# Shailendra Kushwaha v. State of U.P

- **Citation:** (2025) 5 ILRA 1715
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-14
- **Case number:** Criminal Appeal No. 7898 of 2017
- **Bench:** Saumitra Dayal Singh, Sandeep Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shailendra-kushwaha-v-state-of-u-p-53336
- **Pages:** 15

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 363, 366 & 376-D - Protection of
Children from Sexual Offences Act, 2012,
Section 4 - Evidence - Sole testimony of
prosecutrix
-
Contradictory
St.ments
under Section 164 Cr.P.C. - Absence of
corroboration - Victim's first St.ment
exonerating the accused and second
St.ment implicating them after 40 days -
Unexplained
delay,
material
improvements
and
improbabilities
in
prosecution case - Denial by informant of
having lodged FIR - Held, conviction
cannot
rest
on
inconsistent,
uncorroborated, and unreliable testimony
of prosecutrix - Benefit of doubt -
Accused acquitted. (Paras 28, 33, 34, 37,
39, and 41)

HELD:
Yet the informant 'M' P.W.-2 has simultaneously
accepted that the Tehrir paper No. 5Ka, does
not bear her signature and she had also not
submitted it to the police. It is pertinent to
mention here that on the basis of informant's
application (paper No. 5Ka) F.I.R regarding the
incident has been registered on 08.04.2014 at
11:30 a.m. Since the informant has denied that
the basis of F.I.R i.e. her purported application
(paper No. 5Ka) was not given by her, as such
the whole prosecution story becomes doubtful.
It is true that F.I.R is not a substantive piece of
evidence, but it's contents are required to be
proved in accordance with law, which the
prosecution
has
failed
to
prove
beyond
reasonable doubt in this case. This will become
apparent from our subsequent analysis. (Para
28)

From the perusal of the first St.ment of the
victim 'X' recorded under Section 164 Cr.P.C,
proved by the accused as Ex. Kha-1, it is evident
that she had gone with accused Malik Chandra
of her own sweet will. She had thus eloped with
him and gone to Gujarat, where she resided
with him and no physical relations established
between them. The victim has mentioned in her
St.ment that the accused Malik Chandra had not
raped her and she wanted to stay with him. The
victim 'X' had also told the Doctor P.W.-3 at the
time of her medical examination, (P.W.-3 has
also proved in her examination-in-chief) that on
31.03.2014 at 05:00 a.m. she had left her house
with a boy and gone by a truck to Auraiya, who
had left her in the way, and then the son-in-law
of her aunt had taken her to Gujarat, where she
had solemnized marriage in a temple with him.
Both the above St.ments have been proved in
accordance with law, according to which, the
accused Shailendra Kushwaha, Manvendra Singh
1716 INDIAN LAW REPORTS ALLAHABAD SERIES
@ Jhamman Pal and Malik Chandra, neither
were involved in the enticement nor they had
committed rape upon the victim. In fact the
victim has mentioned that she was not raped by
anybody. (Para 33)

From the testimony of the victim 'X' P.W.-1 in
Court, it is evident that all the three accused
had forcibly kidnapped her from her house and
taken her to Gujarat, Hyderabad, Delhi, but she
could not tell the name of mohalla, city, name of
landlord, who resided in that house, date and
month of first rape, how many times she was
raped. She has deposed that she had raised
alarm but no person residing nearby ever came
to help her. That is not reliable. She has also St.d
that she, remained unconscious during her
various journeys, which too is totally unreliable.
The victim has also mentioned in her crossexamination that she had telephoned the police
on No.100 from Gujarat, Har. and Delhi, but none
came to her rescue, which is also improbable.
The victim has been unable to tell whether she
was taken by car, or bus, or train. It is highly
improbable that from 31.3.2014 to 19.5.2014, a
duration of 49 days , the victim remained
unconscious, and was not in a physical and
mental condition to resist the accused, moreso,
when she was living in public place and travelling
in public transport. (Para 37)

It is also evident that after recording the first
St.ment under Section 164 Cr.P.C, the victim's
custody was handed over to her mother P.W.-2
and thereafter about 40 days later, her second

## Text

_Characters 0–39,600 of 50,427. This is a partial read: ask again with offset=39600 for what follows._

5 All. Shailendra Kushwaha Vs. State of U.P.
1715

30. Considering the facts and
circumstances of the case, I find that order
dated 01.05.2024 passed by Civil Judge
(Senior Division), Gorakhpur allowing the
Misc. Case No.292 of 2023, 293 of 2023,
294 of 2023, 295 of 2023 and 296 of 2023
arising out of Original Suit Nos. 316 of
1988, 318 of 1988, 323 of 1988, 324 of
1988 and 325 of 1988 are totally illegal and
therefore set aside.

