# Rajesh & Anr v. State of U.P

- **Citation:** (2025) 5 ILRA 803
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-01
- **Case number:** Criminal Appeal No. 482 of 2004
- **Bench:** Mrs. Sangeeta Chandra, Ajai Kumar Srivastava-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-anr-v-state-of-u-p-53451
- **Pages:** 11

## Headnote

A. Criminal Law - Criminal Procedure
Code,1973-Section 374(2)-Indian Penal
Code,1860-Sections 363, 366 & 376Indian Evidence Act,1872-Section 114Achallenge to-conviction-Appellants were
convicted for raping a 15 year old girl-The
FIR alleged that the accused, with the
help from others, lured the minor girls 'S'
and 'A' took them to Haryana -Victim 'S'
gave detailed statements u/s 161 and 164
CrPc, accusing both the accused of forcibly
abducting and repeatedly raping herVictim 'A' turned hostile during trial and
denied rape, claiming she went willingly
and wanted to marry accused RajeshHeld, When the prosecutrix is a minor any
alleged consent to sexual activity is legally
irrelevant-Conviction
u/s
376
IPC
is
sustainable even in absence of physical
injuries or medical proof of recent rapeThe
consistent
and
uncontroverted
statement of the victim u/s 161 and 164
Crpc,
when
found
trustworthy,
is
sufficient to sustain conviction without
804 INDIAN LAW REPORTS ALLAHABAD SERIES
corroboration-Turning
hostile
by
one
victim does not vitiate the prosecution
case if the other victim's testimony is
reliable
and
corroborated
by
circumstances-The victim below 18 years
of age cannot legally consent to sexual
intercourse, thus, even if the act is
consensual in fact, it constitutes rape u/s
376 IPC-The evidence of one witness
turning hostile does not demolish the case
if other prosecution witnesses remain
consistent and reliable-It affirms that
consent is immaterial in the case of a
minor-the evidence of the prosecutrix can
be the sole basis for conviction if found
credible.(Para 1 to 32)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

5 All. Rajesh & Anr. Vs. State of U.P.
803
Apex Court in State of Madhya
Pradesh
vs.
Shyamlal
and
others,
Criminal Appeal No. 1254 of 2024, we are
of the view that following sentence would
sub-serve the ends of justice:-

42. Appellant Sukh Ram and
Bhupal are sentenced to period already
gone under section 304 IPC part II read
with 149 of the IPC and they are also
sentenced to fine of Rs. 25,000/- each and
fine thus imposed shall be paid to the
victim.

43. Thus, this appeal deserves to be
partly allowed. The impugned judgement and
order of learned trial court dated 21.12.1985
convicting and sentencing the appellant under
section 302 r/w 149 IPC is set aside and they are
convicted under section 304 part II read with
section 149 I.P.C., section 325 r/w 149 I.P.C. and
section 323/149 I.P.C. They are sentenced to
period already undergone concurrently and pay
fine of Rs. 25,000/- each. The total fine imposed
shall be paid to the victim as compensation to the
legal heir/ heirs of the deceased Shyam Lal. In
default of payment of fine they will undergo
imprisonment of three months. The appellants
are directed to deposit the fine before the learned
trial court within one month.

44. Let a copy of this order be
communicated by the Registrar (Compliance)
to the Chief Judicial Magistrate concerned for
compliance within a week.

45. The Chief Judicial Magistrate,
Budaun is also directed to send his compliance
report within two months to this Court.

46. Lower court record be sent to
the concerned Court forthwith.

47. Registrar General of this Court
is also directed to pay an honorarium of Rs.
15,000/- to Sri Javed Alam, learned
Amicus Curiae for rendering effective
assistance in the matter.
----------
(2025) 5 ILRA 803
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 01.05.2025

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.
THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Criminal Appeal No. 482 of 2004

Rajesh & Anr. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
R.P. Singh, K.K. Singh, Kailesh Nath Mishra,
L.K. Gupta

Counsel for the Opposite Party:
G.A.

