# Rinku @ Prempal (In Jail) v. State of U.P

- **Citation:** (2023) 5 ILRA 568
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-24
- **Case number:** Criminal Appeal No. 7960 of 2019
- **Bench:** Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rinku-prempal-in-jail-v-state-of-u-p-50244
- **Pages:** 14

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860- Sections 354-B, 363,
366, 376 & Section 4, 8 Protection of
Children from Sexual Offences Act-2012-
Challenge to-Conviction- In the present
case
the
medical
report
based
on
radiological
examination
her
age
is
determined as 15-16 years. Therefore, the
victim is evidently a minor. Hence offence
under Section 363 I.P.C. can be committed
against
her-
PW-2
victim
has
also
corroborated
her
evidence
in
her
statement under Section 164 CrPC that
the appellant-accused used criminal force
against her at night in the rented room in
Haridwar with an intention to disrobe her-
PW-1 has also corroborated the evidence
of PW-2 that the victim had informed him
about her kidnapping by the accused
appellant-Nothing has been found in the
cross examination of PW-1 and PW-2 by
defence that may raise doubt about the
reliability
and
veracity
of
their
statements- With aforesaid modification
of sentence under Section 354-B I.P.C. the
conviction and sentence of Trial Court
under Sections 363, 366 and 354-B I.P.C.
against
the
accused-appellant
is
confirmed.(Para 1 to 52)

B. Considering the provisions of Section
42 POCSO Act, since 354-B I.P.C. has
greater sentence of seven years viz-a-viz
punishment of five years which provided
under Section 8 POCSO Act thus accusedappellant is liable to be punished under
Section 354-B I.P.C. for seven years
imprisonment with fine of Rs. 2000/- with
default stipulation. The Trial Court has
convicted the appellant-accused under
Section
354-B
I.P.C.
but
wrongly
sentenced him under Section 8 POCSO
Act. Thus, the sentence under Section
354-B I.P.C. is modified to seven years
imprisonment with fine as imposed by the
Trial
Court.
Both
the
substantive
sentences shall run concurrently. Period of
detention undergone by the accused to be
set
off
against
the
sentence
of
imprisonment under Section 428 Cr.P.C.
(Para 49, 50)

C. Where an act or omission constitutes an
offence punishable under this Act and also
under sections 166A, 354A, 354B, 354C,
354D, 370, 370A, 375, 376, [376A, 376AD,
376B, 376C, 376D, 376DA, 376DB], [376E,
section 509 of the Indian Penal Code (45
of 1860) or section 67B of the Information
Technology Act, 2000 (21 of 2000)], then
notwithstanding anything contained in
any law for the time being in force, the
offender found guilty of such offence shall
be liable to punishment under this Act or
under the Indian Penal code as provides
for
punishment
which
is
greater
in
degree."

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,953 of 46,582. This is a partial read: ask again with offset=39953 for what follows._

568 INDIAN LAW REPORTS ALLAHABAD SERIES
imposed the sentence of 10 yeas for the
offence under sections 304-B of IPC
without recording any reason and without
affording any opportunity of hearing to the
appellants convict on the quantum of
sentence.

Section 304-B of IPC provides
minimum sentence for 10 years and the
maximum sentence may be extended upto
life imprisonment. The trial court has
awarded the sentence of 10 years for the
offence under section 304-B of IPC which
is less than the maximum as provided under
section 304-B of IPC.

So far as the opportunity of
hearing under section 235 (2) of Cr.P.C., is
concerned, the trial court had given
opportunity of hearing to the convict on the
quantum of sentence and it was argued on
behalf of the convicts that it is the first
offence of the accused persons and have no
criminal antecedent and accused is a young
person and none is to look after his old
parents and after taking into consideration
the statements made by the counsel of
convicts and also Additional District
Government Counsel for the prosecution
the trial court passed the order of sentence
after having recorded reasons for the same.
Therefore, this plea raised on behalf of
learned counsel for the appellant is not
sustainable in law and the same is
discarded.

37. In view of re-appreciation of the
evidence on record the judgment and order
of conviction of the accused Panna Lal and
Smt. Maya Devi @ Mayawati for the
offence under section 304-B,498-A and 4
of Dowry Prohibition Act deserves to be set
aside. Accordingly, the Criminal Appeal
No. 7876 of 2017 (Panna Lal and another
Vs. State of U.P.) is hereby allowed. The
appellants Panna Lal and Smt. Maya Devi
@ Mayawati are hereby acquitted from the
charges levelled against them under section
304-B,498-A and 4 of Dowry Prohibition
Act. The personal bonds and two sureties
each in the like amount to the satisfaction
of the court concerned in compliance of
provisions of section 437-A of Cr.P.C, be
furnished by them before the trial court.

38. So far as the Criminal Appeal No.
7877 of 2017 is concerned, in this appeal
the appellant Bhure Lal @ Shyam
Manohar is the husband of the deceased,
whose liability is to protect and save the
life and liberty of his wife but the appellant
has failed to do so, therefore, the present
appeal lacks merit and deserves to be
dismissed. Accordingly, the appeal is
dismissed. The conviction and sentence
awarded to the present appellant is hereby
affirmed. The appellant is in jail. He is
directed to serve out the remaining
sentence as has been awarded by the trial
court by judgment and order dated
1.12.2017.

