# Mahendra & Ors v. State Of U.P

- **Citation:** (2016) 4 ILRA 1056
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-04-08
- **Bench:** Mrs. Ranjana Pandya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-ors-v-state-of-u-p-43626
- **Pages:** 16

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1056 INDIAN LAW REPORTS ALLAHABAD SERIES

23. Let a copy of this order be sent to the Trial court concerned.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.04.2016

BEFORE

THE HON'BLE MRS. RANJANA PANDYA, J.

Criminal Appeal No.- 4383 Of 2014
&
Connected With Other Cases

Mahendra & Ors. ...Appellants
Versus
State Of U.P. ...Respondent

Counsel for Appellants:
As recorded in the judgment

Counsel for Respondent:
Learned A.G.A.

HEADNOTE

The present case relates to the tragic death of the deceased, which allegedly occurred as a result of an
assault carried out by the appellants with a common object. The prosecution case is built primarily on
eyewitness testimony, corroborated by medical evidence, recovery of weapons, and the motive arising from
prior enmity. The core legal issue revolves around the interpretation and application of Sections 147, 148, 302
read with 149, and 504 of the Indian Penal Code (IPC), as well as the evaluation of evidence under the Indian
Evidence Act, 1872. Eyewitness testimony, while sometimes subject to challenge, is regarded as credible if
consistent, direct, and unshaken under cross-examination. In this matter, the sole eyewitness's testimony
stands corroborated by medical findings indicating lacerations, fractures, and firearm injury consistent with
the alleged assault. The minor contradictions observed in statements, such as slight variations in time or
position, do not detract from the substantive evidence of the assault and death. The principle of "common
object" under Section 149 IPC requires that the act be done in furtherance of a pre-arranged plan by all
accused members of an unlawful assembly. Here, the evidence demonstrates joint participation, showing all
accused were present, armed, and actively engaged in the attack, which resulted in the death of the
deceased. The case also illustrates the procedural adherence in lodging the FIR promptly, the conduct of
investigation including the preparation of inquest reports, recovery memos, and post-mortem examinations.
Courts have repeatedly held that minor variations in eyewitness accounts are natural and do not undermine
the overall credibility. In addition, motive, though not an essential element, strengthens the case when
supported by consistent narrative and circumstantial proof. Recovery of weapons from accused persons at
their instance further substantiates their involvement. Judicial precedents, such as State of U.P. v. Krishna
Gopal, Masalti v. State of U.P., State of Rajasthan v. Kalki, and Surendra Paswan v. State of Bihar, reinforce
the principle that conviction can be based on sole reliable eyewitness testimony when corroborated by medical
and circumstantial evidence. The courts must carefully differentiate between material contradictions, which
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can affect the outcome, and minor inconsistencies, which are natural and expected in traumatic events. The
judgment demonstrates that the appellants were duly convicted, reflecting both the factual matrix and
applicable law. Consequently, the affirmation of conviction aligns with well-established legal principles
concerning proof beyond reasonable doubt, joint liability under Section 149 IPC, and the corroborative
evaluation of evidence.

PROCEDURE

The procedural history of this case reveals that the prosecution initiated the proceedings with the registration
of an FIR immediately after the incident, documenting the assault and the death of the deceased. The
investigation followed established statutory procedures under the Code of Criminal Procedure, including the
preparation of site plans, inquest reports, recording of statements under Section 161 CrPC, and collection of
medical evidence. The post-mortem examination was carried out in accordance with Section 174 CrPC, and
relevant weapons were recovered under Section 27 of the Indian Evidence Act. Subsequently, a charge-sheet
was filed, charges framed under Sections 147, 148, 302 read with 149, and 504 IPC, and the case was
committed to the Sessions Court. The trial was conducted with due observance of procedural safeguards,
including examination and cross-examination of witnesses, perusal of documentary evidence, and argument
by counsel. The Trial Court, after appreciating evidence, recorded findings of guilt. Appeals were then filed
before this Court under Section 374 CrPC, challenging the conviction. The appeals were admitted, heard with
arguments from both sides, and a careful review of the trial record, evidence, and legal principles was
undertaken. This appellate procedure exemplifies the proper functioning of criminal appellate jurisprudence,
ensuring that convictions rest on legally admissible evidence, principles of natural justice, and established
judicial precedents. Every procedural step, from lodging of FIR, investigation, charge framing, trial, recording
of evidence, and appellate scrutiny, was meticulously followed to uphold the rule of law and protect rights of
both the accused and the victim.