31. All the writ petitions stand
allowed.
----------
(2025) 5 ILRA 1715
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.05.2025

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.
THE HON'BLE SANDEEP JAIN, J.

Criminal Appeal No. 7898 of 2017
Connected With
Criminal Appeal No. 243 of 2018

Shailendra Kushwaha ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Amar Bahadur Maurya, Sri Jitendra Kumar,
Sri Kamlesh Kumar Tripathi, Sri Laxmi Narayan
Rathour, Sri Rajendra Kumar Pandey, Sri Ranjit
Kumar Yadav, Sri Sushil Kumar, Sri Vinay
Kumar Nigam, Sri Ashok Kummar Tripathi

Counsel for the Opposite Party:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 363, 366 & 376-D - Protection of
Children from Sexual Offences Act, 2012,
Section 4 - Evidence - Sole testimony of
prosecutrix
-
Contradictory
St.ments
under Section 164 Cr.P.C. - Absence of
corroboration - Victim's first St.ment
exonerating the accused and second
St.ment implicating them after 40 days -
Unexplained
delay,
material
improvements
and
improbabilities
in
prosecution case - Denial by informant of
having lodged FIR - Held, conviction
cannot
rest
on
inconsistent,
uncorroborated, and unreliable testimony
of prosecutrix - Benefit of doubt -
Accused acquitted. (Paras 28, 33, 34, 37,
39, and 41)

HELD:
Yet the informant 'M' P.W.-2 has simultaneously
accepted that the Tehrir paper No. 5Ka, does
not bear her signature and she had also not
submitted it to the police. It is pertinent to
mention here that on the basis of informant's
application (paper No. 5Ka) F.I.R regarding the
incident has been registered on 08.04.2014 at
11:30 a.m. Since the informant has denied that
the basis of F.I.R i.e. her purported application
(paper No. 5Ka) was not given by her, as such
the whole prosecution story becomes doubtful.
It is true that F.I.R is not a substantive piece of
evidence, but it's contents are required to be
proved in accordance with law, which the
prosecution
has
failed
to
prove
beyond
reasonable doubt in this case. This will become
apparent from our subsequent analysis. (Para
28)

From the perusal of the first St.ment of the
victim 'X' recorded under Section 164 Cr.P.C,
proved by the accused as Ex. Kha-1, it is evident
that she had gone with accused Malik Chandra
of her own sweet will. She had thus eloped with
him and gone to Gujarat, where she resided
with him and no physical relations established
between them. The victim has mentioned in her
St.ment that the accused Malik Chandra had not
raped her and she wanted to stay with him. The
victim 'X' had also told the Doctor P.W.-3 at the
time of her medical examination, (P.W.-3 has
also proved in her examination-in-chief) that on
31.03.2014 at 05:00 a.m. she had left her house
with a boy and gone by a truck to Auraiya, who
had left her in the way, and then the son-in-law
of her aunt had taken her to Gujarat, where she
had solemnized marriage in a temple with him.
Both the above St.ments have been proved in
accordance with law, according to which, the
accused Shailendra Kushwaha, Manvendra Singh
1716 INDIAN LAW REPORTS ALLAHABAD SERIES
@ Jhamman Pal and Malik Chandra, neither
were involved in the enticement nor they had
committed rape upon the victim. In fact the
victim has mentioned that she was not raped by
anybody. (Para 33)

From the testimony of the victim 'X' P.W.-1 in
Court, it is evident that all the three accused
had forcibly kidnapped her from her house and
taken her to Gujarat, Hyderabad, Delhi, but she
could not tell the name of mohalla, city, name of
landlord, who resided in that house, date and
month of first rape, how many times she was
raped. She has deposed that she had raised
alarm but no person residing nearby ever came
to help her. That is not reliable. She has also St.d
that she, remained unconscious during her
various journeys, which too is totally unreliable.
The victim has also mentioned in her crossexamination that she had telephoned the police
on No.100 from Gujarat, Har. and Delhi, but none
came to her rescue, which is also improbable.
The victim has been unable to tell whether she
was taken by car, or bus, or train. It is highly
improbable that from 31.3.2014 to 19.5.2014, a
duration of 49 days , the victim remained
unconscious, and was not in a physical and
mental condition to resist the accused, moreso,
when she was living in public place and travelling
in public transport. (Para 37)

