadav, P.W.-2, her brother, who even otherwise would be the last person to
come forward with a false accusation of the type of rape on his young unmarried sister. The victim
was also corroborated by her neighbour Harish Chand, who rushed to the spot having been
attracted by alarm raised by the victim. Their testimony has impressed the Trial court and the Trial
court finds them to be as truthful and reliable witnesses. The evidence of Hari Ram Yadav, P.W.-2
and Harish Chand who had also seen the accused running away from the seen of crime lends
credence to the prosecution version.

11. I do not agree with the contention raised by learned counsel for the appellant-accused
that the conviction on the basis of uncorroborated testimony of the victim was not safe. There is no
legal compulsion to look for corroboration of the evidence of the victim before recording an order
of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole
testimony of the victim, if her evidence inspires confidence and there is absence of circumstances
which militate against her veracity. In the present case, the evidence of the victim is found to be
reliable and trustworthy. No corroboration was required to be looked for, though enough was
available on the record.

12. The suggestion was given to the victim during cross-examination that the appellantaccused was falsely implicated in this case on account of their enmity with the complainant
regarding distribution of water in their fields who were neighbours. But there is no evidence given
by the accused in support of his case that the complainant and accused were having their fields in
vicinity and there had been long standing dispute between them regarding distribution of water. I
find no reason that the brother of the victim would go to that length to falsely implicate the
appellant.

13. The victim was a minor girl who was below 16 years. In medical report, she has been
stated to be 16 years of age. The School Admission Register of her primary school indicates that
her date of birth was 13.08.1994 which comes to about 15 years. There is nothing on record to
rebut the said date of birth of the victim. The prosecution has proved this date of birth by
examining Alpna Chandra, P.W.-2, the Principal of Primary School, Gosva Terva, P.S. Malihabad,
who produced the admission register of the school in the court and proved it as exhibit Ka-3. The
name of the victim is mentioned at Sl. No.5 of this register and according to this register the date of
birth of the victim is 13.08.1994. The statement of brother of the victim regarding her age are
corroborative of entries made in the school register. There was no reason to disbelieve that the
victim was below 16 years of age on date of the incident.

14. It is argued by leaned counsel for the appellant that the statement of the victim was not
recorded under Section 164 CrPC nor her medical report supported the prosecution case. However,
the medical examination of the victim was conducted by the doctor on 25.10.2009 that is after three
192 INDIAN LAW REPORTS ALLAHABAD SERIES

days of the incident. It is clear from perusal of record that investigating officer did not make effort
to record the statement of the victim under Section 164 CrPC before the Magistrate. There was no
parcha in the case diary stating the fact that any effort was made by the investigating officer to
record the statement of victim under Section 164 CrPC and thus he failed to record the same. Had
there been any effort on the part of the investigating officer to record the statement of the victim, it
would have been recorded in the case diary which was not done. During cross-examination, the
investigating officer, Vinod Kumar Pandey, S.I., Malihabad, P.W.-7 stated that he made attempt to
call victim for her statement under Section 164 CrPC himself and through constables but she did
not turn up for recording her statement and thus her statement under Section 164 CrPC could not be
recorded. But the statement of the IO could not be believed for want of evidence. The victim has
undergone the medical examination and there is no reason why she shall deny for her statement to
be recorded under Sec.164 CrPC.

15. The investigating officer, P.W.-7 also stated that the cloths of the victim were put in a
sealed cover, but no such cloths have been produced or proved before trial court. However, there
have been lapses on the part of the investigating officer but the accused cannot be given any benefit
of the said lapses. As regards the question of defective investigation, the settled position is that
incompetent prosecuting agencies or prosecuting agencies which are driven by extraneous
considerations and commit mistakes, should not given undue importance, particularly in offences
relating to women and children, otherwise every criminal case would end in acquittal. It was
observed by Hon'ble Supreme Court in Karnel Singh v State of MP (1995)5 SCC 518 that where
the investigation was defective, the court has to consider whether the evidence on record, even on
strict scrutiny, establishes the guilt. In cases of defective investigation the court has to be
circumspect in evaluating the evidence but it would not be right in acquitting an accused person
solely on account of the defect; to do so would tantamount to playing into the hands of the
investigating officer if the investigation is designedly defective.

16. The same view was expressed by by Hon'ble Supreme Court in Surendra Paswan v.
State of Jharkhand (2003) 12 SCC 360. In that case the investigating officer had not sent the
blood samples collected from the spot for chemical examination. This Court held that merely
because the sample was not so sent may constitute a deficiency in the investigation but the same
did not corrode the evidentiary value of the eye-witnesses.