PENAL SECTIONS INVOLVED

Section 147 IPC - Punishment for rioting.
Section 148 IPC - Rioting armed with deadly weapon.
Section 302 IPC read with 149 IPC - Murder committed by members of unlawful assembly in furtherance
of common object.
Section 504 IPC - Intentional insult with intent to provoke breach of peace.

CASE LAW REFERRED

State of U.P. v. Krishna Gopal (1988) 4 SCC 302 - Sole eyewitness reliability.
Masalti v. State of U.P. AIR 1965 SC 202 - Common object under Section 149 IPC.
State of Rajasthan v. Kalki AIR 1981 SC 1390 - Minor contradictions immaterial.
Surendra Paswan v. State of Bihar (2020) 14 SCC 729 - Medical corroboration supporting eyewitness.
Shivaji v. State of Maharashtra, (1992) 1 SCC 107 - Joint liability in an unlawful assembly.

FACTS

Deceased was attacked near agricultural fields.
Assault carried out by accused using lathis and a country-made pistol.
Informant (PW-1) witnessed the attack and identified accused.
FIR lodged promptly by informant.
Investigation included site plan, inquest, post-mortem.
Medical report confirmed injuries consistent with assault.
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Weapons recovered at instance of accused.
Motive: long-standing enmity and land disputes.
Trial court convicted accused under Sections 147, 148, 302/149, 504 IPC.
Appeals filed challenging conviction and evidence credibility.

CONTENTIONS

Appellants
FIR delayed; case fabricated.
Sole witness is interested; credibility doubtful.
Minor contradictions destroy reliability.
Joint liability under Section 149 not established.

Respondent / State
FIR prompt and genuine.
Eyewitness credible; corroborated by medical and circumstantial evidence.
Minor contradictions natural; do not affect prosecution.
Common object under Section 149 clearly proved.

ANALYSIS

Eyewitness PW-1's testimony consistent and credible; no material contradiction.
Prompt FIR strengthens prosecution case; leaves little scope for fabrication.
Medical evidence corroborates nature and extent of assault.
Recovery of weapons at accused instance confirms presence and participation.
Motive further supports prosecution narrative.
Minor discrepancies in statements are expected; they do not affect the overall reliability.
All accused acted together; common object established under Section 149 IPC.
Case law supports convictions based on sole credible eyewitness with corroboration.
Trial court's appreciation of evidence free from misreading or perversity.
Procedural safeguards observed throughout; rights of accused respected.

CONCLUSION

After careful consideration of the evidence, procedural history, legal provisions, and relevant case law, this
Court finds that the prosecution has established the guilt of the appellants beyond reasonable doubt. The
eyewitness testimony is credible and corroborated by medical and circumstantial evidence. The act was
committed with a common object, justifying Section 149 IPC application. Minor contradictions in testimony are
inconsequential. The trial court's judgment is legally sound and does not suffer from any infirmity warranting
interference. Accordingly, all three appeals are dismissed, and convictions and sentences recorded by the
Trial Court under Sections 147, 148, 302/149, and 504 IPC are affirmed. The appellants shall continue to
serve the sentence as directed by the Trial Court.

(Delivered by Hon'ble Mrs. Ranjana Pandya, J.)

