# Raju @ Hanuman v. State of U.P

- **Citation:** (2023) 12 ILRA 273
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-15
- **Case number:** Criminal Appeal No. 1230 of 2005
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raju-hanuman-v-state-of-u-p-49560
- **Pages:** 18

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 363, 366 & 376 - Against
conviction
-
As
per
written
report,
informant's 13-year-old daughter went to
school but did not return - During search,
it was found appellant / tenant, was also
missing, leading informant to believe
appellant had enticed her away - A 9-day
delay in lodging FIR dents prosecution case
- FIR scriber was not examined -
Prosecutrix's
improbable
story,
nonexamination of two alleged eye witnesses
(victim's
brother
and
sister)
and
contradictions
in
P.W.2
and
P.W.4's
St.ments
regarding
recovery
render
prosecution story doubtful - Recovery memo
shows recovery from public place without
independent witnesses, further weakening
case - Evidence suggests prosecutrix was
consenting party, as per her own St.ment
admitting she stayed with appellant for 12
days - No struggle marks found during
medical examination - She visited public
places, including court for marriage, without
raising alarm - Marriage between P.W.2 and
appellant is admitted - Under law prevailing
at that time, a wife above 15 years could
legally consent to sexual intercourse -
Victim was over 16 years of age, therefore,
no offence under aforesaid Sections of IPC
is made out. (Para 3, 48, 54, 56)

Appeal allowed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,633 of 60,886. This is a partial read: ask again with offset=39633 for what follows._

12 All. Raju @ Hanuman Vs. State of U.P.
273
keeping in view the age of the victim and
the accused as also the oldness of the
incident, the sentence of life imprisonment
was modified to rigorous imprisonment for
10 years which the accused has already
undergone, the sentence of 14 years
awarded by the trial court separately for the
offences under sections 376 I.P.C. and 3/4
Protection
of
Children
from
Sexual
Offences Act is liable to be reduced to the
period already undergone by the accused.
The accused appellant be released from jail
forthwith.

14. Ordered accordingly.

However, the total fine of Rs.50,000/-
levied by the trial court under sections 376
I.P.C. and 3/4 Protection of Children from
Sexual Offences Act is maintained and
sentence in default of fine is also
maintained. The amount of fine of
Rs.50,000/- to be deposited by the
appellant within six months of his release
shall be paid to the victim of occurrence
under Section 357 CrPC within the next
fifteen days.

15. With the above modification of
sentence, the appeal stands disposed of.

16. The Registry is directed to send
back the record of the trial court, if
received, immediately along with a copy of
the present order.
----------
(2023) 12 ILRA 273
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.12.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Appeal No. 1230 of 2005
Raju @ Hanuman ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Mukul Rakesh, Ashutosh Kumar Shukla, Praveen
Kumar Yadav, Rajesh Kumar Singh

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 363, 366 & 376 - Against
conviction
-
As
per
written
report,
informant's 13-year-old daughter went to
school but did not return - During search,
it was found appellant / tenant, was also
missing, leading informant to believe
appellant had enticed her away - A 9-day
delay in lodging FIR dents prosecution case
- FIR scriber was not examined -
Prosecutrix's
improbable
story,
nonexamination of two alleged eye witnesses
(victim's
brother
and
sister)
and
contradictions
in
P.W.2
and
P.W.4's
St.ments
regarding
recovery
render
prosecution story doubtful - Recovery memo
shows recovery from public place without
independent witnesses, further weakening
case - Evidence suggests prosecutrix was
consenting party, as per her own St.ment
admitting she stayed with appellant for 12
days - No struggle marks found during
medical examination - She visited public
places, including court for marriage, without
raising alarm - Marriage between P.W.2 and
appellant is admitted - Under law prevailing
at that time, a wife above 15 years could
legally consent to sexual intercourse -
Victim was over 16 years of age, therefore,
no offence under aforesaid Sections of IPC
is made out. (Para 3, 48, 54, 56)

Appeal allowed. (E-13)

List of Cases cited:

1. Jaya Mala Vs Home Secretary, Government of
Jammu & Kashmir & ors.: AIR 1982 SC 1296

2. Shweta Gulati & anr. Vs The St. Govt. of NCT
of Delhi reported in 2018 SCC OnLine Del
10448, (Paras 14 to 16)
274 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Mukarrab & ors. Vs St. of U.P. reported in
(2017) 2 SCC 210, (Para 10)