17. In Ram Bihari Yadav v. State of Bihar and Ors. (1998) 4 SCC 517 Hon'ble Supreme
Court while dealing with the effect of shoddy investigation of cases held that if primacy was given
to such negligent investigation or to the omissions and lapses committed in the course of
investigation, it will shake the confidence of the people not only in the law enforcing agency but
also in the administration of justice.

18. In Amar Singh v. Balwinder Singh and Ors. (2003) 2 SCC 518 the investigating
agency had not sent the firearm and the empties to the forensic science laboratory for comparison.
It was argued on behalf of the defence that omission was a major flaw in the prosecution case
sufficient to discredit prosecution version. Hon'ble Supreme Court, however, repelled that
6 All. Jag Mohan S/O Ram Lal Vs State Of U.P.

193
contention and held that in a case where the investigation is found to be defective the Court has to
be more circumspect in evaluating the evidence. But it would not be right to completely throw out
the prosecution case on account of any such defects, for doing so would amount to playing in the
hands of the investigating officer who may have kept the investigation designedly defective.
Hon'ble Supreme Court said:

"The failure of the investigating officer in sending the firearms and the empties for
comparison cannot completely throw out the prosecution case when the same is fully established
from the testimony of eyewitnesses whose presence on the spot cannot be doubted as they all
received gunshot injuries in the incident."

19. In Sukhvinder Singh vs State Of Punjab (2014) 12 SCC 490, Hon'ble Supreme Court
observed as under :

18.But, if such mistakes or lapses are given undue importance every criminal case
will end in acquittal. While it is true that the police should not involve innocent persons, fabricate
evidence and obtain convictions, it is equally true that cases in which substratum of the prosecution
case is strong and substantiated by reliable evidence, lapses in investigation should not persuade the
court to reject the prosecution case. The court with its vast experience should be quick to notice
mischief if there is any. Incompetent prosecuting agencies or prosecuting agencies which are driven
by extraneous considerations should not be allowed to take the court for a ride. Particularly in
offences relating to women and children, which are on rise, the courts will have to adopt a
pragmatic approach. No scope must be given to absurd and fanciful submissions. It is true that
there can be no compromise on basic legal principles, but, unnecessary weightage should not be
given to minor errors or lapses. If courts get carried away by every mistake or lapse of the
investigating agency, the guilty will have a field day. The submissions relating to alleged
overwriting and discrepancies in timings and dates, therefore, are rejected.

20. In the case of State of West Bengal v. Mir Mohammad Omar and ors (2000) 8 SCC
234 the Supreme Court observed as under:

In our perception it is almost impossible to come across a single case wherein the
investigation was conducted completely flawless or absolutely foolproof. The function of the
criminal courts should not be wasted in picking out the lapses in investigation and by expressing
unsavoury criticism against investigating officers. If offenders are acquitted only on account of
flaws or defects in investigation, the cause of criminal justice becomes the victim. Effort should be
made by courts to see that criminal justice is salvaged despite such defects in investigation. Courts
should bear in mind the time constraints of the police officers in the present system, the illequipped machinery they have to cope with, and the traditional apathy of respectable persons to
come forward for giving evidence in criminal cases which are realities the police force have to
confront with while conducting investigation in almost every case.
194 INDIAN LAW REPORTS ALLAHABAD SERIES

21. In the instant case, the lacuna in the investigation stands completely covered by
the statements of witnesses. The evidence of the victim and witnesses clearly establishes the
story of the prosecution. In view of the clear statement of the prosecution witnesses, I have
no hesitation in rejecting the arguments of the appellant.

22. In the statement recorded under Section 313 CrPC, accused took a plea that he
was falsely implicated due to enmity but he did not try to explain the nature of the enmity or
to establish the same. The accused did not offer any explanation regarding nature of the
enmity nor produced any witness in their defence. The accused could not produce any cogent
and material evidence on record to prove the alleged enmity.

23. It is not the case of the accused that there was the consent of victim. Moreover,
the girl was below 16 years, hence the consent was immaterial and accused was rightly
convicted by the trial court.

24. The injury which the victim suffered or might have suffered in defending herself
and offering resistance to the accused could be abrasions or bruises which would heal up in
ordinary course of nature within two or three days of the incident. The absence of visual
marks of the injuries on the person of a victim on the date of her medical examination would
not necessarily mean that she has not suffered any injury or that she has offered no resistance
at the time of commission of the crime. The absence of injury on the person of the victim is
not necessarily an evidence of falsity of the allegation or evidence of consent on the part of
the victim. It will depend on the facts and circumstances of the case. See, The State of
Rajasthan versus Noore Khan, AIR (2000) 5 SCC 30. In the instant case, the medical
examination of the victim was done on 25.10.2009 i.e. after three days of the occurrence. It
could not be said that merely absence of injury either on the person or on private part of the
girl or the accused would be an indication of innocence of accused. The gap between
occurrence and medico legal examination ruled out any possibility of any injury being healed
and disappeared. It is proved by evidence on record that victim was sexually assaulted by the
accused.