39.

Let
the
copy
of
the
judgment/order be certified to the court
concerned for necessary information and
follow up action.
----------
(2023) 5 ILRA 568
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.04.2023

BEFORE

THE HON'BLE SURENDRA SINGH-I, J.

Criminal Appeal No. 7960 of 2019

Rinku @ Prempal ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
5 All. Rinku @ Prempal Vs. State of U.P.
569
Sri Sanjay Srivastava, Sri Prayogendra Pal
Singh

Counsel for the Respondent:
G.A., Smt. Archana Singh, Ms. Ruchi
Srivastava

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860- Sections 354-B, 363,
366, 376 & Section 4, 8 Protection of
Children from Sexual Offences Act-2012-
Challenge to-Conviction- In the present
case
the
medical
report
based
on
radiological
examination
her
age
is
determined as 15-16 years. Therefore, the
victim is evidently a minor. Hence offence
under Section 363 I.P.C. can be committed
against
her-
PW-2
victim
has
also
corroborated
her
evidence
in
her
statement under Section 164 CrPC that
the appellant-accused used criminal force
against her at night in the rented room in
Haridwar with an intention to disrobe her-
PW-1 has also corroborated the evidence
of PW-2 that the victim had informed him
about her kidnapping by the accused
appellant-Nothing has been found in the
cross examination of PW-1 and PW-2 by
defence that may raise doubt about the
reliability
and
veracity
of
their
statements- With aforesaid modification
of sentence under Section 354-B I.P.C. the
conviction and sentence of Trial Court
under Sections 363, 366 and 354-B I.P.C.
against
the
accused-appellant
is
confirmed.(Para 1 to 52)

B. Considering the provisions of Section
42 POCSO Act, since 354-B I.P.C. has
greater sentence of seven years viz-a-viz
punishment of five years which provided
under Section 8 POCSO Act thus accusedappellant is liable to be punished under
Section 354-B I.P.C. for seven years
imprisonment with fine of Rs. 2000/- with
default stipulation. The Trial Court has
convicted the appellant-accused under
Section
354-B
I.P.C.
but
wrongly
sentenced him under Section 8 POCSO
Act. Thus, the sentence under Section
354-B I.P.C. is modified to seven years
imprisonment with fine as imposed by the
Trial
Court.
Both
the
substantive
sentences shall run concurrently. Period of
detention undergone by the accused to be
set
off
against
the
sentence
of
imprisonment under Section 428 Cr.P.C.
(Para 49, 50)

C. Where an act or omission constitutes an
offence punishable under this Act and also
under sections 166A, 354A, 354B, 354C,
354D, 370, 370A, 375, 376, [376A, 376AD,
376B, 376C, 376D, 376DA, 376DB], [376E,
section 509 of the Indian Penal Code (45
of 1860) or section 67B of the Information
Technology Act, 2000 (21 of 2000)], then
notwithstanding anything contained in
any law for the time being in force, the
offender found guilty of such offence shall
be liable to punishment under this Act or
under the Indian Penal code as provides
for
punishment
which
is
greater
in
degree."

The appeal is dismissed. (E-6)

List of Cases cited:

1. Suhani & anr. Vs St. of U.P. & ors. Civil
Appeal No.4532 of 2018

2. St. of H.P. Vs Sanjay Kumar @ Sunny (2017)
2 SCC 51

3. Deepak Vs St. of Har., (2015) 4 SCC 762

4. Kavita Chandrakant Lakhani Vs St. of Mah. &
anr., CRLA No. 459 of 2016

5. Gabbu Vs St. of Mah. (2006) AIR SC 246

(Delivered by Hon'ble Surendra Singh-I, J.)

1. Heard Sri Prayogendra Pal, learned
counsel for the appellant, Ms. Ruchi
Srivastava, Advocate, holding brief of Ms.
Archana Singh, learned counsel for the
informant and learned A.G.A. for the State.

2. This criminal appeal has been
instituted against the judgement and order
570 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 30.11.2019 passed by Special Court
(POCSO Act)/Additional Sessions Judge,
Court No. 3, Bulandshahr in Special Case
No. 74 of 2017 (State of U.P. Vs. Rinku @
Prempal) arising out of Case Crime No.
447 of 2016 u/s 363, 366, 376 I.P.C. &
Section
4
of
POCSO
Act,
P.S.-
Aurangabad, District- Bulandshahr.

3. By the impugned order, the trial
court has convicted the appellant-accused
Rinku alias Prempal under Sections 354-B,
363, 366 I.P.C. and Section 8 POCSO Act
and sentenced the appellant-accused, Rinku
@ Prempal u/s 366 I.P.C. to undergo 7
years
imprisonment
and
a
fine
of
Rs.2,000/- with default stipulation. The
trial court has also convicted the appellantaccused u/s 8 of POCSO Act and sentenced
him to undergo 5 years imprisonment and a
fine of Rs.2,000/- with default stipulation.
The trial court has acquitted the appellantaccused u/s 376 I.P.C. and Section 4 of
POCSO Act. There is no criminal appeal
filed by the State or victim against acquittal
of appellant-accused u/s 376 I.P.C. and
Section 4 of POCSO Act. Thus, the trial
court's order acquitting the accused under
these sections has become final.

