# Pramod Kumar v. State of U.P

- **Citation:** (2021) 11 ILRA 39
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-21
- **Case number:** Jail Appeal No. 73 of 2020
- **Bench:** Mrs. Sadhna Rani (Thakur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pramod-kumar-v-state-of-u-p-46563
- **Pages:** 9

## Headnote

A. Criminal Law-Code of Criminal Procedure,
1973-Section 374(2) - Indian Penal Code,
1860-Sections 363, 366, 376 & 3⁄4 POCSO Actchallenge to-conviction-victim statement u/s
161 and 164 Cr.P.C. are inconsistent-she
recovered by the police and she stated that she
had solemnized marriage with the appellantMoreso, she exonerated the involvement of
other co-accused-she found to be major as per
medical report-she continued living with the
accused as husband and wife for 20 days-she
was a consenting party who left her house on
her own-when the custody given to her
parents, she changed her stand under the
changed circumstances-In her examination-inchief she stated different story that she went
to market and three persons committed rape
by administering her juice and later they gave
her
in
custody
of
appellant-evidence
of
prosecutrix found to be totally unreliable,
untrustworthy, hence the accused cannot be
convicted of the charges levelled against himLearned lower court misconstrued the evidence
produced by the prosecution.(Para 1 to 36)

The appeal is allowed. (E-6)

List of Cases cited:

Wahid Khan Vs St. of M.P. (2010) 68 ACC 266

## Text

11 All. Pramod Kumar Vs. State of U.P.
39
appellant to the place where he had hidden the oil
bottle and allowed him to pick up the bottle and
give it to the investigating officer. If the bottle of
oil was allowed to be picked up by the appellant,
the appearance of his finger prints on the bottle
would be of no consequence. Here also, there is a
deliberate attempt on the part of PW-8 to justify
that, by stating that the accused picked up the
bottle from its crown (cap). But that is not
mentioned in the seizure memorandum. Thus, seen
from any angle and for all the reasons discussed
above, the circumstance of recovery of hair and
bottle of oil from the spot on the disclosure
statement of the appellant is not proved beyond
reasonable doubt. Rather, the explanation offered
by the appellant that he was forced to make a
disclosure statement and his hair were pulled to
show recovery appears probable and casts an
insurmountable doubt on the recovery. Once the
recovery is rendered doubtful, the DNA profiling
report is of no consequence and so is the finger
print report.

31. At this stage, we may observe that
unfortunately the trial court has failed to test
the reliability and credibility of the prosecution
evidence and has accepted the prosecution
evidence as gospel truth, which is not the
requirement of law. For a proper decision in a
trial, the prosecution evidence, if admissible,
has to be tested on broad probabilities emerging
from the facts of a case to find out whether it is
reliable. Only after the evidence is tested and
found reliable, that it can form the basis of
conviction.

32. In the present case, we find that the
prosecution evidence has failed to prove the
incriminating circumstances of the deceased
being last seen alive with the appellant and the
recovery beyond the pale of doubt, and there is
no medical / forensic evidence to demonstrate
that there was presence of semen or blood stain
of the appellant on the clothes of the deceased
or on her body. Importantly, all orifices and
organs of the body were missing hence, except
for confessional statement which, being made
before police, was not admissible, there was no
evidence to come to the conclusion that an
offence of rape was committed. As all these
incriminating circumstances from which the
prosecution sought to prove its case against the
appellant have not been proved beyond the pale
of doubt, the appellant is entitled to be
acquitted.

33. We, therefore, have no hesitation in
rejecting the reference for affirmation of the
death sentence and in allowing the appeal of
the appellant against the order of his conviction
and sentence. The appeal of the appellant is
allowed. The reference sent by the trial court to
confirm the death penalty is rejected. The
judgment and order of the trial court is set
aside. The appellant is acquitted of all the
charges for which he has been tried and
convicted. The appellant shall be released from
jail forthwith, unless wanted in any other case,
subject to compliance of the provisions of
Section 437-A Cr.P.C. to the satisfaction of the
trial court.

