# Manoj @ Bhorai v. State of U.P. Opp. Party

- **Citation:** (2022) 7 ILRA 1186
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-31
- **Case number:** Criminal Appeal No. 984 of 2015
- **Bench:** Suneet Kumar, Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-bhorai-v-state-of-u-p-opp-party-48743
- **Pages:** 18

## Headnote

Criminal Law- Indian Penal Code, 1872-
Section 376- Code of Criminal Procedure,
1973-
Section
154-
Delayed
First
Information Report- Section 157- Special
Report to Magistrate- There is 68 days
delay in lodging the F.I.R, but the lower
trial court did not find it unnatural or
unusual and found sufficient explanation of
the delay-If causes are not attributable to
any effort to concoct a version and the
delay
is
satisfactorily
explained
by
prosecution, no consequence shall be
attached to mere delay in lodging FIR and
the delay would not adversely affect the
case of the prosecution. Delay caused in
sending the copy of FIR to Magistrate
would also be immaterial if the prosecution
has been able to prove its case by its
reliable evidence.
Where
the
prosecution
has
satisfactorily
explained the delay in lodging the first
information report and there is nothing to
suggest concoction, of a story, then the said
delay will not adversely affect the case of the
prosecution.

Juvenile Justice (Care and Protection of
Children)
Act,
2015-
Section
94-
Determination of age of Prosecutrix - The
prosecutrix
is
the
sole
witness
of
kidnapping,
abduction
and
rape.
According
to
radiological
examination
report, she was found to be 18 years of
age, but according to her High School
Certificate her date of birth recorded is
03.05.1992, thus, she was aged about 17
years at the time of commission of crime.

As per the provisions of the juvenile Justice Act
primacy has to be given to the high school
certificate of the prosecutrix and not to the
ossification test in order to determine her age,
hence prosecutrix held to be minor on date of
occurrence.

Quantum of Punishment- Doctrine of
Proportionality- It is correct that accused
is married and family person even his
children might have been of victim's age
or similar to the age of victim. He has
committed the sexual offence upon the
victim
twice
and
this
offence
was
committed to pressurize the victim and
her family members to come on the table
of compromise. In this regard, another
criminal case has also been lodged against
the appellant, thus the accused has taken
law in his own hand and has also
interfered in administration of justice.
Therefore, an extreme lenient view cannot
be adopted in favour of the accusedappellant but since he is the only bread
earner of his family and his family and
children
are
facing
lot
of
problem,
therefore it would be expedient in the
interest of justice to reduce the sentence
to some extent awarded under Section
376 I.P.C.-Keeping in view the facts and
circumstances
of
the
case
and
also
keeping in view criminal jurisprudence in
our country which is reformative and
corrective and not retributive, this Court
7 All. Manoj @ Bhorai Vs. State of U.P.
1187
considers that no accused person is
incapable of being reformed, therefore, all
measures should be applied to give them
an opportunity of reformation in order to
bring
them
in
the
social
stream-
'reformative theory of punishment' is to
be adopted and for that reason, it is
necessary to impose punishment keeping
in view the 'doctrine of proportionality'. It
appears
from
perusal
of
impugned
judgment
that
sentence
awarded
by
learned trial court for life term is very
harsh keeping in view the entirety of facts
and circumstances of the case and gravity
of offence. Hon'ble Supreme Court, as
discussed above,has held that undue
harshness should be avoided taking into
account
the
reformative
approach
underlying in criminal justice systemEight year's rigorous imprisonment and
Rs.25,000/- fine under Section 376 I.P.C
would meet the ends of justice.

As the criminal jurisprudence in our country is
reformative
and
corrective
hence
the
accused/ applicant should be given an
opportunity of reforming himself, however a
balance requires to be struck between the
nature and gravity of the offence with the
quantum of the sentence awarded and undue
sympathy should not prevail, hence sentence
reduced to 8 years w

## Text

_Characters 0–39,875 of 55,722. This is a partial read: ask again with offset=39875 for what follows._

1186 INDIAN LAW REPORTS ALLAHABAD SERIES
Beena Mishra, we quantify her fee as Rs.
35,000/- which shall be payable to her by
the Legal Services Authority forthwith.
----------
(2022)07ILR A1186
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 31.05.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Appeal No. 984 of 2015
connected with
Government Appeal No. 1774 of 2015

Manoj @ Bhorai ...Appellant
Versus
State of U.P. ...Opp. Party

Counsel for the Appellant:
Sri Sanjay Tiwari, Sri Adya Prasad Tewari, Sri
Birendra Singh, Sri M.N. Pathak, Sri Ramesh
Kumar Singh, Sri Sheo Shankar Tripathi, Sri
Pawan Kumar Vishwakarma, Sri Vijit Saxena

Counsel for the Opp. Party:
Govt. Advocate

Criminal Law- Indian Penal Code, 1872-
Section 376- Code of Criminal Procedure,
1973-
Section
154-
Delayed
First
Information Report- Section 157- Special
Report to Magistrate- There is 68 days
delay in lodging the F.I.R, but the lower
trial court did not find it unnatural or
unusual and found sufficient explanation of
the delay-If causes are not attributable to
any effort to concoct a version and the
delay
is
satisfactorily
explained
by
prosecution, no consequence shall be
attached to mere delay in lodging FIR and
the delay would not adversely affect the
case of the prosecution. Delay caused in
sending the copy of FIR to Magistrate
would also be immaterial if the prosecution
has been able to prove its case by its
reliable evidence.
Where
the
prosecution
has
satisfactorily
explained the delay in lodging the first
information report and there is nothing to
suggest concoction, of a story, then the said
delay will not adversely affect the case of the
prosecution.

