# Nazeer v. State of U.P

- **Citation:** (2020) 7 ILRA 25
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-16
- **Case number:** Criminal Appeal No. 1886 of 2017
- **Bench:** Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nazeer-v-state-of-u-p-45876
- **Pages:** 19

## Headnote

Criminal Law - Indian Penal Code, 1860-
Section 375/ 376, POCSO Act 2012-
Section 3 & 4 - Rape- Consent - If sexual
intercourse is committed by any person with any
woman who is under eighteen years of age
even with her consent, the prosecution has to
prove only the sexual intercourse and such
intercourse shall be treated as rape and if such
woman is above eighteen years of age, the
prosecution has to prove that such sexual
intercourse was committed without free consent
or will of that woman as required in section 375
IPC.

Where sexual intercourse is committed with a
minor even with her consent, the same will
constitute the offence of rape and if sexual
intercourse is committed with a major without
her consent then that too will amount to an
offence of rape.

Civil Law - Juvenile Justice (Care and
Protection of Children) Rules, 2007 - Rule
12- Determination of victim's age- Neither Code
nor IPC or POCSO Act 2012 provides procedure
for determination of victim's age. Rule 12 of the
Juvenile
Justice
(Care
and
Protection
of
Children) Rules, 2007 (hereinafter referred to as
the '2007 Rules') framed under Section 67 of
the Juvenile Justice (Care and Protection of
Children) Act 2000 provides procedure for
determination of juvenile's age.

Since neither the IPC, the Cr.Pc or POCSO Act
provide for the determination of age of a victim,
hence the same can be determined as per Rule
12 of the Juvenile Justice (Care and Protection
of Children) Rules, 2007.

Civil Law - Juvenile Justice (Care and
Protection of Children) Rules, 2007 - Oral
evidence
or
any
other
document
for
determination of age is impermissible - Trial
Court
while
discarding
medical
evidence
produced by the prosecution, has relied on the
ocular testimony of (P.W.-1) and of victim
(P.W.-2) who had stated that victim's age, at
the time of occurrence was about to sixteen
years and also relied on the educational
document (photocopy of Mark sheet, issued by
Principal, Junior High School), collected by
Investigating Officer-Thus document produced
by the prosecution is neither proved nor
relevant to prove the DoB of the victim.
Preparation of this document one day prior to
the
recovery
further
creates
doubts
in
prosecution story. The prosecution has failed to
produce a document, as required by 2007 Rules
(supra) and also in view of law laid down by
Supreme Court in Jarnail Singh (supra) and
Rajak Mohammad (supra) to prove the DoB of
victim.

The provisions of Rule 12 of the 2007 Rules are
mandatory and have to be strictly complied with
for the purpose of determination of age of the
victim and neither any oral evidence or any
other document, not proved in accordance with
law, can be relied for determination of age.
Hence, no reliance can be placed upon the
photocopy of the mark sheet of class eight of
the victim produced by the investigating officer
which was not proved in accordance with law.

Civil Law - Juvenile Justice (Care and
Protection of Children) Rules, 2007 -
26 INDIAN LAW REPORTS ALLAHABAD SERIES
Medical Opinion regarding age- May vary from
person to person- Consideration of medical
opinion regarding age of any person, based on
medical and radiological evidence cannot be
treated accurate and exact. Such determination
of age by doctor may vary in view of race,
gender, geographical area, nutritional status
and other factors like colour of pubic and armpit
hair, development of breast and other changes
in the body of the victim. Such variation may be
of one or two year of either side.

Medical opinion cannot conclusively determine
the age of the victim and the same may vary
from person to person on basis of biological
factors.

In rape case only on the account of minor
contradictions in prosecution evidence, delay in
FIR, non examination of independent witnesses
and delay in medical examination of victim,
prosecution case can not be thrown out and
prosecution can succeed only on the testimony
of victim, if her statement is unblemished and
relia

## Text

_Characters 0–39,870 of 65,803. This is a partial read: ask again with offset=39870 for what follows._

7 All. Nazeer Vs. State of U.P.
25

32. Registry is directed to send a copy
of this order and original record to the court
concerned for compliance.
----------
(2020)07ILR A25
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.06.2020

BEFORE

THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 1886 of 2017

Nazeer ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Anjali Dubey, Rajiv Mishra, Rehan Ahamad
Siddiqui, Soniya Mishra

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860-
Section 375/ 376, POCSO Act 2012-
Section 3 & 4 - Rape- Consent - If sexual
intercourse is committed by any person with any
woman who is under eighteen years of age
even with her consent, the prosecution has to
prove only the sexual intercourse and such
intercourse shall be treated as rape and if such
woman is above eighteen years of age, the
prosecution has to prove that such sexual
intercourse was committed without free consent
or will of that woman as required in section 375
IPC.