A. Criminal Law - Criminal Procedure
Code,1973-Section 374(2)-Indian Penal
Code,1860-Sections 363, 366 & 376Indian Evidence Act,1872-Section 114Achallenge to-conviction-Appellants were
convicted for raping a 15 year old girl-The
FIR alleged that the accused, with the
help from others, lured the minor girls 'S'
and 'A' took them to Haryana -Victim 'S'
gave detailed statements u/s 161 and 164
CrPc, accusing both the accused of forcibly
abducting and repeatedly raping herVictim 'A' turned hostile during trial and
denied rape, claiming she went willingly
and wanted to marry accused RajeshHeld, When the prosecutrix is a minor any
alleged consent to sexual activity is legally
irrelevant-Conviction
u/s
376
IPC
is
sustainable even in absence of physical
injuries or medical proof of recent rapeThe
consistent
and
uncontroverted
statement of the victim u/s 161 and 164
Crpc,
when
found
trustworthy,
is
sufficient to sustain conviction without
804 INDIAN LAW REPORTS ALLAHABAD SERIES
corroboration-Turning
hostile
by
one
victim does not vitiate the prosecution
case if the other victim's testimony is
reliable
and
corroborated
by
circumstances-The victim below 18 years
of age cannot legally consent to sexual
intercourse, thus, even if the act is
consensual in fact, it constitutes rape u/s
376 IPC-The evidence of one witness
turning hostile does not demolish the case
if other prosecution witnesses remain
consistent and reliable-It affirms that
consent is immaterial in the case of a
minor-the evidence of the prosecutrix can
be the sole basis for conviction if found
credible.(Para 1 to 32)

The appeal is dismissed. (E-6)

List of Cases cited:

1. St. of Mah. Vs Chandraprakash Kewalchand
Jain (1990) 1 SCC 550

2. Juwarsingh s/o Bheraji & ors. Vs St. of
M.P.(1980) Supp SCC 417

3. Rafiq Vs St. of U.P. (1980) 4 SCC 262

4. Sheikh Zahir Vs St. of Bih.(1983) 4 SCC 10

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. The instant Criminal Appeal has
been filed by the appellants, namely,
Rajesh and Ramu against judgment and
order dated 22.10.2003 passed by learned
Additional District and Sessions Judge
(Fast Track) Court No.5, Lucknow in
Sessions Trial No. 55 of 2003, convicting
the appellants under Sections 363, 366 and
376 of the I.P.C. and sentencing them to
undergo five years imprisonment along
with fine under Section 363 I.P.C., to
undergo seven years imprisonment under
Section 366 along with fine, and to undergo
12 years imprisonment under Section 376
I.P.C. along with fine, with all such
sentences to run concurrently.

2. By the time the Appeal came up
for hearing the appellants had already
undergone their sentence and had been
released. This court therefore appointed an
Amicus to argue the Appeal on behalf of
the appellants.

3. We have heard Sri Kailash Nath
Mishra, learned Amicus for the appellants
and Sri Balram Singh Yadav learned
A.G.A on behalf of the State Respondents.

4. The prosecution story is that one
Sri
Krishna
son
of
Nihal
Raidas
approached the Police Station Kakori on
15.09.2002 stating that his brother-in-Law,
Sundarlal had sent his daughter 'S' aged
about 15 years to live in his house in order
to enable her to pursue her studies. 'S' was
studying in Class-X. She developed a
friendship with 'A', sister of Anand, who
was 17 years old and lived in the
neighbourhood. The main accused Rajesh
used to frequently visit the house of Anand
along with Ramu the co-accused, as the
sister of Rajesh was married in the same
village
to
one
Hari
Shankar.
On
12.09.2002, 'S' and 'A' left their homes at
around 09:00 PM, and they did not return.
After searching for 'S' and 'A', the
informant Sri Krishna became sure that
Rajesh Pasi and Ramu Pasi, along with
Hari Shankar had coaxed both the girls to
leave their homes and run away with them.
He further alleged that 'S' had taken
jewellery and cash from the house of the
informant while running away. He did not
specify the exact amount of jewellery and
cash allegedly taken away by 'S' while
running away.
5 All. Rajesh & Anr. Vs. State of U.P.
805
5.
On
such
written
report,
Constable
Clerk
Vishwanath
Sonkar
registered an F.I.R. in Case Crime No. 269
of 2002, under Sections 363, 366 and 376
I.P.C. and made entry No. 45 in the GD at
07:30 PM on 15.09.2002 and investigation
was assigned to Sub-Inspector Rajiv
Ranjan Srivastava.

6.
The
Investigating
Officer
submitted charge-sheet after completing
investigation only against Rajesh and
Ramu, and exonerated Hari shankar and the
case was committed to the Sessions Court
by the Judicial Magistrate Lucknow on
10.01.2003

7.
The
prosecution
produced
Kumari 'A' as P.W.-1, the informant Sri
Krishna as P.W.-2, Kumari 'S' as P.W.-3,
S.I. Rajiv Ranjan Srivastava as P.W.-4, Dr.
Bharti Sharma as P.W.-5, Vishwanath
Sonkar Constable Clerk as P.W.-6, Sati
Ram Yadav S.I. as P.W.-7

8. The accused in their statement
under Section 313 I.P.C. denied any
involvement and alleged that they had been
falsely implicated because of enmity and
claimed trial but they did not produce any
evidence in their defence.

