# Lalla v. State of U.P

- **Citation:** (2023) 12 ILRA 13
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-14
- **Case number:** Criminal Appeal No. 233 of 2000
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lalla-v-state-of-u-p-49461
- **Pages:** 7

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 363, 366 & 376 - Against
conviction and sentence - On 14.01.1997,
accused
allegedly
enticed
away
complainant
daughter
without
her
consent, along with silver ornaments and
₹2,200/- Despite search, she remained
untraced
-
Two
persons
witnessed
incident - A written report was given on
16.01.1997, on basis of which F.I.R
14 INDIAN LAW REPORTS ALLAHABAD SERIES
registered
-
Victim
recovered
on
27.01.1997 - On evaluation of evidence of
P.W.1 to P.W.4, it emerges that victim was
recovered 13 days after alleged incident,
during this period she never raised any
alarm - Medical examination report does
not support prosecution version, rather
shows victim was habitual to sexual
intercourse
-
Circumstances
indicate
victim accompanied appellant on her own
free will - She was above 16 years of age
at relevant time - Non-production of case
diary
denied
accused
opportunity
to
confront witnesses, though not vitiating
trial, it weakens prosecution case
-
Investigation appears casual as IO never
visited village despite proving site plan -
In view of shaky testimony of prosecutrix,
further weakened by St.ments of P.W.3
and
P.W.4,
and
in
absence
of
corroborative
evidence
regarding
her
exact age except medical report indicating
she was above sixteen years, coupled with
testimony of P.W.3 and P.W.4 that victim
was moving ahead and accused was
following her, thus, conviction under
Section 376 IPC cannot be sustained.
(Para 2, 11, 14, 15)

Appeal allowed. (E-13)

## Text

12 All. Lalla Vs. State of U.P.
13
and sentenced for charge under Section 3/4
of D.P. Act instead of being convicted
under Section 4 of D.P. Act only, which is
found to be proved by trial judge.
Therefore, fine Rs.1,000/- awarded in
impugned judgment for charge under
Section 304B IPC is quashed, and if same
is already deposited/paid, it will be
refunded to the accused on his application
in this regard.

30. Section 4 of D.P. Act provides that
for charge under Section 4, the person who
demands any dowry shall be punishable with
imprisonment for a term which shall not be
less than six months, but which may extend
to two years and with fine which may extend
to Rs.10,000/- provided that the court may,
for adequate and special reasons to be
mentioned in the judgment, impose a
sentence of imprisonment for a term of less
than six months. Whereas, in the present case
no fine has been awarded by the learned trial
judge in contravention of statutory mandate,
even if it is presumed that conviction was
only recorded for charge under Section 4 of
D.P. Act. For charge under Section 3 of D.P.
Act, the imprisonment for a term not less than
five years and fine which shall not be less
than Rs.15,000/- or the amount of the value
of such dowry, which ever is more, is
provided with proviso that the court may, for
adequate and special reasons to be recorded
in the judgment, impose a sentence of
imprisonment for term of less than five years.

31. Therefore the conviction for
charge
under
Section
3
of
Dowry
Prohibition Act is set-aside and conviction
and sentence for charge under Section 4 of
Dowry Prohibition Act is maintained.

32. As there is no State Appeal
regarding enhancement of sentence in
relation to impugned judgment or any
revision preferred by the informant for
enhancement of sentence, any addition in
sentence awarded in impugned order is not
desirable in Criminal Appeal filed against
conviction and sentence.

33. The appeal stands partly allowed
with above observation. However as
appellant/accused has already undergone
sentence awarded in impugned judgment
and order, he need not surrender.

34. Let lower court record be send
back immediately for necessary action
alongwith certified copy of this judgment.
----------
(2023) 12 ILRA 13
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 14.12.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Appeal No. 233 of 2000

Lalla ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
V.S. Verma, Ram Kumar, Rehan Ahmad
Siddiqui

