# Pradeep Kumar @ Pappu @ Bhuriya v. State of U.P

- **Citation:** (2025) 7 ILRA 248
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-07-01
- **Case number:** Criminal Appeal No. 889 of 2009
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pradeep-kumar-pappu-bhuriya-v-state-of-u-p-53499
- **Pages:** 12

## Headnote

7 All. Pradeep Kumar @ Pappu @ Bhuriya Vs. State of U.P.
249
G.A.

ISSUE FOR CONSIDERATION
Whether the conviction of the appellant under
Sections 363, 366, 376/511, and 354 IPC was
legally sustainable based on the evidence,
including the victim's testimony, medical report,
and delay in lodging the FIR, and whether the
plea of consent or false implication holds merit.

HEADNOTES
Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section - 164, 207,
313, 374(2), - Indian Penal Code, 1860 -
Section - 363, 366, 354, 376, 511- Criminal
Appeal - against conviction and sentenced -
complaint filed by mother regarding missing of
her 16 years old minor daughter - with she
alleged that appellant has abducted her by
alluring and he is also missing - search -
custody of minor girl from appellant - FIR -
offence of kidnapping and unlawful confinement
of minor girl for 20 days - attempt to commit
rape and outraging of modesty - statements
recorded - investigation - medical examination
report - charge-sheet - conviction - plea taken,
FIR lodged with delay, - witness given false
evidence, - victim given statement under press
of her family - court finds that - lodging delay
in
FIR
has
been
properly
explained,
-
prosecution proved that victim was forcibly
kidnapped, - victim reiterated and supported her
statement given u/s 164 CrPC during trial, -
appellant tried to established prior relationship
but no cogent material could be placed on
record to prove the same, - plea of implication
of the applicant on the ground of enmity couldt
not be proved by the appellant - held - after
considering the evidence and material on
record, appellant has rightly and in accordance
with law been convicted and punished u/s 363,
366, 376/511 and 354 IPC - hence, Trial court's
judgment upheld - with observation that appeal
has been filed on misconceived and baseless
grounds - consequently, Appeal is dismissed.
(Para - 28, 29)
Appeal Dismissed. (E-11)

CASE LAW CITED
Darshan Singh vs. State of Punjab in Criminal
Appeal No. 163 of 2010; 2024 INSC 19 by the
Hon'ble Supreme Court of India, judgment and
order dated 07.01.2025 passed in State (GNCT
of Delhi) vs. Vipin @ Lalla; Criminal Appeal No.
94 of 2025 by the Hon'ble Supreme Court of
India, judgment and order dated 29.09.2006
passed in the case of Tarkeshwar Sahu vs. State
of Bihar (Now Jharkhand); AIRONLINE 2006 SC
383; Himachal Pradesh vs. Prem Singh; 2009
(64) ACC 287, Satpal Singh vs. State of
Haryana; 2010 CRI. L. J. 4283, Pandharinath vs.
State of Maharashtra; (2009) 14 SCC 537, State
of Himachal Pradesh vs. Shree Kant Shekari;
2004 CRI. L. J. 4232, Koppula Venkat Rao vs.
State of Andhra Pradesh; (2004) 3 SCC 602,
State of Bihar and others vs. Tabarak Hussain;
MANU/BH/0131/1982, Ganga Singh vs. State of
Madhya Pradesh; AIR 2013 SC 3008, Roop 4
Singh vs. State of Madhya Pradesh; (2013) 7
SCC 89, Kalu Alias Laxminarayan vs. State of
Madhya Pradesh; (2019) 10 SCC 211; Chaitu Lal
vs. State of Uttarakhand; (2019) 20 SCC 272
and the judgment and order dated 12.11.2013
passed in Israil vs. State of Uttar Pradesh.;
Criminal Appeal 40 of 2001; Neutral Citation No.
- 2013:AHC-LKO:14455 by a co-ordinate Bench
of this Court.

LIST OF ACTS
Code of Criminal Procedure, 1973; Indian Penal
Code, 1860.

LIST OF KEYWORDS
Criminal Appeal, Kidnapping, Minor Girl, Attempt
to Rape, Outraging Modesty, Consent, FIR
Delay, Section 164 CrPC, Medical Evidence,
False
Implication,
Enmity,
Credibility
of
Testimony, baseless grounds.

CASE ARISING FROM
Judgment dated 06.02.2009 passed in Session
Trial No. 391/2008 - Case Crime No. 266/2004 -
Police Station Aliganj, District Lucknow.

APPEARANCE OF PARTIES
Counsel for Appellant: - B S Patel, Ashutosh
Singh (Amicus).
Counsel for Respondent: - G.A., AGA.

## Text

_Characters 0–39,936 of 41,764. This is a partial read: ask again with offset=39936 for what follows._

248 INDIAN LAW REPORTS ALLAHABAD SERIES

36. PW-6 Dr. Swatantra Kumar Singh
has medically examined Raghuveer Singh
and Ram Pal Singh and found the injuries
on their person as already noticed in the
earlier part of the judgment.