25. It is to be remembered 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. In The State Of Punjab vs Gurmit Singh & Ors (1996) 2 SCC 384, Hon'ble
Supreme Court Observed as under :

21. 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
6 All. Jag Mohan S/O Ram Lal Vs State Of U.P.

195
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 inspirers 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.

26. When the evidence of the victim is considered in this case in the proper
perspective, it is clear that the commission of actual rape has been established. The learned
Sessions Judge, in my opinion, was, therefore, justified in relying upon the prosecution
evidence and recording an order of conviction against the appellant for offences under
Sections 354 IPC and 376 I.P.C. His findings were based on proper appreciation of evidence.

27. Now question remains about the awarding of proper sentence. The occurrence
took place on 22.10.2009, more than six years ago. The learned Sessions Judge after
recording the conviction under section 354 and 376 IPC had sentenced the respondent to
suffer RI for seven years and six months respectively along with fine. The State did not move
the High Court for any enhancement of the sentence. I, therefore, feel that the ends of justice
would be met if the sentence to be imposed on the appellant is confined to seven years and
six months RI as was awarded by the learned Sessions Judge for cogent reasons recorded by
him. I may emphasise that though for such an offences a more severe sentence would have
been desirable but I have restricted myself to the maintenance of the sentence as imposed by
the learned Sessions Judge for the reason that the State did not seek any enhancement of the
sentence by filing an appropriate petition in the High Court, while the case has remained
pending here. No notice had been issued to the appellant to show cause as to why a more
deterrent sentence, than the one imposed by the Sessions Judge, be not imposed upon him
and without putting him on such a notice, the Court cannot enhance the sentence. If the
notice were to issue now, it would further delay the disposal of the case and I do not consider
that to be a proper course to be adopted. The more stringent minimum sentence prescribed
for offence under Section 354 and 376 IPC was also incorporated in the Code by an
amendment only with effect from February, 2013, after the offence in the present case had
been committed.

28. Above being the position, I find no merit in this appeal which is accordingly
dismissed.
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196 INDIAN LAW REPORTS ALLAHABAD SERIES

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 14.06.2016

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE VINOD KUMAR SRIVASTAVA-III, J.

Criminal Appeal No.- 334 Of 2005
&
Criminal Appeal No.- 372 Of 2005

Mintu Singh @ Dhirendra Pratap Singh ...Appellant
Versus
State Of U.P. ...Respondent

Head Notes:
Indian Penal Code, 1860-Sections 363, 364, 364-A-Kidnapping-Kidnapping for ransom-Essential
ingredients-Proof of demand of ransom-Contradictions in evidence-Ransom not proved-Conversion of
conviction-Power of appellate court-Conviction under lesser offence permissible-Sentence-Period already
undergone.
Where appellants were convicted under Sections 363 and 364-A I.P.C. and sentenced to life imprisonment for
kidnapping for ransom, but prosecution failed to prove demand of ransom by cogent and reliable evidenceTestimony regarding ransom demand contradictory to FIR and not corroborated-Non-examination of P.C.O.
owners-Ransom neither paid nor directly demanded from complainant-Ingredients of Section 364-A I.P.C.
not established-Conviction under Section 364-A unsustainable-However, offence under Section 364 I.P.C.
made out-Appellate court competent to alter conviction to lesser offence even if no charge framed-No
prejudice caused-Sentence modified-Accused having undergone about 14 years imprisonment-Sentence
reduced to period already undergone with fine-Conviction under Section 363 I.P.C. affirmed-Appeals partly
allowed.

Facts:
Minor girl aged about ten years went missing on 13.02.2002.
FIR lodged alleging kidnapping by appellants, who were relatives of complainant.
Prosecution alleged kidnapping for ransom of ₹3,50,000/-.
Trial court convicted appellants under Sections 363 and 364-A I.P.C. and sentenced them to life
imprisonment.
Accused preferred criminal appeals.

Issues:
Whether prosecution proved demand of ransom so as to attract Section 364-A I.P.C.
Whether conviction could be altered to Section 364 I.P.C. in absence of charge.
Appropriate sentence considering period of incarceration.

Held:
Demand of ransom not proved: Evidence of P.W.4 regarding ransom demand contradicted FIR version; no
independent corroboration; prosecution failed to establish essential ingredient of Section 364-A I.P.C.
Conviction under lesser offence permissible: In view of settled law, conviction can be altered to a lesser
offence if no prejudice is caused and facts justify such conviction.