Counsel for the Respondent:
Govt. Advocate

Criminal Law - Indian Penal Code, 1860 -
Sections 363, 366 & 376 - Against
conviction and sentence - On 14.01.1997,
accused
allegedly
enticed
away
complainant
daughter
without
her
consent, along with silver ornaments and
₹2,200/- Despite search, she remained
untraced
-
Two
persons
witnessed
incident - A written report was given on
16.01.1997, on basis of which F.I.R
14 INDIAN LAW REPORTS ALLAHABAD SERIES
registered
-
Victim
recovered
on
27.01.1997 - On evaluation of evidence of
P.W.1 to P.W.4, it emerges that victim was
recovered 13 days after alleged incident,
during this period she never raised any
alarm - Medical examination report does
not support prosecution version, rather
shows victim was habitual to sexual
intercourse
-
Circumstances
indicate
victim accompanied appellant on her own
free will - She was above 16 years of age
at relevant time - Non-production of case
diary
denied
accused
opportunity
to
confront witnesses, though not vitiating
trial, it weakens prosecution case
-
Investigation appears casual as IO never
visited village despite proving site plan -
In view of shaky testimony of prosecutrix,
further weakened by St.ments of P.W.3
and
P.W.4,
and
in
absence
of
corroborative
evidence
regarding
her
exact age except medical report indicating
she was above sixteen years, coupled with
testimony of P.W.3 and P.W.4 that victim
was moving ahead and accused was
following her, thus, conviction under
Section 376 IPC cannot be sustained.
(Para 2, 11, 14, 15)

Appeal allowed. (E-13)

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. This criminal appeal has been
preferred against the judgment and order
dated 10.3.2000, passed by Additional
Sessions Judge-XI, Lucknow in Sessions
Trial No.671 of 1997 (Crime No.22 of
1997) State vs. Lalla, P.S. Gosainganj,
district Lucknow under sections 363, 366,
376 I.P.C., whereby the appellant has been
convicted and sentenced to five years
rigorous imprisonment and a fine of
Rs.5000/-, with default provision, under
section 376 I.P.C..

2. The prosecution case, in brief, is
that on 14.1.1997 at about 8.00p.m., the
accused Lalla enticed away daughter of the
complainant Rajaram without her consent.
She has taken silver ornaments and
Rs.2200/- cash along with her. Even after
ample search, her whereabouts could not be
found. This incident has been seen by
Gama and Santram of his village. A written
report of the incident was given at police
station Gosainganj on 16.1.1997, on the
basis of which first information report was
registered. On 27.1.1997, the victim was
recovered.

3. Charges under sections 363, 366
and 376 I.P.C. were framed against the
accused which was denied by him and the
accused claimed to be tried.

4. The prosecution in order to prove
its case has produced P.W.1 Rajaram, P.W.2
Dashratha,
P.W.3
Gama
(independent
witness),
P.W.4
Santram
(independent
witness), P.W.5 Constable 1787 Fakhrul
Hasan, P.W.6 Radhey Shyam, Inspector,
P.W.7 Dr. Ratna Pandey who medically
examined the victim and P.W.8 Kumari
Sunita Sachan.

Statement of the accused has
been taken under section 313 CrPC, in
which his case was of denial.

5. P.W. 1 complainant Rajaram has
stated that the victim was 13 to 14 years
old. On the date of incident, at about
8.00p.m., Lalla accused of the village has
enticed her daughter away to keep her with
him. The victim has not taken anything
with her. When he returned at about 1.00 in
the night, his wife told him regarding the
incident. Santram and Gama of the village
had seen the victim and the accused. He
reported the incident on 16th. He got
written the report from the daughter of one
Munshi and put his thumb impression
12 All. Lalla Vs. State of U.P.
15
thereon. He has proved Ext.Ka.1, written
report. In his examination-in-chief, he has
further stated that in the written report, the
fact regarding taking away ornaments and
money has been mentioned by him due to
the fact that he was envious. He again
stated that she did not take money and
ornaments with her. After six days, he came
to know that the victim and the accused
were apprehended by the police at Amethi
Chauraha. After medical examination, the
victim was handed over to the complainant.
After 6-7 days of the incident, the victim
was handed over in his supurdagi. He has
proved the recovery memo as Ext. Ka-2.

In his cross-examination, P.W.1
has stated that while he returned home, his
wife did not tell him as to with whom the
victim has gone. After ample search when
the victim was not found and Lalla too was
not found at his home, then he was of firm
belief that it is Lalla who enticed the victim
away. He does not know the name of the
girl who wrote the written report. He
further stated that the fact of ornaments and
money taken by the victim was written in
the written report by him due to the fact
that he was envious. He further stated that
the investigating officer did not visit his
village. He denied the suggestion that the
victim herself went away with Lalla. He
further denied the suggestion that at the
time of the incident, the victim was 20
years old.