34. Let a copy of this order along with the
record of the court below be sent back to the
court below for information and compliance.
----------
(2021)12ILR A39
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.12.2021

BEFORE

THE HON'BLE MRS. SADHNA RANI (THAKUR), J.

Jail Appeal No. 73 of 2020

Pramod Kumar ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
40 INDIAN LAW REPORTS ALLAHABAD SERIES
From Jail, Sri Shyam Kumar Verma

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law-Code of Criminal Procedure,
1973-Section 374(2) - Indian Penal Code,
1860-Sections 363, 366, 376 & 3⁄4 POCSO Actchallenge to-conviction-victim statement u/s
161 and 164 Cr.P.C. are inconsistent-she
recovered by the police and she stated that she
had solemnized marriage with the appellantMoreso, she exonerated the involvement of
other co-accused-she found to be major as per
medical report-she continued living with the
accused as husband and wife for 20 days-she
was a consenting party who left her house on
her own-when the custody given to her
parents, she changed her stand under the
changed circumstances-In her examination-inchief she stated different story that she went
to market and three persons committed rape
by administering her juice and later they gave
her
in
custody
of
appellant-evidence
of
prosecutrix found to be totally unreliable,
untrustworthy, hence the accused cannot be
convicted of the charges levelled against himLearned lower court misconstrued the evidence
produced by the prosecution.(Para 1 to 36)

The appeal is allowed. (E-6)

List of Cases cited:

Wahid Khan Vs St. of M.P. (2010) 68 ACC 266

(Delivered by Hon'ble Mrs. Sadhna Rani
(Thakur), J.)

1. This jail appeal has been preferred by the
appellant Pramod Kumar against the judgment and
order dated 13.11.2018 passed by Special Judge,
(POCSO Act)/ 8th Additional Sessions Judge,
Agra in Special Case No. 2446 of 2017, case crime
no. 441 of 2017 State Vs. Pramod Kumar, under
sections 363, 366 and 376 I.P.C. and 3/4 POCSO
Act, police station Atmadpur District Agra.

2. By the impugned judgment and order
dated 13.11.2018 the learned lower court
convicted the present accused Pramod Kumar
under section 363, 366 and 376 I.P.C. and
acquitted under section 3/4 POCSO Act,
whereby the accused persons Dinesh, Choota @
Atendra and Tinchu @ Sarvesh were acquitted
of all the charges levelled against them by the
same judgment passed in the connected Special
Sessions Trial No. 821 of 2018, State Vs.
Tinchu and others under the same sections.

3. The facts germane to this appeal are that
on 4.9.2017 on 18.10 hours Mannu son of Niroti
Lal lodged a first information report at case
crime no. 0441 of 2017 under sections 363 and
366 I.P.C. against Lakhan and Chhotu, both sons
of Suresh with the allegation that he is a peace
loving and law abiding poor person belonging to
scheduled caste. He works as a labourer in
Ballabhgarh Faridabad and his family members
reside in village Siktara police station Atmadpur
District Agra. On 1.9.2017 his wife Smt. Ranno
Devi had gone to graze animals at about 4.00
p.m. His daughter Pooja aged about 16 years
was alone at the house. Lakhan and Chhotu sons
of Suresh r/o house no. 83 lane no. 2, police
station and District Firozabad enticed her
daughter away and her whereabouts are not
known till now so the steps be taken against
them.