Juvenile Justice (Care and Protection of
Children)
Act,
2015-
Section
94-
Determination of age of Prosecutrix - The
prosecutrix
is
the
sole
witness
of
kidnapping,
abduction
and
rape.
According
to
radiological
examination
report, she was found to be 18 years of
age, but according to her High School
Certificate her date of birth recorded is
03.05.1992, thus, she was aged about 17
years at the time of commission of crime.

As per the provisions of the juvenile Justice Act
primacy has to be given to the high school
certificate of the prosecutrix and not to the
ossification test in order to determine her age,
hence prosecutrix held to be minor on date of
occurrence.

Quantum of Punishment- Doctrine of
Proportionality- It is correct that accused
is married and family person even his
children might have been of victim's age
or similar to the age of victim. He has
committed the sexual offence upon the
victim
twice
and
this
offence
was
committed to pressurize the victim and
her family members to come on the table
of compromise. In this regard, another
criminal case has also been lodged against
the appellant, thus the accused has taken
law in his own hand and has also
interfered in administration of justice.
Therefore, an extreme lenient view cannot
be adopted in favour of the accusedappellant but since he is the only bread
earner of his family and his family and
children
are
facing
lot
of
problem,
therefore it would be expedient in the
interest of justice to reduce the sentence
to some extent awarded under Section
376 I.P.C.-Keeping in view the facts and
circumstances
of
the
case
and
also
keeping in view criminal jurisprudence in
our country which is reformative and
corrective and not retributive, this Court
7 All. Manoj @ Bhorai Vs. State of U.P.
1187
considers that no accused person is
incapable of being reformed, therefore, all
measures should be applied to give them
an opportunity of reformation in order to
bring
them
in
the
social
stream-
'reformative theory of punishment' is to
be adopted and for that reason, it is
necessary to impose punishment keeping
in view the 'doctrine of proportionality'. It
appears
from
perusal
of
impugned
judgment
that
sentence
awarded
by
learned trial court for life term is very
harsh keeping in view the entirety of facts
and circumstances of the case and gravity
of offence. Hon'ble Supreme Court, as
discussed above,has held that undue
harshness should be avoided taking into
account
the
reformative
approach
underlying in criminal justice systemEight year's rigorous imprisonment and
Rs.25,000/- fine under Section 376 I.P.C
would meet the ends of justice.

As the criminal jurisprudence in our country is
reformative
and
corrective
hence
the
accused/ applicant should be given an
opportunity of reforming himself, however a
balance requires to be struck between the
nature and gravity of the offence with the
quantum of the sentence awarded and undue
sympathy should not prevail, hence sentence
reduced to 8 years with fine. (Para 22, 24, 40,
42, 43, 44, 45, 46)

Criminal Appeal partly allowed. (E-3)

Judgements/ Case Law relied upon:-

1. Ashok Kumar Vs St. of U.P. 2012 (78) ACC
320

2. Satpal Singh Vs St. of Har. 2011 (1) C.C.S.C
185 SC

3. Mukesh Vs St. for NCT of Delhi & ors., AIR
2017 SC 2161

4. Ashok Kumar Chaudhary Vs St. of Bih., 2008
(61) ACC 972 (SC)

5. Rabindra Mahto Vs St. of Jhar., 2006 (54)
ACC 543 (SC)
6. Ravi Kumar Vs St. of Punj., 2005 (2) SCJ 505

7. St. of H.P. Vs Shree Kant Shekari, (2004) 8
SCC 153

8. Munshi Prasad Vs St. of Bih., 2002 (1) JIC
186 (SC).

9. Ravinder Kumar Vs St. of Punj., 2001 (2) JIC
981 (SC).

10. Sheo Ram Vs St. of U.P, (1998) 1 SCC 149

11. St. of Kar. Vs Moin Patel, AIR 1996 SC 3041.

12. St. of U.P. Vs Manoj Kumar Pandey, AIR
2009 SC 711 (Three Judges Bench).

13. Santosh Moolya Vs St. of Kar., 2010 5 SCC
445

14. Manoj Mishra @ Chhotkau Vs The St. of U.P
2001 0 Supreme Court (SC) 609

15. Mohd. Giasuddin Vs St. of AP, [AIR 1977 SC
1926],

16. Deo Narain Mandal Vs St. of UP, [(2004) 7
SCC 257

17. Ravada Sasikala Vs St. of A.P. AIR 2017 SC
1166

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. We have heard learned counsel for
the appellants, learned A.G.A for the State
and perused the material available on
record.