Where sexual intercourse is committed with a
minor even with her consent, the same will
constitute the offence of rape and if sexual
intercourse is committed with a major without
her consent then that too will amount to an
offence of rape.

Civil Law - Juvenile Justice (Care and
Protection of Children) Rules, 2007 - Rule
12- Determination of victim's age- Neither Code
nor IPC or POCSO Act 2012 provides procedure
for determination of victim's age. Rule 12 of the
Juvenile
Justice
(Care
and
Protection
of
Children) Rules, 2007 (hereinafter referred to as
the '2007 Rules') framed under Section 67 of
the Juvenile Justice (Care and Protection of
Children) Act 2000 provides procedure for
determination of juvenile's age.

Since neither the IPC, the Cr.Pc or POCSO Act
provide for the determination of age of a victim,
hence the same can be determined as per Rule
12 of the Juvenile Justice (Care and Protection
of Children) Rules, 2007.

Civil Law - Juvenile Justice (Care and
Protection of Children) Rules, 2007 - Oral
evidence
or
any
other
document
for
determination of age is impermissible - Trial
Court
while
discarding
medical
evidence
produced by the prosecution, has relied on the
ocular testimony of (P.W.-1) and of victim
(P.W.-2) who had stated that victim's age, at
the time of occurrence was about to sixteen
years and also relied on the educational
document (photocopy of Mark sheet, issued by
Principal, Junior High School), collected by
Investigating Officer-Thus document produced
by the prosecution is neither proved nor
relevant to prove the DoB of the victim.
Preparation of this document one day prior to
the
recovery
further
creates
doubts
in
prosecution story. The prosecution has failed to
produce a document, as required by 2007 Rules
(supra) and also in view of law laid down by
Supreme Court in Jarnail Singh (supra) and
Rajak Mohammad (supra) to prove the DoB of
victim.

The provisions of Rule 12 of the 2007 Rules are
mandatory and have to be strictly complied with
for the purpose of determination of age of the
victim and neither any oral evidence or any
other document, not proved in accordance with
law, can be relied for determination of age.
Hence, no reliance can be placed upon the
photocopy of the mark sheet of class eight of
the victim produced by the investigating officer
which was not proved in accordance with law.

Civil Law - Juvenile Justice (Care and
Protection of Children) Rules, 2007 -
26 INDIAN LAW REPORTS ALLAHABAD SERIES
Medical Opinion regarding age- May vary from
person to person- Consideration of medical
opinion regarding age of any person, based on
medical and radiological evidence cannot be
treated accurate and exact. Such determination
of age by doctor may vary in view of race,
gender, geographical area, nutritional status
and other factors like colour of pubic and armpit
hair, development of breast and other changes
in the body of the victim. Such variation may be
of one or two year of either side.

Medical opinion cannot conclusively determine
the age of the victim and the same may vary
from person to person on basis of biological
factors.

In rape case only on the account of minor
contradictions in prosecution evidence, delay in
FIR, non examination of independent witnesses
and delay in medical examination of victim,
prosecution case can not be thrown out and
prosecution can succeed only on the testimony
of victim, if her statement is unblemished and
reliable. Prosecution case is not supported by
the medical evidence rather it is based only on
the ocular testimony of victim. Prosecution has
not proved or produced the statement of victim
recorded by the Magistrate under Section 164 of
the Code.Victim's admission that her statement
under Section 161 of the Code was recorded
under threat has further made the prosecution
story unreliable, statement of sole eyewitness,
victim (P.W.-2), is contradictory and not reliable,
she was more than eighteen years at the time
of occurrence, prosecution case is not supported
by the medical evidence, FIR was lodged by
P.W.-1 not only by delay of more than three
days but its contents are contradictory to the
prosecution story, prosecution has suppressed
the important evidence and also withheld
important witnesses.