9. After trial was concluded and the
Trial Court convicted the appellants as
aforesaid, this appeal has been filed and the
counsel for the appellants has argued that
the conviction of the accused Rajesh and
Ramu
cannot
be
sustained
as
the
prosecution failed to establish their guilt
beyond all reasonable doubt. The evidence
that was produced before the Trial Court
was not sufficient to prove the appellants
guilt as the prosecution witnesses have not
supported the prosecution story and were
declared hostile. Also, the statements of
prosecution witnesses were contradictory
and the investigation itself was tainted with
pre-meditation and malafides. Conviction
has been based solely on the oral statement
made by P.W.-3 Kumari 'S' about her date
of birth being 12.04.1988. Even if such
date of birth is taken to be true, the
prosecution witness / victim was more than
16 years of age on 12.09.2002 and the Trial
Court did not give the grace period of two
years as is required to be given under law.

10. This court has gone through the
statements of the two victims given under
Section 164 to the Magistrate on their being
recovered from the custody of the accused.
'S' stated that she was 14 years of age and
that on 12.09.2002, she had gone to ease
herself when 'A' also was seen coming by
her. 'A' being a friend told 'S' to walk a
little further. As soon as they reached under
a tree and 'S' was about to sit to ease
herself, Rajesh and Ramu, the two accused
had come there, and Rajesh tried to
strangulate her with her Dupatta and 'A'
and Ramu both caught her hands. It was
then that she realised that 'A' was in
collusion with Rajesh and Ramu. She lost
consciousness and regained it only at Delhi
bus station. Again 'A' made her lose her
consciousness. As soon she came around,
she told them that she wanted to go home
to her father. However, 'A' forcibly put her
hand
on
her
mouth
and
she
lost
consciousness
again.
She
regained
consciousness only at Kaithal as revealed
to her by 'A'. There Rajesh and Ramu took
turns to violate her modesty, and when she
screamed for help, 'A' caught hold of her
and quietened her. After about four days,
Ramu's brother Pappu and Rajesh's father
also arrived in Kaithal and Rajesh's father
and Pappu told 'S' to write down that she
had come with them of her own sweet and
had performed court marriage. When she
806 INDIAN LAW REPORTS ALLAHABAD SERIES
refused, she was told that she would be sold
off by them. It was also stated that when
Rajesh and Ramu abducted her both had
guns with them. Even Pappu had a gun
with him, and all of them threatened her.
Pappu forcibly made her write a letter that
she had run away on her own. All of them
forced her to say that it was her own
mistake and not that of Rajesh and Ramu.
When the neighbours came to know,
Rajesh and Ramu changed the room in
which 'S' was kept and took her to
Kurukshetra. She was kept in Kurukshetra
for about six days and forcibly made to
wear Sindoor and bangles by Ramu. One
day she found opportunity to run away and
met one good man and his parents and told
them about her story. They asked 'S' to
take them to the room where she had been
kept captive. When 'S' took them to the
room, they found Ramu, Rajesh and 'A'
there in the room and the people
accompanying her quietly locked the door
of the room from outside and took 'S' to
the police station for filing a report. After
the report was lodged, the police came and
arrested Rajesh and Ramu and 'A', and also
called up her father who came along with
local police to rescue her. 'S' also stated
before the Magistrate that she wanted to go
to her home with her father, and that Pappu
and Rajesh's father had threatened to kill
her family.

11. 'A' on the other hand when
produced
before
the
Magistrate
on
07.10.2002 stated on oath that she was
sixteen and a half years old and that on
12.09.2002, when she had gone out to ease
herself, she met 'S' who asked her to take
take a stroll. While 'A' was strolling with
'S' who had already colluded with the two
boys, Rajesh and Ramu, they abducted her
and took her to some other town. Later on,
she was taken to Kaithal where they rented
a room. When 'A' started crying that she
wanted to go to her parents house, Rajesh
and Ramu were instigated by 'S' to rape
'A'. After she was raped, 'A' told them that
had they told her parents, they would have
readily married her to them. Rajesh and
Ramu along with 'S' then told her that they
will take her to her parents after their work
is finished. Whatever 'S' told Rajesh and
Ramu to do with 'A', they obeyed her and
behaved accordingly. Later on, when they
were ready to leave her with her parents,
the police came and arrested them. But 'A'
also deposed that Rajesh and Ramu had
threatened 'S' that in case she went home
to her parents, they would kill her.