4. After lodging the first information
report, Sub Inspector Jai Prakash recorded
necessary statements, prepared site plan, made
attempt to recover the girl and ultimately the girl
was recovered by him on 22.9.2017. Her
statements were recorded under sections 161 and
164 Cr.P.C. and she was given in supurdagi of
her parents as per her wish. The girl was
medically examined. Her statement against
sexual violence was recorded by the concerned
doctor. According to the report of C.M.O. she
was found to be about 18 years of age. All the
necessary endorsements were made in case diary
and following the due procedure chargesheet no.
284/2017 dated 14.12.2017 was submitted
11 All. Pramod Kumar Vs. State of U.P.
41
against the present accused Pramod Kumar
under sections 363, 366, 376D I.P.C. and 3/4
POCSO Act and charge sheet no. 284A/2017
dated 15.3.2018 was filed against Chhota @
Atendra, Dinesh and Tinchu @ Sarvesh under
the same sections 363, 366, 376D I.P.C. and 3/4
POCSO Act. After receiving the chargesheets,
learned Magistrate took cognizance against the
accused persons and under due procedure of law
the cases were committed to the court of
Sessions.

5. On 10.5.2018 and 20.4.2018 charges
under section 363, 366, 376-D I.P.C. and 3/ 4
POCSO Act were framed against accused Pramod
Kumar, Dinesh and Tinchu @ Suresh respectively.
The accused persons denied of the charges and
pleaded not guilty.

6. The prosecution produced as many as 7
witnesses in support of their case. P.W.-1 Mannu
is the father of the victim. P.W.-2 Ranno Devi is
mother of the victim, P.W-3 Shivnath is the
Principal of the school where victim is said to have
studied, P.W.-4 is the victim herself, P.W.-5 Jai
Prakash Singh is the first Investigating Officer,
P.W.-6 Dr. Sunita Kumari has proved the medical
report of the victim. P.W.-7 Vijay Kumar is the
second Investigating Officer.

7. As documentary evidence, the prosecution
has produced chik FIR as exhibit K-1, School
leaving certificate of the victim as exhibit K-2,
statement of victim under section 164 Cr.P.C. as
exhibit-K-3,
siteplan
as
exhibit-K-4,
Supurdaginama as exhibit K-5, Chargesheet no.
284 of 2017 against the accused Pramod Kumar as
exhibit
K-6.
Medical
report
exhibit
K-7,
pathologist report exhibit K-8, X-ray report and
report of C.M.O. as exhibit K-9. Charge sheet no.
284-A of 2017 against Tinchu @ Sarvesh, Dinesh
and Chhota @ Atendra as exhibit K-10.

8. On 23.10.2018 statements of accused
persons were recorded under section 313 Cr.P.C.
wherein they denied of their charges and
claimed their implication to be false. No defence
evidence has been adduced by accused persons.

9. As per x-ray report and the report of
C.M.O. exhibit K-9 the age of victim is
determined about 18 years and regarding rape it
is opined that no definite opinion regarding rape
can be given. As per finding of the lower court
record, the girl was found to be about 18 years
of age at the time of incident and the date of
birth of the victim mentioned in the school
leaving certificate 8.7.2000 is disbelieved by the
trial court. There is no dispute regarding the
same and because the age of girl is determined
as about 18 years at the time of incident so the
lower court on the application for custody of the
girl ordered to let the girl go as per her own
wish. As per supurdaginama exhibit K-5 the girl
consented to go with her parents so the Sub
Inspector Jai Prakash gave the girl in the custody
of her parents.

10. As per the judgment of learned lower
court dated 13.11.2018, the three accused
persons namely Dinesh, Choota @ Atendra and
Tinchu @ Sarvesh have been acquitted of all the
charges levelled against them under section 363,
366, 376 D I.P.C. and section 3/4 POCSO Act.
The accused Pramod Kumar has also been
acquitted of the charge under section 3/4
POCSO Act but he has been convicted under
section 363, 366 and 376 I.P.C. as noted above.

11. The present appeal has been preferred
on behalf of Pramod Kumar only with the
contention that the impugned judgment is
against the law and facts on record. The accused
has
been
illegally
convicted
and
undue
weightage has been given to the prosecution
evidence. The version of the accused has been
illegally rejected. The sentence awarded is
excessive. The prosecution has utterly failed to
prove its case beyond reasonable doubt. No
benefit of doubt has been given to the accused.
42 INDIAN LAW REPORTS ALLAHABAD SERIES
The accused is innocent and has committed no
offence. He has been falsely implicated in the
present case. He has been illegally convicted, so
judgment is prayed to be set aside.