37. They have received injuries in the
same transaction could not be dislodged by
the defence.

38. PW-8 Dr. Shree M. Sharma has
conducted postmortem of the deceased Raj
Kumar Singh and found the ante-mortem
injuries as already noticed in the earlier part
of the judgement. In the opinion of this
witness, the death of the deceased Raj
Kumar Singh could have taken place
between 02:00 A.M. to 07:00 A.M. on the
date of occurrence.

39. Other witness, namely, PW-4
Naseem Ahmad is a formal witness, who has
proved the written report as Ext. Ka1 and
chik FIR as Ext. Ka2 and the entry in the
general diary, whereas PW-5 Bhagwan Singh
has deposed that he had taken the dead body
of Raj Kumar Singh for postmortem and PW7 is the investigating officer of the case, who
has
given
testimony
regarding
the
investigation being done by him and has
proved various police papers.

40. On careful appreciation of the
testimony of PW-1 and PW-2, who are
injured witnesses, it is amply clear that
their testimonies are wholly reliable and the
defence has not been able to extract any
material contradiction, in their statements
and PW-3 is partly reliable and partly
unreliable. The testimonies of PW-1 and
PW-2 find corroboration from the medical
evidence of PW-8 and PW-6.

41. Thus, on careful appreciation of
the evidence on record, we do not find any
illegality or perversity in the judgement
impugned
regarding
appreciation
of
evidence and application of law by the
learned trial Court.

42. In view of the above, the appeal is
devoid of merit and deserves to be
dismissed.

43. The appeal is dismissed.

44. Let a copy of this order be
communicated
by
the
Registrar
(Compliance)
to
the
Chief
Judicial
Magistrate, Etah for compliance forthwith.

45. The Chief Judicial Magistrate,
Etah is also directed to send his compliance
report within two months to the Court from
the date of receipt of copy of the judgment.

46. Registrar General of this Court is
also directed to pay an honorarium of Rs.
15,000/- to Shri Sandeep Kumar Dubey,
learned Amicus Curiae for rendering
effective assistance in the matter.
----------
(2025) 7 ILRA 248
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 01.07.2025

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Criminal Appeal No. 889 of 2009

Pradeep Kumar @ Pappu @ Bhuriya
 ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
B.S. Patel, Ashutosh Singh (Amicus)

Counsel for the Respondent:
7 All. Pradeep Kumar @ Pappu @ Bhuriya Vs. State of U.P.
249
G.A.

ISSUE FOR CONSIDERATION
Whether the conviction of the appellant under
Sections 363, 366, 376/511, and 354 IPC was
legally sustainable based on the evidence,
including the victim's testimony, medical report,
and delay in lodging the FIR, and whether the
plea of consent or false implication holds merit.

HEADNOTES
Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section - 164, 207,
313, 374(2), - Indian Penal Code, 1860 -
Section - 363, 366, 354, 376, 511- Criminal
Appeal - against conviction and sentenced -
complaint filed by mother regarding missing of
her 16 years old minor daughter - with she
alleged that appellant has abducted her by
alluring and he is also missing - search -
custody of minor girl from appellant - FIR -
offence of kidnapping and unlawful confinement
of minor girl for 20 days - attempt to commit
rape and outraging of modesty - statements
recorded - investigation - medical examination
report - charge-sheet - conviction - plea taken,
FIR lodged with delay, - witness given false
evidence, - victim given statement under press
of her family - court finds that - lodging delay
in
FIR
has
been
properly
explained,
-
prosecution proved that victim was forcibly
kidnapped, - victim reiterated and supported her
statement given u/s 164 CrPC during trial, -
appellant tried to established prior relationship
but no cogent material could be placed on
record to prove the same, - plea of implication
of the applicant on the ground of enmity couldt
not be proved by the appellant - held - after
considering the evidence and material on
record, appellant has rightly and in accordance
with law been convicted and punished u/s 363,
366, 376/511 and 354 IPC - hence, Trial court's
judgment upheld - with observation that appeal
has been filed on misconceived and baseless
grounds - consequently, Appeal is dismissed.
(Para - 28, 29)
Appeal Dismissed. (E-11)

CASE LAW CITED
Darshan Singh vs. State of Punjab in Criminal
Appeal No. 163 of 2010; 2024 INSC 19 by the
Hon'ble Supreme Court of India, judgment and
order dated 07.01.2025 passed in State (GNCT
of Delhi) vs. Vipin @ Lalla; Criminal Appeal No.
94 of 2025 by the Hon'ble Supreme Court of
India, judgment and order dated 29.09.2006
passed in the case of Tarkeshwar Sahu vs. State
of Bihar (Now Jharkhand); AIRONLINE 2006 SC
383; Himachal Pradesh vs. Prem Singh; 2009
(64) ACC 287, Satpal Singh vs. State of
Haryana; 2010 CRI. L. J. 4283, Pandharinath vs.
State of Maharashtra; (2009) 14 SCC 537, State
of Himachal Pradesh vs. Shree Kant Shekari;
2004 CRI. L. J. 4232, Koppula Venkat Rao vs.
State of Andhra Pradesh; (2004) 3 SCC 602,
State of Bihar and others vs. Tabarak Hussain;
MANU/BH/0131/1982, Ganga Singh vs. State of
Madhya Pradesh; AIR 2013 SC 3008, Roop 4
Singh vs. State of Madhya Pradesh; (2013) 7
SCC 89, Kalu Alias Laxminarayan vs. State of
Madhya Pradesh; (2019) 10 SCC 211; Chaitu Lal
vs. State of Uttarakhand; (2019) 20 SCC 272
and the judgment and order dated 12.11.2013
passed in Israil vs. State of Uttar Pradesh.;
Criminal Appeal 40 of 2001; Neutral Citation No.
- 2013:AHC-LKO:14455 by a co-ordinate Bench
of this Court.