12. A medical examination of both
'A' and 'S' was conducted by a lady doctor
in a Government hospital, 12.09.2002, and
no mark of injury was found on their body.
Their hymen was old, torn and healed and
on the basis of finger test, the doctor was of
the opinion that both the girls were
accustomed to sexual activity and no
opinion regarding them being raped could
be given. On the basis of their x-ray report
both 'S' and 'A' was found to be around 17
years of age.

13. The statement of the SubInspector Rajiv Ranjan Srivastava the first
Investigating Officer was taken by the Trial
Court and he deposed that after information
regarding both 'S' and 'A' being missing
was received, efforts were made to to
recover them. On the basis of information
received from an informer, they reached
Durga Ganj crossing where both the
abducted girls were found sitting in a hotel.
On being approached, both the girls said
that the accused had gone to buy some
things for them from a shop nearby. The
police team waited for the accused and
arrested them on their arrival. Both the
5 All. Rajesh & Anr. Vs. State of U.P.
807
recovered girls were produced before the
Magistrate. They gave their statements
under Section 164 Cr.P.C. implicating each
other as having colluded with Rajesh and
Ramu. On their request, they were handed
over to their parents on 07.10.2002, and
'Supurdagi
Nama'
was
prepared
accordingly.

14. After trial was committed to the
Sessions Court charge was framed against
both the accused regarding kidnapping both
girls from their lawful guardians with the
intent of illicit intercourse and then
committing rape on them i.e. Sectons 363,
366 & 376 of I.P.C.

15. Kumari 'A' was produced as
P.W.-1 and in her examination-in-Chief
before the Trial Court, she stated that she
knew both the accused Rajesh and Ramu
since long, and that she had relationship
like brother and sister with Rajesh. 'S' was
originally from Malihabad, but she had
relatives in her village in Kakori, and she
came to live in her village and 'A' and 'S'
became friends. She also stated that she had
gone on her own with Rajesh and Ramu
and 'S' was also with them. They stayed in
Kurukshetra Haryana, for sometime where
Rajesh had taken a room on rent. Ramu and
'S' were also living with them. Neither
Rajesh nor Ramu committed any sexual
offence with her at the time when she had
gone with them or while she was living
with them. She was nineteen and a half
years old. She returned after her brother
and her father found her in Haryana. She
did not get married to either Ramu or
Rajesh. She further admitted to having been
medically examined and also to have given
a statement before the Magistrate. She was
declared hostile by the Trial Court upon
application
of
the
prosecution
and
permitted to be cross examined. She stated
in
cross-examination
that
whatever
statement she had given to the Magistrate
earlier under Section 164 Cr.P.C. was
under the influence of the Sub-Inspector.
Her statement under Section 161 Cr.P.C.
was read out to her, but she denied giving
any such statement and she said she had
left her home out of her own sweet will and
she was nineteen and a half years old at the
time. She had not told anyone while she
was living in Kurukshetra, and she had not
informed her family as they would have
scolded and beaten her up. Also, on being
cross examined by the counsel for the
accused, she stated that 'S' had gone with
them on her own out of her own sweet will
and that Ramu had not committed any
sexual assault on 'S'. P.W.-1 also stated
that the accused as well as 'S' and 'A' were
together at all times in Haryana. During the
night, she used to sleep with 'S', whereas
Ramu and Rajesh used to sleep separately.
She also stated that she wanted to marry
Rajesh and 'S' wanted to marry Ramu. She
had no complaints of any sexual offence
having been committed either by Ramu or
Rajesh with her. She also stated that
because the father of 'S' was a home guard,
the Investigating Officer had threatened her
to give statement against accused.