12. From perusal of the lower court
judgment it is clear that the present accused has
been convicted under section 363, 366, 376
I.P.C. If we go through the finding of the lower
court on page ''13' of the judgment it has reached
at the conclusion that on the basis of C.M.O.
report the girl was found to be of age of 18 years
at the time of occurrence so the accused Pramod
Kumar is acquitted of the charges under section
3/4 POCSO Act. In my opinion, the finding of
lower court is self contradictory. If the court has
found the girl to be of 18 years of age at the time
of occurrence then the accused could not be
convicted under section 363 I.P.C. For the
offence under section 363 I.P.C. In this regard
section 361 of I.P.C. is to be looked into which
can be reproduced as under;

Section 361 :- 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.

13. The punishment of kidnapping is given
in section 363 I.P.C. Thus, if any person who
entices away any minor girl under age of 18
years out of keeping of the lawful guardianship
of such minor without the consent of such
guardian will said to have kidnapped such minor
from the lawful guardianship and such person
shall be punished under section 363 I.P.C. As
per finding of learned lower court at page 13 of
its judgment the age of victim girl has been
decided to be 18 years at the time of occurrence.
So in my opinion, if the girl is found to be of 18
years i.e. major on the date of occurrence then
the person who is said to entice away her cannot
be held guilty under section 363 I.P.C. so
finding of the judgment of learned lower court to
the extent of section 363 I.P.C. is erroneous and
against the law.

14. So far as conviction under section 366
I.P.C. is concerned it is to be proved that the girl
was induced with the intent that she may be
compelled or knowingly it to be likely 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.

15. For the offence under section 376
I.P.C. the word rape has been defined under
section 375 I.P.C. wherein a man is said to
commit rape on a female if the act is done
against her will, without her consent, if it is with
her consent it has been obtained by putting her
or any person in whom she is interested in fear
of death or of hurt with or without her consent
when she is under 18 years of age or if she is
unable to communicate her consent.

16. Here it is not the case that the girl was
unable to communicate her consent. It has been
decided by the lower court that at the time of
occurrence the girl was 18 years of age i.e. she
was major. So the conviction under section 363
I.P.C. becomes against the law.

17. Now it is to be seen whether the girl
was abducted with the intend that she may be
compelled or likely to be compelled to marry
against her will or she may be forced or seduced
to illicit intercourse or likely to be forced or
seduced to illicit intercourse and physical
relations are made with the girl against her will
or consent.

18. If we go through the medical report
exhibit K-6, the opinion of doctor is that no
11 All. Pramod Kumar Vs. State of U.P.
43
definite opinion regarding rape can be given.
P.W.-6 Dr. Sunita has proved this report by her
statement. If we go through the report, it is
mentioned therein that the girl had changed
clothes under-garments, she had washed her
clothes and under-garments, she had passed
urine and stool, rinsed her mouth. The girl is
said to be recovered on 22.9.2017 and is said to
have been examined next day i.e. on 23.9.2017.
Hon'ble Apex Court in the case of Wahid Khan
Vs. State of Madhya Pradesh, 2010 (68) ACC
266 held that rape is crime and not a medical
condition. Rape is a legal term and not a
diagnosis to be made by the medical officer
treating the victim. The only statement that can
be made by the medical officer is to the effect
whether there is evidence of recent sexual
activity. Whether the rape has occurred or not is
a legal conclusion, not a medical one.

19. So the physical assault on the victim
was a rape or not is to be decided by the court on
the basis of evidence on record. Whether the
said victim was abducted or kidnapped with the
intent of compelling her to marry any person
against her will or that she may be forced or
seduced to illicit intercourse and whether the
physical assault on the victim comes under
section 375 of I.P.C. is to be looked into and the
evidence is to be scrutinized to come to a
definite conclusion.