LIST OF ACTS
Code of Criminal Procedure, 1973; Indian Penal
Code, 1860.

LIST OF KEYWORDS
Criminal Appeal, Kidnapping, Minor Girl, Attempt
to Rape, Outraging Modesty, Consent, FIR
Delay, Section 164 CrPC, Medical Evidence,
False
Implication,
Enmity,
Credibility
of
Testimony, baseless grounds.

CASE ARISING FROM
Judgment dated 06.02.2009 passed in Session
Trial No. 391/2008 - Case Crime No. 266/2004 -
Police Station Aliganj, District Lucknow.

APPEARANCE OF PARTIES
Counsel for Appellant: - B S Patel, Ashutosh
Singh (Amicus).
Counsel for Respondent: - G.A., AGA.

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard Sri Ashutosh Singh, learned
counsel for the appellant and Shri Badrul
250 INDIAN LAW REPORTS ALLAHABAD SERIES
Hasan, learned Additional Government
Advocate (here-in-after referred as AGA).

2. This Criminal Appeal under Section
374(2) of Code of Criminal Procedure
Code (here-in-after referred as CrPC) has
been filed for setting aside the conviction
and sentence awarded by Additional
Sessions Judge/Fast Track Court No. 2,
Lucknow by means of the judgment and
order dated 06.02.2009 passed in Session
Trial No. 391/2008: State Vs. Pradeep
Kumar @ Pappu @ Bhuriya arising out of
Case Crime No. 266/04 under Section
363/366/376/511/354 of Indian Penal Code
(here-in-after referred as IPC), Police
Station Aliganj, District Lucknow, by
which the appellant has been convicted and
awarded sentence of 10 years rigorous
imprisonment and Rs. 5000 fine under
Section 376/511 IPC and in default of
payment of fine one year additional
imprisonment and sentence of 7 years
simple imprisonment and Rs. 3000 fine
under Section 366 IPC and in default of
payment of fine, six months additional
imprisonment and sentence of 5 years
simple imprisonment and Rs. 2000 fine
under Section 363 IPC and in default of
payment of fine, four months additional
imprisonment and sentence of 1 year
simple imprisonment and Rs. 1000 fine
under Section 354 IPC and in default of
payment of fine, two months additional
imprisonment. It has further been provided
that, from the fine deposited by the
appellant, Rs. 5000/- shall be paid to the
victim as compensation and all the
sentences shall run concurrently.

3. Learned counsel for the appellant
submitted that there is a delay of 21 days in
lodging FIR because it was a case of
consent by the victim, on account of an
affair between the appellant and the victim,
therefore FIR was not lodged for a period
of twenty days. On coming to know that the
appellant and the victim were going out,
the FIR was lodged and the victim was
recovered from the crossing, whereas no
alarm was raised by the victim. Even
otherwise the submission was that the
charge of Section 376 has not been proved
on account of fact that the victim, who
appeared as P.W. 2 has not made any such
allegation and in fact denied the same. He
further submitted that the medical age of
the victim has come as 18 years. He next
submitted that the learned trial court,
without considering the above and the
evidence and material on record, passed the
impugned judgment and order convicting
and punishing the appellant, which is not
sustainable in the eyes of law and is liable
to be set aside. He relied on judgment and
order dated 04.01.2024 passed in Darshan
Singh vs. State of Punjab in Criminal
Appeal No. 163 of 2010; 2024 INSC 19 by
the Hon'ble Supreme Court of India,
judgment and order dated 07.01.2025
passed in State (GNCT of Delhi) vs. Vipin
@ Lalla; Criminal Appeal No. 94 of 2025
by the Hon'ble Supreme Court of India,
judgment and order dated 29.09.2006
passed in the case of Tarkeshwar Sahu vs.
State
of
Bihar
(Now
Jharkhand);
AIRONLINE 2006 SC 383.