Although the prosecution can bring home the
offence of rape upon the sole testimony of the
prosecutrix but the same has to be reliable and
creditworthy but where the oral evidence is
contradictory and not corroborated by medical
evidence, FIR and other evidence, then the
same cannot be held to be reliable for proving
the offence of rape.
 (Para 24, 27, 28, 29, 30, 33, 38)

Criminal appeal allowed. (E-3)

Case law relied upon/ Discussed: -

1. Jarnail Singh Vs St. of Har. (2013) 7 SCC 263

2. Rajak Mohammad Vs St. of H.P. (2018) 3
SCC (Cri.) 753

3. Jaya Mala Vs Home Secy. J & K & ors. AIR
(1982) SC 1297

4. Santosh Prasad @ Santosh Kumar Vs St. of
Bih. AIR (2020) SC 985

(Delivered by Hon'ble Virendra Kumar
Srivastava, J.)

1. This Criminal Appeal, under
Section 383 of the Code of Criminal
Procedure 1973 (hereinafter referred to as
''Code'), has been filed by the accusedappellant Nazeer (hereinafter referred to as
''appellant') through Jail Superintendent,
Kheri, against the judgment and order dated
07.09.2017, passed by the Additional
District and Sessions Judge, Court No.2,
Lakhimpur-Kheri,
in
Criminal
Case
(Special Session Trial) No.04 of 2015
(State of U.P. vs. Nazeer), arising out of
Case Crime No.993 of 2014 under Sections
363, 366, 376 IPC, Section 3 (2) (5)
Prevention of SC/ST of Atrocities Act,
1989 (hereinafter referred to as 'SC/ST Act)
and Section 3⁄4 Prevention of Children From
Sexual Offence Act, 2012 (hereinafter
referred to as 'POCSO Act'), Police Station
Nighasan,
District
Lakhimpur-Kheri,
whereby the appellant has been convicted
and sentenced for seven years rigorous
imprisonment and fine of Rs.7000/- for
offence under Section 363 IPC, for offence
under section 366 IPC for ten years
rigorous
imprisonment
with
fine
of
Rs.10,000/- and for offence under Section
376 IPC read with 3⁄4 POCSO Act ten years
rigorous
imprisonment
with
fine
of
7 All. Nazeer Vs. State of U.P.
27
Rs.15,000/- with further direction that all
the sentences shall run concurrently and 3⁄4
of total fine shall be payable to the victim.
It has further been directed that appellant
has to undergo four months rigorous
imprisonment in default of payment of fine
for offence under Section 363 IPC, five
months rigorous imprisonment, in default
of payment of fine for offence under
Section 366 IPC and seven months rigorous
imprisonment in default of payment of fine
for offence under Section 376 IPC read
with 3⁄4 POCSO Act with further direction
that period of detention already undergone
in jail shall be set off in aforesaid
sentences.

2. The prosecution case, in brief, is that
the victim (P.W.-2), daughter of Sarju Prasad,
(P.W.-1),
resident
of
village
Dakherwa
Chauraha, Police Station Nighasan, District
Lakhimpur Kheri, was student of Class Xth of
Kanti Devi Intermediate College, Lakhimpur.
On 03.12.2014 at about 9:00 a.m., she was
going to her college to take six monthly
examination. As she was on the way to her
college, appellant Nazeer, who was working as
servant in her house, along with two other
person, kidnapped her on the point of knife. A
written complaint dated 05.12.2014 (Ex.Ka-1)
was lodged by Sarju Prasad (P.W.-1) at Police
Station Nighasan at 14:40 p.m. on 06.12.2014
with further allegation that he had apprehension
that her daughter would be raped and murdered.
It was further stated in complaint (Ex.Ka-1) that
the
whole
occurrence
was
within
the
knowledge of appellant's brothers Zibrail,
Wazir, Bushir, Israil and Rafiq and Wazir and
Zibrail had advised him (P.W.-1) not to initiate
any criminal proceedings as his daughter would
be handed over till 8:00 a.m. on 05.12.2014.