It is also evident that after recording the first
St.ment under Section 164 Cr.P.C, the victim's
custody was handed over to her mother P.W.-2
and thereafter about 40 days later, her second
St.ment under Section 164 Cr.P.C (Ex.Ka-1)was
recorded on 03.7.2014. S.I. Mohd. Sattar Beg,
P.W.-5, has accepted in his crossexamination
that he had not given any application for
recording the second St.ment of the victim
under Section 164 Cr.P.C and the Court has suomotu ordered it. It is very surprising that in the
absence of any application on behalf of the
investigating officer, why second St.ment of the
victim under Section 164 Cr.P.C has been
recorded by the Court. All the improvements
made by the victim in her subsequent St.ment
under Section 164 Cr.P.C and in the testimony
given in the Court, during trial, have been
proved, in accordance with law by the accused,
which makes the testimony of victim highly
unreliable and in the absence of corroboration,
it cannot be relied upon. (Para 39)
Application allowed. (E-14)

List of Cases cited:

1. Suresh N. Bhusare & ors. Vs St. of Mah.,
(1999) 1 SCC 220

2. Tameezuddin @ Tammu Vs St. (NCT of
Delhi), (2009) 15 SCC 566

3. Narender Kumar Vs St. (NCT of Delhi), AIR
2012 SC 2281

4. Alamelu & anr. Vs State represented by
Inspector of Police, (2011) 2 SCC 385

(Delivered by Hon'ble Sandeep Jain, J.)

1. Heard Sri Ashok Kumar Tripathi
and Sri Gopal Khare (for the appellant no.
2 in Criminal Appeal No. 243 of 2018 and
Sri Vikas Goswami, learned A.G.A for the
State and perused the material available on
record.

2. Both these Criminal Appeals
arise from the common judgment and order
dated 23.11.2017 passed by the Additional
Sessions Judge, Court No. 2, Jalaun at Orai
in Sessions Trial No. 22 of 2014 (State Vs.
Manvendra Singh @ Jhamman Pal, Malik
Chandra and Shailendra Kushwaha), in
Case Crime No. 629 of 2014, Police Station
Jalaun, District Jalaun, whereby, accused
Manvendra Singh @ Jhamman Pal, Malik
Chandra and Shailendra Kushwaha have
been convicted under Section 363 I.P.C and
sentenced to undergo three years simple
imprisonment
alongwith
a
fine
of
Rs.10,000/-, in default to undergo further
simple imprisonment of six months, under
Section 366 I.P.C for seven year's simple
imprisonment alongwith a fine of Rs.
20,000/-, in default to undergo further
simple imprisonment of one year and under
Section 376-D I.P.C and 3⁄4 POCSO Act for
life imprisonment and a fine of Rs.
5 All. Shailendra Kushwaha Vs. State of U.P.
1717
1,00,000/-, in default to undergo additional
simple imprisonment of two years. All the
sentences have been ordered to run
concurrently.

3. The factual matrix is that the
informant 'M' P.W-2 gave a typed written
application on 05.04.2014 to the Circle
Officer, Jalaun with the averments that her
minor daughter 'X', who was a student of
Class X was enticed to elope on 31.03.2014
at about 04:00 a.m. morning by accused
Shailendra Kushwaha. In the morning 'M'
went to accused Shailendra Kushwaha's
house and called him, thereafter he had
phoned 'X' and then 'X' told her that she
was present at Auraiya Bus Stand, then 'M'
and others went to Auraiya Bus Stand, but
before she could reach the Bus Stand,
accused Manvendra Singh reached there
and then accused Shailendra Kushwaha
passed 'X' to accused Manvendra Singh.
Manvendra Singh told them that 'X' has
been found and they would bring her back,
but Manvendra did not bring 'X' back to
her house and instead coaxed and made 'X'
flee with his neigbour's son Manvendra
Pal. When in the evening Manvendra Singh
came to the house of 'M', then he was
asked about 'X', then Manvendra Singh
told her that 'X' had escaped. She had
given information about this incident to the
Police
Station
Kotwali,
Jalaun
on
01.04.2014, but no action has been taken
yet. It has come to her notice that 'X' is
staying with Manvendra Singh's relative
(Mausa) Raju in Gujarat, in Mohalla
Modarsa. Manvendra's mobile number is
9586435089.