2. The present appeals have been filed
against the judgement and order dated
24.01.2015, passed by Additional Sessions
Judge/Court No. 3, Gorakhpur, by which
the accused-appellant was sentenced under
Section
376
I.P.C
with
Rigorous
Imprisonment of ten years and fine of
Rs.50,000/- out of which Rs. 25,000/-
1188 INDIAN LAW REPORTS ALLAHABAD SERIES
would
be
paid
to
the
victim
as
compensation. In default, the convict will
have to undergo simple imprisonment for
twelve months. For the offence under
Section 363 I.P.C, he was convicted and
sentenced with Rigorous Imprisonment of
one year and fine of Rs.1000/-. In default,
the convict will have to undergo simple
imprisonment for two months. For offence
under Section 366 I.P.C, he has been
convicted for rigorous imprisonment for
three years and fine of Rs.5,000/- in case of
default six months R.I. was ordered. It was
also ordered that the period spent by the
convict in custody would be adjusted in his
sentence and all the sentences shall run
concurrently.

3. Smt. Munni Devi, Smt. Phoola
Devi and Smt. Tirtha Devi summoned as
accused under Section 319 Cr.P.C, were
acquitted. Being aggrieved, the State has
preferred the appeal no. 1774 of 2015.

4. In brief, grounds of Appeal No.
1774 of 2015, is that the learned Trial Court
has given benefit of doubt or advantage to
the acquitted respondents. The case under
Section 364 is fully proved against them
but the learned Trial Court disbelieved P.W
1 & P.W 2. The order of acquittal is illegal,
unjustified and bad in the eye of law. The
learned Trial Court has not properly
appreciated the prosecution evidence and
has decided the case on the basis of
conjuncture and surmises. The impugned
judgement and order of acquittal is not
sustainable and is liable to be set aside.

5. In brief, grounds of Appeal No. 984
of 2015, are that the appeal, the accused
appellant has taken a plea that the
prosecutrix and appellant were in love with
each other and agreed to marry, but parents
of the victim did not approve of their
marriage, rather decided to marry the
victim with another person. Thereafter, she
left the house on 14.04.2009. Mother of the
victim lodged first information report
against the appellant and his family
members. The appellant and his family
members have previous enmity with the
informant/complainant,
therefore,
being
annoyed and prejudiced and on the dictates
of informant, the prosecutrix has falsely
implicated the appellant. It is a case of
consent and no opinion about the rape can
be given. As per the medical report the
victim was 18 years old at the time of
alleged incident. The F.I.R. is delayed by
68 days, which is not explained. There is no
injury in the private part of the victim and it
can be gathered that she is a consenting
party. There
are
major
and
serious
contradictions
in
the
evidences
of
prosecution witnesses. Defence proved the
enmity, and conviction is based on surmises
and conjuncture, therefore, the appeal be
allowed and impugned judgment be set
aside.

In brief, facts of the case is as
follows:-

6. In the present case, First
Information Report was got registered by
mother of the prosecutrix Smt. Ishrawati,
who is informant of the prosecutrix by way
of an application addressed to the D.I.G of
Police, Gorakhpur, in which she stated that
earlier accused-Manoj had kidnapped her
daughter. In this respect the case is
pending. The accused was pressurizing the
informant and her daughter to change their
statement and for this he had beaten the
prosecutrix and had also threatened to kill
her after kidnapping. Information in this
respect was given to the police station. On
14.04.2006 at about 16:00 p.m., when her
daughter, was going to the new house
situated near Vikas Bharati School, from
7 All. Manoj @ Bhorai Vs. State of U.P.
1189
her old house in Unaula Awwal, she
became untraceable. She was searched
everywhere but could not be found. The
informant had given a missing report
regarding the prosecutrix with the police
station but no action was taken. It was
suspected by the informant that the accused
Manoj and his family members named in
the application had kidnapped her daughter
and have killed her.

7. The duty Constable registered F.I.R
on 22.06.2009 and entered in G.D at Serial
No. 10. Investigation was handed over to
S.I
Wasim
Anwar
Khan.
During
investigation, the Investigating Officer
(I.O) recorded the statements of the
witnesses, visited the place from where the
prosecutrix was suspected to be kidnapped
and prepared site map. On 11.09.2009, the
I.O. was informed that the accused, Manoj
is bringing the victim towards the railway
station Unaula. The police party went
towards the railway station. At about 17:00
hours, a man and a girl were seen coming
towards the railway station. They were
asked to stop on the signal of informer. The
person fled away, leaving the prosecutrix of
this case, so this person could not be
arrested. On inquiry, the girl told her name
and also told the police party that the
person accompanying her was the accused -
Manoj @ Bhorai, who had kidnapped her
against her will on 14th April, when she
was going from her old house in Unaula
Awwal to new house situated near Vikas
Bharati
School. Accused
Manoj had
persuaded her and taken her with him, he
had kept her with him at different places.
Today, he was taking her to record her
statement and to meet an advocate, but was
intercepted by police. A recovery memo
was reduced into writing which was signed
by the prosecutrix, I.O. and witnesses
present, on the place of recovery.