4. S. Varadarajan Vs St. of Madras, 1965 AIR
(SC) 942

5. Takhaji Hiraji Vs Thakore Kubersing Chamansing
& ors.: (2001) 6 SCC 145, (Para 19)

6. Alla China Apparao & ors. Vs St. of A.P.
reported in (2002) 8 SCC 440, (Para 9)

7. Ram Lal Narang Vs St. (Delhi Administration)
reported in (1979) 2 SCC 322, (Para 15)

8. Mohd. Ali Vs St. of U.P. reported in (2015) 7
SCC 272, (Para 29)

9. Kuldeep K. Mahato Vs St. of Bihar reported in
(1998) 6 SCC 420, (Para 11)

10. Narendra Kumar Vs St. (NCT of Delhi) :
(2012)7 SCC 171, (Para 22)

11. Jai Krishna Mandal Vs St. of Jharkhand :
(2010) 14 SCC 534, (Para 4)

12. Raju Vs St. of M.P. : (2008) 15 SCC 133,
(Paras 10, 11)
(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. The present Criminal Appeal under
Section 374 of the Code of Criminal
Procedure, 1973 has been filed by the
appellant, Raju @ Hanuman, against the
judgment and order dated 9.9.2005 passed
by learned Additional Sessions Judge,
F.T.C. No.-II, Lucknow in Sessions Trial
No. 126 of 2004 : State vs. Raju @
Hanuman, arising out of Case Crime
No.478 of 2003 under Sections 363, 366,
376 I.P.C., Police Station Thakurganj,
District Lucknow, whereby the learned
Additional
Sessions
Judge,
F.T.C.-III,
Lucknow, convicted and sentenced the
appellant in the manner stated hereinbelow:-

(I) under Section 363 I.P.C. to undergo
5 years' R.I and a fine of Rs.1000/- and in
default of payment of fine to undergo 6
months' additional imprisonment;

(II) under Section 366 I.P.C. to
undergo 7 years' R.I. and a fine of
Rs.1000/- and in default of payment of fine
to
undergo
6
months'
additional
imprisonment; and

(III) under Section 376 I.P.C. to
undergo 10 years' R.I. and a fine of Rs.
2000/- and in default of payment of fine to
undergo
one
year's
additional
imprisonment.

All the sentences were directed to be
run concurrently."

2. Heard Shri Ehsan Kumar Gupta,
learned counsel for the appellant and Shri
Alok Tiwari, learned A.G.A. for the
respondent State.

3. The prosecution case, as per the
written report (Ext. Ka-1), is that the
daughter of the informant (P.W.1-Satya
Prakash Jaiswal), aged about 13 years went
to school from home on 11.9.2003,
however, when she did not return to home,
then the informant (P.W.1) went to search
her daughter but he could not trace her. On
the same day, Raju (convict/appellant), who
was his tenant, was also missing, therefore,
the informant (P.W.1) believed that Raju
has enticed her daughter away.

4. Thereafter, informant (P.W.1) got
the written report scribed by a man of his
locality, who after scribing it read it over to
him and thereafter, he affixed his thumb
impression on it. He then proceeded to
Police Station Thakurganj and lodged it.

5. The evidence of P.W.3-1981 CP
Jagannath Soni shows that on 20.09.2003,
he was posted as Constable Moharrir at
12 All. Raju @ Hanuman Vs. State of U.P.
275
police station Thakurganj and on the said
date, at 08:10 p.m. Satya Prakash (P.W.1)
came and filed his written report on the
basis of which he prepared the chik FIR
(Ext. Ka.2).

6. A perusal of the chik FIR shows that
the distance between the place of incident
and Police Station Thakurganj was 1
kilometer. It is significant to mention that a
perusal of the chik FIR also shows that on
its basis, a case under Sections 363, 366
I.P.C. was registered against appellant.

7. The investigation of the case was
conducted
by S.I.
Lakshsman Singh
(P.W.4). In his examination-in-chief, he
deposed before the trial Court that on
20.09.2003, in his presence, informant
Satya Prakash Jaiswal lodged the FIR at
Police Station Thakurganj, on the basis of
which
an
offence
punishable
under
Sections 363, 366 I.P.C. was registered.
The investigation of the case was entrusted
to him. During investigation, he recorded
the statement of the Head Moharrir who
prepared the chik F.I.R., informant (P.W.1),
sister of the prosecutrix Km. Sarita. He,
thereafter, inspected the place of incident
and prepared the site plan (Ext. Ka-4). On
06.10.2003, on the basis of information of
informer, he recovered the prosecutrix
(P.W.2) from Lal Masjid, Hardoi Road,
Lucknow under recovery memo (Ext. Ka5) and also prepared site plan (Ext. Ka-6),
however, appellant managed to escape. He,
thereafter, recorded the statement of the
prosecutrix as well as Constable Sunita
(P.W.5), Constable Basudev, Constable
Ramesh Singh and on the basis of the
statement of the prosecutrix, Section 376
I.P.C. was added. On 07.10.2023, he
arrested
the
accused/appellant
from
Tahsilganj Tiraha (a junction of three road)
and also recorded his statement. On
15.10.2003, he got the medical report. On
05.11.2003, the statement of the prosecutrix
under Section 164 Cr.P.C. was recorded and
on the said date, he handed over the
prosecutrix to her parents and also filed
charge-sheet
(Ext.
Ka-7)
against
the
appellant in the Court.