4. Per contra, learned AGA submitted
that the victim was kidnapped forcefully
and in custody of the appellant for a period
of twenty days and there is no denial of the
recovery of the victim from the custody of
accused i.e. the appellant. He next
submitted that the explanation for delay in
lodging the FIR has been given in the FIR
itself. Even otherwise delay is immaterial
in such cases. He further submitted that
there is no proof of marriage and in the
statement under Section 313 CrPC also,
7 All. Pradeep Kumar @ Pappu @ Bhuriya Vs. State of U.P.
251
there is no plea of affair between the parties
and the plea of implication of the appellant
is due to enmity, which could not be
proved. He further submitted that the
burden to prove the consent was on the
accused but he failed to do so. He also
submitted that the FIR and medical report
have been proved, according to which,
hymen was found torn. Even otherwise
attempt for rape has been proved beyond
doubt. Thus, learned AGA submitted that
the appellant has rightly been convicted by
passing a reasoned and speaking order on
the basis of evidence and material on
record and adequate punishment has been
awarded. There is no illegality or infirmity
in it. The appeal has been filed on
misconceived and baseless grounds, which
is liable to be dismissed. He relied on State
of Himachal Pradesh vs. Prem Singh;
2009 (64) ACC 287, Satpal Singh vs.
State of Haryana; 2010 CRI. L. J. 4283,
Pandharinath vs. State of Maharashtra;
(2009) 14 SCC 537, State of Himachal
Pradesh vs. Shree Kant Shekari; 2004
CRI. L. J. 4232, Koppula Venkat Rao vs.
State of Andhra Pradesh; (2004) 3 SCC
602, State of Bihar and others vs.
Tabarak
Hussain;
MANU/BH/0131/1982, Ganga Singh vs.
State of Madhya Pradesh; AIR 2013 SC
3008, Roop Singh vs. State of Madhya
Pradesh; (2013) 7 SCC 89, Kalu Alias
Laxminarayan vs. State of Madhya
Pradesh; (2019) 10 SCC 211; Chaitu Lal
vs. State of Uttarakhand; (2019) 20 SCC
272 and the judgment and order dated
12.11.2013 passed in Israil vs. State of
Uttar Pradesh.; Criminal Appeal 40 of
2001; Neutral Citation No. - 2013:AHCLKO:14455 by a co-ordinate Bench of this
Court.

5. I have heard learned counsels for the
parties and perused the records.

6. The prosecution case, as per the first
information report is that a written complaint
was given by the complainant; Shanti Devi
wife of Ramdularey Nai on 31.08.2004 in the
Police Station- Aliganj, District-Lucknow
stating therein that her daughter, who is aged
about 16 years, has been missing since
10.08.2004. She is being searched by her
with the help of her relatives till today and
she has come to know from reliable sources
that Pappu @ Bhuri son of Motilal Kashyap
of her Mohalla abducted her by alluring and
he is also missing since 10.08.2004,
therefore, an FIR may be lodged against
Pappu @ Bhuriya and recover her daughter.
On 31.08.2004 at 12:35, the case vide Case
Crime No. 266 of 2004 under Sections
363/366 IPC was registered and the
investigation was handed over to Shri Ram
Vachan Prasad, Investigating Officer. The
victim was recovered at 16:30 on the same
day i.e. 31.08.2004 from the custody of the
appellant. Thereafter, after preparing the
recovery memo before the witnesses, custody
of the girl was given to her natural guardian
i.e. her mother and the accused was arrested.
A statement of the victim, under Section 164
CrPC, was recorded before the Magistrate.
The
matter
was
investigated
by
the
Investigating Officer and on the basis of
statements recorded in the investigation and
the medical examination report of the victim,
chargesheet under Sections 363/366/354 and
376/511 IPC was submitted. The copies of
prosecution papers were provided to the
accused under Section 207 CrPC and the
matter was committed to the Session for trial.
The charge under Sections 363/366/354 and
376/511 IPC was framed against the
appellant. The appellant denied the charges
and prayed for trial.

7. The prosecution produced Smt.
Shanti Devi, the complainant as P.W. 1, the
victim as P.W. 2., Dr. Shobha Rani
252 INDIAN LAW REPORTS ALLAHABAD SERIES
Dwivedi as P.W. 3, Constable Moharir
Harivansh as P.W. 4 and Investigating
Officer Ramswaroop as P.W. 5. After the
conclusion of the evidence of prosecution
witnesses, the statement of the accused
under Section 313 CrPC was recorded. In
his statement, the appellant stated that the
witnesses have given false evidence. The
statement of the victim under Section 164
CrPC before the Magistrate was given by
the victim under the pressure of family
members and the prosecution witnesses
have given false and wrong evidence.
Lastly, he stated that he is innocent and he
has been falsely implicated, on account of
the enmity, whereas he has not committed
any crime. He also prayed for adducing
evidence in defence. In defence, he
produced certain letters along with a list of
documents and an application sent to the
District Magistrate, Gonda. Learned trial
court, after hearing learned counsels for the
parties and considering the evidence and
material on record, convicted the appellant
and
punished
with
the
aforesaid
punishments.

8. The complainant Shanti Devi
appeared
as
P.W.
1
to
prove
the
prosecution case. She stated that Beenu is
her daughter and lives with her. She was
missing since the afternoon of 10.08.2004.
For her search, help of the relatives were
sought as there was no male member in her
home because her husband had died. The
girl could not be traced. Subsequently, it
came to knowledge from the persons in the
vicinity that her daughter has been
abducted by Pappu alias Bhuria of her
Mohalla by alluring her, therefore, a report
was lodged in Police Station Aliganj. He
proved the report contained in Paper No.
A5/2 as Pradarsh Ka-1. She also stated that
the girl was recovered on 31.08.2004 by the
police and handed over to her.