8. The prosecutrix was medically
examined on 12.09.2009. In her internal
examination, she was found mentally fit,
pubic
hair
and
auxiliary
hair
were
developed. Both breast were developed, a
lump was found in her stomach about 12
cm/10cm size which was mobile. Her
height was 150 cm weight 48 k.gm teeth
15/15.
In
her
internal
examination
conducted with her consent, hymen was
found old torn, margins irregular, vagina
admitted two fingers easily. The mouth of
cervix was closed, and the lump was in
continuity with the cervix. She could not
tell about her last months menstruation
date. She was sent for radio-logical
examination and ultrasound examination as
well urine test. The medical examination
report was prepared by the Dr. Mintu
Kumari Sharma.

9. The Doctor, who had examined the
prosecutrix
medically,
prepared
a
supplementary report on 21.09.2009 on the
basis
of
pathological
report,
the
pathological report number 154/14/09/2009
revealed that spermatozoa was not found.
According to ultrasound report, she was
pregnant for about 19 weeks and two days.
According to the report of C.M.O, after her
radio-logical examination, her wrist joints,
knee joints and all the epiphysis were
fused, she was about 18 years of age.
According to the Doctor, no definitive
opinion about rape could be given. The
prosecutrix
was
produced
before
Magistrate
and
her
statement
under
Section164 Cr.P.C was recorded.

10. After completion of investigation,
the investigating officer filed charge-sheet
under Sections 364 & 376 I.P.C against
accused Manoj only as the names of other
accused, mentioned in the F.I.R was found
to have been falsely implicated.
1190 INDIAN LAW REPORTS ALLAHABAD SERIES

11. The Magistrate took cognizance
and committed the case to the court of
Sessions vide order dated 22.01.2010, from
where it was transferred to Additional
Sessions Judge 03rd, Gorakhpur, where
charges under Sections 364 and 376 I.P.C
was framed on date 18.05.2010 against
accused-Manoj who pleaded not guilty and
claimed trial.

12. Prosecution examined on oath, the
informant as PW 1 Smt. Ishrawati, who is
the mother of the prosecutrix, prosecution
moved an Application under Section 319
Cr.P.C. to summon other persons accused
i.e. Smt. Munni Devi, Smt. Phoola and
Smt. Tirtha, named in the F.I.R. The
application was allowed and they were also
summoned for trial vide order dated
24.05.2012. These three accused were
charged under Section 364 I.P.C vide order
dated 26.07.2013. The accused pleaded not
guilty and claimed trial.

13. The P.W 1 & PW 2 were again
examined and cross examined. Prosecution
further examined on oath, PW 3, Dr. V.P.
Singh, who deposed of conducting radiological examination of the prosecutrix and
preparing report, after X-ray of right elbow
knee and wrist of the prosecutrix.

14. P.W 4 Dr. T.N. Jha deposed about the
ultrasound examination of the prosecutrix and
stated that he had conducted the ultrasound
examination of the prosecutrix on 15.09.2009.
Fetus which was mobile, was found in her
uterus on the upper part of the placenta. There
was placental fluid in the uterus. The heartbeat
of the fetus was 142 per minute, weight 285
gms. The fetus was of about 19 weeks and two
days. He proved his report and ultrasound
examination report and also proved the
ultrasound plates as material exhibits.

15. PW-5, is the Constable clerk who
deposed and proved about registering the first
information report on the basis of an
application and making relevant entry in G.D.

16. PW-6 Dr. Mintu deposed about
medical examination of the prosecutrix and
also of preparing the examination report,
referring the prosecutrix for pathological test
and X-ray examination and ultrasound
examination as well. She also deposed and
proved the supplementary report regarding
age and on the basis of pathological report,
details of which have been mentioned earlier
in this judgment.

17. PW-7 is the Investigating Officer,
who deposed about the investigation of the
case. He accordingly proved the recovery
memo of the prosecutrix, the site plan and the
charge-sheet.

18. PW-8 P.S. Tiwari, is the Constable
clerk, who was posted in the office of D.I.G
Police, where the informant submitted her
application for registering first information
report. He accordingly deposed and has
proved the report, written by him and the
entry in the general diary regarding the
report.

19. In their statement under Section
313 Cr.P.C the accused have pleaded false
implication due to enmity. They have stated
that the witnesses of fact have deposed
under
pressure
and
also
that
the
investigation was not fair, rather it was a
paperwork done by the I.O. in office. No
evidence in defence was produced except
certified copy of a surety bond in case
number 302/08 which is admissible in
evidence being certified copy of public
document but of no use and rest of the
documents
are
photocopy
documents,
7 All. Manoj @ Bhorai Vs. State of U.P.
1191
which have not been proved. Hence are not
admissible in evidence.

20. We have heard learned counsel for
the accused-appellant, learned A.G.A. for
the State and perused the material available
on record.

21. The following documentary
evidences were produced proved and relied
by the prosecution :

Exhibit 'ka' 1 :
 Written
Tehrir by the informant Smt. Ishrawati,

who is mother of the victim.

Exhibit 'ka' 2 : Recovery
memo of the victim.

Exhibit 'ka' 3 :

Statement of the victim under Section 164

Cr.P.C.

Exhibit 'Ka' 4 : Admit-Card
of the Victim for High School Exam.

2007

Exhibit 'Ka' 5 : Registration
of Victim of Class - IX, in which

her date of birth is mentioned as
03.05.1912.

Charge-sheet.