1. Since all the afore-captioned criminal appeals have been filed in the same case crime
number, hence they are being decided by this common judgment.
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2. Challenge in these appeals is to the judgment and order dated 18.10.2014 passed by the
learned Additional District & Sessions Judge, Court No. 14, Jhansi in Sessions Trial No. 68 of
2012 (State vs Mahendra and another) and Sessions Trial No. 146 of 2013 (State vs Km. Lalita and
others) arising out of Case Crime No. 246 of 2011, under sections 366, 376, 120-B IPC, PS
Garautha, District Jhansi, whereby the accused Mahendra, Ram Baharosey, Pappu alias
Chaturbhuj, Guddi Kachi alias Ram Charan, Munna Kachi alias Jai Ram and Madhur have been
convicted and sentenced to ten years' rigorous imprisonment and a fine of Rs. 5000/- each under
section 376(g) IPC; five years' rigorous imprisonment and a fine of Rs. 2000/- each under section
366 IPC with default stipulation. Accused Lalita has been convicted and sentenced to three years'
simple imprisonment and a fine of Rs. 2000/- under section 366 IPC with default stipulation.

3. Filtering out unnecessary details, the prosecution case is that a written report was lodged by
the informant Om Prakash stating that he is the resident of village Mathaniya, police station
Garautha, district Jhansi. On 05.10.2011 at 8.00 p.m., the victim and her mother was alone in the
house. The informant had gone with a tractor to do work. At that time, a girl from same village,
namely, Lalita, daughter of Matadeen came to the house of the informant and called the victim to
accompany her to attend the call of nature. As soon as the victim came out of the house to attend
the call of nature, the accused Mahendra and Ram Bharose accompanied with four unknown
persons at the point of country made pistol kidnapped the victim and took her away on motorcycle.
When the informant returned, his wife and villagers told him about the occurrence, but since it was
late night, due to fear, he did not go to lodge the report. On 06.10.2011 at 7.00 a.m., a phone call
was received from mobile No. 8400042844 that the aforesaid persons had detained the victim,
hence the report was lodged.

4. On the basis of this report, chik report was prepared and case was registered by Constable
3473, Rakesh Kumar Pundir, PW-6 at Case Crime No. 246 of 2011. He proved the chik report as
Ext. ka-12 and the copy of G.D. as Ext. Ka-13. Further investigation was entrusted to PW-7, S.I.,
Ashok Kumar. He recorded the statement of witnesses Ashok Kumar and Vijay Kumar on
30.12.2011 and submitted the charge sheet, which was proved by this witness as Ext. Ka-4. He
further recorded the statement of Dr. Pushplata Verma. He recorded the statement of the victim and
sent three bundles for examination to the forensic lab. He proved the relevant proforma as Ext. Ka5. Initial investigation was conducted by S.I. Lal Mani Saroj, PW-5, who had given the marksheet
of the victim. On the pointing out of the informant, he inspected the spot and prepared the site plan,
which was proved as Ext. Ka-7. He further proved the recovery memo by virtue of which the
clothes of the victim and accused Mahendra and Ram Bharose were taken into possession, which
were proved as Ext. Ka-8 to Ka-10. After statement of the victim, Section 376 IPC was added. He
proved the site plan as Ext. ka-11 from where the victim was recovered.

5. The victim was examined by Dr. Pushplata Verma, PW-3, who did not find any mark of
injury on the body of the victim. The vagina was admitting two fingers easily. She prepared two
slides of vaginal smear. The victim was sent for ossification test. This witness proved the medical
report as Ext. Ka-3, supplementary report as Ext. Ka-4 and pathological report of vaginal smear as
1060 INDIAN LAW REPORTS ALLAHABAD SERIES
Ext. Ka-5. Dr. M.C. Verma, the radiologist conducted the ossification test on the victim and proved
the ossification report as Ext. Ka-2 and the X-ray report as material Ext. 1.