20. As per first information report Lakhan
and Chhotu both sons of Suresh were said to
have
enticed
away
the
victim.
During
investigation the involvement of these two
persons was found wrong. When the girl was
recovered by the police on 22.9.2017 she was
found in the company of the present accused
Pramod Kumar. When her statement under
section 161 Cr.P.C. was recorded on 22.9.2017
she stated that on the missed call of accused
Pramod they started conversation with each
other and at the last on the call of Pramod
Kumar she left her home. In the way she met
Chhotu who take her to Atmadpur where she
met Pramod Kumar and Pramod Kumar took her
NOIDA Mamura by bus. There they solemnized
marriage and started living like husband and
wife. Next day on 23.9.2017 when she was
produced before the doctor there she narrated the
incident that on 1.9.2017 Dinesh, Tinchu and
Chhota lifted her from her home to some
unknown place. They kept her for 3-4 days there
then they left her with Pramod Kumar and
Chhota. Pramod Kumar committed rape upon
her. She lived for 6-7 days along with Pramod
after that police recovered her.

21. On 4.10.2017 her statement under
section 164 Cr.P.C. was recorded before the
Magistrate wherein she stated that on 1.9.2017 at
4.00 p.m. she went alone to Admadpur to
purchase
vegetables.
She
met
there
Dinesh,Tinchu and Chhota who administered
her juice and after having juice she felt
dizziness. She was taken away from there by a
roadways bus. When she boarded on bus she
became unconscious. When she gained her
conscious she found herself in a room in
Mamura. Chhota put off her trouser and Tinchu
and Dinesh caught hold her hands and legs.
Chhota committed rape on her. After Chhota,
Dinesh and Tinchu also raped her and then they
handed over the victim in custody of a boy
named Pramod Kumar who took her to his house
by auto rickshaw and next day he also
committed rape on her. During traveling in auto
rickshaw she did not raise any alarm as Pramod
Kumar had given threat to kill her brother.

22. On 6.10.2017 the Investigating Officer
recorded her additional statement wherein she
stated that she is not familiar with Chhotu.
Chhotu is the nephew of Tinchu. Chhota, Tinchu
and Dinesh administered her juice, raped her and
then gave her in custody of Pramod Kumar.

23. If we go through the evidence on
record of p.w.-1, the father of the girl, he has
44 INDIAN LAW REPORTS ALLAHABAD SERIES
proved the complaint wherein he has mentioned
that on 1.9.2017 her daughter was enticed away
by Lakhan and Chhotu. The only statement
regarding the present accused, the witness has
made is that on 21.9.2017 her daughter was
recovered with Pramod and Pramod was
arrested.

24. P.W.-2 mother of the victim has also
stated that on 1.9.2017, she had gone to house of
her parents. Her husband informed her in the
evening that Lakhan and Chhotu have enticed
away their daughter Pooja. Pooja came back on
21.9.2017 and on being asked she did not name
Dinesh, Chhota and Tinchu. She also admitted
that her daughter was recovered along with
Pramod Kumar. Pramod Kumar was arrested by
the police. Both these witnesses have not
mentioned the name of the present accused in
committing the rape on their daughter. They
have only stated that the girl was recovered
along with Pramod.

25. The most important and the only witness
of the occurrence is the girl herself who has
appeared as P.W.-4 in the court. In her
examination-in-chief she stated that on 1.9.2017 in
the evening she went alone to Atmadpur for
purchasing vegetables, Pramod Kumar met there
along
with
his
friends.
Pramod
Kumar
administered her juice after that she felt dizziness
and then they took her by a bus and kept her in a
room. Pramod Kumar raped her and on 21.9.2021
when he was bringing her to Agra she was
recovered by the police at Taj Expressway. She
was medically examined and Pramod was arrested.
She specifically denied the involvement of Dinesh,
Chhota and Tinchu in enticing her away or
committing rape on her. She was declared hostile
and in the cross examination by the learned
Government Advocate she denied of her statement
under section 161 Cr.P.C. and stated that she is not
aware of the said statement. She has no knowledge
how this statement has been recorded by the police
and in cross examination again she stated that
Pramod Kumar committed rape on her. He kept
her in his house and gave threat to kill her brother.
In the cross examination by the counsel on behalf
of Tinchu, Chhota and Dinesh she again denied of
rape committed by Tinchu, Chhota and Dinesh.