8. The evidence of P.W.5-Sunita
Singh shows that on 06.10.2003, she was
posted as Constable at police station
Thakurganj, district Lucknow and on the
said date, at 10:00 a.m., the prosecutrix was
recovered from Lal Masjid, Balaganj under
recovery memo (Ext. Ka-5). She proved the
recovery memo (Ext. Ka-5). She had
brought
the
prosecutrix
for
medical
examination at Woman Hospital, Lucknow.

9. The medical examination of the
prosecutrix (P.W.2) was conducted on
06.10.2003, at 02:45 p.m., at Virangna
Avantibai Woman Hospital, Lucknow by
Dr. Madhumati Yadav (P.W.6) who found
on
her
person
injuries
enumerated
hereinafter :-

"Internal Examination

-a pinpoint black mole abovert clavicle
3 cm from head of clavicle.

-a scar mark 2 cm in length obliquely
placed near Rt angle of mouth.

External examination

Height 541/2"

breasts
started developing

Wt-70lbs
axillary
hair
not
developed

teeth 7+ 7

pubic hair - sparse

7+7

No mark of injury on any part of body
externally. Internal exam Hymen old torn &
healed. Vagina admits two fingers easily.
Vaginal smear taken and sent for H.P.
276 INDIAN LAW REPORTS ALLAHABAD SERIES
exam. No discharge on bleeding plv.
present. No mark of injury on private parts.

Adv. X ray Rt elbow, Rt wrist & carpel
bones Rt knee for age determination.

Vaginal smear exam for presence of
spermatozoa and gonococci"

10. It is significant to mention that in
her deposition in the trial Court, P.W.6-Dr.
Madhumati Singh has not found any injury
on the external or internal part of the body
of the victim. Hymen was found old torn
and healed wherein two fingers are
admitted easily. No bleeding was found.
She stated that x-ray report was not
prepared in her presence. She has stated
that x-ray report was prepared by Dr.
Someshwar Puri. She is acquainted with the
signatures and writing of Dr. Someshwar
Puri and has proved Ext. Ka-8 (x-ray
report). She has also proved the pathology
report Ext. Ka-9. The victim was used to
sexual intercourse.

11. The case was committed to the
Court of Session in the usual manner where
the appellant was charged on counts
mentioned in paragraph-1 hereinabove. He
pleaded not guilty to the charges and
claimed to be tried. His defence was of
denial.

12. The prosecution, in support of its
case, has produced seven witnesses i.e.
P.W.1
Satya
Prakash
Jaiswal,
the
complainant and step father of the victim;
P.W. 2 the victim; P.W.3 1981 C. P.
Jagannath Soni, who has proved the chik
F.I.R.; P.W.4 S.I. Lakshman Singh, the
Investigating Officer; P.W.5 Sunita Singh, a
lady constable, who has proved the
recovery
of
the
victim;
P.W.6
Dr.
Madhumati Yadav, who has medically
examined the victim; and P.W.7 Rajesh
Kumar Singh, Manager of the Maa Durga
School, whose evidence has been discarded
by the learned trial Court.

13. P.W.1- Satya Prakash Jaiswal in his
examination-in-chief has deposed that ten
months ago, his daughter (P.W.2) aged about
13 years, went to Jai Durga Maa School for
study at 8.00 a.m. but she went missing and
did not return to home from school. Raju @
Hanuman (accused /appellant), who lived in
his house on rent, left his house one day
before her daughter had gone missing and did
not return to home. He got the written report
scribed by a man of his locality on his
dictation and after affixing thumb impression
on it, he proceeded to the police station and
lodged it. He has proved the written report
(Ext. Ka-1). After the written report was
lodged, the prosecutrix (P.W.2) met with him
at the police station and was given her into
his custody. He further stated that his wife
was already married. She had children. Both
of them got married 10-12 years back. She
was having two children from her first
marriage. When he married with his wife at
that time the children were 3-4 years old. His
daughter (victim) was elder. He further stated
that he was searching his daughter daily for
10-11 days and kept on informing the police
inspector that victim has not been traced out.