6. The prosecution has examined as many as eight witnesses. PW-1 is the informant, who
proved the written report as Ext. Ka-1. PW-2 is Dr. M.C. Verma, PW-3 is Dr. Pushplata Verma,
whose evidence have been discussed above. PW-4 is the victim of the case, who proved the
statement under section 164 Cr.P.C. as Ext. Ka-6. PW-5 is S.I. Lal Mani Saroj, whose evidence has
been discussed earlier. Statements of PW-6 Constable Rakesh Kumar Pundir and PW-7, S.I.,
Pramod Kumar have also been discussed earlier. PW 8 is SI R.K. Sharma, who proved the charge
sheet, Ext-Ka-16.

7. After close of the prosecution evidence, statements of accused persons were recorded under
section 313 Cr.P.C., in which they denied the occurrence and stated that nephew of the informant
was Home Guard, due to his influence false report was lodged against the accused. The accused
Mahendra has stated that he demanded his labour charges, which was due on the informant, hence,
he has been falsely implicated. The accused Madhur has stated that the informant wanted to
encroach upon the land of this accused, hence, he has been falsely implicated. The accused persons
produced DW-1 Pratap Narayan, DW-2, Chandra Bhan and DW-3, Malti in their defence.

8. After hearing the learned counsel for the parties, the learned lower court convicted and
sentenced the accused as stated in para 2 of the judgement.

9. Feeling aggrieved, the accused have come up in appeal.

10. I have heard learned counsel for the appellants, learned Additional Government Advocate
for the State respondent and perused the lower court record.

11. Learned counsel for the appellants has vehemently argued that the charges framed against
the appellants have not been proved beyond all reasonable doubt. The conviction is based on
inadmissible evidence and the appeal is liable to be allowed.

12. On the other hand, learned A.G.A. has submitted that the findings of fact recorded by the
trial court is based on evidence, which is clear, cogent and convincing.

13. As far as the occurrence is concerned, the girl is said to have been missing from her house
on 05.10.2011. The report was lodged on 06.10.2011 at 16.45 p.m., the distance of the police
station from the place of occurrence being 17 kms.

14. As far as the FIR is concerned, the FIR is back bone of a criminal case. If there is delay in
lodging the FIR, chances of embellishment and false implication increases. In the present case on
05.10.2011, when the girl is said to have been lifted by the accused, her mother had seen the
accused fleeing away. Thus, there was no reason why the FIR could not be lodged on the same day.
Although, in the FIR, it has been mentioned that since it was late night, hence the FIR could not be
4 All. Mahendra & Ors. Vs State of U.P.

1061
lodged on the same day, but, it was lodged on 06.10.2011. If, it is believed that on 05.10.2011, the
informant was fearful, what prevented him from going on the next day early morning specially
when in the FIR and the prosecution evidence, it has specifically been mentioned that on
06.10.2011 at 7.00 a.m., the victim had telephoned her father that she was kidnapped. When the
phone call was received by the father of the victim, naming the victim or not naming the victim, he
should have at once rushed to the police station. What prevented him from going to police station
being 17 kms, which was a million dollar questions, which remained unanswered.

15. PW-1, Om Prakash, has stated that since he came back house in the late night, his wife told
him about the occurrence, but as it was late night, he could not lodge the FIR on the same day. Next
morning at 7.00 a.m., he got phone call from his daughter, who told him that Lalita had given her
hand into the hand of the accused persons and they had got her locked in a room, then on
06.10.2011, he went to the police station to lodge the report. This witness has failed to explain why
the report was not lodged in early morning. Therefore, the inordinate delay in lodging the FIR is
fatal to the prosecution case. This vital aspect regarding inordinate delay in lodging the FIR not
only makes the prosecution case improbable to accept, but reasons are wholly untenable in law,
which cannot be accepted. It is interesting to note that the mother had seen the accused taking away
the girl, and on the next day a telephone call is said to have been received by the father, in such
circumstances, no one else but PW-1 Om Prakash, the father of the victim, who is expected to have
anxious concern, could have gone to the police station to lodge a missing report, which could have
prompted the Investigating Officer to act. It baffles to common sense that the father knowing that
his daughter has been kidnapped and enticed away and received a phone call from his daughter, for
some unfathomable reasons that defeats the basic human prudence, he approached the police
station quite belatedly.