Exhibit 'Ka' 5 : Copy of chik
F.I.R.

Exhibit 'Ka' 6 :

Radiological Report by P.W.3 Dr. V. P. Singh,

Radiologist.

Exhibit 'Ka' 7 :
Ultrasound
report by P.w. 4 Dr. T.N. Jha,

Radiologist

Exhibit 'Ka' 8 :

 Carbon
Copy of G.D, regarding registration of

case, P.W. 1.

Exhibit 'Ka' 9. :

 Medical
Examination Report by P.W 6 - Dr.

Mintu Kumari Sharma.

Exhibit
'Ka'
10
:

Supplementary medical report.

Exhibit 'Ka' 11 :
Map.

Exhibit 'Ka'12 :
Copy of G.D
regarding recovery of the victim.

Exhibit 'Ka'13 :
Entry in G.D.
regarding arrest of the accused on

25.09.2009.

Exhibit 'Ka' 14 :
 Charge-sheet.

Exhibit 'Ka' 15 : Chik F.I.R by
P.W 8.

Exhibit 'Ka' 16 : Carbon copy
G.D dated 22.06.2009, regarding

lodging F.I.R.

Exhibit 'Ka'17 : Missing
report of original G.D.

Material Exhibit 1 :
 X-ray
plate.

Material
Exhibit
2
:

Ultrasound film by P.W 4 Dr. T.N. Jha.

Material Exhibit 3 :

Ultrasound film by P.W 4 Dr. T.N. Jha.

22. There is 68 days delay in lodging
the F.I.R, but the lower trial court did not find
it unnatural or unusual and found sufficient
1192 INDIAN LAW REPORTS ALLAHABAD SERIES
explanation of the delay. According to the
informant P.W-1, she had informed the
missing of the victim to the local police, but
the police did not take any action, then she
approached the D.I.G with an application
upon which order was passed to register the
case. Therefore, her F.I.R was lodged after 68
days of the incident. The lower court has held
that in case of kidnapping or rape of a girl,
the family members hesitate to approach the
Police at the first instance because of the
stigma prestige and honour of the family
involved. Firstly, they try to search the victim
and when they fail and no other option is left
then, approaching the authority is the last
option. In this respect the lower court has
referred the ruling in Ashok Kumar Vs. State
of U.P. 2012 (78) ACC 320 - Satpal Singh
Vs. State of Haryana 2011 (1) C.C.S.C 185
Supreme
Court,
which
support
the
observations of the lower court and the
explanation given by the prosecution.

Following judicial precedents are
also relevant in which principle regarding
delay in lodging F.I.R has been propounded
and have been held that if causes are not
attributable to any effort to concoct a version
and the delay is satisfactorily explained by
prosecution,
no
consequence
shall
be
attached to mere delay in lodging FIR and
the delay would not adversely affect the case
of the prosecution. Delay caused in sending
the copy of FIR to Magistrate would also be
immaterial if the prosecution has been able to
prove its case by its reliable evidence :
(Refer)

1a. Mukesh Vs. State for NCT of
Delhi & Others, AIR 2017 SC 2161 (ThreeJudge bench).

1. Ashok Kumar Chaudhary
Vs. State of Bihar, 2008 (61) ACC 972
(SC).

2. Rabindra Mahto Vs. State of
Jharkhand, 2006 (54) ACC 543 (SC).

3. Ravi Kumar Vs. State of
Punjab, 2005 (2) SCJ 505.

4. State of H.P. Vs. Shree Kant
Shekari, (2004) 8 SCC 153.

5. Munshi Prasad Vs. State of
Bihar, 2002 (1) JIC 186 (SC).

6. Ravinder Kumar Vs. State of
Punjab, 2001 (2) JIC 981 (SC).

7. Sheo Ram Vs. State of U.P,
(1998) 1 SCC 149

8. State of Karnataka Vs. Moin
Patel, AIR 1996 SC 3041.

In the following cases the Hon'ble
Supreme Court has held that normal rule
that prosecution has to explain delay and
lack of prejudice does not apply per se to
rape cases

(1). State of U.P. Vs. Manoj
Kumar Pandey, AIR 2009 SC 711 (Three
Judges Bench).

(2). Santosh Moolya Vs. State of
Karnataka, 2010 5 SCC 445.

23. From the prosecution evidence,
why this crime was committed has also
became clear that accused Manoj had
earlier kidnapped the prosecutrix and the
case of kidnapping was pending against
him and he was mounting pressure on the
prosecutrix and the witnesses to give
statement in his favour; and when the
prosecutrix and her mother refused then the
prosecutrix was kidnapped, abducted and
7 All. Manoj @ Bhorai Vs. State of U.P.
1193
raped by the accused-appellant to malign
the honour of the victim, informant and her
family.