The informant Sri Krishna son of
Nihal was produced as P.W.-2. He stated
that his brother-in-law Sunder Lal used to
live in Malihabad whose daughter 'S' had
come to stay with his family in his village
in Kakori around four months ago in order
to continue her studies and she was a
student of Class X in Kakori. She
befriended one 'A' who used to live in the
neighbourhood. And on 12.09.2002 at
around eight or nine o'clock at night 'S'
told the family that she was going out to
ease herself. She did not return for around
15 minutes and then they started searching
808 INDIAN LAW REPORTS ALLAHABAD SERIES
for her. When 'S' did not return even in the
morning, P.W.-2 called up her father and
then they went to the police station to lodge
a report against Hari Shankar, Ramu and
Rajesh. According to P.W.-2 Rajesh used
to visit the house of Hari Shankar and also
that of one Anand living in the same
village. He was also friendly with Ramu.
He stated that the F.I.R. was written by him
on the prompting of other villagers and he
believed that Ramu had taken 'S' to
Jalandhar. 'S' returned after 10 days along
with 'A'. 'S' did not tell anything of what
happened to her she also did not tell him
whether both of the victims had gone on
their own with the accused. They were
brought home from Kurukshetra, Haryana
by Sundar Lal and Anand, and the SubInspector. The local police had called him
after receiving a call from the Police at
Kurukshetra. Haryana, but he had not gone
to bring back 'S'.

Kumari 'S' was produced as P.W.-
3. She stated that the incident was of
11.09.2002 at around 09:00 P.M., and that
she was living in the house of her maternal
uncle Sri Krishna at the time and studying
in Kakori Unique Inter College in High
School and that her date of birth was
12.04.1988. 'A' was her neighbour and a
friend, and on that night when she had gone
out to ease herself, she was followed by 'A'
and she reiterated her statement under
Section 161 and 164 of the Cr.P.C. given to
the Police and the Magistrate.

16. 'S' as P.W.-3 stated that Ramu
and Rajesh both committed rape on her and
kept her at Kaithal for 15 days. Whenever she
resisted sexual assault, Rajesh and Ramu and
'A' all ganged up together against her and
threatened to sell her off. After Rajesh's
father and Pappu Ramu's brother, arrived in
Kaithal, the accused took her to Kurukshetra
Haryana, where she was kept for 5-6 days.
Again Rajesh and Ramu both committed rape
upon her. Thereafter, all of them returned to
Gola Kuan, Malihabad, and when they were
waiting for Rajesh and Ramu at Gola Kuan,
'S' and 'A' were away by the police who
completed some formalities and got their
medical examination done and thereafter
handed over 'S' to her father and 'A' to her
mother Srimathi Raghurai. She gave her
statement under Section 161 and 164 Cr.P.C.
on her own and stood by them. 'S' was not
cross-examined either by Rajesh or Ramu
although they were given opportunity by the
Trial Court.

17. P.W.-4 Rajiv Ranjan Srivastava,
the first Investigating Officer deposed before
the Trial Court that he was posted as SubInspector
in
Kakori
Police
Station
on
15.09.2002, after writing down the statements of
the informant and witnesses in the Case Diary,
including that of Anand, Sunderlal, Santosh, Gita
and Sangeeta and Smt. Raghurai, Vijay and
Murali, he also searched for the kidnapped
victims. Ultimately on 29.09.2002, the victims
were found near Behta Nala in Malihabad and
recovery
memo
was
prepared.
Medical
examination was got done of the victims 'S' and
'A', after recording their statements under Section
161 and 164 Cr.P.C. on 07.10.2002, they were
handed over to their guardians.

18. At the time when the victims were
recovered, the two accused were not present
with them. P.W.-4 also stated in his
examination-in-Chief that the girls had told
him that the accused had assured them that
after they returned to their native village they
will try and convince their family members to
get the victims married to the accused. They
were making plans to get married in court also.

19. While the girls were recovered
in the morning of 29.09.2002, the accused
5 All. Rajesh & Anr. Vs. State of U.P.
809
were apprehended in the evening the same
day. The arrest memo was prepared, but no
independent witnesses could be found.

20. Dr. Bharti Sharma, Medical
Officer, Dufferin Hospital, Lucknow was
examined as P.W.-5 and she deposed that
both 'S' and 'A' were habitual of sexual
activity and no opinion could be given of
whether they were raped. She had advised
X-ray of knee, wrist and elbow joints for
determination of age of the victims. The Xray was done which had found epiphysis
line being either fused or in the process of
being fused in both the victims. The
radiological age of both victims was around
17 years. However, neither the pathologist
not the radiologist were produced before
the Trial Court to prove their reports.

The second Investigating Officer
Sati Ram Yadav was produced as P.W.-7
and he stated that had filed the charge-sheet
in Court under Section 363, 366 and 376 of
the I.P.C. against the accused Rajesh and
Ramu on the basis of evidence collected by
the first Investigating Officer, Rajiv Ranjan
Srivastava.