4. On 05.04.2014, the Circle
Officer, Jalaun, ordered the S.H.O to get
the matter investigated and to initiate legal
action. Thereafter, Case Crime No. 629 of
2014, under Sections 363 and 366 I.P.C
was registered on 08.04.2014 at 11:30 a.m.
at P.S Kotwali, Jalaun against accused
Shailendra Kushwaha , Manvendra Singh
and Manvendra Pal. The check F.I.R. is
Ex.Ka-8 is on record.

5. The victim 'X' (examined as
P.W-1 in the trial court), was recovered on
19.05.2014. The Recovery Memo is Ex.Ka6.

6. The first statement of victim 'X'
P.W.-1,
under
Section
164
Cr.P.C.
(Ex.Kha-1), was recorded on 22.05.2014,
which is to the effect :

 I had run away from home, of my
own sweet will, with Malik Chandra and
had gone to Gujarat, where I resided with
him. in a rented house. No physical
relations were established between me and
Malik Chandra. He didn't do any wrong act
with me. I want to stay with him.

7. The victim 'X' was examined on
19.05.2014 at 12:50 p.m. by Dr. Sandhya
Gupta, P.W.-3. The Medical Examination
Report of victim is Ex.Ka-2. The victim
told the Doctor that one boy took her to
Auraiya on 31.03.2014 at 05:00 a.m. by
truck from her house and left her there. She
was crying, then another boy, her aunt's
son-in-law (Bua ka Damad) took her to
Gujarat, where she solemnized marriage
with him in a temple. During her
examination no injury was found on her
body or on her private parts, but her hymen
was found torn at 3 'O' clock position. Her
vagina admitted two fingers easily. Two
slides were prepared to detect presence of
spermatozoa in the vaginal smear. In the
pathological
examination
report
dated
23.05.2014 of victim 'X', out of two
vaginal smear, one was found positive for
spermatozoa.
1718 INDIAN LAW REPORTS ALLAHABAD SERIES
8. The statement of victim 'X'
P.W.-1, was again recorded under Section
164 Cr.P.C. (Ex. Ka-1) on 03.07.2014. It is
to the effect:

 "I passed class X from Mathura
Devi Girls Inter College, Jalaun, District
Jalaun. My date of birth is 10.05.1998. I
was enticed by Manvendra, Shailendra and
Malik Chandra with deception and bluff
that they will treat her like a 'Queen', they
also threatened her that if she did not
accompany them, then they will kill her
parents and her brother. The incident took
place on 31.03.2014 at 04:00 a.m. Accused
Malik Chandra and Shailendra caught her
hands and legs and Manvendra made her
smell something, which rendered her
unconscious. She regained consciousness
at 10:00 a.m. in Auraiya and then they took
her from Auraiya to Gujarat, Haryana to a
rented room, where she was raped by all
the three persons. Her clothes got spoilt
and she became unconscious. When she
regained consciousness, then all the above
named three persons, commanded her to
undress. She refused. She was assaulted by
them and kept for 10- 15 days and was
repeatedly raped everyday by all these
persons. She was rendered unconscious
and then taken to Delhi, where she was
kept in a rented room for 10 - 15 days and
was raped every day. She was raped
without her consent by these three persons
at other places also. These people after
intimidating her, forcibly and repeatedly
raped her".

9. The initial investigation was
handed over to S.I. Mohd. Sattar Beg,
P.W.-5, who prepared the Site Plan Ex. Ka5. In his presence, the victim 'X' was
recovered
on
19.05.2014.
He
also
submitted Charge Sheet Ex.Ka-7 against
accused Manvendra Singh @ Jhamman Pal
and Malik Chandra, under Section 363, 366
and 376 I.P.C. and Section 3⁄4 POCSO Act.
Thereafter, the investigation was concluded
by S.I. Vikram Singh (P.W.-7), who
submitted the Charge-Sheet against the
accused-Shailendra
Kushwaha,
under
Section 363, 366, 376 I.P.C. and Section 3⁄4
POCSO Act, (Ex.Ka-10). Charges against
the accused Manvendra Singh @ Jhamman
Pal and Malik Chandra were framed on
20.08.2014, under Section 363, 366, 376D
I.P.C. and Section 4 POCSO Act. Charge
against the accused Shailendra Kushwaha
was framed on 16.12.2015, under Sections
363, 366, 376D I.P.C. and 3⁄4 POCSO Act,
to which all the accused persons had
pleaded not guilty and claimed trial.