16. The Hon'ble Apex Court in (2015) 3 SCC (Cri) 82, Md. Ali alias Guddu vs State of U.P.
in para 21 has made the following observations:

"It is apt to mention here that in rapes cases the delay in filing the FIR by the prosecutrix
or by the parents in all circumstance is not of significance. The authorities of this Court have
granted adequate protection/allowance in that aspect regard being had to the trauma suffered, the
agony and anguish that creates the turbulence in the mind of the victim, to muster the courage to
expose oneself in a conservative social milieu. Sometimes the fear of social stigma and on
occasions the availability of medical treatment to gain normalcy and above all the psychological
inner strength to undertake such a legal battle."

17. The court, however, said that mere delay in lodging the FIR cannot be a ground by itself
for throwing the entire prosecution case overboard. The Court has to seek an explanation for delay
and test the truthfulness and plausibility of the reason assigned, but in the present case, the reason
has not at all been explained. Thus, this delay in lodging the FIR is fatal for the prosecution case
and has caused a dent in the prosecution case.
1062 INDIAN LAW REPORTS ALLAHABAD SERIES

18. Generally, in cases of rape, the court does not ponder to find corroboration if the statement
of the prosecutrix inspires confidence and is accepted by the court as such, conviction can be based
only on the solitary evidence of the prosecutrix and no corroboration would be required unless
there are compelling reasons which necessitate the court for corroboration of her statement.
Corroboration of testimony of the prosecutrix as a condition for judicial reliance is no a
requirement of law but a guidance of prudence under the given facts and circumstances. Minor
contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise
reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape
is not an accomplice after the crime. Her testimony has to be appreciated on the principle of
probabilities just as the testimony of any other witness; a high degree of probability having been
shown to exist in view of the subject matter being a criminal charge. However, if the court finds it
difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct
or substantial, which may lend assurance to her testimony as has been held in Vishnu vs. State of
Maharashtra, AIR 2006 SC 508.

19. Learned counsel for the appellants have submitted that the version as set forth by the
prosecution in the statement under section 164 Cr.P.C., the averments as set forth in the FIR and
the statement of PW-1 Om Prakash coupled with statement of the victim recorded before the trial
court are all contradictory and the whole prosecution story is topsy-turvy. Hence, the whole
prosecution story cannot be relied upon.

20. Perusal of the statement of the victim under section 164 Cr.P.C., which is Ext. Ka-6
reveals that Lalita came to her house and asked her to accompany to attend the call of nature, she
went and sat on well, after some time she asked the victim to flash the torch, as soon as she flashed
the torch, Lalita caught her hand and gave her hand in the hand of two boys. Pappu pressed her
mouth, Chairman and Mahendra pointed country made pistol at her and Munna Kachhi picked her
up and took her away. Madhur and Guddi were standing on the motorcycle on the road and one
Alto car came and she sat in the car. Pappu drove the car, Madhur and Mahendra got seated with
the country made pistol. They took her in the jungle, locked her in a room, where she was raped by
these people. First and foremost Pappu raped her after that the remaining raped her. Then, they took
her out of the room and took her in the Jungle, where police recovered the victim. No doubt, this
statement under section 164 Cr.P.C. is mere a previous statement of the victim, who has admitted
that her statement was recorded before the Magistrate under section 164 Cr.P.C. When the victim
was questioned before the court as to why, she did not give complete details before the Magistrate
in her statement under section 164 Cr.P.C., she stated that she did not remember and due to
nervousness, she could not tell the Magistrate that when she was calling her father on phone, the
phone was snatched. She also said that she did not remember whether she stated to the Magistrate
that she dialed her father on 06.10.2011. If the Magistrate would have asked her, she told him. May
be, she could not have told the whole occurrence to the Magistrate because she was nervous. The
statement under section 164 Cr.P.C. is the statement on oath recorded quite immediately after the
occurrence. The occurrence took place on 05.10.2011, 06.10.2011 and 07.10.2011 and the
statement of the victim was recorded under section 164 Cr.P.C. on 12.10.2011. All along were
present with her, after her recovery for moral support. I can understand the trauma suffered by a
4 All. Mahendra & Ors. Vs State of U.P.