26. It is noteworthy that only three
witnesses of fact have been produced on behalf
of the prosecution wherein p.w.1 and 2, the
parents of the victim are neither the eye
witnesses of the incident nor have made
allegation against Pramod of enticing the girl
away or that he committed rape on their
daughter. They have only admitted the fact that
their daughter was recovered with Pramod
Kumar, however, the victim has in her
examination-in-chief
and
also
in
cross
examination
stated
that
Pramod
Kumar
committed rape on her. It is true that the victim
the PW-4 has not been cross examined by the
learned counsel of accused Pramod Kumar
rather none of the witnesses have been cross
examined by the counsel of accused Pramod
Kumar. It is found that on 29.10.2018 when the
statement under section 313 Cr.P.C. of the
accused persons had been recorded and the
arguments were heard in part an application on
behalf of the accused Pramod Kumar was moved
that his counsel be permitted to cross examine
the witnesses. This application was rejected on
the ground that it was moved at a very belated
stage. However, the judgment on the basis of
uncontroverted evidence of the victim was
passed which resulted into conviction of accused
Pramod Kumar. The evidence of the victim only
is enough to hold the accused guilty but for
holding a person guilty of offence, it is
necessary that the statement of only witness i.e.
prosecutrix must be convincing, reliable and
trustworthy. Now we have to see whether the
uncontraverted statement of victim is reliable
enough to bring home the guilt of accused.

27. It is true that when the first information
report was lodged by the father of the victim he
11 All. Pramod Kumar Vs. State of U.P.
45
had no knowledge that with whom his girl has
eloped. Only on the basis of suspicion the names
of Chhotu, Lakhan were mentioned therein and
the implication of these two persons was found
wrong by the police, they were not even
chargesheeted.

28. When the girl was recovered on
22.9.2017 she stated in her statement under
section 161 Cr.P.C. that she went along with
Pramod Kumar on her own on the phone call of
Pramod Kumar. They went to Noida Mamura.
Pramod Kumar kept her in his house. They both
solemnized their marriage and lived like
husband and wife. It is noteworthy that in the
bail application also the same ground was taken
by Pramod Kumar that both had solemnized
marriage and were living as husband and wife. A
photocopy of marriage certificate was produced,
then the accused Pramod Kumar was released on
bail on 28.10.2017.

29. After admitting the fact of marriage
with Pramod Kumar in statement under section
161 Cr.P.C., the girl was produced before the
doctor for her medical examination. There she
named Dinesh, Tinchu and Chhota that they
lifted her from her house and she was kept with
them and afterward she was left with Pramod
Kumar by them. Chhota and Pramod committed
rape upon her. Thus on the next day of her
recovery along with Pramod Kumar she
implicated Dinesh, Tinchu and Chhota also in
the offence and alleged that they lifted her from
her house. After the statement before the doctor
which has been proved by the doctor as P.W. 6
in the court, on 4.10.2017 in her statement under
section 164 Cr.P.C. she cooked up a fresh story
that on 1.9.2017 at 4.00 p.m. she had gone to
buy some vegetables to Atmadpur where Tinchu
and Chhota administered her juice and took her
in a bus to Mamura. In the bus she got
unconscious and when she gain her conscious
Tinchu, Dinesh and Chhota committed rape on
her one by one. After that they gave her in the
custody of Pramod Kumar who took her in his
house and there he also committed rape on her.
On 6.10.2017 her additional statement was
recorded by the police wherein she again named
Chhota, Tinchu and Dinesh for administering
her juice, committing rape on her and
transferring her in custody of Pramod Kumar
and when she was produced in the court as
P.W.-4, she clearly refused the involvement of
Chhota, Dinesh and Tinchu in enticing her away
and committing rape on her. Here she only
implicated Pramod Kumar and made allegations
against him of committing rape on her.