4. The provisions of Section 228-A
I.P.C. as well as Section 33 of POCSO Act
and in the judgement of the Apex Court in
the case of Nipun Saxena & Anr. Vs.
Union of India & Anr. passed in Writ
Petition (Civil) No. 565 of 2012 prohibit
disclosure of name of the victim against
whom sexual offence has been committed.
Therefore,
in
the
present
case,
the
prosecutrix shall be referred as the victim.

5. The prosecution case in brief is that
the informant/father of victim, Kalua S/o
Umrao
Lodhi,
resident
of
village-
Ratanpur,
P.S.-
Aurangabad,
District-
Bulandshahr,
submitted
written
report
(Ext.Ka.1)
on
12.10.2016
at
P.S.-
Aurangabad, District- Bulandshahr to the
effect that on 07.10.2016 at 1 p.m., his
daughter/victim aged 14 years suddenly
went somewhere from her home. He has
made search at all possible places but could
not find her. He has full belief that accused,
Rinku @ Prempal, S/o Sripal Lodhi,
resident
of
Jagsana
Kala,
P.S.-
Jahangeerabad, District- Bulandshahr, has
enticed away her daughter. Accused, Rinku
@ Prempal is his brother-in-law (sarhoo).
In the absence of informant, accused stayed
for 8 days in his house and thereafter, left
his house.

6. On the basis of written report
(Ext.Ka.1) submitted on 12.10.2016 at 9.40
a.m., Case Crime No. 447 of 2016 u/s 363,
366 I.P.C. was registered in police station
concerned against Rinku @ Prempal. The
chik first information report is (Ext.Ka.5).
The registration of the case crime number
was simultaneously entered into the general
diary at Sr. No. 16 (Ext.Ka.6).

7. The case was investigated by
P.W.3 S.I. Yashveer Singh, who was
handed
over
the
investigation
on
12.10.2016. The victim was recovered on
12.10.2016 and her statement u/s 161
Cr.P.C. was recorded. On the basis of the
statement of the victim, Section 376 I.P.C.
and Section 4 of POCSO Act was added to
the case crime number. The statement u/s
164 Cr.P.C. of the victim was recorded by
the Judicial Magistrate concerned on
14.10.2016. The victim has stated in her
statement u/s 164 Cr.P.C. (Ext.Ka.2) that
on
07.10.2016,
her
maternal
uncle
(mausha), appellant-accused, Rinku @
Prempal took her from her home on a 4
wheeler on the pretext that her mother is
standing nearby and she has phoned and
5 All. Rinku @ Prempal Vs. State of U.P.
571
asked him to bring her. Accused took her to
the Bulandshahr Bus Station and from there
to Ghaziabad Bus Station and then again
from there to Railway Station, Ghaziabad
and from there to Railway Station,
Haridwar where they reached at 6 p.m. and
from there, he took her to a rented room
where he committed rape on her for 2-3
times. On her request, after 4 days, he took
her to Railway Station, Ghaziabad and
from there to Jahangirabad where he left
her there. A woman constable held the
hands of the victim. Seeing her, the
appellant-accused fled from the spot. From
there, she was brought to the police station
concerned.

8. On 14.10.2016, the medical
examination of the victim was done by P.W.4
Dr. Sudha Sharma in District Hospital,
Bulandshahr. She prepared her medical
examination report (Ext.Ka.7). The victim's
age was determined by a Medical Board
constituted by the C.M.O., Bulandshahr on
the basis of x-ray report of fusion of elbow,
knee and wrist bones. Her medico-legal age
certificate (Ext.Ka.8) was issued by C.M.O.,
Bulandshahr on 17.10.2016. According to
this certificate, her medico-legal age was 1516 years.

9. The Investigating Officer visited the
place of occurrence and prepared site plan
(Ext.Ka.3) and arrested the appellant-accused
on 19.10.2016. He then recorded the
statements of the witnesses and after
conclusion
of
investigation,
submitted
charge-sheet (Ext.Ka.4) u/s 363, 366, 376
I.P.C. and Section 4 of POCSO Act, 2012
against accused, Rinku @ Prempal.

10. On 27.06.2017, the trial court
framed charge u/s 363, 366, 376 I.P.C. and
Section 4 of POCSO Act, 2012. The accused
denied the charge and claimed trial.

11. To prove the charge against the
accused,
the
prosecution
examined
witnesses of fact, namely, informant P.W.1
Kalua, P.W.2 victim and formal witnesses,
namely, Investigating Officer P.W.3 S.I.
Yashveer Singh, Medical Officer P.W.4 Dr.
Sudha Sharma and Principal of the school
(Divine Science Vidyapeeth, Ghaziabad) of
the victim P.W.5 Suman Lata.