P.W.1 further states that when the victim
was recovered, then documentation was done
at the Police Station. At that time, he was in
home. He was called by the Inspector to take
the victim (P.W.2). He then went to the police
station and signed the report and brought the
victim (P.W.2) home. He proved Ext.Ka-1. It
is further stated that prior to written report, he
has not put his thumb impression on any
report.

14. P.W.2, the victim, in her
examination-in-chief, has deposed that
while she was going to Jai Durga Mandir
12 All. Raju @ Hanuman Vs. State of U.P.
277
school for study along with her brother and
sister, Raju met her near the gate of the
school and took her to a shop and put
handkerchief on her face. She, thereafter,
became unconscious. When she regained
consciousness, she found herself in a room.
She does not know the name of the village.
He raped her without her consent. She was
raped 2-3 times. She was kept for 12 days.
He threatened her that if she does not go
with him, he will kill her parents. Appellant
had forcibly taken her photographs and
court marriage was also done by force.

In the cross-examination, P.W.2 had
stated that the route of her school goes to a
narrow lane and on both sides of the lane
there are markets and shops and on that
route the tea shop opens very early in the
morning. Before the main road there is
police station where police jeep is stationed
and police personnel also used to move
around and one santri is also standing. She
does not know as to how she was abducted.
She further stated that if an unconscious
person would be taken away from such a
narrow lane then he should be taken only in
a rickshaw or by carrying him in his lap.
She further stated that on that day she went
to school without wearing the school dress.
Prior to the date of incident Raju left her
home and went somewhere. While she
regained consciousness she realized that
she was brought on rikshaw. The house
where she regained consciousness was in a
village. She would leave after having her
meal in the morning and return by evening.
The people in the vicinity/village did not
inquire about them. They without any
hindrance used to roam around. The place
where Raju had kept her, took half an hour
to reach Lucknow. In Lucknow Raju used
to get snacks (Paani patta). She further
stated that with Raju she got her photo
clicked. Her photograph was taken after the
marriage. Once it was taken near the court.
She further stated that her younger sister is
three years younger than her. She then
stated that police went to the house of Raju.
From there she went home. The police has
arrested Raju. The police brought both of
them from the house of Raju. She identified
the
marriage
agreement
and
her
photographs and has stated that it was taken
in the court. He also identified the signature
on the marriage agreement. She further
states that she was caught by the police. On
the next day she went to the hospital. She
further stated that they belong to Jaiswal
caste. Raju is Gadariya by caste. She is not
aware that Jaiswal caste is higher than
Gadariya. She denied the suggestion that
this was the objection in the marriage with
Raju because he belongs to lower caste of
Gadariya.

15. P.W.7-Rajesh Kumar Singh is the
Manager of Jai Maa Durga Vidya Mandir.
Although the summon was given to the
Principal,
however,
in
representative
capacity he has appeared before the court
whose evidence has been rejected by the
trial court as possibility of antedating in the
record and irregular maintenance of the
record was found by the trial court.

16.

The
statement
of
the
accused/appellant
was
recorded
under
Section 313 Cr.P.C. in which he took the
defence that due to enmity and in the
pressure of the police and in connivance
with her father, the victim gave false
testimony. He further stated that false
testimony was given to support the
fictitious investigation.

17. The learned trial Court believed
the evidence of the informant (P.W.1) as
also that of P.W.2-victim and the recovery
effected on the pointing out of the informer
278 INDIAN LAW REPORTS ALLAHABAD SERIES
and convicted and sentenced the appellant
in the manner stated in paragraph-1
hereinabove.

18. As mentioned earlier, aggrieved
by his convictions and sentences, appellant
preferred the instant criminal appeal.

19. Learned counsel for the appellant
submits that the victim, as per the statement
of informant P.W.-1 Satya Prakash Jaiswal,
was 16 years old and prior to the
amendment in the Indian Penal Code, at the
relevant time of the incident, the age of
consent for sexual intercourse, was 16
years. Marriage has been admitted by the
victim (P.W.2) and thus the age of consent
for sexual intercourse with the married wife
is 15 years and therefore, he could not have
been convicted under Section 376 Indian
Penal Code.