30. Though on single testimony of the
prosecutrix the accused can be convicted but her
evidence must be convincing and reliable as the
Hon'ble Apex Court in Santosh Prasad Vs.
State of Bihar (2020) 3 Supreme Court Cases
443 and Sudhansu Shekhar Sahoo Vs. State
of Orisa, 2003 AIR SCW 154 has opined that
there can be a conviction solely based on the
evidence of the prosecutrix however the
testimony of the prosecutrix must be trustworthy
and convincing and reliable. Non-examination
of other witnesses cannot be ground to reject the
prosecution case. In the judgment of Abbas
Ahmad Choudhary Vs. State of Assam, 2010
(12) SCC 115, the Apex Court held that the
statement of prosecutrix must be given primary
consideration but at the same time, the broad
principle that the prosecution has to prove its
case beyond reasonable doubt applies equally to
a case of rape and there can be no presumption
that the prosecutrix would always tell entire
story truthful. Here the statement of prosecutrix
is the only evidence produced in support of
charges levelled by the prosecution but the
evidence of the prosecutrix cannot be said to be
reliable. It is completely shaky. The girl has
changed her stand every time.

31. At one place, when she has been
recovered by the police she admits in the
statement under section 161 Cr.P.C. the present
46 INDIAN LAW REPORTS ALLAHABAD SERIES
accused Pramod Kumar to be her husband and
stated that they had solemnized marriage and
were living as husband and wife and very next
day in her statement before the doctor she
implicated Chhota, Dinesh and Tinchu and
blamed them of committing rape upon her and
transferring her custody to Pramod Kumar by
these three persons. She also stated that these
three persons lifted her from her home. On
4.10.2017 in her statement under section 164
Cr.P.C. she again changed her stand that on the
date of incident she had gone to Atmadpur to
buy some vegetables and there Tinchu, Dinesh
and Chhota administered her juice. She felt
dizzy and she was taken away by a bus where
she got unconscious and these three persons
committed rape on her and gave her in custody
of Pramod Kumar. On 6.10.2017 in her
additional statement under section 161 Cr.P.C.
again she repeated this statement. When she was
produced in the court as P.W.-4 she totally
exonerated Chhota, Dinesh Tinchu and denied
the involvement of the other persons in the
offence except Pramod Kumar.

32. It is noteworthy that after her
recovery and recording her statement under
section 161 Cr.P.C., she was living with her
parents.
These
changed
circumstances
changed her stand also.

33. As the girl has been found to be
major on the date of incident, so her consent
makes a difference in the commission of the
offence. It is admitted fact that girl was
recovered from the custody of Pramod Kumar
and her statement that after committal rape by
Chhota, Tinchu and Dinesh they handed over
her to Pramod Kumar next day means after
eloping on 1.9.2017 till her recovery on
22.9.2017 at least for 20 days she was with
accused Pramod Kumar and if she was taken
forcefully she could have raised alarm, she
could have come out from his house and
report the matter to police but she did not do
so rather she continued living with him and
when she was recovered by the police she was
in the company of Pramod Kumar. There also
she did not state before the police that she was
being taken forcefully by the accused Pramod
Kumar rather in her first statement of the
recovery under section 161 Cr.P.C. she
accepted that she had solemnized marriage
with accused Pramod Kumar which makes it
clear that she was a consenting party who left
her house on her own and went to meet
Pramod Kumar and both solemnized marriage
and lived as husband and wife together. Later
on, she was recovered by the police and
started living with her parents and then she
changed her stand implicating Pramod Kumar
in the offence punishable under sections 363,
366 and 376 I.P.C. The lower court has held
the prosecutrix major
on the date
of
occurrence on the basis of the above
discussion, the evidence of the prosecutrx with
regard to the offence committed with her is
found to be totally unreliable, untrustworthy
and unconvincing, hence the accused cannot
be convicted of the charges levelled against
him.