1063
girl, who had been kidnapped and raped, but there is no plausible reason why she did not state all
the relevant facts before the Magistrate in her statement under section 164 Cr.P.C. Thus, this is
indicative of contradictory conduct of the victim.

21. Learned counsel for the appellants have submitted that the victim is a major and there is no
evidence on record that the victim was kidnapped or abducted knowing that she will be compelled
to marry any person against her will.

22. As far as the age of the victim is concerned, in Criminal Appeal No. 1209 of 2010 Jarnail
Singh Vs. State of Haryana, the Hon'ble Apex Court has observed as follows :

"....On the issue of determination of age of a minor, one only needs to make a reference to
Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred
to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the
Juvenile Justice (Care and Protection of Children Act, 2000 Rule 12 referred to hereinabove reads
as under :

"12. Procedure to be followed in determination of Age. (1) In every case concerning a
child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee
referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in
conflict with law within a period of thirty days from the date of making of the application for that
purpose.

(2) The court or the Board or as the case may be the Committee shall decide the
juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with
law, prima facie on the basis of physical appearance or documents, if available, and send him to
the observation home or in jail.

(3) In every case concerning a child or juvenile in conflict with law, the age
determination inquiry shall be conducted by the court or the Board or, as the case may be, the
Committee by seeking evidence by obtaining -

(a) (i) the matriculation or equivalent certificates, if available; and in the absence
whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended;
and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical
opinion will be sought from a duly constituted Medical Board, which will declare the age of the
juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as
1064 INDIAN LAW REPORTS ALLAHABAD SERIES
the case may be, the Committee, for the reasons to be recorded by them, may, if considered
necessary, give benefit to the child or juvenile by considering his/her age on lower side within the
margin of one year.

and, while passing orders in such case shall, after taking into consideration such
evidence as may be available, or the medical opinion, as the case may be, record a finding in
respect of his age and either of the evidence specified in any of the clauses (a)(i),

(ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as
regards such child or the juvenile in conflict with law.

(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be
below 18 years on the date of offence, on the basis of any of the conclusive proof specified in subrule (3), the court or the Board or as the case may be the Committee shall in writing pass an order
stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and
these rules and a copy of the order shall be given to such juvenile or the person concerned.

(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of
section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court
or the Board after examining and obtaining the certificate or any other documentary proof referred
to in sub-rule (3) of this rule.

(6) The provisions contained in this rule shall also apply to those disposed off cases,
where the status of juvenility has not been determined in accordance with the provisions contained
in sub- rule(3) and the Act, requiring dispensation of the sentence under the Act for passing
appropriate order in the interest of the juvenile in conflict with law." Even though Rule 12 is
strictly applicable only to determine the age of a child in conflict with law, we are of the view that
the aforesaid statutory provision should be the basis for determining age, even for a child who is a
victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is
concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in
our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to
determine the age of the prosecutrix VW-PW6. The manner of determining age conclusively, has
been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age
of a child is ascertained, by adopting the first available basis, out of a number of options
postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a
preceding clause, it has overriding effect over an option expressed in a subsequent clause. The
highest rated option available, would conclusively determine the age of a minor. In the scheme of
Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated
option. In case, the said certificate is available, no other evidence can be relied upon. Only in the
absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in
the school first attended by the child. In case such an entry of date of birth is available, the date of
birth depicted therein is liable to be treated as final and conclusive, and no other material is to be
relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate
4 All. Mahendra & Ors. Vs State of U.P.