P.W.2 Dashratha aged about 16
years has stated in her examination-in-chief
that she knows the accused who is present
in Court. He is a resident of her village. On
the date of incident, while she was tying the
buffalo calf, the accused dragged her
towards Ghuskar village and threatened her
that if she raises alarm, she will be shot by
the country-made pistol. She was stopped
from raising alarm. She was kept in
Ghuskar village with a person of that
village, at his place. She was raped by the
appellant. Although, she cried but the
appellant used to say that he will marry her.
One day, the accused was taking her to
some place which she did not know. Then,
near Amethi pulia, they were apprehended
by the police and brought to police station.
She was subjected to medical examination
in hospital. She proved recovery memo
Ext.Ka.2 and her thumb impression on it.
She was raped 15-20 times.

She
stated
in
her
crossexamination that she went away from her
home with the accused. At that time, the
accused was alone. There was no one else.
He was having a country made pistol at that
time. She was threatened by the accused on
gun point and this fact was told by her to
the investigating officer, however, she does
not know why the investigating officer has
not mentioned in her statement. She denied
the suggestion that she had taken accused
Lalla and not otherwise. She further denied
the suggestion that she on her own accord
and free will went away with Lalla. She
also denied the suggestion that she has not
been raped against her will. She further
denied that the accused has not been caught
with her.

P.W.3 Gama is an independent
witness. In his chief, he has stated that
while he was with Santram, he saw that
Lalla was going along with Dashratha
towards west. On the second day, he came
to know about the incident.

In his cross, he stated that the girl
was walking ahead and the boy was
following her. He did not enquire from
them.
He
further
stated
that
the
investigating officer has not met him. He
stated that no investigation with him was
conducted by the investigating officer.

P.W.4 Santram has also given
more or less the same statement as has been
16 INDIAN LAW REPORTS ALLAHABAD SERIES
given by P.W.3. He has further stated in his
cross- examination that he saw that the girl
was walking and the boy was following
her. He does not know whether the
investigating officer came in his village. He
does not know how the investigating officer
has recorded his statement.

P.W.5 Constable Fakhrul has proved
the chick report in his writing and signature
and proved Ext. Ka.3. He further proved
Ext.Ka-4 Carbon copy of general diary.

P.W. 6 Inspector Radhey Shyam
has stated that he took statement of the
prosecution witnesses, got the victim
medically examined and filed charge sheet.
In his cross-examination, he stated that the
case diary is not on record and therefore, he
could not tell as to when the statement was
given by the prosecution witnesses.

P.W.7 Dr. Ratna Pandey, Mahila
Hospital, Balrampur, Lucknow has deposed
that while she was posted as Pathologist in
Golaganj Mahila Hospital on 7.2.1997, she
conducted medical examination of the
victim Dashratha. She proved vaginal test
report, Ext. Ka.7. No sperm was found nor
gonococci.

P.W. 8 Kumari Sunita Sachan,
who was posted at Mahila Hospital,
Balrampur along with Dr. Jyoti Bajpai has
proved her signature and writing. She
proved Ext. Ka-8.

6. The accused in his statement under
section 313 CrPC has denied all the
incriminating circumstances put to him,
however, no defence was taken by him.

7. I have heard Mr. Rehan Ahmad
Siddiqui, learned amicus curiae for the
appellant, and Mr. Alok Tiwari and Ms.
Nikita Mishra, learned A.G.A. for the State.

8. Learned amicus has submitted that
the occurrence is of 14th January, 1997 at
about 8.00p.m., the first information report
has been lodged on 16.1.1997 at 3.40p.m.
after delay of two days. The victim was
recovered on 27.1.1997 after 13 days of the
incident. As per version of the written
report/first
information
report,
the
prosecutrix went away with the appellant
along with silver ornaments and Rs.2000
cash. It is submitted that P.W.3 and P.W.4
have stated that the prosecutrix was
walking ahead and the appellant was
following her which shows that the victim
went out of her own accord and free will. It
is further submitted that during the period
of 13 days in which she was allegedly in
the captivity of the accused, the victim did
not raise any alarm which, in itself, shows
that she was a consenting party.

As per medical report of the
prosecutrix, no mark of injury on any part
of the body was found. The hymen was
found old torn and healed. He has
submitted
that
no
spermatozoa
or
gonococci was found. Epiphysis around
elbow was fused and the epiphysis around
knee and wrist was not found fused. It is
submitted that since age of the victim
during trial was not proved, hence it cannot
be said that she was minor at the time of
alleged
incident.
The
appellant
was
acquitted under sections 363, 366 I.P.C.,
however, he has been convicted for the
offence under section 376 I.P.C. without
any cogent evidence. It is further submitted
that the prosecution has failed to establish
its case beyond reasonable doubt and
benefit of doubt must go in favour of the
accused.