3. On the aforesaid complaint (Ex.Ka1), chik report (Ex.Ka-5) was prepared,
information was entered in General Diary
(Ex.Ka-6), Case Crime No.993 of 2014
under Sections 363, 366 IPC and Section 3
(1) (10) SC/ST Act was registered against
appellant Nazeer and two unknown persons
and the investigation of the case was
entrusted to Deputy Superintendent of
Police (In short 'Dy.S.P.') Ram Asrey (not
examined) who visited the place of
occurrence and prepared sight plan (Ex.Ka
9).

4. During investigation, victim (P.W.-2)
was recovered and appellant Nazeer was also
arrested on 09.12.2014 at about 5:40 p.m. by
Station House Officer (In short 'SHO') Ram
Kumar Yadav (not examined) accompanied
with Constable 285 Kamlesh Kumar, (not
examined) lady Constable 758 Shama Parveen
(not examined), in the presence of Sarju Prasad
(P.W.-1) and his wife Smt. Anita Devi (victim's
mother) (not examined) near Bus Station
Paliya, Police Station Nighasan and recovery
memo (Ex.Ka-10) was prepared by S.H.O.
Ram Kumar Yadav and both the Victim (P.W.-
2) and appellant Nazeer were sent for medical
examination who were medically examined on
same day. Victim (P.W.-2) was examined by
Dr. Pushplata (P.W.-4) who after examination,
prepared medico-legal examination report
(Ex.Ka-3). She (P.W.-2) was referred to
Radiological Department for X-ray of her right
knee, wrist and elbow joint in order to find out
her
radiological
age.
The
radiological
examination of victim was conducted under
supervision of Dr. V. K. Verma (P.W.-3) on
10.12.2014 and on the basis of X-ray plate
(Material Ex.Ka-1) X-ray report (Ex.Ka-2) was
prepared. In medical examination report (not
proved by prosecution) appellant's age was
noted as seventeen years and no injury was
found either on his body or his genital organs.

5. Victim's (P.W.-2) vaginal smear
and cervical smear was also sent to
Pathology Department, District Hospital,
28 INDIAN LAW REPORTS ALLAHABAD SERIES
Kheri, to find out the spermatozoa; but
according to report of pathologist no
spermatozoa was seen either dead or alive.

6.

Meanwhile,
on
15.12.2014,
investigation was transferred to Dy.S.P.
Mohd. Ibrahim (P.W.-6) who produced the
victim before the Judicial Magistrate, Kheri
on 17.12.2014, her statement under Section
164 of the Code was recorded and after
recording of her statement under Section
164 of the Code, she was handed over to
her father (P.W.-1) on 18.12.2014.

7. After investigation, charge sheet
(Ex.Ka-8) under Sections 363, 366, 376
IPC, 3 (2) (5) SC/ST Act and 3⁄4 POCSO
Act, 2012 was filed against the appellant
Nazeer before the trial Court who took
cognizance of the case.

8. Learned counsel for both the
parties were heard on the point of charges.
Trial Court framed charges for offences
under Sections 363, 366, 376 IPC, 3 (2) (5)
SC/ST Act and 3⁄4 POCSO Act, 2012 from
which the appellant denied and claimed for
trial.

9. Prosecution in order to prove its
case, produced Sarju Prasad (P.W.-1),
victim (P.W.-2), Dr. V.K. Verma (P.W.-3),
Dr. Pushplata (P.W.-4), Head Constable
Bhupendra Bahadur Singh (P.W.-5) and
Mohd. Ibrahim (P.W.-6), wherein Sarju
Prasad (P.W.-1) and Victim (P.W.-2) are
witnesses of fact and rest are formal
witnesses.

10. After conclusion of prosecution
evidence, appellant was examined under
Section 313 of the Code wherein he denied
the prosecution story and statement of
witnesses and stated that he has been
falsely implicated due to previous enmity.
The learned trial Court after due hearing to
both the parties and considering the
evidence and material available on record
convicted and sentenced the appellant as
above vide impugned judgment and order.
Aggrieved by the said judgment and order,
the appellant has preferred this appeal.

11. Heard Ms. Soniya Mishra and
Shri Rajiv Mishra, learned counsels for the
appellant and Shri Aniruddh Singh, learned
AGA-I for the State through video
conferencing and perused the record.