34. The finding of lower court convicting
the accused Pramod Kumar under section 363
Cr.P.C. after holding the victim major is
completely erroneous and against the law. The
conviction of Pramod Kumar under other
sections is also based on unreliable and shaky
evidence. The sexual intercourse in question is
not proved amounting to rape and no offence
is brought home to Pramod Kumar appellant.
Learned lower court has misconstrued the
evidence produced by the prosecution in
recording
perverse
finding
regarding
conviction of the accused. Hence the judgment
of lower court is liable to be set aside.

35. For the reasons mentioned above, the
impugned judgment and order cannot be
upheld and it is set aside.
11 All. Baba Kuberanand @ Kalu Ram Vs. State of U.P.
47

36. Accordingly, the appeal is allowed.

37. The appellant Pramod Kumar is
acquitted of the charges levelled against him and
he be set at liberty forthwith if not required in
any other case.
----------
(2021)12ILR A47
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.12.2020

BEFORE

THE HON'BLE VIPIN CHANDRA DIXIT, J.

Jail Appeal No. 485 of 2018

Baba Kuberanand @ Kalu Ram ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Lalji Chaudhary

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law - Code of Criminal Procedure,
1973-Section 374(2) - Indian Penal Code,
1860-Sections 363, 366, 376(2) I, 376(2) J &
Section 4 POCSO Act, 2012 -challenge toconviction-no external injury and victim denied
for her internal medical examination, therefore
commission of rape could not be proved-Chief
Medical Officer assessed her age as 17 years
and as per migration certificate her age was 16
year 5 months-she stated on oath as PW-1 that
she went with the appellant on motorcycle
with her own will-other witnesses stated the
version of F.I.R.-sentence awarded to the
appellant is modified and is reduced to the
period already undergone.(Para 1 to 18)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Sattan Sahani Vs St. of Bih. & ors.. (2002) 45 ACC
1134 SC
2. Uthem Rajanna Vs St. of A.P. (2005) 11 SCC 531

3. Neelam Bahal & anr. Vs St. of U.K. (2010) 2 SCC
229

4. B.G. Goswami Vs Delhi Administration (1973) AIR
1457

(Delivered by Hon'ble Vipin Chandra Dixit, J.)

1. The present jail appeal has been
preferred by the appellant Baba Kuberanand @
Kaluram from jail against the impugned
judgment and order dated 18.3.2016 passed by
Special Judge, POCSO Act/Additional Sessions
Judge, Court No.4, Ghaziabad in Sessions Trial
No.17 of 2014 (State of U.P. Vs. Baba
Kuberanand alias Kaluram). The accusedappellant has been convicted and sentenced with
rigorous imprisonment for 5 years with fine of
Rs.5,000/- under Section 363 I.P.C. and in
default thereof he shall undergo additional
imprisonment for two months, sentenced with
rigorous imprisonment for 7 years and fine of
Rs.10,000/- under Section 366 I.P.C. and in
default thereof he shall undergo additional
imprisonment for three months, sentenced with
rigorous imprisonment for 10 years and fine of
Rs.10,000/- under Sections 376(2) J of I.P.C.
and in default thereof he shall undergo
additional imprisonment for three months,
sentenced with rigorous imprisonment for 7
years and fine of Rs.10,000/- under Section 4 of
POCSO Act and in default thereof he shall
undergo additional imprisonment for three
months. All these sentences have been directed
to be run concurrently.

2. Factual matrix of the case are that the
F.I.R. (Exhibit Ka-5) was lodged by complainant
Pratap Singh (P.W.-2) in Police Station
Dhaulana, District Hapur that her daughter, age
15 years, was missing since evening of
13.1.2014 and he suspects Baba Kuberanand,
Harish, Rinku and Sushil for the same. The case
was registered as Case Crime No.21 of 2014,