9. A.G.A., on the contrary, while
opposing the argument of the appellant?s
counsel and supporting the prosecution
case has submitted that the testimony of the
prosecutrix is intact and on the sole
12 All. Lalla Vs. State of U.P.
17
testimony of the victim, the accused can be
convicted. No other corroborative material
is needed as per law.

10. Having heard parties? counsel and
after perusal of the record, this court finds
that in the written report, it is the case of
the prosecution that the victim was enticed
away by the appellant and while going
away, the victim took silver jewellery and
cash of Rs.2200/- with her. Written report
was given by P.W.1 complainant. However,
before the court, in his examination-inchief, the complainant has stated that the
victim did not take away any ornament.

In his examination-in-chief and in
the cross, P.W. 1 has stated that due to envy,
he has mentioned in the written report that
his daughter had taken jewellery and cash
with her. In his cross, he has stated that the
investigating officer did not visit his
village. He denied the suggestion that the
victim herself on her own went with the
accused. He further denied the suggestion
that she is 20 years old. In his statement,
P.W.1 has denied that the prosecutrix has
taken anything with her, however, in the
cross, he has admitted that he got written in
the written report that she took jewellery
and cash with her, however, in envy.

P.W.2 in her examination-in-chief
though has supported the prosecution story,
however, in the cross-examination, she has
stated that she went away with the
appellant from her home. At that time, the
appellant
was
alone.
She
told
the
investigating officer that she was taken on
gun point, however, it has not been written
by
the
investigating
officer
in
her
statement. She further stated that from
Ghuskar, the accused was taking her in the
night some where on foot. She denied the
suggestion that she took the accused Lalla
and not that the accused has taken her
away. Further she denied the suggestion
that she on her own accord went away with
the accused Lalla. She further denied the
suggestion that she was raped against her
will.

The testimony of P.W. 2 does not
inspire confidence as in her cross, she
herself has stated that she went away with
the appellant from home and at that time,
the appellant was alone.

The occurrence according to the
prosecution case took place on 14.1.1997.
The
victim
has
been
recovered
on
27.1.1997, i.e. after 13 days of the incident.
P.W.1 complainant is not an eye-witness.
The evidence of P.W.1 is hearsay evidence.

Further, P.W.3 and P.W.4 who are
independent witnesses in their cross have
clearly stated that the girl was walking
ahead and the appellant was following her.
The testimony of these two independent
witnesses shows that the prosecutrix went
away from her home on her own accord
and free will and she was not taken
forcibly.

11. Keeping in view all these facts,
statement of P.W.1, P.W.2, P.W.3 and P.W.4,
the fact that the victim was recovered after
13 days of the incident and at no point, she
raised any alarm, no corroborative material
has been found by the doctor in the medical
examination report which is Ext. Ka-7 and
Ext.Ka.8 which are on record, which show
that the victim was habitual in sexual
intercourse, hymen was found old torn,
admitted two fingers easily, it is evident
that the prosecutrix on her own accord and
free will went away with the appellant. She
was above sixteen years of age. Therefore,
ingredients of offence under section 363
I.P.C. as given in section 361 I.P.C. are
missing, hence the trial court has rightly
acquitted the appellant under section 363
I.P.C.
18 INDIAN LAW REPORTS ALLAHABAD SERIES

As regards section 366 I.P.C., two
important ingredients that the accused has
abducted the victim with him against her
will with intent that she may be compelled
to marry or in order that she may be forced
or seduced to illicit intercourse, are missing
and
has
not
been
proved
by
the
prosecution, therefore, for offence under
section 366 I.P.C., the appellant has also
rightly been acquitted.

In regard to conviction under
section 376 I.P.C., the testimony of the
prosecutrix is made doubtful in view of the
testimony
of
the
two
independent
witnesses, i.e. P.W.3 and P.W.4, the written
report and the statement of P.W.1 that the
victim while going away has taken silver
armaments and cash of Rs.2200 with her
which shows that she on her own accord
and free will went away with the appellant.

So
far
as
consent
part
is
concerned, it has been seen that the victim
remained with the appellant for a period of
13 days as per her own statement and while
she was going with the appellant near
Amethi pulia, i.e. a public place, she was
apprehended by the police. She went on
foot with the appellant from Ghuskar to
some unknown place. She had ample
opportunity to raise alarm which she did
not do. There was no mark of injury on the
person of the prosecutrix nor on her private
part. Keeping all this in view coupled with
the testimony of P.W.3 and P.W.4, it is clear
that she was a consenting party.