12. Learned counsel for the appellant
has submitted that the appellant who was
servant of Sarju Prasad (P.W.1) is innocent
and has been falsely implicated due to a
dispute arose regarding wages. Learned
counsel further submitted that victim was
aged about more than 18 years. She herself
fell into love with the appellant and being
consenting party she eloped with the
appellant aged about 17 years. He further
submitted that victim in her statement
under Section 164 of the Code has not
stated regarding any resistance made by her
at the time of occurrence whereas her
statement was recorded after 7-8 days of
her recovery. Learned counsel further
submitted that in medical examination
neither any symptom of rape nor any injury
was found on any part of victim's body.
Learned counsel further submitted that the
age of victim was not proved by the
prosecution and neither any proof of birth
certificate was filed nor any extract of
Scholar Register was produced by the
prosecution before the trial Court or
authority/Principal issuing mark-sheet (age
proof) as alleged by the prosecution
whereas
according
to
medico-legal
examination, the victim at the time of
examination was aged about 18 years who
according to variation of age as in the light
7 All. Nazeer Vs. State of U.P.
29
of well settled principle of medical science,
may be up to 20 years. Learned counsel
further submitted that investigation was not
properly conducted and prosecution has
suppressed the material evidence during
trial. Learned counsel further submitted
that prosecution has neither examined any
independent witnesses nor the police
witnesses who recovered the victim.
Learned counsel further submitted that FIR
was
lodged
after
considerable
delay
without any explanation ; Suraj Prasad
(P.W.-1) is not an eye witness of the
occurrence whereas the statement of victim
(P.W.-2)
is
self-contradictory,
untrustworthy
and
not
supported
by
medical evidence. Learned counsel further
submitted that the trial Court has failed to
consider and appreciate the evidence of
prosecution in view of settled principle of
law. The impugned judgment and order of
the trial Court is illegal and unjustified
which is liable to be set aside and appeal be
allowed.

13.

Per
contra,
learned
AGA
vehemently opposing the submission of
learned counsel for the appellant has
submitted that prosecution has succeeded to
prove that the victim was below 16 years at
the time of occurrence. Learned AGA further
submitted
that
there
is
no
material
contradiction between medical and ocular
evidence and since the victim's medico-legal
examination was conducted after 24 hours,
non-presence of injury or spermatozoa on
private parts of the victim cannot be held as
decisive factor for offence of rape. Learned
AGA further submitted that sole testimony of
victim is trustworthy and reliable and is
sufficient for conviction of the appellant.
Learned AGA further submitted that the
judgment of trial Court is well discussed, well
reasoned, it requires no interference and the
appeal is liable to be dismissed.

14. I have considered the rival
submissions of both the parties and perused
the record.

15. Sarju Prasad (P.W.-1), informant
supporting the prosecution story, has stated
that at the time of occurrence at about 9:00
a.m. in the morning , his daughter (P.W.-2),
aged about 16 years, student of Class Xth,
was going to Kanti Devi Intermediate
College, Lakhimpur Kheri to take her six
monthly examination. As she did not
return, he enquired to his relative brotherin-law, and to his each relative but could
not succeed to know the whereabouts of her
daughter. He further stated that during
search of his daughter (P.W.-2), he learnt
that appellant Nazeer, resident of village
Lakhahee who used to visit his house, had
also
disappeared
since
the
date
of
occurrence. He further stated that his wife
was village Pradhan (head woman of
village) at the time of occurrence and
appellant
Nazeer
used
to
ride
the
motorcycle to carry his wife (victim's
mother). He further stated that during
search, Zibrail and Wazir, brothers of
appellant, requested him not to proceed for
criminal
proceedings
as
they
would
produce his daughter by 8:00 a.m. on
05.12.2014 and when the whereabouts of
his daughter was not traced out till 8:00
a.m. of 05.12.2014, he approached the
police chauki (police out post) Dakhina to
lodge the complaint. He further stated that
he was advised by the police of concerned
police out post of Dakhina to approach
Police Station Nighasan for lodging the
complaint, thereafter he rushed to Police
Station Nighasan and lodged a written
complaint (Ex.-Ka-1). He further stated that
after four days from lodging the written
complaint, he was informed that his
daughter was recovered from Bus Station
Paliya
at
Nighasan
and
upon
that
30 INDIAN LAW REPORTS ALLAHABAD SERIES
information he along with his wife rushed
to Bus Station Paliya at Nighasan and
found
his
daughter
in
presence
of
Constable, Lady Constable and Police
Officer (Darogaji). Stating that after
completion of recovery formality his
daughter was sent for medical examination
to District Hospital Kheri and she was
handed over to him after 7-8 days by the
police. He further stated that her daughter
had told him that appellant had forcefully
kidnapped her from road. During cross
examination, this witness admitted that
appellant was his servant for Rs.1500/-p.m.
to carry out his wife who was village
Pradhan at that time. He further admitted
that on the day of occurrence when his
daughter (victim) did not return till 6:00
p.m. he inquired her whereabouts from his
wife, his real brother-in-law Banwari Lal
and Dalla who failed to give any clue.
Admitting further that his daughter was
married after two years of the occurrence
he further admitted that he had not seen the
occurrence.