9. The victim appeared as P.W. 2. She
stated that she knows Pappu @ Bhuria,
whose name is also Pradeep. He resides in
Pandey Tola. She further stated that about 3
years ago, the date is not remembered to
her, when she was going to market from
her house, the accused met her on the way
and asked her to go with him for a stroll.
She denied. Then, she forcibly got her sit
on vehicle and took her towards Sitapur.
He kept her at the residence of some of his
relative for about 20 days. She was kept
forcibly. She next stated that she had made
noise. She also stated that the accused had
done bad work with her. The bad work was
done against her wish. Her statement was
recorded before the Magistrate, which is
available in the file. She reiterated the
statement made under Section 164 CrPC
before Magistrate. The Daroga had also
recorded her statement.

10.
Dr.
Shobha
Rani
Dwivedi
appeared as P.W. 3. She stated that she was
posted on 31.08.2004 as Medical Officer in
Veerangana Avanti Bai Hospital, Lucknow.
On the said date, the victim Km. Beenu
was examined by her with the consent of
her mother Shanti Devi. She proved the
medical examination report. In the internal
examination, she found that there was no
injury mark on the private parts, stomach
and thighs. The hymen was torn and the
injury was old. Her medical age was found
to be about 18 years. However, no definite
opinion could be given in regard to rape.
He proved the medical report as Paper No.
A8/4 and supplementary report as Paper
No. A8/3, which have been marked as
Pradarsh Ka-2 and Pradarsh Ka-3. X-ray
report is Paper No. A8/1, which was
marked as Pradarsh Ka-4.

11.
Constable
Moharir
Harikesh
appeared as P.W. 4, who proved the chick
7 All. Pradeep Kumar @ Pappu @ Bhuriya Vs. State of U.P.
253
FIR and GD, which have been marked as
Pradarsh Ka-5 and Pradarsh Ka-6.

12. Ramswaroop, who appeared as
P.W. 5, stated that the Investigating Officer
of the case Ram Achal Prasad had died. He
was posted with him. He recognizes his
handwriting and his signature. He also
stated that he was with the Investigating
Officer at the time of recovery of the
victim. He proved the recovery memo, site
plan, site plan of place of recovery and
chargesheet as Pradarsh Ka-6, Pradarsh Ka7, Pradarsh Ka-8 and Pradarsh Ka-9.

13. P.W. 1-Shanti Devi ie. mother of
the victim, stated in her evidence on oath
that the accused had abducted the victim by
alluring her, who was recovered from the
custody of the accused on 31.08.2004. P.W.
2-the Victim herself had also stated in her
examination-in-chief that she was coming
from her house to market when the accused
met her on the way and asked her to go
with him, but she denied to do so,
therefore, the accused forcefully got her sit
on the vehicle. She further stated that she
was kept forcibly by the appellant at the
residence of some of his relative for about
20 days. In cross-examination also she
reiterated
the
same.
Considering
the
evidence of P.W. 1 and P.W. 2, the learned
trial court has recorded a finding that the
victim had not gone with her will with the
accused rather she was forcibly taken away
by the accused.

14. P.W. 2 i.e. the victim had stated in
her statement under Section 164 CrPC
before Magistrate that she was forcibly got
her sit in Maruti Van and taken away by the
appellant. She had cried but none had
heard. He had taken her to the house of his
relative, who resides at Sitapur Road. She
was kept by the appellant there for about 20
days forcibly. The appellant had done bad
work with her there. He tried to do bad
work, however, the same was not done on
her protest. He had tried to do it twice,
however, he had not done the penetration.
P.W. 2 in her evidence before the trial court
also supported the aforesaid statement
given before the Magistrate under Section
164 CrPC. She had stated that the statement
given by her that the accused had done bad
work with her is the correct statement.
Thus, the charges under Sections 363, 366,
376/511 and 354 IPC have been proved.

15.
Section
363
IPC
provides
punishment for kidnapping. It provides that
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.
Section 366 IPC provides kidnapping,
abducting or inducing woman to compel
her marriage, etc. It provides that 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. The definition of
rape has been given in under Section 375
IPC. Section 376 provides the punishment
for rape. Section 354 provides assault or
criminal force to woman with intent to
outrage her modesty. It provides that
whoever assaults or uses criminal force to
any woman, intending to outrage or
knowing it to be likely that he will thereby
outrage her modesty, shall be punished
with imprisonment of either description for
254 INDIAN LAW REPORTS ALLAHABAD SERIES
a term which shall not be less than one year
but which may extend to five years, and
shall also be liable to fine. Section 511 IPC
provides punishment for attempting to
commit
offences
punishable
with
imprisonment
for
life
or
other
imprisonment. It provides that whoever
attempts to commit an offence punishable
by this Code with imprisonment for life or
imprisonment, or to cause such an offence
to be committed, and in such attempt does
any act towards the commission of the
offence, shall, where no express provision
is made by this Code for the punishment of
such
attempt,
be
punished
with
imprisonment of any description provided
for the offence, for a term which may
extend to one-half of the imprisonment for
life or, as the case may be, one-half of the
longest term of imprisonment provided for
that offence, or with such fine as is
provided for the offence, or with both.
Thus, where a person attempts to commit
an offence punishable by this Code, he can
be punished for a term which may extend
to one half of the imprisonment provided
for the offence or with fine or both.