20. The second submission is that no
offence under Section 363 Indian Penal
Code and Section 366 Indian Penal Code is
made out as according to the testimony of
the victim, she on her own accord and freewill went away with the appellant. She
remained with the appellant for a period of
eight days without raising any alarm. The
prosecution case is highly improbable.
There is no public/independent witness. He
submits that adverse inference ought to
have been taken against the prosecution for
withholding the younger brother and sister,
who are eye-witnesses of the incident. He
submits that F.I.R. is ante- time and antedated. He further submits that there is no
record to suggest that no special report at
all was sent to the Magistrate concerned by
the police.

21. Per contra, learned A.G.A. has
opposed the prayer and has submitted that
the victim was minor. The incident is
admitted.
According
to
him,
the
prosecution has successfully proved his
case beyond reasonable doubt and delay in
lodging
the F.I.R.
is
immaterial
as
P.W.1/the informant was a rustic villager.
He has further submitted that the statement
of the victim inspired confidence and on
the solitary testimony of the victim (P.W.2),
which
is
of
sterling
quality,
the
accused/appellant can be convicted. There
is no need of corroborative evidence nor
there is need for the prosecution to examine
the eye-witnesses and no adverse inference
can be taken against the prosecution.

22. Having regard the submissions
raised by the learned Counsel for the
parties and going through the depositions
of the prosecution witnesses; the material
exhibits tendered and proved by the
prosecution; the statements of the appellant
recorded under Section 313 Cr.P.C.; and the
impugned judgment, it is required to be
noted that the following questions arising
for consideration before this Court :-

(I) whether the prosecution story, as
alleged, inspire confidence on the evidence
adduced ?

(II) whether the prosecutrix (P.W.2) is
a witness worthy of reliance ?

(III) whether the testimony of a
prosecutrix who has been a victim of rape
standing in need of corroboration and if so,
whether such corroboration is available in
the facts of the present case ?

(IV) what was the age of the
prosecutrix (P.W.2) ?

(V) whether there was unexplained
delay in lodging the F.I.R.?"

23. At this stage, it is pertinent to
mention that at the relevant time i.e., in the
year 2003 when the alleged offence of rape
is said to have been committed, the age of
12 All. Raju @ Hanuman Vs. State of U.P.
279
consent was sixteen years and above. It was
only vide an amendment made in the year
2013 that this has been increased to
eighteen years.

24. Learned Counsel for the appellant
has urged that there was inconsistency and
contradictions in the determination of the
age of the prosecutrix herein, which is
apparent from the contents of the FIR as
well as testimonies to the prosecution
witnesses.

25. Let us first look at the FIR which
contained the information first in point of
time. Exhibit Ka-1 is the written report,
wherein the informant (P.W.1) has stated
that his 13 (thirteen) years' old daughter
was
missing.
P.W.1
(Satya
Prakash
Jaiswal),
in
his
examination-in-chief,
before the trial Court has stated that the
victim was 13 years' old at the time of the
incident,
however,
in
the
crossexamination, P.W.1 had deposed that his
wife had already married and she had two
children from her first marriage. The
marriage between them took place 10-12
years back. At the time of marriage, both
the children were 3-4 years old. The victim
was the eldest and thus from this statement
of P.W.1-Satya Prakash Jaiswal, it can be
easily inferred that victim at the time of the
occurrence was 16 years old.

26. The trial Court has discarded the
educational record produced by P.W.7Rajesh Kumar Singh, Manager of the
School, as it suffers from various defects
such as ante-dating, irregular maintenance
of record/school register and so many other
defects which have been discussed in detail
by the learned trial Court in its impugned
judgment, therefore, ossification test is the
only ground on which the age of the victim
can be assessed which according to P.W. 6-
Dr. Madhumati Yadav is 10-14 years.

27. Hon'ble Supreme Court in the
case of "Jaya Mala Vs. Home Secretary,
Government of Jammu & Kashmir &
Ors." : AIR 1982 SC 1296 has held that
margin of error in age ascertained by
radiological examination is to be taken as
two years on either side. The appellant
being accused is entitled to be given the
benefit on higher side and therefore, the
victim will be deemed to be 16 years of age
at the time of incident.

28. In the case of Shweta Gulati and
another vs. The State Govt. of NCT of
Delhi reported in 2018 SCC OnLine Del
10448, Delhi High Court, in paragraphs
14,15 and 16, has held as under:-

"14. The settled principle is that the
ossification test is not conclusive of age
determination. It is settled that it is difficult
to determine the exact age of the person
concerned on the basis of ossification test
or other tests. The Supreme Court, in
several decisions, has taken judicial notice
of the fact that the margin of error in age
ascertained by radiological examination is
two years on either side.