12. P.W.1 Kalua proved the written
report (Ext.Ka.1) and gave evidence about
the occurrence. P.W.2 victim proved her
statement
recorded
u/s
164
Cr.P.C.
(Ext.Ka.2)
and
deposed
about
the
occurrence.
The
Investigating
Officer
P.W.3 Yashveer Singh proved the site plan
(Ext.Ka.3), charge-sheet (Ext.Ka.4), chik
F.I.R. (Ext.Ka.5) and G.D. entry of the
institution of the case crime number
(Ext.Ka.6). P.W.3 Yashveer Singh also
deposed regarding the investigation done
by him. The Medical Officer P.W.4 Dr.
Sudha
Sharma
proved
the
medical
examination report prepared by her as
(Ext.Ka.7). She also proved the age
certificate of the victim issued by C.M.O.
(Ext.Ka.8). She deposed about the medical
examination of the victim done by her. The
Principal of Divine Science Vidyapeeth,
Ghaziabad P.W.5 Suman Lata proved the
original attendance register (from April
2014 to March 2015) relating to the victim
as (Ext.Ka.9). She stated that in that
register, the date of birth of the victim was
mentioned as 14.11.2002. The victim's
father's name, Kalua and mother's name,
Yashoda was mentioned at Sr. No. 10. She
filed its certified copy as (Ext.Ka.9). P.W.5
also stated that Scholars Register has not
yet been prepared in her school. She also
admitted that no documents have been
attached in proof of the date of birth of the
victim. She stated that the attendance
register is not signed by any authority. Her
572 INDIAN LAW REPORTS ALLAHABAD SERIES
school
is
not
recognized
by
the
government.

13. On 03.04.2019, the trial court
recorded the statement of the appellantaccused, Rinku @ Prempal u/s 313 Cr.P.C.
The appellant-accused denied the statement
of P.W.1 Kalua and P.W.2 victim to the
effect that on 07.10.2016 in the absence of
victim's father, Kalua, he stayed in her
house for 5-6 days and on 07.10.2016,
enticed away his daughter/victim aged 14
years who was recovered by the police on
12.10.2016 and the case was registered on
the basis of written report submitted by the
informant in the police station concerned.
He also denied that after enticing away the
victim, he carried her to Haridwar and from
there in a room. He did obscene gestures
with her and committed rape on her for 2-3
times during the period of 4 days. He has also
denied that after this period, he carried the
victim to Ghaziabad and when he was waiting
for bus at the Jahangeerabad Bus Station, on
query being made by the woman police
constable, he left the victim there and ran
away. He denied the statement made by the
victim against him u/s 164 Cr.P.C. He stated
that the Investigating Officer had done wrong
investigation. He stated that the prosecution
papers, namely, site plan (Ext.Ka.3), chik
F.I.R. (Ext.Ka.5), G.D. of the institution of the
criminal case (Ext.Ka.6), medical report of the
victim (Ext.Ka.7) and her age certificate
(Ext.Ka.8), are wrong and have been falsely
prepared. The appellant-accused stated that the
victim's father is his real brother-in-law
(sarhoo). He had borrowed Rs.60,000/- from
him. When the appellant-accused asked him
for its repayment, he quarrelled with him,
refused to make repayment thereof and filed
false case against him.

14. It has been argued by learned
counsel for the appellant that the first
information report has been lodged after a
gap of 5 days and no explanation has been
given for it. It has also been submitted that
there is no eye witness of the incident of
appellant-accused carrying the victim with
him. The victim was not recovered from
the possession of the appellant-accused.
The charge of rape is not corroborated by
the medical examination report of the
victim. He has also submitted that victim's
father had borrowed Rs.60,000/- from the
appellant-accused. When the appellantaccused asked him to pay back his money,
he refused to do so and filed false case
against him. He further submitted that the
prosecution has failed to prove the charge
against the appellant-accused and he should
be acquitted of the charge framed against
him and the trial court without proper
appreciation of oral and documentary
evidence has wrongly convicted him vide
impugned order.

15. Learned A.G.A. has argued that
the prosecution has proved the charge
against the appellant-accused with the aid
of oral evidence of witnesses of fact
corroborated by duly proved documentary
evidence produced by the prosecution.

16. Under Section 363 I.P.C.,
punishment for kidnapping a person from
India or from lawful guardianship is
provided.
Kidnapping
from
lawful
guardianship has been defined u/s 361
I.P.C. which is as follows :-

361. Kidnapping from lawful
guardianship.--Whoever takes or entices
any minor under sixteen years of age if a
male, or under eighteen years of age if a
female, or any person of unsound mind, out
of the keeping of the lawful guardian of
such minor or person of unsound mind,
without the consent of such guardian, is
5 All. Rinku @ Prempal Vs. State of U.P.
573
said to kidnap such minor or person from
lawful guardianship.