16. The Hon'ble Supreme Court, in
the case of Satpal Singh vs. State of
Haryana
(Supra),
considering
the
judgment of Hon'ble Supreme Court in
the case of State of Himachal Pradesh
vs.Prem Singh (Supra), has held that in
case of sexual offence, the criteria may
be different altogether. As honour of
the family is involved, its members
have to decide whether to take the
matter to the court or not. In such a
fact-situation, near relations of the
prosecutrix may take time as to what
course of action should be adopted.
Thus, delay is bound to occur. The
relevant paragraphs 15, 16 and 17 are
extracted hereinbelow:-

"15. However, no straight jacket
formula can be laid down in this regard. In
case of sexual offences, the criteria may be
different altogether. As honour of the
family is involved, its members have to
decide whether to take the matter to the
court or not. In such a fact-situation, near
relations of the prosecutrix may take time
as to what course of action should be
adopted. Thus, delay is bound to occur.
This Court has always taken judicial notice
of the fact that "ordinarily the family of the
victim would not intend to get a stigma
attached to the victim. Delay in lodging the
First Information Report in a case of this
nature is a normal phenomenon" [vide
Satyapal Vs. State of Haryana AIR 2009 SC
2190].

16. In State of Himachal Pradesh
Vs. Prem Singh AIR 2009 SC 1010, this
Court considered the issue at length and
observed as under :-

"So far as the delay in lodging the
FIR is concerned, the delay in a case of
sexual assault, cannot be equated with the
case involving other offences. There are
several factors which weigh in the mind of
the prosecutrix and her family members
before coming to the police station to lodge
a complaint. In a tradition bound society
prevalent in India, more particularly, rural
areas, it would be quite unsafe to throw out
the prosecution case merely on the ground
that there is some delay in lodging the
FIR."

17. Thus, in view of the above, the
delay in lodging FIR in sexual offences has
to
be
considered
with
a
different
yardstick."

17. The Hon'ble Supreme Court, in the
case of Tarkeshwar Sahu vs. State of
7 All. Pradeep Kumar @ Pappu @ Bhuriya Vs. State of U.P.
255
Bihar (Now Jharkhand) (Supra), has
held that the important ingredient of the
offence under Section 375 punishable
under Section 376 IPC is penetration. No
offence under Section 376 IPC can be made
out unless there was penetration to some
extent. It has further been held that the
ultimate test for ascertaining whether the
modesty of a woman has been outraged,
assaulted or insulted is that the action of the
offender should be such that it may be
perceived as one which is capable of
shocking the sense of decency of a woman.
The word 'modesty' is not to be interpreted
with reference to the particular victim of
the act, but as an attribute associated with
female human beings as a class. It is a
virtue which attaches to a female on
account of her sex. In the said case, the
Hon'ble Supreme Court set aside the
conviction under Section 376, 511 IPC
therein recording a finding that the
appellant had neither undressed himself nor
even asked the prosecutrix to undress so
there was no question of penetration. In the
absence of any attempt to penetrate, the
conviction under Section 376/511 IPC is
wholly illegal and unsustainable. This case
is not applicable on the facts and
circumstances of the present case as in the
present case, the victim has stated not only
in her statement under Section 164 CrPC
before the Magistrate but in evidence
before the trial court also that the appellant
had undressed her, however on her protest,
he could not do intercourse but he could
not done bad work with her.

18. The Hon'ble Supreme Court, in the
case of Pandharinath vs. State of
Maharashtra (Supra), has held that if the
accused- appellant had removed her clothes
and he had not rebutted this statement of
the prosecutrix in his examination-in-chief,
it is definitely a case of attempt to rape.

19. The Hon'ble Supreme Court, in
the case of Koppula Venkat Rao vs. State
of Andhra Pradesh (Supra), has held that
the plea relating to applicability of Section
376 read with Section 511 IPC needs
careful consideration. In every crime, there
is first, intention to commit, secondly
preparation to commit it, thirdly, attempt to
commit it. If the third stage, that is, attempt
is successful, then the crime is complete. If
the attempt fails the crime is not complete,
but law punishes the person attempting the
Act under Section 511 IPC The relevant
paragraphs 8, 11, 12 and 13 are extracted
hereinbelow:-

"8.
The
plea
relating
to
applicability of Section 376 read with
Section
511
IPC
needs
careful
consideration. In every crime, there is first,
intention to commit, secondly preparation
to commit it, thirdly, attempt to commit it. If
the third stage, that is, attempt is
successful, then the crime is complete. If
the attempt fails the crime is not complete,
but law punishes the person attempting the
Act, Section 511 is a general provision
dealing with attempts to commit offences
not made punishable by other specific
sections. It makes punishable all attempts
to
commit
offences
punishable
with
imprisonment
and
not
only
those
punishable with death. An attempt is made
punishable,
because
every
attempt,
although it falls short of success, must
create alarm, which by itself is an injury,
and the moral guilt of the offender is the
same as if he had succeeded. Moral guilt
must be united to injury in order to justify
punishment. As the injury is not as great as
if the act had been committed, only half the
punishment is awarded.