15. Now the question that arises for
consideration is as to whether the lower of
the age or the higher of the age is to be
taken. If benefit of doubt has to go to the
accused then one would have to take the
higher limit and if benefit of doubt has to
go in favour of the prosecutrix then the
lower of the two limits would have to be
taken.

16. It is also settled position of law
that benefit of doubt, other things being
equal, at all stages goes in favour of the
accused."
280 INDIAN LAW REPORTS ALLAHABAD SERIES

29. From the aforesaid propositions of
law, it is crystal clear that ossification test
is not conclusive of the age determination
and margin of error in age ascertained by
radiological examination is two years by
either side and as per the settled law the
benefit of doubt at all the stages goes in
favour of the accused.

30. In the present case, since no
document of the age has been proved, the
trial Court had determined the age on the
basis of ossification report by the P.W.6 Dr.
Madhumati, which according to her is 1014 years and if 2 years benefit of doubt on
the higher side is to be given to the
accused, the victim's age came to 16 years
on the date of occurrence.

31. In the case of Mukarrab and
others vs. State of Uttar Pradesh reported
in (2017) 2 SCC 210, Hon'ble Supreme
Court, in paragraph 10, has held as under:-

"10. Age determination is essential to
find out whether or not the person claiming
to be a child is below the cut-off age
prescribed for application of the Juvenile
Justice Act. The issue of age determination
is of utmost importance as very few
children subjected to the provisions of the
Juvenile Justice Act have a birth certificate.
As juvenile in conflict with law usually do
not have any documentary evidence, age
determination,
cannot
be
easily
ascertained, specially in borderline cases.
Medical examination leaves a margin of
about two years on either side even if
ossification test of multiple joints is
conducted."

32. Prior to the amendment by Act
no.13 of 2013 in the Indian Penal Code, a
man is said to commit rape with or without
consent of a woman when she is under 16
years of age. Sexual intercourse by man
with his own wife, the wife not being under
15 years of age, is not rape. Prior to
amendment Section 375 Indian Penal Code
read as:

"375. Rape A man is said to commit
"rape" who, except in the case hereinafter
excepted. has sexual intercourse with a
woman under circumstances falling under
any of the six following descriptions:-

First-Against her will.

Secondly-Without her consent.

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

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

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

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

Explanation Penetration is sufficient
to
constitute
the
sexual
intercourse
necessary to the offence of rape Exception
Sexual intercourse by a man with his own
wife, the wife not being under fifteen years
of age, is not rape."

33. P.W.2, the victim, in her
examination-in-chief has stated that the
appellant met her on the school gate and
asked her to come with him so that he may
buy her a copy and took her for half of the
12 All. Raju @ Hanuman Vs. State of U.P.
281
distance to the shop and put handkerchief
on her face due to that she became
unconscious and managed to sit in a
vehicle. She remained with the appellant
for 12 days. She visited the market with the
appellant, in the civil court campus and
also performed a court marriage.

34. The statement of P.W.2, victim
reveals that consent of the victim is
apparent from the fact that school was very
strict on dress code and according to her
statement, however, on that day she did not
went to the school in school dress.
According to her statement, she was put in
a room at some village where she used to
go out with the appellant in the morning
and return in the evening. There were also
villagers, however, they did not inquire
about them and without any hurdle, they
used to roam around and no one objected
their relationship. She used to go to
Lucknow with the accused/appellant. She
went on various public places such as court
and
also
conducted
court
marriage,
however, she never raised any alarm. This
goes to show that she was a consenting
party coupled with the fact that no injury
has been found on the person of the victim
in her medical examination either external
or internal.

35.

The
statement
of
P.W.2
(prosecutrix)
appears
to
be
very
improbable. According to her statement
before the trial court, in her house she
never met with Raju (appellant) and for the
first time, when she was abducted, she met
him on the gate of the school and on that
day, when she met Raju, he asked her to
come with him. However, without any
resistance, she went with him, whereupon it
has been alleged by the victim that she
became unconscious due to handkerchief
put by the Raju on her face and according
to her own statement, route of the school
was so congested that an unconscious
persons can only be taken through rikshaw
or by carrying in the lap. That being so, this
Court is of the view that entire story
narrated by P.W.2 Lalita appears to be
improbable
as
if
the
victim
was
unconscious and the accused carried
unconscious girl on a rikshaw or in a lap in
such a crowded area and through a narrow
lane, then, definitely someone one could
see the victim or the appellant, particularly
the fact that it was a densely populated
place bazaar and there were various shops
which open early, prior to the opening of
school gate. It is an admitted position that
there is no witness to say that he/she saw
the appellant, who took the victim away or
that the victim (P.W.2) had raised alarm
against the alleged offence committed by
the appellant during the stay with the
appellant. Thus, the statement given by the
P.W. 2 clearly shows that she was a
consenting party and she on her own
accord, went away with the appellant.