17. Under Section 366 I.P.C., the
punishment for kidnapping, abducting or
inducing a woman to compel her marriage
etc., has been provided. The ingredients of
Section 366 I.P.C. are as follows :-

1. kidnapping or abducting of any
woman;

2. such kidnapping or abducting
must be -

(i) with intent that she may be
compelled or knowing it to be likely that
she will be compelled to marry any person
against her will, or;

(ii) in order that she maybe
forced or seduced to illicit intercourse;

(iii)
by
means
of
criminal
intimidation or otherwise by inducing any
woman to go to any place with intent that
she maybe, or knowing that she will be
forced or seduced to illicit intercourse; it is
immaterial whether the woman kidnapped
is a married woman or not.

18. The Apex Court has held in
Gabbu Vs. State of Maharashtra, AIR
2006 SC 246 that unless the prosecution
proves that the abduction is for the
purposes mentioned in Section 366 I.P.C.,
1860, the Court cannot hold the accused
guilty and punish him u/s 366 I.P.C., 1860.
If the criminal was 18 years old or over,
she could only be abducted and not
kidnapped but if she was not 18 years, she
could be kidnapped as well as abducted if
the taking was by force or enticing was by
deceitful means.

19. To constitute an offence under
Section 366 I.P.C., it is necessary for the
prosecution to prove that the accused induced
the complainant-woman or compelled by force
to go from any place that such inducement
was by deceitful means, that such abduction
took place with the intent that the complainant
may be seduced to illicit intercourse and/or
that the accused knew it to be likely that the
complainant may be seduced to illicit
intercourse as a result of her abduction.

20. In order to establish an offence under
Section 366 I.P.C., it must first be established
that the offence of kidnapping under Section
361 or abduction under Section 362 I.P.C., has
been proved. It must then be shown that such
kidnapping was with the contumacious intent
referred to under Section 366 I.P.C.

21. Hon'ble Apex Court in Kavita
Chandrakant
Lakhani
vs.
State
of
Maharashtra
and
another,
Criminal
Appeal No. 459 of 2016, order dated 24 April,
2018, has held as under:

"...In order to constitute the
offence of ''abduction' a person must be
carried off illegally by force or deception,
that is, to compel a person by force or
deceitful means to induce to go from one
place to another. The intention of the
accused is the basis and the gravamen of
an offence under this Section. The volition,
the intention and the conduct of the
accused determine the offence; they can
only bear upon the intent with which the
accused kidnapped or abducted the woman,
and the intent of the accused is the vital
question for determination in each case.
Once the necessary intent of the accused
is established, the offence is complete,
whether or not the accused succeeded in
effecting his purpose, and whether or not
the woman consented to the marriage or
the illicit intercourse."(emphasis by Court)

22. Section 354-B I.P.C. is included
in the offence of "Sexual Assault" as
574 INDIAN LAW REPORTS ALLAHABAD SERIES
defined under Section 7 POCSO Act and
made punishable under Section 8 of the
Act. Section 354-B I.P.C. reads as under:

354-B. Any man who assaults or
uses criminal force to any woman or abets
such act with the intention of disrobing or
compelling her to be naked, shall be
punished with imprisonment or either
description for a term which shall not be
less than three years but which may extend
to seven years, and shall also be liable to
fine.

23. "Sexual assault" has been
defined in Section 7 of Protection of
Children from Sexual Offences Act, 2012,
which is as follows :-

7. Whoever, with sexual intent
touches, the vagina, penis, anus or breast
of the child or makes the child touch the
vagina, penis, anus or breast of such
person or any other person, or does any
other act with sexual intent which involves
physical contact without penetration is said
to commit sexual assault.

24. Punishment for sexual assault has
been provided in Section 8 of Protection of
Children from Sexual Offences Act, 2012,
which is as follows :-

8.
Whoever,
commits
sexual
assault,
shall
be
punished
with
imprisonment of either description for a
term which shall not be less than three
years but which may extend to five years,
and shall also be liable to fine.

25. In this criminal appeal it has to be
considered whether prosecution has been
successful in proving the charge under
Sections 363, 366, 354-B I.P.C. and
Section 8 POCSO Act under which the
accused-appellant Rinku alias Prem Pal has
been convicted and sentenced by the Trial
Court.

Whether the appellant-accused
Rinku alias Prem Pal on 07.10.2016 at 1
pm kidnapped or enticed the minor
daughter aged 14 years of informant
Kaluwa from his lawful guardianship
without the consent of such guardian.

Whether the appellant accused
kidnapped the minor daughter of informant
with intention that she may be forced or
seduced to illicit intercourse .

Whether on the alleged date, time
and place the appellant-accused assaulted
or
used
criminal
force
against
the
informant's minor daughter/victim or abet
such an act with intention of disrobing or
compelling her to be naked.