11. The sine qua non of the
offence of rape is penetration, and not
256 INDIAN LAW REPORTS ALLAHABAD SERIES
ejaculation.
Ejaculation
without
penetration constitutes an attempt to
commit
rape
and
not
actual
rape.
Definition of "rape" as contained in Section
375 IPC refers to "sexual intercourse" and
the Explanation appended to the Section
provides that penetration is sufficient to
constitute the sexual intercourse necessary
to the offence of rape. Intercourse means
sexual connection.

12. In the instant case that
connection has not been established.
Courts below were not correct in their
view.

13. When the evidence of the
prosecutrix is considered in the proper
perspective, it is clear that the commission
of actual rape has not been established.
However, the evidence is sufficient to prove
that attempt to commit rape was made.
That being the position, conviction is
altered from Section 376 IPC to Section
376/511 IPC. Custodial sentence of 3 and
'/2 years would meet the ends of justice.
The accused who is on bail shall surrender
to custody to serve remainder of his
sentence."

20. The Hon'ble Supreme Court, in the
case
of
Chaitu
Lal
vs.
State
of
Uttarakhand (Supra), held that the
attempt to commit an offence begins when
the accused commences to do an act with
the necessary intention.

21. A coordinate Bench of this Court,
in Israil vs. State of Uttar Pradesh
(Supra), has held that for the commission
of every offence there are three stages, the
first is the intention to commit the offence,
thereafter comes the preparation to commit
the offence and third is attempt to commit
offence. If the attempt succeeds, he has
committed the offence, if it fails due to
reasons beyond his control, he is said to
have attempted to commit the offence.
Attempt to commit an offence can be said
to begin when the preparations are
complete and the culprit commences to do
something with the intention of committing
the offence and which is a step towards the
commission of the offence. The moment he
commences to do an act with the necessary
intention, he commences his attempt to
commit
the
offence.
Thereafter,
considering several reports of the Hon'ble
Supreme Court on the issue, the Court
observed that in view of the case laws
referred, it is clear that in order to hold the
accused guilty of an attempt to commit rape
the Court has to be satisfied that the
accused, when he laid down the prosecutrix
not only desired to gratify the passion upon
her but that he intended to do so in all
events, notwithstanding any resistance on
her part. The Court after dealing with
situation to the facts of the present case
held that the conclusion is irresistible when
the offence committed by the accused falls
within the category of attempt of rape and
it cannot, by any stretch of imagination, be
said to be an offence under Section 354
IPC. The relevant paragraphs 14 and 21 are
extracted hereinbelow:-

"14. For the commission of every
offence there are three stages, the first is
the intention to commit the offence,
thereafter comes the preparation of commit
the offence and third is attempt to commit
offence. If the attempt succeeds, he has
committed the offence, if it fails due to
reasons beyond his control, he is said to
have attempted to commit the offence.
Attempt to commit an offence can be said to
begin when the preparations are complete
and the culprit commences to do something
with the intention of committing the offence
7 All. Pradeep Kumar @ Pappu @ Bhuriya Vs. State of U.P.
257
and which is a step towards the commission
of the offence. The moment he commences
to do an act with the necessary intention,
he commences his attempt to commit the
offence. The word "attempt" is not itself
defined and must, therefore, be taken in its
ordinary meaning. This is exactly what the
provisions of Section 511 require. An
attempt to commit a crime is to be
distinguished from an intention to commit
an offence, not followed by any act, cannot
constitute an offence. The will is not to be
taken for the deed unless there be some
external act which shows that progress has
been made in the direction of it, or towards
maturing and effecting it. Intention is the
direction of conduct towards the object
chosen upon considering the motives which
suggest the choice. Preparation consists in
devising or arranging the means or
measures necessary for the commission of
the offence. It differs widely from attempt
which is the direct movement towards the
commission after preparations are made.
The point as to what would amount to
attempt to rape has been considered by
Hon'ble Apex Court in several cases.

21. In view of the aforementioned
case laws it is clear that in order to hold
the accused guilty of an attempt to commit
rape the Court has to be satisfied that the
accused, when he laid down the prosecutrix
not only desired to gratify the passion upon
her but that he intended to do so in all
events, notwithstanding any resistance on
her part. Indecent assaults are often
magnified into attempts of rape. In order to
come to a conclusion that the conduct of
the
accused
was
suggestive
of
determination to gratify his passion at all
events and inspite of all resistance, there
must be material on record. The offence
under Section 354 IPC is much lesser than
the offence under Sections 376/511 IPC.
Even if a person gives slight slap in public
view on the posterior of a lady with a
culpable intention, then the offence under
Section 354 IPC is complete. But in order
to commit an offence under Section 376
read with Section 511 IPC, as stated above,
there must be evidence on record to show
that the accused had all the intention to
satisfy his lust. When the aforesaid settled
legal position is applied to the facts of the
present case then the conclusion is
irresistible then the accused has committed
an offence to commit rape because he has
not only undressed the victim but has also
undressed himself, took her inside the
Arhar field and laid on the victim. He was
moving his waist at that time. He left the
victim only when her grand mother reached
on the place of occurrence and pulled him
by holding his hairs. It is only thereafter he
ran away from the place of occurrence.
Therefore, the offence committed by the
accused falls within the category of attempt
of rape and it cannot, by any stretch of
imagination, be said to be an offence under
Section 354 IPC. A half hearted argument
regarding the false implication of the
appellant has also been raised but there is
nothing on record to support such false
implication. The victim has stated that the
accused was his uncle and this fact has not
been challenged in the cross-examination.
It is absolutely unbelievable that the grand
father would involve his grand daughter
aged about 9 years in such an offence and
thereby he would destroy her future
because the stigma attached with the victim
of
offence
of
rape,
in
the
Indian
perspective, remains attached with her
throughout her life and a great damage is
done not only to the victim but to the entire
family of the victim. No specific enmity, nor
any other material is on record to justify
the theory of false implication due to
enmity"
258 INDIAN LAW REPORTS ALLAHABAD SERIES