36. Consent of the victim is also
apparent from the fact that in her crossexamination, the victim (P.W.2) has stated
that she belongs to Jaiswal caste, whereas
the appellant is Garirya and she was not
aware whether jaiswal is higher caste than
Gaririya. The victim (P.W.2) had also stated
that she is not aware that in the marriage
with the appellant, there was any objection
to the effect that appellant is belonging to
lower caste.

37. In the case of S. Varadarajan Vs
State of Madras, 1965 AIR (SC) 942, the
Apex Court has observed that where a
minor girl, alleged to be taken away by the
accused person, had left her father's
protection knowing and having capacity to
know the full import of what she was doing
282 INDIAN LAW REPORTS ALLAHABAD SERIES
and voluntarily joined the accused, it could
not be said that the accused had taken her
away from the keeping, of her lawful
guardian within the meaning of Section 361
of the Indian Penal Code (Act XLV of
1860). Something more had to be done in a
case of that kind, such as an inducement
held out by the accused person or an active
participation by him in the formation of the
intention, either immediately prior to the
minor leaving her father's protection or at
some earlier stage. If the evidence failed to
establish one of these things, the accused
would not be guilty of the offence merely
because after she had actually left her
guardian's house or a house where her
guardian had kept her she joined the
accused, and the accused helped her in her
design not to return to her guardian's house
by taking her along with him from place to
place.

38. Keeping in mind the aforesaid
legal
propositions
coupled
with
the
statements of the victim (P.W.2), this Court
is of the view that since the victim, on her
own accord, went away with the appellant,
no offence under Sections 363 and 366
Indian Penal Code is made out.

39. This Court also find that while the
victim was abducted, she was with her
sister and brother. Her sister Sarita though
is a witness in the charge-sheet, however,
her sister Sarita was withheld by the
prosecution and was not produced her in
witness box nor was her brother has been
examined. Apparently, they were two
important witnesses and they ought to have
been produced by the prosecution so that
they could have culled out the truth and
true version of the prosecution case.
However, it came out from the record that
no reason has been assigned by the
prosecution for not producing these two
important eye-witnesses in regard to the
abduction of the victim.

40. In the case of Takhaji Hiraji vs.
Thakore Kubersing Chamansing & Ors.:
(2001) 6 SCC 145, the Apex Court in
paragraph-19 has held as under :-

"So is the case with the criticism
levelled by the High Court on the
prosecution case finding fault therewith for
non-examination of independent witnesses.
It is true that if a material witness, which
would unfold the genesis of the incident or
an essential part of the prosecution case,
not convincingly brought to fore otherwise,
or where there is a gap or infirmity in the
prosecution case which could have been
supplied or made good by examining a
witness which though available is not
examined, the prosecution case can be
termed as suffering from a deficiency and
withholding of such a material witness
would oblige the Court to draw an adverse
inference against the prosecution by
holding that if the witness would have been
examined it would not have supported the
prosecution case. On the other hand if
already overwhelming evidence is available
and examination of other witnesses would
only be a repetition or duplication of the
evidence
already
adduced,
nonexamination of such other witnesses may
not be material. In such a case the Court
ought to scrutinise the worth of the
evidence adduced. The court of facts must
ask itself whether in the facts and
circumstances of the case, it was necessary
to examine such other witness, and if so,
whether such witness was available to be
examined and yet was being withheld from
the court. If the answer be positive then
only a question of drawing an adverse
inference may arise. If the witnesses
already examined are reliable and the
12 All. Raju @ Hanuman Vs. State of U.P.
283
testimony coming from their mouth is
unimpeachable the Court can safely act
upon it uninfluenced by the factum of nonexamination of other witnesses. In the
present case we find that there are at least
5 witnesses whose presence at the place of
the incident and whose having seen the
incident cannot be doubted at all. It is not
even suggested by the defence that they
were not present at the place of the incident
and did not participate therein. The injuries
sustained by these witnesses are not just
minor and certainly not self-inflicted. None
of the witnesses had a previous enmity with
any of the accused persons and there is
apparently no reason why they would tell a
lie. The genesis of the incident is brought
out by these witnesses. In fact, the presence
of the prosecution party and the accused
persons in the chowk of the village is not
disputed. How the vanity of Thakores was
hurt leading into a heated verbal exchange
is also not in dispute. Then followed the
assault. If the place of the incident was the
chowk then it was a sudden and not premeditated fight between the two parties. If
the accused persons had reached their
houses and the members of the prosecution
party had followed them and opened the
assault near the house of the accused
persons then it could probably be held to be
a case of self-defence of the accused
persons in which case non- explanation of
the injuries sustained by the accused
persons would have assumed significance.
The learned Sessions Judge has on
appreciation of oral and circumstantial
evidence inferred that the place of the
incident was the chowk and not a place
near the houses of the accused persons.
Nothing more could have been revealed by
other village people or the party of tight
rope dance performers. The evidence
available on record shows and that appears
to be very natural, that as soon as the
melee ensued all the village people and
tight rope dance performers took to their
heels. They could not have seen the entire
incident. The learned Sessions Judge has
minutely scrutinised the statements of all
the
eye-witnesses
and
found
them
consistent and reliable. The High Court
made
no
effort
at
scrutinising
and
analysing the ocular testimony so as to
doubt, if at all, the correctness of the
several findings arrived at by the Sessions
Court. With the assistance of the learned
counsel for the parties we have gone
through the evidence adduced and on our
independent appreciation we find the eyewitnesses consistent and reliable in their
narration of the incident. In our opinion
non-examination of other witnesses does
not cast any infirmity in the prosecution
case."