26. First of all we have to see whether
the victim was less than 18 year of age at
the time of occurrence. The alleged offence
took place on 07.10.2016. On that date the
Juvenile Justice (Care and Protection of
Children) Act, 2015 and the Juvenile
Justice (Care and Protection of Children)
Model Rules 2016 had come into force.
The provision for determining the age of
victim under the Protection of Children
from Sexual Offences is given under
Section 94 of the Juvenile Justice (Care and
Protection of Children) Act 2015. The
provision of Section 94(2) of the Juvenile
Justice Act is given as under:

94.
Presumption
and
determination of age.- (1) Where, it is
obvious to the Committee or the Board,
based on the appearance of the person
brought before it under any of the
provisions of this Act (other than for the
purpose of giving evidence) that the said
person is a child, the Committee or the
5 All. Rinku @ Prempal Vs. State of U.P.
575
Board shall record such observation
stating the age of the child as nearly as
may be and proceed with the inquiry under
section 14 or section 36, as the case may
be, without waiting for further confirmation
of the age.

(2) In case, the Committee or the
Board has reasonable grounds for doubt
regarding whether the person brought
before it is a child or not, the Committee or
the Board, as the case may be, shall
undertake
the
process
of
age
determination, by seeking evidence by
obtaining--

(i) the date of birth certificate
from the school, or the matriculation or
equivalent certificate from the concerned
examination Board, if available; and in the
absence thereof;

(ii) the birth certificate given by a
corporation or a municipal authority or a
panchayat;

(iii) and only in the absence of (i)
and (ii) above, age shall be determined by
an ossification test or any other latest
medical age determination test conducted
on the orders of the Committee or the
Board:

Provided such age determination
test conducted on the order of the
Committee or the Board shall be completed
within fifteen days from the date of such
order.

27. To prove the age of the victim, the
prosecution has examined PW-5 Suman
Lata the Principal of Divine Science Public
School,
Awantika
Chiranjeev
Vihar,
Ghaziabad in which school the victim was
studying from Class 3. PW-5 Suman Lata
has produced photocopy of the particulars
mentioned in the attendance register of
class 3 relating to admission of victim as
class 3 student. PW-5 Suman Lata has
deposed in her evidence that the details
regarding the age of the victim is
mentioned at Serial No. 10 of the register
where her date of birth is mentioned as
14.11.2002. PW-5 Suman Lata certified the
photocopy of the relevant page of the
register with the original and produced it as
Exhibit Ka-9. PW-5 Suman Lata has
admitted that in the register at Serial No. 10
the name of the victim and her father's
name Kaluwa and mother's name Yashoda
is mentioned. Her date of birth given is
14.11.2002. She admitted that only in the
attendance register in the school the date of
birth and other particulars of the student is
mentioned. There is no SR register in the
school. She had admitted that her school is
not recognized by the Government. PW-5
Suman Lata deposed that the attendance
register is not signed by any officer of
education department. She admitted that
she had not inscribed the date of birth and
other particulars of the victim in the
register nor she can recognize the name and
handwriting of the person who had made
the entry in the aforesaid register. Under
aforesaid circumstances, the date of birth of
the victim mentioned in the attendance
register of the school which is not duly
maintained cannot be accepted for legal
purposes.

28. Further, the prosecution has
produced
the
age
certificate
dated
17.10.2016 of the victim issued by the
Chief
Medical
Officer,
Bulandshahar
(Exhibit Ka-8). This age certificate is based
on ossification test of the victim. The age
certificate of the Chief Medical Officer has
been proved by Dr. Sudha Sharma (PW-4).
In this age certificate of the victim her age
is mentioned as 15-16 years. Thus, age
given in the certificate issued by the CMO,
Bulandshahar is a valid document and the
age given in it can be accepted. According
to the aforesaid age certificate (Exhibit Ka-
576 INDIAN LAW REPORTS ALLAHABAD SERIES
8) at the time of her age determination by
ossification test i.e. 17.10.2016 her age is
about 15-16 years. Therefore, she was
minor at the time of commission of the
offence.

29. Now, it has to be seen whether the
victim was kidnapped or enticed away from
lawful keeping of her guardian. It has also
to be seen whether kidnapping was done by
the accused-appellant with the intention to
marry her against her will or with the
intention or knowledge that she will be
subjected to illicit intercourse. Informant
and father of the victim PW-1 Kaluwa has
proved the written report (Exhibit Ka-1)
which he had filed in Police Station
Aurangabad on 12.10.2016.

30. PW-1 Kaluwa has stated in his
evidence that his brother-in-law (Sarhu)
Rinku came to his house in his absence on
07.10.2016. He stayed there for 5-6 days.
He kidnapped and enticed away his minor
daughter from his house and at that time his
married son, his daughter-in-law and his
daughter were residing in his house. He
searched for his daughter in his relations
but the victim was not found anywhere.
Then he submitted written report (Exhibit
Ka-1) on 12.10.2016 at Police Station
Aurangabad and got a criminal case
registered against his brother-in-law for
kidnapping his minor daughter from the
keeping of her lawful guardian. His
daughter was recovered on the same day of
registration of FIR. She informed him that
appellant-accused Rinku alias Prem Pal had
enticed and kidnapped her and repeatedly
committed rape with her for several days.
The age of his daughter was 14-15 years at
the time when she was kidnapped. PW-1
Kaluwa stated that as time was taken in
searching his daughter in all possible places
and due to his concern for the reputation of
the family there was some delay in lodging
the FIR. PW-1 stated in his cross
examination that as the accused-appellant
Rinku alias Prem Pal was brother-in-law
therefore, he used to frequently visit his
home. He stated that on the date and time
when his daughter was kidnapped he was
residing in Ghaziabad where he used to ply
a tempo. Rinku alias Prem Pal did not
kidnap her in his presence. PW-1 Kaluwa
denied that as he had borrowed Rs.
60,000/- from the appellant-accused Rinku
alias Prem Pal and he did not want to make
payment of that amount he lodged a false
FIR against him.