24. In this case, the prosecutrix is the
sole witness of kidnapping, abduction and
rape.
According
to
radiological
examination report, she was found to be 18
years of age, but according to her High
School Certificate her date of birth
recorded is 03.05.1992, thus, she was aged
about 17 years at the time of commission of
crime. According to C.M.O. Report, she
was above 18 years old. It is not proved
from any evidence that she was above 18
years of age and was major at the time of
commission of crime. According to the
Juvenile Justice Act & Rules, the medical
report shall be considered in the last if no
other evidence is available regarding her
date of birth. The lower court has held that
the prosecutrix is aged about 17 years at the
time of alleged incident. According to the
accused-appellant,
if
the
victim
was
kidnapped then why did she not even
attempt to seek help during travelling to
public places. In this regard, the lower
court has given a plausible explanation that
the victim was already kidnapped by
accused-appellant earlier, therefore, she
could have been in fear that she could not
raise alarm and she might have accepted
her fate in the hand of accused appellant.
The finding reached by the lower court
appears to be plausible and correct and as
the girl belongs to village/rural background
and she was earlier harassed by the
accused, therefore, she could not dare to
alert public during the course of travelling.
It is also noteworthy that when the victim
was recovered from the railway station
Unaula, the accused appellant was also
sitting with him, who fled away from the
place and could not be arrested on the spot.
From the medical evidence, it is also
established
that
the
victim
became
pregnant, which was the result of rape by
the appellant-accused while she was
unmarried.

25. The informant - P.W. 1 -
Ishrawati, mother of the prosecutrix has
clearly deposed that the accused and his
family members were mounting pressure to
compromise the earlier case of kidnapping
of the victim by the accused, which is
already pending in the Court and on refusal
they had beaten her, against which a
criminal case has been lodged.

26. P.W. 2 - Victim, prosecutrix has
deposed that on 14.04.2009, at about 04:00
p.m. when she was coming to her new
house from her old house then Smt. Phoola
and Smt. Tirtha met her and asked her to sit
in tempo, as they shall drop her at her
house. On route, the accused and his wife
Munni Devi joined them in tempo. When
the tempo reached near victim's house, they
did not drop her rather she was carried at
the house of sister of the accused at
Kampiarganj, where the accused and her
sister locked her in a room and in the night
accused
forcibly
raped
her. Accused
continuously threaten her that if she will
not compromise the case, the victim and
her
sole
brother
will
be
murdered.
According to the victim, the accused
appellant kidnapped her and kept her in
confinement for four months and 15 days.
Thereafter, she promised to compromise if
she is set free and brought to her house. On
the way, when the victim and accused were
coming to the house and reached Unaula
railway station, she started crying then
people caught the accused and approached
the police, but before reaching the police,
the accused ran away. Thereafter, she was
taken by lady/female Police Officer at lady
Police Station where rest formalities were
1194 INDIAN LAW REPORTS ALLAHABAD SERIES
completed. In her deposition, she has also
proved her statement under Section 164
Cr.P.C. As per the statement of the
prosecutrix, Lilawati sister of the accused
appellant kept her in a house for about four
and half months, but the police and
Investigating Officer have not made Smt.
Lilawati accused under Section 368 I.P.C.
Even application under Section 319 Cr.P.C
was not moved. An application under
Section 319 Cr.P.C was moved, against
Smt. Tirtha Devi, Smt. Munni Devi and
Smt. Phula Devi only, who are arrayed as
co-accused. Smt. Munni Devi is the wife of
the accused appellant. According to the
statement under Section 313 Cr.P.C accused
appellant - Manoj @ Bhorai was aged
about 38 years on 19.04.2014, and was
father of 5 -6 children. He was a family
person and if he was a responsible family
and social person, he ought to have known
about his moral duties and followed the
social norms. It is noteworthy that the
victim was aged about 17 years.

27. Before the incident of this case,
the accused Manoj @ Bhorai was also
named accused in Case Crime No. 1071/07,
u/s 363, 364, 366, 376 & 506 I.P.C. for
kidnapping, abducting and raping this
victim with other persons.

28. On the basis of the facts
mentioned in appeal, the guilt of the
accused is proved. It is noteworthy that the
appellant was aged about 38 years and
father of 5 to 6 children at the time of
commission of crime and that the victim
P.W.-2, Sandhya was a minor girl of 17
years. She had not consented ever for
marriage
and
cohabitation
with
the
accused.

29. In ground nos. 7, 9 & 11 of the
appeal, which is quoted below, the
appellant has confessed the guilt:

"7. Because, the appellant and
Sandhya-prosecutrix love to each other
and both of them agreed to marriage for
their life peacefully, but the parents of
Sandhya were not ready to solemnize the
marriage of Sandhya and when the
parents decided to marry her daughter,
then her daughter Sandhya went with
some person, they left the house without
informing to the informant on 14.04.2009
and the mother of the prosecutrix lodged
the F.I.R against the appellant and his
family members.

9.
Because,
the
medical
examination shows that it is a case of
consent and there is no injury on private
parts of the body and no opinion about the
rape can be given and according to
medical report, the victim Sandhya was
major. She was 18 years old at the time of
incident.

11. Because, from the medial
report it is clear that the private parts were
well developed and there is no injury on
the private parts of body and it can be said
that she is consented girl."

The assertion of the accused has
extracted above prove his guilt and
commission of crime.

It would be proper to discuss the
relevant provisions regarding kidnapping,
abduction and rape as enumerated in I.P.C.

Section 359. Kidnapping and
kidnapping of two kinds, kidnapping from
India
and
kidnapping
from
lawful
guardianship.