10. The prosecution has examined
the following witnesses, who have proved
the following documents :-

Sl.
No.

Witness
es

Docu
ment proved.

1.
P.W.-1- Victim
'X'.

Proved
her
second
statement
recorded under
Section
164
Cr.P.C.
dated
03.07.2014, as
Ex.Ka-1 during
her
examinationin-chief
and
her
first
statement
under Section
164
Cr.P.C.
during
her
crossexamination, as
Ex.Kha-1.
5 All. Shailendra Kushwaha Vs. State of U.P.
1719

2.
P.W.2-
Informant 'M'.

She
has
not
proved
any
document.

3.
P.W-3
Dr.
Sandhya Gupta.

Proved
the
Medical
examination
report of victim
as Ex.Ka-2.

4.
P.W.-4- Suman
Devi, Principal,
Mathura
Devi
Girls
Inter
College, Jalaun.

Scholar's
Register
&
Transfer
Certificate
Form of victim
as Ex. Ka-3.

&

High
School
Examination -
2014
Record/Marksheet of victim
as Ex.Ka-4

5.
P.W.-5S.I.Mohd. Sattar
Beg.

(The First I.O.
of the case)

Proved the Site
Plan as Ex.Ka5,

&

The Recovery
Memo
of
victim
as
Ex.Ka-6

&

Charge-sheet
filed
against
accused-
Manvendra
Singh
@
Jhamman
Pal
and
Malik
Chandra as Ex.
Ka-7.

6.
P.W-6- Balram
Prasad.

Proved
the
Check F.I.R as
Ex.Ka-8

&

G.D
Entry
No.18/11.30
hours
as
Ex.Ka-9.

7.
P.W.-7
S.I.
Vikram Singh

Proved
the
Charge-sheet
against
accused-
Shailendra
Kushwaha
as
Ex. Ka-10.

11. The victim 'X' P.W.-1 in her
examination-in-chief has mentioned that
her date of birth is 10.05.1998. She has
passed High School examination. On
31.03.2014 at 04:00 a.m., she got up to go
to toilet. Then Manvendra called her, to
save him. After that, she opened the door,
to find Manvendra, Shailendra and Malik
Chandra
standing
outside.
Shailendra
caught her hands, Malik Chandra caught
her legs, Manvendra made her smell
something, that rendered her unconscious.
She regained consciousness at Auraiya. At
that time, it was 10:00 a.m. Manvendra
Singh used to live in front of her house in
Jalaun. 'X' has identified the accused
Manvendra, Malik Chandra and Shailendra
in the Court. 'X' has further mentioned that
after she became unconscious, all the
1720 INDIAN LAW REPORTS ALLAHABAD SERIES
accused took her from Auraiya to Gujarat,
to a place called Haryana Road, where all
the three accused had committed rape upon
her. She suffered bleeding. She was kept
there for 10-15 days and all the three
accused continuously raped her. Thereafter,
she was taken to Badli Delhi where also all
the three accused continued to commit rape
upon her. She was kept there for 10-12
days. Thereafter, all the three accused took
her to Mohalla Dharampuri in Hyderabad,
where also, all the three accused committed
rape upon her. Thereafter, Manvendra left
for his home. Manvendra was arrested in
Chhani. Then, the family members of
Manvendra had informed Malik Chandra to
return home. Thereafter, Malik Chandra
and Shailendra took her along but she and
Malik Chandra were caught at Jhansi
Railway
Station
by
the
police
on
19.05.2014. Shailendra fled. Thereafter, the
police brought them to the Jalaun Police
Station, where after about 3-4 days, her
statement before the Magistrate was
recorded and again after one month, her
statement
was
recorded
before
the
Magistrate. The victim 'X' has proved her
subsequent statement under Section 164
Cr.P.C. recorded on 03.07.2014 as Ex. Ka1. The victim deposed that her first
statement made before the Magistrate is not
correct, because the accused had threatened
her and that statement was given under the
pressure of the accused.