16. Victim (P.W.-2), sole eye witness of
the prosecution, has stated that at the time of
occurrence at about 8:30 a.m., she was going
from her house to school to take six-monthly
examination and as she reached near Malti
Devi Temple, appellant who used to visit her
house, met and commanded her on the point
of knife to sit on his motorcycle and to go
with him according to his command
otherwise he would eliminate her. She further
stated that due to fear she could not raise any
alarm; appellant carried her on motorcycle to
Paliya and thereafter from Paliya to Punjab
by train. She further stated that as and when
she tried to raise alarm or to complain
anyone, appellant threatened her that if she
would raise any alarm or complain anyone he
would kill her brother. She further stated that
appellant booked a room and stayed there in
Punjab for 3-4 days and during that period he
committed rape (bura kaam) against her will.
She further stated that he had not sufficient
money to stay there, he asked her to return
home for money and as they reached Paliya
Bus Station, police met and recovered her.
She further stated that her father had also
reached there and after some formality at bus
station, she was sent to District Hospital for
medical
examination
where
she
was
medically examined and her X-ray was also
conducted. She further stated that her
statement under Section 164 Cr.P.C. was also
recorded by the Judicial Magistrate, Kheri
after 7-8 days of the medical examination and
she was handed over to her parents. She
further stated that, due to threat given by
Station
House
Officer,
Police
Station
Nighasan, she, in her statement under Section
164 of the Code, had stated that one Rajesh
Verma was also involved with appellant in
taking her away. In cross examination, she
too admitted that appellant was a servant in
her house who used to carry her mother by
motorcycle. Stating that she was carried away
by the appellant from Paliya to Punjab by
train she further stated that she did not know
whether appellant had traveled with her with
ticket or without ticket. She further stated that
she did not know when she reached at
Punjab. In cross examination she also stated
that she had not stated before the Magistrate
in her statement under Section 164 of the
Code that on the request of appellant Nazeer
she had given her consent to follow him
(main tayaar ho gayi) and if the said fact has
been mentioned in her statement under
Section 164 of the Code, she could not assign
any reason for such statement.

17. She (victim) further stated that
statement
given
by
her
before
the
Magistrate that Nighasan Police brought
her and appellant from Punjab, was not
given during her consciousness as the
7 All. Nazeer Vs. State of U.P.
31
appellant had administered her some
intoxicants, hence she was not in a position
to tell anything in this regard. She further
stated that she was accompanied by lady
Police Constable Shama Parveen when
Nighasan Police had brought her. She
further stated that the appellant took her
away from Malti Devi temple and neither
any person acquainted with her nor any
police personnel met her on the way. She
again stated that she wanted to raise alarm
but appellant was threatening her that if she
would raise any alarm, he would kill her
along with her brother. She also stated that
she did not know whether or not she had
taken any meal during journey from Paliya
to Punjab and also she did not know what
time would have been taken in the journey.
In her cross examination, she further denied
that she had given any statement to
Investigating Officer that appellant Nazeer
would have asked her to go to Punjab at
any point of time prior to the occurrence
and if such statement had been recorded by
Investigating Officer, she could not assign
any reason.