22. The Hon'ble Supreme Court
dismissed the case of State (GNCT of
Delhi) vs. Vipin @ Lalla (Supra) filed
against the order of High Court by which
the judgment of trial court of acquittal was
confirmed on the ground that it is not
believable that when the prosecutrix was
caught by the accused who is known to the
prosecutrix, she went with him quite a
distance in the Bazaar and then to a shop,
she never raised any alarm. This case is not
applicable on the facts of the present case
because in the present case, there is specific
case of the victim that she was forcibly
kidnapped by the appellant and kept in the
house of a relative and tried to do bad work
with her forcibly and had also undressed
her.

23. The Hon'ble Supreme Court, in
the case of Roop Singh vs. State of
Madhya Pradesh (Supra), has held that
unless there is volunatry participation by
the woman to a sexual act after fully
exercising the choice in favour of the
assent, the Court cannot hold that the
woman gave consent to the sexual
intercourse.

24. The Hon'ble Supreme Court, in
the case of State of Himachal Pradesh vs.
Shree Kant Shekari (Supra), has held that
the question of consent is really a matter of
defence by the accused and it was for him
to place materials to show that there was
consent. It is significant to note that during
cross-examination
and
the
statement
recorded under Section 313 of the Code of
Criminal Procedure, 1973 (in short the
'Code') plea of consent was not taken or
pleaded. In fact in the statement under
Section 313 of the Code the plea was
complete denial and false implication. It
has further been held that it is well settled
that a prosecutrix complaining of having
been a victim of the offence of rape stands
at a higher pedestal than an injured witness
and there is no rule of law that her
testimony
cannot
be
acted
without
corroboration in material particulars.

25. The Hon'ble Supreme Court, in
the case of Kalu Alias Laxminarayan vs.
State of Madhya Pradesh (Supra), held
that once the prosecution established a
prima facie case, the appellant was obliged
to furnish some explanation under Section
313,
Cr.P.C.
with
regard
to
the
circumstances. His failure to offer any
explanation whatsoever therefore leaves no
doubt for the conclusion of his being the
assailant of the deceased.

26. The Hon'ble Supreme Court, in
the case of Ganga Singh vs. State of
Madhya Pradesh (Supra), has held that if
the prosecution in a given case adduces
evidence to establish the guilt of the
accused beyond reasonable doubt, the court
cannot acquit the accused on the ground
that there are some defects in the
investigation, but if the defects in the
investigation are such as to cast a
reasonable doubt in the prosecution case,
then of course the accused is entitled to
acquittal because of such doubt.

27. In the judgment in the case of
State of Bihar and others vs. Tabarak
Hussain (Supra) by a co-ordinate Bench
of the Jharkhand High Court (Ranchi
Bench) is not applicable to the facts of the
present case.

28. Adverting to the facts of the
present case, this Court finds that it has
been proved by the prosecution that the
victim of the crime was forcibly kidnapped
by the appellant with intention to marry and
intercourse with her. He with the said
7 All. Ram Sanehi Vs. State of U.P.
259
motive kept her at the residence of his
relative for about 20 days, where he not
only outraged the modesty of the victim but
also attempted rape by undressing her.
However, he could not commit intercourse
on account of her protest. The victim has
stated that the appellant had done bad work
with her. The victim reiterated and
supported the statement given under
Section 164 CrPC before the Magistrate in
her evidence during trial also. Nothing
could be extracted from her in crossexamination, which may create any doubt
on her version or about the veracity of her
evidence. The appellant also tried to
establish prior relationship with the victim
by producing certain letters, which have
been denied to be written by the victim by
her in evidence and no cogent material
could be placed on record to prove the
same. The delay in lodging the FIR has
properly been explained in the FIR itself
and in view of law laid down by the
Hon'ble Apex Court as discussed above,
the delay is immaterial in such cases,
particularly when the prosecution has
proved its case. The plea of implication of
the applicant on the ground of enmity could
not be proved by the appellant and no
evidence could be adduced to prove any
enmity. Thus, the impugned judgment and
order has been passed after considering the
evidence and material on record and the
appellant has rightly and in accordance
with law been convicted and punished
under Sections 363, 366, 376/511 and 354
IPC, therefore it does not call for any
interference by this Court.