1065
issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is
available, then no other material whatsoever is to be taken into consideration, for determining the
age of the child concerned, as the said certificate would conclusively determine the age of the
child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination
of age of the concerned child, on the basis of medical opinion."

23. In order of preference given in the Juvenile Justice (Care and Protection of Children) Act,
since academic record is not available, the court has to revert back and take aid of the ossification
test report, which is Ext.Ka-4 on record. According to the doctor, who conducted the radiological
test, the age of the victim was above 17 years. Even if the margin of two years is taken either side
for the sake of arguments, the age of the victim is above the age of consent on the date of
occurrence.

24. When the statement of the victim was recorded on 02.01.2014, she stated her age to be 20
years, whereas on 12.10.2011 when her statement was recorded under section 164 Cr.P.C., she
stated her age to be 17 years. Cross examination of this victim puts all doubt to an end, inasmuch as
she has stated that " मेरी जन्मर्तर्थ 01.06.1991 है। According to this statement, on the date of
occurrence i.e. 05.10.2011, the victim was aged above 19 years. She has also stated that at the time
of occurrence, she was the student of B.A-II and capable of understanding the right and wrong.
Thus, as per own admission, she is major.

25. As far as the incident is concerned, PW-1 Om Prakash, the father of the victim is not an
eye witness of anything, but his statement needs consideration. Although, according to provision of
Indian Evidence Act, if a witness has stated anything to her parents just after the incident, it could
be admissible, but I treat the evidence of PW-1 Om Prakash as hearsay because he stated before the
court as to what was stated to him by his wife. There is no reason as to why Smt. Rekha, mother of
the victim was not produced before the court because she was the best person, who could state what
happened at the relevant time. PW-1 Om Prakash has stated that his wife told him that Mahendra
and Ram Bharosey had pointed a country made pistol at the victim and there were four unknown
persons, who could not be recognized by the wife.

26. In her statement under section 164 Cr.P.C., the victim has stated that she was kidnapped in
Alto Car whereas PW-1, Om Prakash has stated that the victim was taken away on a motorcycle.
The veracity of this witness is also tested on the test of cross-examination, in which he has stated
that he used to go to bring the victim from school, but the daughter of the informant, the victim
does not support his version, inasmuch as she has stated that she only attended school 3-4 times
after taking admission and since her sister-in-law underwent an operation of uterus, she remained at
home and for 3-4 times, she went to college. She went with her brother.

27. Further PW-1 Om Prakash, the father of the victim has stated that prior to the incident, he
had settled the marriage of his daughter at Chirgaon, but due to this occurrence, the marriage could
not be solemnized. Further, this witness has stated that in the present case, his brother's brother-inlaw Kailash is the witness. He does not know whether in 2011 the grandson of his maternal uncle
1066 INDIAN LAW REPORTS ALLAHABAD SERIES
Sunder Lal took away one Rita and both were recovered from Jhansi, in which the nephew of this
witness had aided duo. This witness has further submitted that Lok Nath is father of the accused
Madhur, but he does not know whether he purchased the fields from Chaturbhuj or not. This
witness has shown ignorance towards any question which was put to him, but he admitted that the
accused Mahendra moved an application to the District Magistrate complaining that his pathway
was closed by this witness although that application was false. He could not even tell whether this
witness had got the crops of Pappu alias Chaturbhuj harvested by his men, whose complaint was
lodged with the District Magistrate. He has admitted that presently Matadeen, the father of accused
Lalita and he himself are co-sharer. He has admitted that he has also called by the name of Munna
Lal and action was taken under section 107/116 Cr.P.C. by the Sub-Divisional Magistrate,
Garautha on the complaint to the accused Ram Charan and his wife. He has admitted that he did not
see his daughter being kidnapped, but he was informed about the recovery of the girl, who was
recovered on 07.10.2011. He came to know about the recovery at 3.00 p.m. in the day time by the
police. When he reached the police station, he found his daughter at the police station. He has
further stated that his daughter was kidnapped 50-60 feet from his house. How the wife of the
informant Smt. Rekha, who could hear the alarm raised by the victim from 50-60 feet is
questionable. He has further stated that whatever was told to him about the incident was written by
him in the first information report. He has admitted that neither Lalita came to his house in his
presence nor she asked for a torch, in fact, he admitted that no incident took place in his presence.
He has admitted that he did not name the accused Jai Ram either in the report or in the three
statements given to the Investigating Officer and he could not assign any reason for not naming
him.