18. Dr. Pushplata (P.W.-4), lady
doctor of District Hospital, Lakhimpur
Kheri, has stated t hat on 09.12.2014,
victim
(P.W.-2),
brought
by
Lady
Constable
758
Shama
Parveen,
was
medically examined by her. She further
stated that at the time of medical
examination, the victim was normal and
was in full conscious; she (P.W.-2) was 158
cm in height, 59 kg in weight; her pubic
and armpit black hair were present ; and
her breasts were fully developed. She
further stated that victim had already
changed her clothes so many times and
there was no mark of injury on her body.
She
further
stated
that
in
medical
examination her hymen was torn, old and
healed and no mark of injury was found
either on the genital parts or any part of her
body and no sign of bleeding through
vaginal or discharge was found. She further
stated that according to victim, the
occurrence had taken place on 03.12.2014.
This witness further stated that she had
prepared vaginal smear and cervical smear
and sent to pathology department for
confirmation of spermatozoa and for
determination of victim's age, she (P.W.-2)
was referred for X-ray of right knee, right
wrist and right elbow. She further stated
that
she
had
prepared
medico-legal
examination report (Ex.Ka-3) and also
prepared supplementary medical report
(Ex.Ka-4) on the basis of pathological
report and X-ray report. She further stated
that in pathological report, no live or dead
spermatozoa was found and as per X-ray
plate and report of radiologist, the age of
victim was found to 18 years. Lastly, this
witness stated that no definite opinion
regarding rape could be given by her. In
cross examination, she stated that the
victim might be 18 years old and she
(P.W.-4) further stated that victim's age
might also be 16 years or 20 years.

19. Dr. V.K. Verma (P.W.-3),
Radiologist, District Hospital, Lakhimpur
Kheri stated that radiological examination
(X-ray) of victim's (P.W.-2) right wrist,
right knee and right elbow was conducted
on 10.12.2014 in his supervision by X-ray
technicians and on the basis of X-ray plates
(Material Ex.-1) it was found that epiphysis
of right wrist, right knee and right elbow of
victim was fused with their corresponding
bones. He further stated that on the basis of
X-ray plate he had prepared a report
(Ex.Ka-2).

20. Head Constable Bhupendra
Bahadur Singh (P.W.-5) has stated that on
06.12.2014, he was posted as Constable
32 INDIAN LAW REPORTS ALLAHABAD SERIES
Moharrir at Police Station Nighasan,
District Lakhimpur Kheri and prepared
chik report (Ex.Ka-5) on the basis of
written complaint lodged by Sarju Prasad
(P.W.-1) pertaining to Case Crime No.993
of 2014 under Sections 363, 366 IPC and
under Section 3 (1) (10) SC/ST Act and the
said information was entered in G.D. No.24
(Ex.Ka-6) by Head Constable Ram Lakhan
Rawat.

21.

Dy.
S.P
Mohd.
Ibrahim,
Investigating Officer (P.W.-6) has stated
that on 15.12.2014, investigation of this
case was handed over to him by ExInvestigating Officer, Dy. S.P. Ram Asrey.
He further stated that after perusal of
medico-legal examination report of victim,
he produced the victim followed by lady
Constable
before
the
Magistrate
on
17.12.2014 for her statement under Section
164 of the Code and copied the same
(statement of victim under section 164 of
the Code) in Case Diary. He further stated
that an application along with educational
certificate for custody of victim was filed
by her parents before the concerned
Magistrate and in compliance of direction
passed by the Magistrate, the victim was
handed over to her parents on 18.12.2014,
after preparation of handing over certificate
(Ex.Ka-4). He further stated that he had
copied affidavit dated 03.01.2015 filed by
the victim in Case Diary and also recorded
the supplementary statement of Sarju
Prasad (P.W.-1) and statement of lady
Constable
Shama
Parveen,
who
had
recorded the statement of victim under
Section 161 of the Code. He also stated that
after investigation, he had filed charge
sheet (Ex.Ka-8) against the appellant under
Sections 363, 366, 376 IPC read with
Section 3/4 POCSO Act and Section (2) (5)
of SC/ST Act. During examination, he has
further stated that site plan (Ex.Ka-9) was
prepared by the then Investigating Officer,
Dy.S.P., Ram Asrey and recovery memo of
victim (Ex.Ka-10) was prepared by SubInspector, Ram Kumar Yadav.