41. In view of the discussion made
hereinabove, this Court has no hesitation to
say that the testimony of the prosecutrix
(P.W.2) is highly improbable and further
though in view of the law laid down in the
case of Takhaji (supra), the prosecution
should have produced the two important
eye witnesses of the incident, however,
withholding the two witnesses calls for
taking
adverse
inference
against
the
prosecution.

42. This Court has also find that P.W.
4, who is the Investigating Officer, has
done a shady investigation. In the crossexamination, he has admitted that he has
not tried to find out the real age of the
prosecutrix in the school record. He has
further stated that the statement recorded
under Section 164 Cr.P.C. of the victim has
not been entered into the case diary. He was
also not aware according to his statement
that the facts viz. when the victim was
medically examined; whereabouts of the
284 INDIAN LAW REPORTS ALLAHABAD SERIES
victim during the period of his missing,
have not been entered by him in the case
diary. He has also stated that he was also
not aware which girl was taken for medical
examination. He has not mentioned this
fact in the case diary that any effort was
made to procure public witness of recovery.

43. A perusal of the statement of
P.W.1 further reveals that when the girl was
recovered, he went to the police station and
signed on the report and proved it as Ext.
Ka-1 (written report). It means the recovery
of girl was made on 6.10.2003 as per the
recovery memo and as per the statement of
P.W.1, he lodged the written report on
20.9.2003, which transpires that written
report/F.I.R. is ante dated. Moreso, P.W.1
has further deposed that he had not put his
thumb impression upon anything/report
prior to putting his signature on the written
report, which means that girl was recovered
on 6.10.2003 and the written report and the
F.I.R. as well as other things are ante-dated
as it transpires that written report/F.I.R. was
written
on
6.10.2003
and
not
on
20.09.2003. Thus, on this count also, there
is serious dent in the prosecution case.

44. It is trite law that the police had
the statutory right and duty to 'register'
every
information
relating
to
the
commission of a cognizable offence. The
police also had the statutory right and duty
to investigate the facts and circumstances
of the case where the commission of a
cognizable offence was suspected and to
submit the report of such investigation to
the Magistrate having jurisdiction to take
cognizance of the offence upon a police
report.

45. Learned Counsel for the appellant
has submitted that non-compliance of
Section 157 of the Cr.P.C. and not
forwarding the special report creates
serious doubt. The occurrence is said to
have taken place on 11.09.2003 and F.I.R.
was lodged on 20.09.2003 at 08:10 p.m.,
therefore, there is delay of nine days in
lodging the F.I.R. and further there is noncompliance of Section 157 of the Code of
Criminal Procedure as there is no evidence
with regards to forwarding of the special
report to the Magistrate concerned, which
creates serious doubt on the case of the
prosecution.

46. In Alla China Apparao and
other vs. State of A.P. reported in (2002) 8
SCC 440, the Apex Court has held as under
:-

"9. Learned counsel further submitted
that though the occurrence is said to have
taken place on 25.2.1993 at about 9.30
A.M. and first information report was
lodged at 12 Noon, but it was received by
the Magistrate at 6.00 P.M., as such there
was inordinate delay in sending the first
information report to the Magistrate on
which ground alone the appellants were
entitled to an order of acquittal in their
favour.