12. The victim 'X' in her crossexamination has mentioned that she has not
read the report paper no. '5 Ka' lodged by
her mother P.W.-2. She can not tell
whether the report '5 Ka' lodged by her
mother is correct or not? She has denied the
suggestion that ten days prior to this
incident, she had run away from her house
and was caught in the wheat field of
Harishchandra by her real brother 'J',
accused Manvendra @ Jhamman and
others. Accused Manvendra @ Jhamman
resides in front of her house, who is
married and has children. He belongs to her
community. 'X' has denied that two days
prior to this incident, she was caught with
accused Manvendra in Village Kafoond,
District Auraiya. She knew all the accused
from before the incident. She neither had
love relationship with Malik Chandra and
Shailendra prior to this incident, nor had
friendship with them. At the time of
incident, her younger brother and mother
were present at her house when Manvendra
came and called her. At that time, only she
was awake. At the time of the incident, it
was dark, she could not see whether they
were armed or not. She could also not see
whether they were on foot or had any
vehicle. She could not tell the vehicle in
which she was taken, because she was
unconscious. She regained consciousness at
10:00 a.m. on the same day at Auraiya.
Even then, she had not seen the vehicle, in
which she had travelled. She denied the
suggestion that she was fully conscious and
had gone with accused Shailendra of her
own sweet will. She was recovered at
Jhansi Railway Station on 19.05.2014, by
Jalaun police. At that time, none from her
house was present. The police had not
taken her statement. She remained with
police personnel for three days but during
this time, she had no talks regarding the
incident, with the police personnel. The
doctor had also not enquired from her,
about the incident. She had not told the
doctor, at the time of examination- that a
boy took her to Auraiya on 31.03.2014 at
05:00 a.m. by truck from her home, and left
her there. She was crying, then another
boy, son-in-law of her aunt (Bua) took her
to Gujarat. They resided there and had
solemnized marriage in a temple in Gujarat.
The victim admitted that she has got no
5 All. Shailendra Kushwaha Vs. State of U.P.
1721
fight with the doctor and denied, that the
doctor had correctly noted her statement.
The victim also denied that her statement
was recorded by the police on the day of
her arrest. She had not told the I.O. that on
31.03.2014 at about 04:00 a.m. Shailendra
Kushwaha came and took her to Auraiya.
She could not tell why the I.O. had written
so. She had not told the I.O. that- Malik
Chandra is her distant relative, and she
didn't want to go back and due to this
Manvendra @ Jhamman assisted her to
elope with Malik Chandra. She had not told
the I.O. that Malik Chandra etc. committed
rape upon her.

13. The victim 'X' P.W.-1 in her
cross-examination has accepted that her
statement was recorded by the Magistrate
2-3 days after she was apprehended and at
that time, none was present, except her and
the Magistrate. 'X' has accepted that the
Magistrate had read over the statement
written by him and then she had signed that
statement. 'X' has identified her signature
on her first statement recorded under
Section 164 Cr.P.C., which is paper no.42Ka on the record, and has acknowledged
that this statement was recorded by the
Magistrate, on her narration, which has
been proved by the accused as Ex.Kha-1.
She had neither given an application to the
Magistrate nor to any police officer or the
District Magistrate to record her statement
under Section 164 Cr.P.C again. She had
not complained to any officer, that her first
statement had been wrongly recorded. The
accused never forced her to accompany
them or that they would treat her like a
queen. Till the date of the incident, the
accused did not ask her to marry or that
they will treat her as a queen. She did not
tell the Magistrate in her statement dated
3.07.2014 that the accused Manvendra,
Shailendra and Malik Chandra had enticed
her with deception and bluffed her that they
will treat her as a queen. She also did not
tell the Magistrate that the accused
threatened to kill her parents and brother, if
she failed to accompany them. She could
not tell the reason why such statement was
recorded by the Magistrate. Her second
statement was recorded under Section 164
Cr.P.C., by the Magistrate in camera. The
Magistrate had read over her statement
dated 03.07.2014, after writing it. She had
not complained to the Magistrate as to how
in her statement it has been incorrectly
written that "the accused Manvendra,
Shailendra and Malik Chandra had enticed
her with deception and bluffed her that they
would treat her as a queen, and threatened
her, if she failed to accompany them, then
her parents and brother will be killed".