28. As far as the statement of the victim is concerned, in AIR 2008 SC (Supp) page 882,
Motilal Vs. State of M.P., the Hon'ble Apex Court has laid down that the evidence of the
prosecutrix was liable to be believed save in exceptional circumstances. There can be no quarrel
with this proposition (and it has been so emphasized by this court time and again), but to hold that
the prosecutrix must be believed irrespective of all probabilities in her story is an argument that can
be never accepted. Test always is as to whether the given story prima facie inspires confidence.

29. It is settled law that the statement of the victim in cases of rape should be given due
weightage, but it is also true that rape is the most morally and physically reprehensible crime in a
society, as it is an assault on the body, mind and privacy of the victim. While a murderer destroys
the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape
reduces a woman to an animal, as it shakes the very core of her life. Rape leaves a permanent scar
on the life of the victim, and therefore, a rape victim is placed on a higher pedestal than an injured
witness. Rape is a crime against the entire society and violates the human rights of the victim.
Being the most-hated crime, rape tantamounts to a serious blow to the supreme honour of a woman,
and offends both, her esteem and dignity. It causes psychological and physical harm to the victim,
leaving upon her indelible marks.

30. It is now well settled that a finding of guilt in a case of rape, can be based on the
uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get
4 All. Mahendra & Ors. Vs State of U.P.

1067
direct corroboration of the evidence. The evidence of the prosecutrix should not be rejected on the
basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was
forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is
uncorroborated, unless the material on record requires drawing of an inference that there was
consent or that the entire incident was improbable or imaginary. Even if there is consent, the act
will still be a 'rape', if the girl is under 16 years of age.

31. It is also well settled that absence of injuries on the private parts of the victim will not by
itself falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a
doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to
disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim
especially on the forearms, writs, face, breast, thighs and back are indicative of struggle and will
support the allegation of sexual assault. The courts should, at the same time, bear in mind that false
charges of rape are not uncommon. There have also been rare instances where a parent has
persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or
extort money or to get rid of financial liability.

32. I am conscious of the fact that in the matter of rape, the statement of the prosecutrix must
be given prime consideration, but at the same time the principle that the prosecution has to prove its
case beyond reasonable doubt applied equally to a case of rape and there can be no presumption
that the prosecutrix will always tell the entire story truthful.

33. In Rajoo & Ors vs State of Madhya Pradesh, AIR 2009 SC 858, the Hon'ble Apex Court
has held that ordinarily the evidence of a prosecutrix should not be suspected and should be
believed, more so as her statement has to be evaluated on par with that of an injured witness and if
the evidence is reliable, no corroboration is necessary. However, the Apex Court has further
observed:

'....It cannot be lost sight of that rape causes the greatest distress and humiliation to the
victim but at the same time a false allegation of rape can cause equal distress, humiliation and
damage to the accused as well. The accused must also be protected against the possibility of false
implication.... there is no presumption or any basis for assuming that the statement of such a
witness is always correct or without any embellishment or exaggeration.'

34. I am also conscious of the fact that the courts must, while evaluating evidence, remain
alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just
to make a humiliating statement against her honour such as is involved in the commission of rape
on her. In cases involving sexual molestation, supposed considerations which have no material
effect on the veracity of the prosecution case or even discrepancies in the statement of the
prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to
throw out an otherwise reliable prosecution case.