21. In their statements under
Section 313 of the Cr.P.C., both Rajesh and
Ramu had denied having kidnapped the
victims and stated that the case was fake
and they had been falsely implicated
because of conspiracy. However, nothing
further was stated by them as to what kind
of conspiracy they were referring to. They
did not try to explain why they were falsely
implicated.

We
have
gone
through
the
judgement of the trial judge wherein he has
stated the prosecution story and the
evidence collected by the first Investigating
Officer Rajiv Ranjan Srivastava and then
discussed statements of all the prosecution
witnesses and then has observed that Sri
Krishna the informant P.W.-2 had only
given his statement in examination-inChief but the prosecution did not produce
him later on and, therefore, he could not be
cross examined by the accused. Hence, his
statement cannot be read against the
accused.

P.W.-1 had initially supported the
prosecution case in her statement under
Section 161 Cr.P.C. and in her statement
before the Magistrate under Section 164
Cr.P.C., but later on she resiled and said
that her earlier statements were given
because of fear of the Investigating Officer.
At the time when she had run away on her
own with Ramu and Rajesh and 'S', she
was nineteen and a half years old, and that
Ramu and Rajesh had not committed any
sexual assault on her. The prosecution got
her declared as hostile and then cross
examined her with regard to the statements
given by her before the Magistrate under
Section 161 and 164 Cr.P.C. but she denied
having made any statement. The defence
counsel for the accused also examined
P.W.-1 and she admitted that she wanted to
marry Rajesh and that she had no complaint
against either Ramu or Rajesh, who had
treated her well.

22. The Trial Judge has observed
that P.W.-1 the alleged victim had stated
that she had a good relationship like that of
brother and sister with Rajesh, she had also
stated that she wanted to marry him. The
Trial Court also observed that in her
statement under Section 161 and 164
Cr.P.C. she had stated that Ramu and
Rajesh had kidnapped her in collusion with
'S', and they had committed rape on her on
the instigation of 'S'. The Trial Court
observed that such prosecution witness was
810 INDIAN LAW REPORTS ALLAHABAD SERIES
wholly unreliable and hence discarded her
evidence.

P.W.-3, on the other hand, had
supported and stood by her statements
given under Section 161 Cr.P.C. and
Section 164 Cr.P.C. she had stated also that
she was 15 years old at the time of giving
her statement before the court and her date
of birth was 12.04.1988, and she was
studying in Kakori Unique Inter College in
high school when she had been abducted by
the accused Rajesh and Ramu in collusion
with 'A'. Since the accused had not crossexamined P.W.-3, even after they were
given opportunity to do so, and they had
thereafter moved an application under
Section 311 Cr.P.C., but had not pressed
the same on 16.10.2002, and the said
application had been rejected for want of
prosecution; her statements could be said to
be uncontroverted and reliable evidence.

The Trial Court has considered the
medical
officers'
evidence
regarding
epiphyseal lines of elbow and knee joint
having fused, and her radiological age
being around 17 years, but has observed
that neither the X-ray report nor the
ultrasound reports were proved in court by
the persons who had prepared them. The
pathological examination report was also
not proved and hence he relied upon the
date of birth as mentioned by P.W.-3 being
recorded in her school.

23. The Trial Court observed that
since the testimony of P.W.-3 'S' was
consistent with her statements under
Section 161 and 164 Cr.P.C. and the
accused had also not cross-examined her
despite opportunity being given to them, it
was of the opinion that P.W.3, 'S', was a
wholly reliable witness, and since she was
only 14 years of age at the time of her
abduction, as per her school records, any
consent given by her as alleged by the
accused, to any sexual activity would
amount to no consent at all as she was a
minor. Even if a margin of two years is
given to the victim, she would still be only
16 years old at the time of her abduction by
the accused who had forcibly taken her to
Haryana in September, 2002; and the
accused having admittedly violated her
modesty, had committed rape on her.

24. The Trial Court looking into
the circumstances where out of two alleged
victims to the crime, one had resiled and
given a statement in favour of the accused
and was declared hostile, whereas the other
had remained consistent in her testimony
right from the time of her recovery and
during trial and also looking into the age of
the victim, 'S' who was produced by the
prosecution as P.W.-3 at the time she was
taken away from home village; has come to
a conclusion that 'S' being a minor, the
accused can be said to be guilty of offence
under Section 363, and Section 376 I.P.C.
The Trial Court has considered also the fact
that the accused had said in their statements
under Section 313 that they had been
falsely implicated out of enmity, but they
did not mention any details as to what was
the enmity between the parties and how
they had been falsely implicated. They did
not cross examine either P.W.-2, the
informant or P.W.-3, the victim 'S'.