31. The victim PW-2 has stated in her
evidence that the incident took place on
07.10.2016. She has stated that accusedappellant, resident of Ruksana who was her
Mausa came to her house on 07.10.2016 at
about 11 o'clock. He enticed and kidnapped
her by his car. He reached Shyana and from
there he took her by bus to Garh. She was
taken by train from Garh to Haridwar. In
Haridwar he took room on rent. He brought
the victim in the room at 7 o'clock in the
evening and after having the dinner the
appellant-accused started making obscene
gesture with her. When she forbid him
from doing so he slapped her. She became
frightened. The victim requested him to
leave her. The accused-appellant disrobed
her and committed rape on her. The
appellant-accused raped her on the next day
and night for 2 to 3 more times. He kept her
in the room for 4 days and continuously
committed rape on her. The accused
threatened to kill her and her family
members. After that period, the accused
took her to Ghaziabad from where he
wanted to carry her to his home at Jugsana.
He was waiting with the victim at
Jahagirabad Chauraha crossing bus station.
A female police constable asked the victim
5 All. Rinku @ Prempal Vs. State of U.P.
577
her name. Rinku left her and ran away. The
female police constable took her to Police
Station Aurangabad. She told the police
about the incident. From the police station
she was sent for medical examination and
for recording of her statement under
Section 164 Cr.P.C. by the Magistrate. The
witnesses stated that she told the Magistrate
about the incident which happened with
her. PW-2 victim proves her statement
under Section 164 Cr.P.C. which is Exhibit
Ka-2.

32. PW-2 victim stated in her cross
examination that she informed about the
occurrence to her father on her recovery.
Her mother and accused Rinku's wife are
real sisters. The accused used to visit her
house alone and not with his wife. When
the accused Rinku had came to her house at
that time she, her sister and her Bhabhi
were in the house. The victim stated that
she has two brothers and two sisters. She is
youngest among all of them. She stated that
earlier she used to live in Ghaziabad with
her parents but after the marriage of her
brother she came to stay in her village. PW2 stated in her cross examination that the
accused-appellant enticed away from her
house at 11 am. The accused had told her
that her mother is feeling ill. She has ringed
to the accused to bring the victim to her
mother.

33. PW-2 further stated in her cross
examination that while she was being
carried by the accused from her house to
Haridwar she was threatened by the
accused hence she did not inform anyone
that accused has kidnapped her from her
lawful guardian. She has stated that from
the date of her being kidnapped by the
accused till her recovery by Police, on the
way she had not informed anyone about the
kidnapping and rape by accused as she was
threatened by the accused that if she would
complain she and her family members will
be killed. PW-2 victim had admitted that
there was no injury on her person. She has
denied that her father had borrowed Rs.
60,000/- from the accused and when the
accused asked for return of the money he
lodged the first information report.

34. From the evidence of PW-2
victim, it transpires that the accused took
away the victim from her house on the false
pretext that her mother is ill and she had
asked the accused to bring the victim to
her. PW-1 Kaluwa has also corroborated
the evidence of PW-2 that the victim had
informed him about her kidnapping by the
accused appellant. Nothing has been found
in the cross examination of PW-1 and PW2 by defence that may raise doubt about the
reliability and veracity of their statements.
Therefore, it is proved that the accused
kidnapped the victim from her lawful
guardian.

35. The victim PW-2 has stated in her
evidence that after kidnapping from her
home when the appellant-accused had kept
her in a rented room in Haridwar there at
night he started making obscene gestures
with her and he slapped her several times
and disrobed her. From the evidence of
PW-2 the victim it is clear that the
appellant-accused not only disrobed her but
also slapped her several times. Thereafter
he used criminal force on the victim with
the intention of disrobing her and made her
naked. The offence of using criminal force
to disrobe a woman has been defined under
Section 354-B I.P.C.

36.

PW-2
victim
has
also
corroborated her evidence in her statement
under Section 164 CrPC that the appellantaccused used criminal force against her at
578 INDIAN LAW REPORTS ALLAHABAD SERIES
night in the rented room in Haridwar with
an intention to disrobe her.

37. For the applicability of POCSO
Act
following
two
conditions
are
necessary:

(i). At the time of incident the
victim is minor

(ii) Sexual assault has been
committed against the victim

38. Since Both these conditions are
present in this case, the offence under
Section 354-B I.P.C. is also covered under
the sexual offence defined under Section 7
POCSO Act has been made punishable
under Section 8 POCSO Act.