14. The victim 'X' has further
mentioned in her cross-examination that for
the first time rape was committed upon her
at a house in Gujarat. She could not tell the
name of Mohalla, City, name of landlord,
who resided in that house, date and month
when rape was first committed on her. She
could not tell as to how many times she
was raped. But each time, she was raped by
all three persons, one after the other. She
had never told about rape to any person or
police personnel because she was kept
confined in a room. Lastly, she was raped
in Hyderabad but she did not know its day,
date, month and the name of Mohalla. She
remained unconscious from the time she
left home till she was caught, as such, she
could not tell whether she went by car or
bus or train. She was brought to Jhansi in
an unconscious state. She was continuously
raped. She could not tell the last time, she
was raped, before she was recovered on
19.05.2014. But lastly, all the three persons
had raped her. Shailendra and Malik
Chandra had accompanied her to Jhansi,
1722 INDIAN LAW REPORTS ALLAHABAD SERIES
but Manvendra came 3-4 days prior to her
arrest. The victim 'X' denied that she had
neither been enticed to elope nor raped by
accused Malik Chandra and Manvendra.
The victim 'X' has further mentioned in her
cross-examination that she had gone to
Gujarat, Hyderabad and Delhi. At Gujarat
she resided at Haryana Road. She went to
Gujarat from Delhi, yet she did not know
whether she went to Gujarat from Delhi
and from Delhi to Hyderabad by bus or
train. She also did not know the house in
which she resided, or if she went by tempo
or on foot and where she resided, or the
people who lived nearby. She had raised
alarm in the house in which she resided, but
people residing nearby did not respond. She
had asked for help at all three places by
coming out of the house but none came to
help her. She remained unconscious during
her journey. She was given sedatives. She
had refused to take sedatives but the same
were given to her mixed in water. She had
not refused to drink water. She neither told
this to the police nor to the Magistrate. She
had telephoned the police from Gujarat,
Hyderabad and Delhi on 100 number but
none came. She could not tell the phone
number from which she had phoned, the
date and time, when she had called the
police. She was unconscious at the Jhansi
Station, but she had not told this to the
police or the Magistrate. She was not
treated at Jhansi Station. She regained
consciousness at Orai hospital. Her second
statement was recorded by the Magistrate,
about one month after her first statement
and during this period, she remained with
her mother. In between, her father visited,
for a week. The victim 'X' denied that prior
to the incident, she had eloped 2-3 times
with other person, due to which her
reputation had been tarnished in her
locality. To deal with that, she had got
lodged a false case.
15.
Informant
'M'
has
been
examined as P.W.-2 at the trial. She stated
in
her
examination-in-chief
that
the
incident took place on 31.03.2014, when
she woke up in the morning, she saw 'X'
was not present in the house. She enquired
from her neighbours. She learnt Shailendra,
Manvendra
and
Malik
Chandra
had
abducted her. She went to lodge a report at
the Police Station Jalaun, but her report
was not registered. Manvendra had his
house in front of her house. She knew
Manvendra prior to the incident. 'X' was
recovered by the police after forty (40)
days of the incident. She was caught with
accused- Malik Chandra. 'X' had told her
that she was taken to Delhi, Haryana and
Gujarat and she was raped at all the places.
'X' was forcibly taken and raped. Yet the
informant 'M' stated, she had not signed or
submitted Tehrir paper no. '5 Ka' dated
05.04.2014.

16. Informant 'M'- P.W.-2, in her
cross-examination, has stated that she is
illiterate but she manages to sign, yet she
could not tell the date, month and year of
her marriage, since many days had elapsed.
She did not remember, when she was
married. She could not hazzard a guess, if
she was married 30 years or 40 years ago.
She did not remember the date of birth of
her children. She only states 'X' was born
two years after the marriage. She is her first
child. The victim had left her house at
04:00 a.m. in the morning and at that time,
'M' was sleeping. She woke up at 4:30 a.m.
She had gone to sleep at 10:00 - 11:00 on
the day of incident. She did not wake up
prior to 4:30. a.m. At that time her husband
was not present. She had informed her
husband about the incident on phone, after
about one or two days. She had searched
'X' in the neighbourhood till 10:00 - 11:00
hours. Thereafter, she went to police
5 All. Shailendra Kushwaha Vs. State of U.P.
1723
station. She had reached the police station
at 04:00 pm. Neither any neighbour nor any
relative had accompanied her to the police
station. Before going to the police station,
she had enquired from her relatives. The
informant had denied the suggestion that
'X' had previously eloped once-twice and
because of this, she had not made any
enquiry from her relatives. She also denied
that 'X' had eloped due to her love
relationship and because of this knowledge
she had not gone straight-away to the
police station. The police personnel at the
police station had refused to accept her
application. Thereafter she did not give any
application to any higher officer. On
receiving her information, her husband had
came after three - four months. 'X' was
found by the Jalaun Kotwali Police, after
11⁄2 months. 'X' was got admitted to the
school by her husband. The police has not
enquired from her regarding the incident.
She has got no fight with the police. The
informant has denied her statement under
Section 161 Cr.P.C. The informant has
further admitted that she has not seen the
victim
going
away.
She
had
got
information from neighbours that 'X' had
gone. It is true that Manvendra Singh and
Malik Chandra belong to her community.
She had not given any application at the
police station or to the Superintendent of
Police,
regarding
elopement
of
her
daughter.