The Trial Court also was of the
opinion that P.W.-3 the victim 'S' would
not have subjected herself to character
assassination only on the instigation of her
maternal uncle, the informant Sri Krishna
S/o Hardayal.

The Trial Court having found both
the accused guilty as aforesaid had
5 All. Rajesh & Anr. Vs. State of U.P.
811
sentenced them to 12 years rigorous
imprisonment.

25. Thus, having noticed the fact
that the victim 'S' was aged about 15 years
on the date of the incident and was a minor,
any question of sexual relationship does not
arise. Once the victim has stated that rape
was committed upon her without her
consent, having regard to the provision
contained in Section 114A of the Evidence
Act, it shall be presumed that there was no
consent of the victim, who was a minor on
the date of the incident and, even
otherwise, was a minor.

26. In State of Maharashtra vs.
Chandraprakash
Kewalchand
Jain
reported in (1990) 1 SCC 550, Hon'ble the
Supreme Court in paragraph No.16 has
held as under :-

 "16. A prosecutrix of a sex
offence cannot be put on par with an
accomplice. She is in fact a victim of the
crime. The Evidence Act nowhere says
that her evidence cannot be accepted
unless it is corroborated in material
particulars.
She
is
undoubtedly
a
competent witness under Section 118 and
her evidence must receive the same
weight as is attached to an injured in
cases of physical violence. The same
degree of care and caution must attach
in the evaluation of her evidence as in
the case of an injured complainant or
witness and no more. What is necessary
is that the court must be alive to and
conscious of the fact that it is dealing
with the evidence of a person who is
interested in the outcome of the charge
levelled by her. If the court keeps this in
mind and feels satisfied that it can act on
the evidence of the prosecutrix, there is
no rule of law or practice incorporated
in
the
Evidence
Act
similar
to
illustration (b) to Section 114 which
requires it to look for corroboration. If
for some reason the court is hesitant to
place implicit reliance on the testimony
of the prosecutrix it may look for
evidence which may lend assurance to
her testimony short of corroboration
required in the case of an accomplice.
The nature of evidence required to lend
assurance to the testimony of the
prosecutrix must necessarily depend on
the facts and circumstances of each case.
But if a prosecutrix is an adult and of
full understanding the court is entitled to
base a conviction on her evidence unless
the same is shown to be infirm and not
trustworthy. If the totality of the
circumstances appearing on the record
of the case disclose that the prosecutrix
does not have a strong motive to falsely
involve the person charged, the court
should ordinarily have no hesitation in
accepting
her
evidence.
We
have,
therefore, no doubt in our minds that
ordinarily the evidence of a prosecutrix
who does not lack understanding must
be accepted. The degree of proof
required must not be higher than is
expected of an injured witness. For the
above reasons we think that exception
has rightly been taken to the approach of
the High Court as is reflected in the
following passage:

 "It is only in the rarest of rare
cases if the court finds that the testimony
of the prosecutrix is so trustworthy,
truthful
and
reliable
that
other
corroboration may not be necessary."

 With respect, the law is not
correctly stated. If we may say so, it is
just the reverse. Ordinarily the evidence
of a prosecutrix must carry the same
812 INDIAN LAW REPORTS ALLAHABAD SERIES
weight as is attached to an injured
person who is a victim of violence, unless
there are special circumstances which
call for greater caution, in which case it
would be safe to act on her testimony if
there is independent evidence lending
assurance to her accusation."
(emphasis supplied by us)

27. At the outset, we may, at the
cost of repetition, mention that out of the
two victims, victim 'A', who has been
examined as P.W.-1, has turned hostile.
Therefore, it was vehemently contended by
learned counsel for the appellants that as
one of the witnesses of the same incident
has not supported the prosecution case,
therefore, the testimony of victim 'S'
cannot be relied upon and the learned trial,
while doing so, has committed manifest
error of law. In this regard, we would like
to observe that it is not the law that, in case,
one of the witnesses of alleged incident
turned hostile, it would demolish the entire
case of prosecution despite the same having
been supported by reliable testimonies of
other prosecution witnesses. It is no more
res integra that the testimony of one of the
prosecution witnesses is not to be tested on
the touchstone of reliability of statement of
any other prosecution witness. Therefore,
as we have found the testimonies of
prosecution witnesses of fact, namely,
P.W.-2, the informant and P.W.-3, the
victim 'S', to be reliable, we are not
persuaded to disbelieve the same only
because one of the victims i.e. the victim
'A',
P.W.-1
has
not
supported
the
prosecution case and that too for the reason
which is clearly reflected in her testimony
that admittedly she wanted to marry with
one of the co-accused, namely, Rajesh.