39. When a person is being
prosecuted for offences under Sections
3,5,7 and 9 then according to provision of
Section 29 POCSO Act it shall be
presumed that the accused has committed
or attempted to commit the offence unless
the contrary is proved. Section 29 POCSO
Act is as follows:

29. Presumption as to certain
offences.
-
Where
a
person
is
prosecuted for committing or abetting
or attempting to commit any offence
under sections 3, 5, 7 and section 9 of
this Act, the Special Court shall
presume,
that
such
person
has
committed or abetted or attempted to
commit the offence, as the case may be,
unless the contrary is proved.

40.

Apart
from
the
aforesaid
presumption required culpable mental state
for any of the offences mentioned in
Section 29 shall be presumed against the
accused who is being prosecuted for
aforesaid offences. This is provided under
Section 30 of the POCSO Act which is as
follows:

30. Presumption of culpable
mental state. - (1) In any prosecution for
any offence under this Act which requires a
culpable mental state on the part of the
accused, the Special Court shall presume
the existence of such mental state but it
shall be a defence for the accused to prove
the fact that he had no such mental state
with respect to the act charged as an
offence in that prosecution.

(2) For the purposes of this
section, a fact is said to be proved only
when the Special Court believes it to exist
beyond reasonable doubt and not merely
when its existence is established by a
preponderance of probability.

41. From the above discussion of the
evidence of PW-2 victim it is evident that
the offence defined under Section 7
POCSO Act is proved against the accusedappellant. The accused-appellant has not
put any suggestion to PW-2 in her cross
examination or made any statement under
Section 313 Cr.P.C. in rebuttal of aforesaid
evidence regarding sexual assault.

42. From the evidence of the victim
PW-2 which corroborated by her statement
under Section 164 Cr.P.C. recorded after
her recovery and that of other prosecution
witnesses, it is proved that the victim was
minor when the appellant-accused took her
from
the
lawful
guardianship.
No
suggestion has been on behalf of the
accused-appellant in the cross examination
of PW-1 Kaluwa or PW-2 victim or and in
his statement under Section 313 Cr.P.C.
that at the time of the occurrence the
appellant-accused was not with the victim
and he was at some other place. The
accused-appellant has only stated in his
5 All. Rinku @ Prempal Vs. State of U.P.
579
statement under Section 313 Cr.P.C. that
the informant had borrowed Rs. 60,000/-
from him and when he asked him to return
it, he lodged a false case against him. DW1 and DW-2 produced on behalf of the
accused-appellant have not supported this
statement of appellant-accused made under
Section 313 CrPC. Neither of these
witnesses have stated that informant had
borrowed Rs. 60,000/- from the appellantaccused and when that amount was
demanded by him a false FIR was
registered against him. The evidence of
PW-1 Kaluwa and PW-2 the victim is true,
cogent and reliable. Nothing emerges in the
cross examination of PW-1, PW-2 or the
prosecution witnesses which may rebut or
make the prosecution case doubtful that the
appellant-accused kidnapped the victim
with the intention/knowledge that she will
be
seduced
or
subjected
to
illicit
intercourse.

43. It has been argued on behalf of the
appellant-accused that the FIR has been
lodged after a gap of five days which raises
doubt about the veracity of the occurrence.

44. It has been argued on behalf of the
learned A.G.A. For the Stae that in the
matter of kidnapping and rape of a woman
due to the reputation of family is at stake
therefore family members hesitate to
promptly lodge the FIR. Therefore, delay
of five days does not make the case
doubtful

45. From the perusal of averment
made in written report (Exhibit Ka-1) it is
clearly mentioned that after kidnapping of
the victim on 07.10.2016 the informant
made search for her at all possible places
but she could not be found. When he was
convinced that she was enticed and
kidnapped by his brother-in-law then he
lodged an FIR. The alleged delay in
lodging the FIR has been sufficiently
explained in the written report.

46. In the case of Deepak vs. State of
Haryana, (2015) 4 SCC 762 the Hon'ble
Apex Court has held as under:

15. The Courts cannot overlook
the fact that in sexual offences and, in
particular, the offence of rape and that too
on a young illiterate girl, the delay in
lodging the FIR can occur due to various
reasons. One of the reasons is the
reluctance of the prosecutrix or her family
members to go to the police station and to
make a complaint about the incident, which
concerns the reputation of the prosecutrix
and the honour of the entire family. In such
cases, after giving very cool thought and
considering all pros and cons arising out of
an unfortunate incident, a complaint of
sexual offence is generally lodged either by
victim or by any member of her family.

47. In the case of State of Himanchal
Pradesh vs. Sanjay Kumar alias Sunny,
(2017) 2 SCC 51 the Hon'ble Supreme
Court has held as under:

It is not to be forgotten that the
person accused by the prosecutrix was
none else than her Uncle. It is not easy to
lodge a complaint of this nature exposing
the prosecutrix to the risk of social stigma
which unfortunately still prevails in our
society. A decision to lodge FIR becomes
more difficult and hard when accused
happens to be a family member. In fact,
incestuous abuse is still regarded as a
taboo to be discussed in public.