12. Besides, so far as age of the
prosecutrix is concerned, according to
Modi
"A
Textbook
of
Medical
Jurisprudence and Toxicology", Twenty
Seventh Edition, fusion in the females is at
the age of 16-20 years in the case of
females. The age of the girl shall be more
than sixteen years in cases of complete
fusion of metaphyses with distal epiphyses
of the radius and the ulna.

As per medical report, Ext.Ka-8,
knee and elbow joints are found fused and
thus
according
to
Modi's
Medical
Jurisprudence, it can well be inferred that
she was above 16 years of age, although the
burden to prove the medical age was on the
prosecution which the prosecution has
failed to prove. Except the medical report,
no educational record etc could be
produced during the course of the trial by
the prosecution which may show the
correct age of the victim.

It is further evident from perusal
of the medical report dated 8.2.1997,
Ext.Ka.8 that the victim was having
7+7/7+7 teeth, she passed the two-finger
test and on this basis, it can safely be said
that she was above sixteen years of age.

13. Even otherwise, since the incident
is of 1997 and as per unamended Indian
Penal Code, at that time, the age of consent
for sexual intercourse was 16 years and
above and therefore, the burden was on the
prosecution to prove that the prosecutrix
was below 16 years of age which as said
above, the prosecution could not do.

14. It is significant to note that the
case diary has not been produced by the
investigating
officer.
The
prosecution
witnesses have denied their statement under
section 161 CrPC during their statement
before the court. The accused has been
precluded to confront the witnesses. During
their cross examination also, the power of
the court under section 165 Evidence Act to
put any question to a witness is also
couched in very wide terms and the
accused has been denied this opportunity
for want of case diary, although this does
12 All. Sunil Kumar Yadav Vs. State of U.P. & Anr.
19
not vitiate the trial, however, causes a dent
in the prosecution case.

The investigating officer though
is said to have proved the site plan but
considering the statement of P.W.1, P.W.3
and P.W.4, it can be said that the
investigating officer has not even visited
the village. The investigation has been
conducted in a very casual manner. Overall,
the prosecution failed to prove its case
beyond reasonable doubt.

15. Thus, in view of shaky testimony
of the prosecutrix which is made doubtful
by the statement of P.W.3 and P.W.4,
coupled with the lack of any corroborative
material to determine the exact age of the
prosecutrix except the medical report,
according to which she appears to be above
sixteen years of age, the testimony of P.W.3
and P.W.4, particularly their statement that
the victim was going ahead and the accused
Lalla was following her, she went with the
accused with silver jewellery and cash of
Rs.2200/- as per the written report of P.W.1
himself, I am not inclined to affirm the
judgment of conviction of the appellant
under Section 376 I.P.C.

16. In view of what has been stated
hereinabove, the criminal appeal is allowed
and the judgment and order of conviction
and sentence dated 10.3.2000, passed by
Additional Sessions Judge-XI, Lucknow in
Sessions Trial No.671 of 1997 (Crime
No.22 of 1997) State vs. Lalla, P.S.
Gosainganj, district Lucknow is set aside.
The appellant is acquitted of the charges
levelled against him. The appellant be
released from jail forthwith.

17. Let a copy of this judgment be
transmitted to the trial Court as well as
Superintendent,
Jail
concerned,
for
compliance. The lower court records be
also sent, back to the lower court.

18. Mr. Rehan Ahmad Siddiqui,
learned amicus curiae shall be paid by the
Registry of this Court a sum of Rs.20,000/-
for contesting the case on behalf of the
appellant.

19. The Senior Registrar of this Court
is directed to ensure compliance.
----------
(2023) 12 ILRA 19
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 24.11.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 1160 of 2020

Sunil Kumar Yadav ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Irshad Ali, Syed Husain Abbas

Counsel for the Respondents:
G.A., Bhanu Pratap Kushwaha, Deepak
Kumar Kamlay, Siya Ram

Criminal Law-The Scheduled Castes and
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989-Section 14-A (ii)---
Criminal
appeal
against
impugned
order
rejecting the bail of the appellant under Sections
301,201 & 363 I.P.C & Section 3(2) (5) of SC/ST
Act---Appellant not named in the F.I.R.; no one
has seen the appellant committing the alleged
crime; there is no independent eye witness who
has seen the appellant or any other co-accused
person committing the alleged crime; there is no
motive of killing the deceased; the deceased
was a child and was residing separately to some
other place and the appellant was residing to
some other place---No one had seen the