28. Adverting to the facts of the
present case, we have already noticed that
not only the victim was minor on the date
of incident, but also she has categorically
stated that the appellants have committed
rape upon her without her consent. There
has been no cross-examination of P.W.-2,
the informant, and P.W.-3, the victim 'S'
despite opportunity to do so, therefore,
their statements would be admissible
against the appellants in toto, if the same is,
otherwise, found to be reliable. In this
regard, a judgment rendered by Hon'ble the
Supreme Court in Juwarsingh S/o Bheraji
and others vs. State of Madhya Pradesh1
may be usefully referred to.

29. In Rafiq vs. State of U.P.2,
Hon'ble the Supreme Court in paragraph
No.6 has observed as under :-

 "6. There are several "sacred
cows" of the criminal law in Indo-Anglican
jurisprudence
which
are
superstitious
survivals and need to be re-examined.
When
rapists
are
revelling
in
their
promiscuous
pursuits
and
half
of
humankind - womankind - is protesting
against its hapless lot, when no woman of
honour will accuse another of rape since
she sacrifices thereby what is dearest to
her, we cannot cling to a fossil formula
and insist on corroborative testimony,
even if taken as a whole, the case spoken
to by the victim strikes a judicial mind as
probable. In this case, the testimony has
commanded acceptance from two courts.
When a woman is ravished what is
inflicted is not merely physical injury,
but "the deep sense of some deathless
shame".

 A rape! a rape! ...

 Yes, you have ravish'd justice;

 Forced her to do your pleasure."
5 All. Radhey Lal Vs. State of U.P. & Anr.
813
(emphasis supplied by us)

30. Now coming to the issue of
absence of any injury on the person of
prosecutrix and its effect, we would like to
refer to a judgment rendered by Hon'ble
the Supreme Court in Sheikh Zakir vs.
State of Bihar3 wherein Hon'ble the
Supreme Court has held that the absence of
any injuries on the person of the
complainant may not by itself discredit the
statement of the complainant. Merely
because the complainant was a helpless
victim who was by force prevented from
offering serious physical resistance she
cannot be disbelieved. In this situation the
non-production of a medical report would
not be of much consequence if the other
evidence on record is believable.

31. In the aforesaid background,
we do not find any factual or legal infirmity
in the judgment impugned, which does not
suffer from any material irregularity also.

32. The appeal, which is bereft of
merit, stands dismissed.

33. As the appellants have already
served out the sentence awarded to them
and the fine imposed has already been
deposited by them, therefore, in such a
situation, they are not required to surrender

34. Let a copy of this judgment be
sent to learned trial court concerned
alongwith
trial
court
record
for
its
information and necessary compliance
forthwith.
----------
(2025) 5 ILRA 813
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.05.2025

BEFORE
THE HON'BLE SHREE PRAKASH SINGH, J.

Criminal Appeal No. 1014 of 2025

Radhey Lal ...Appellant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Appellant:
Mohammad Alam

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Criminal Procedure
Code,1973-Section 374(2)-Indian Penal
Code,1860-Sectionss 147 & 323 - The
Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989
- Section 3(1)(X) -BNSS,2023-Section 239
(216 Crpc)-The appellant challenged the
order dated 19.11.2024 passed by special
judge,
SC/ST-The
challenge
was
specifically against the dismissal of his
application u/s 239 of BNSS (formerly
section 216 Crpc) seeking alteration of
charges framed u/s 3(1)(X) of the SC/ST
Act- -The appellant filed an application
for alteration of charges under SC/ST Act
as he belongs to Schedule Caste and
section 3(1)X) which applies only to non -
SC/ST persons, cannot be invoked against
him-The Special Judge SC/ST rejected the
application-Held-Only courts have the
authority to alter charges under BNSS not
the parties-SC/ST Act provisions cannot
be invoked against SC/ST persons, and
courts must rectify such legal errors even
if brought up by the accused-The trial
court is at liberty to suo motu consider the
application and if convinced, correct the
erroneous charges.(Para 1 to 26)

The appeal was dismissed. (E-6)

List of Cases cited:

1. Anant Prakash Sinha Vs St. of Har.(2016) 6
SCC 105

2. P. Kartikalakshmi Vs Sri Ganesh & anr.
(2017) 3 SCC 347