22. Appellant has been found guilty by
the trial Court for offence of kidnapping and
rape with victim below to 18 years old and
has been convicted under Sections 363,366
and 376 IPC read with Section 3/4 POCSO
Act 2012. Section 361 IPC defines offence of
kidnapping, Section 375 IPC defines offence
of rape and Section 3 POCSO Act defines
penetrative sexual assault with child. Section
363 IPC deals punishment of kidnapping
from lawful guardianship, Section 366 IPC
deals with punishment for offence of
kidnapping, abducting or inducing woman to
compel her marriage, and Section 376 IPC
read with Section 4 POCSO 2012 Act deals
with punishment of offences of rape and
penetrative sexual assault with child. Sections
361, 363, 366, 375 and 376 IPC (prior to
Criminal Law Amendment Act 2018) and
Section 3 and 4 POCSO Act 2012 are as
under :

"361. Kidnapping from lawful
guardianship.--Whoever takes or entices
any minor under sixteen years of age if a
male, or under 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.

363.
Punishment
for
kidnapping.--Whoever kidnaps any person
from India or from lawful guardianship,
shall be punished with imprisonment of
either description for a term which may
extend to seven years, and shall also be
liable to fine.
7 All. Nazeer Vs. State of U.P.
33

366. 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; 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 also be punishable as
aforesaid.

375. 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 person; 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 person; or

(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 through another of any
stupefying or unwholesome substance, she
is unable to understand the nature and
consequences of that to which she gives
consent.

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

Seventhly.--When she is unable
to communicate consent.

Explanation 1.--For the purposes
of this section, "vagina" shall also 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,
34 INDIAN LAW REPORTS ALLAHABAD SERIES
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 of
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.

376. 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 which shall
not be less than seven years, but which may
extend to imprisonment for life, and shall
also be liable to fine.

(2) .........

Section 3 and 4 POCSO Act 2012

Section 3. Penetrative sexual
assault.

A person is said to commit
"penetrative sexual assault" if--

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

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

(c) he manipulates any part of the
body of the child so as to cause penetration
into the vagina, urethra, anus or any part
of body of the child or makes the child to
do so with him or any other person; or

(d) he applies his mouth to the
penis, vagina, anus, urethra of the child or
makes the child to do so to such person or
any other person.

Section
4.
Punishment
for
penetrative sexual assault.

Whoever
commits
penetrative
sexual assault shall be punished with
imprisonment of either description for a
term which shall not be less than seven
years
but
which
may
extend
to
imprisonment for life, and shall also be
liable to fine."

23. Thus aforesaid provisions show
that if sexual intercourse is committed by
any person with any woman who is under
eighteen years of age even with her
consent, the prosecution has to prove only
the sexual intercourse and such intercourse
shall be treated as rape and if such woman
is above eighteen years of age, the
prosecution has to prove that such sexual
intercourse was committed without free
consent or will of that woman as required
in section 375 IPC. Trial Court has
convicted
the
appellant
as
he
had
kidnapped the victim who was under
eighteen years of age. Thus in this case
prosecution has to prove beyond reasonable
doubt, firstly whether sexual intercourse
was committed with victim and secondly
whether victim was under eighteen years of
age at the time of offence.
7 All. Nazeer Vs. State of U.P.
35

24. Neither Code nor IPC or POCSO
Act
2012
provides
procedure
for
determination of victim's age. Alleged
offence was committed on 03.12.2014.
Rule 12 of the Juvenile Justice (Care and
Protection
of
Children)
Rules,
2007
(hereinafter referred to as the '2007 Rules')
framed under Section 67 of the Juvenile
Justice (Care and Protection of Children)
Act
2000
provides
procedure
for
determination of juvenile's age. This
provision is 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 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 sub-rule (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.
36 INDIAN LAW REPORTS ALLAHABAD SERIES

(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
of 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.

25. Supreme Court in Jarnail Singh v.
State of Haryana (2013) 7 SCC 263,
deciding
the
issue
of
procedure
for
determination of age of victim of rape, was of
the view that the procedure for determination
of juvenile's age as provided in Rule 12
(supra) may be adopted for determination of
victim's age. The Supreme Court in Jarnail
Singh (supra) has held as under :

"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.