In this case the matter relates to
kidnapping from the lawful guardianship
7 All. Manoj @ Bhorai Vs. State of U.P.
1195
about which a separate section 361 I.P.C
has been enumerated, which is as under:

Section 361 in The Indian Penal
Code;

361. Kidnapping from lawful
guardianship.--Whoever takes or entices
any minor under 1[sixteen] years of age if
a male, or under 2[eighteen] years of age if
a female, or any person of unsound mind,
out of the keeping of the lawful guardian of
such minor or person of unsound mind,
without the consent of such guardian, is
said to kidnap such minor or person from
lawful
guardianship.
Explanation.--The
words "lawful guardian" in this section
include any person lawfully entrusted with
the care or custody of such minor or other
person."

According to this Section, if a
female is under 18 years of age and she is
taken out of the lawful guardianship of her
guardians without the consent is said to
have kidnapped such minor or person from
lawful guardianship.

Under Section 363 I.P.C.

Kidnapping
from
lawful
guardianship
is
punishable
offence.
According to which, for the offence of
kidnapping from lawful guardianship the
accused
shall
be
punished
with
imprisonment of either description for a
term which may extend to seven years, and
shall also be liable to fine.

"Section 366 of The Indian
Penal Code

This Section deals with the
punishment for kidnapping, abducting or
inducing woman to compel her marriage,
etc.--Whoever kidnaps or abducts any
woman with intent that she may be
compelled, or knowing it to be likely that
she will be compelled, to marry any
person against her will, or in order that
she may be forced or seduced to illicit
intercourse, or knowing it to be likely that
she will be forced or seduced to illicit
intercourse, shall be punished with
imprisonment of either description for a
term which may extend to ten years, and
shall also be liable to fine; 1[and
whoever,
by
means
of
criminal
intimidation as defined in this Code or of
abuse of authority or any other method of
compulsion, induces any woman to go
from any place with intent that she may
be, or knowing that it is likely that she
will be, forced or seduced to illicit
intercourse with another person shall be
punishable as aforesaid]."

Section 375 relates to rape:-

A man is said to commit "rape" if
he-

(a) penetrates his penis, to any
extent, into the vagina, mouth, urethra or
anus of a woman or makes her to do so
with him or any other person; or

(b) inserts, to any extent, any
object or a part of the body, not being the
penis, into the vagina, the urethra or anus
of a woman or makes her to do so with him
or any other persons; or

(c) manipulates any part of the
body of a woman so as to cause penetration
into the vagina, urethra, anus or any part of
body of such woman or makes her to do so
with him or any other persons; or
1196 INDIAN LAW REPORTS ALLAHABAD SERIES

(d) applies his mouth to the
vagina, anus, urethra of a woman or makes
her to do so with him or any other person.

Under the circumstances falling
under
any
of
the
following
seven
descriptions:

First. - Against her will.

Secondly. - Without her consent.

Thirdly. - With her consent, when
her consent has been obtained by putting
her or any person in whom she is
interested, in fear of death or of hurt.

Fourthly.- With her consent,
when the man knows that he is not her
husband and that her consent is given
because she believes that he is another man
to whom she is or believes herself to be
lawfully married.

Fifthly. - With her consent when,
at the time of giving such consent, by
reason
of
unsoundness
of
mind
or
intoxication or the administration by him
personally or thorough another of any
stupefying or unwholesome substance, she
is unable to understand the nature and
consequences of that to which she gives
consent.

Sixthly. - With or without her consent,
when she is under eighteen years of age.

Seventhly. - When she is unable
to communicate consent.

Explanation 1.- For the purposes
of this section, "vagina" shall also be
include labia majora.

Explanation 2.- Consent means an
unequivocal voluntary agreement when the
woman by words, gestures or any form of
verbal
or
non-verbal
communication,
communicates willingness to participate in
the specific sexual act:

Provided that a woman who does
not physically resist to the act of penetration
shall not by the reason only to that fact, be
regarded as consenting to the sexual activity.

Exception
1.-
A
medical
procedure
or
intervention
shall
not
constitute rape.

Exception 2. - Sexual intercourse
or sexual acts by a man with his own wife,
the wife not being under fifteen years of
age, is not rape.]

Section
376
relates
to
Punishment for rape:-

(1) Whoever, except in the cases
provided for in sub-section (2), commits rape,
shall be punished with rigorous imprisonment
of either description for a term which1[shall
not be less than ten years, but which may
extend to imprisonment for life, and shall also
be liable to fine].

(2) Whoever,--

(a) being a police officer, commits
rape--

(i) within the limits of the police
station to which such police officer is
appointed; or

(ii) in the premises of any station
house; or
7 All. Manoj @ Bhorai Vs. State of U.P.
1197

(iii) on a woman in such police
officer's custody or in the custody of a
police officer subordinate to such police
officer; or

(b) being a public servant, commits
rape on a woman in such public servant's
custody or in the custody of a public servant
subordinate to such public servant; or

(c) being a member of the armed
forces deployed in an area by the Central or a
State Government commits rape in such area;
or

(d) being on the management or on
the staff of a jail, remand home or other place
of custody established by or under any law for
the time being in force or of a women's or
children's institution, commits rape on any
inmate of such jail, remand home, place or
institution; or

(e) being on the management or on
the staff of a hospital, commits rape on a
woman in that hospital; or

(f) being a relative, guardian or
teacher of, or a person in a position of trust or
authority towards the woman, commits rape
on such woman; or

(g) commits rape during communal
or sectarian violence; or

(h) commits rape on a woman
knowing her to be pregnant; or

(j) commits rape, on a woman
incapable of giving consent; or

(k) being in a position of control
or dominance over a woman, commits rape
on such woman; or

(i) commits rape on a woman
suffering
from
mental
or
physical
disability; or

(m) while committing rape causes
grievous bodily harm
or
maims
or
disfigures or endangers the life of a
woman; or

(n) commits rape repeatedly on
the same woman, shall be punished with
rigorous imprisonment for a term which
shall not be less than ten years, but which
may extend to imprisonment for life, which
shall mean imprisonment for the remainder
of that person's natural life, and shall also
be liable to fine.

Explanation.--For the purposes
of this sub-section,--

(a) "armed forces" means the
naval, military and air forces and includes
any
member
of
the Armed
Forces
constituted under any law for the time
being in force, including the paramilitary
forces and any auxiliary forces that are
under
the
control
of
the
Central
Government or the State Government;

(b) "hospital" means the precincts
of the hospital and includes the precincts of
any institution for the reception and
treatment of persons during convalescence
or of persons requiring medical attention or
rehabilitation;

(c) "police officer" shall have the
same meaning as assigned to the expression
"police" under the Police Act, 1861 (5 of
1861);

(d)
"women's
or
children's
institution" means an institution, whether
1198 INDIAN LAW REPORTS ALLAHABAD SERIES
called an orphanage or a home for
neglected women or children or a widow's
home or an institution called by any other
name, which is established and maintained
for the reception and care of women or
children.

1[(3) Whoever, commits rape on
a woman under sixteen years of age shall
be punished with rigorous imprisonment
for a term which shall not be less than
twenty years, but which may extend to
imprisonment for life, which shall mean
imprisonment for the remainder of that
person's natural life, and shall also be liable
to fine:

Provided that such fine shall be
just and reasonable to meet the medical
expenses and rehabilitation of the victim:

Provided further that any fine
imposed under this sub-section shall be
paid to the victim.]"

30. It is established from the aforesaid
discussions that the prosecutrix was aged
about 17 years at the time of commission of
crime. It is also established that accused
wanted to settle and compromise the
previous
offence
as
alleged
to
be
committed by him in 2007, for which an
F.I.R being in Case Crime No. 1071 of
2007, under Sections 363, 364, 366, 376 &
506 I.P.C was lodged, which was pending
and to settle the aforementioned case, the
accused-appellant committed this offence
again and the life of prosecutrix was made
miserable and troublesome.

31. P.W 1 - Mother of the victim, P.W
2 - Victim has proved the manner as to
when and from where she was kidnapped
and taken away to Gorakhpur. It is
established
that
the
victim
was
an
unmarried girl, who had no physical and
sexual relation with any other person
except accused. When she was recovered
from the Railway Station Unaula and was
medically examined, she was found to be
pregnant for 19 weeks two days foetus.
Earlier the grounds of appeal taken by the
appellant in paragraphs no. 7, 9 and 11 has
been quoted, which also proved the guilt of
the accused has not been established that
the victim was a consenting party and
physical relation was established by the
accused with her after obtaining her
consent, thus, a minor girl was raped and
was impregnated by the accused. From the
grounds taken in the appeal, it reveals that
accused impliedly admitted his guilt.

32. The accused is so immoral person
that he kidnapped, abducted and raped a
girl of 17 years of age while having own
children of similar age group. Accused has
a legally wedded wife and without
divorcing her, in the memo of appeal he
states that he loves the victim and both love
each other and wanted to marry. He made a
minor girl pregnant and ruined her future,
for which he has no regrets. It is not proved
that victim became pregnant from the
contact of any other person than the
accused. Accused stated that both love each
other and being a consenting party, the
victim had co-habitated with him.

33. In ground 9 of the appeal, accused
has stated that there was no injury on the
private part of the victim as she was a
consenting party. In evidence victim has
not accepted that she was a consenting
party. She was under the control of
accused, her body was used for the
fulfilment of desire and lust of the accused.
A minor girl of about 17 years of age was
made pregnant by the accused, who was 38
yeas of age and was having a legally
7 All. Manoj @ Bhorai Vs. State of U.P.
1199
wedded wife and a father of 5 - 6 children.
The prosecution has proved the contents of
kidnapping, abduction and forceful rape by
the accused. Had the victim been the
consenting party, no case would have been
filed about the earlier incident of 2007.

34. Being aggrieved, against the
acquittal, the State of U.P. has preferred
Appeal No. 1774 of 2015 against Smt.
Tirtha, Smt. Munni Devi and Smt. Phula
Devi, who were summoned under Section
319 Cr.P.C and these lady accused persons
were charged under Section 364 I.P.C. The
lower court has discussed at page no. 11 in
the judgment as to why the prosecution
case against these lady accused persons is
not proved.