17. The prosecution has examined
Dr. Sandhya Gupta, at the trial court as
P.W.-3,
who has
stated
during her
examination-in-chief that the victim had
told her on enquiry, that a boy had taken
her by truck to Auraiya on 31.03.2014 at
05:00 a.m and had left her in the way. She
was crying. Then her aunt's son-in-law
(bua ka damad) came and took her to
Gujarat, where she resided and had
solemnized
marriage
in
a
temple.
According to this witness, no external or
internal injury was found on the body of
victim. Her hymen was old torn at 3'O'
clock position, but there was no bleeding or
discharge. This witness has proved the
medical examination report of 'X' dated
19.05.2014 as Ex.Ka-2. In the crossexamination, she stated that she has not
prepared the supplementary report, because
no one came to her. She had found hymen
of victim torn, but she could opine about
rape, only after seeing pathology report. At
the time of medical examination, she had
ensured that the victim was not under any
pressure.

18. The prosecution has examined
Suman Devi, as P.W.-4 at the trial court.
She stated in her examination-in-chief that
she is the Principal of Mathura Devi Girls
Inter College, Jalaun since 2009. 'X' has been
the student of this college. According to the
Admission Register, the date of birth of 'X' is
10.05.1998 and she had taken admission in
Class-IX on 21.07.2012 and after passing the
High School Examination had got her name
struck-off on 23.07.2014, with the consent of
her guardian. This witness has proved the
extract of the Scholar Register & Transfer
Certificate of the above college as Ex.Ka-3
and the extract of High School Examination,
2014 cause list pertaining to her college and
'X' as Ex.Ka-4.In the above documents, the
victim's date of birth is recorded as
10.05.1998. In the cross-examination she has
stated that she could not tell whether the
victim's birth certificate is available in the
college record or not? The entries in Ex.Ka.3
are not in her hand writing. She could not tell
on the basis of which document, the date of
birth of 'X' has been recorded in Ex.Ka.3.

19. The prosecution examined S.I.
Mohd. Sattar Beg as P.W.-5 at the trial
1724 INDIAN LAW REPORTS ALLAHABAD SERIES
court.
He
conducted
the
initial
investigation. This witness has proved the
site plan as Ex. Ka-5 and arrest of the
accused-Manvendra Singh @ Jhamman Pal
on 10.05.2014. According to this witness
accused- Malik Chandra was arrested on
19.05.2014 and victim was recovered. This
witness has also proved the Recovery
Memo of the victim as Ex. Ka-6. This
witness had got recorded the statement of
victim under Section 164 Cr.P.C. on
22.05.2014 and thereafter on 23.05.2014
had moved an application in the court for
handing her custody to her mother, but the
court had ordered to produce her on
27.06.2014.
This
witness
has
also
mentioned that on 03.07.2014 another
statement of victim under Section 164
Cr.P.C was got recorded. This witness has
proved the charge-sheet against the accused
Manvendra Singh @ Jhamman Pal and
Malik Chandra as Ex. Ka-7.

20. In cross-examination P.W.-5 has
accepted that statement of victim (under
Section 164 Cr.P.C), was recorded twice, first
on 22.05.2014 and again on 3.7.2014.
Similarly, the victim's statement under
Section 161 Cr.P.C was recorded twice, first
on 19.05.2014 and again on 21.05.2014. He
had not given any application for recording
the second statement of victim. The court had
suo motu ordered. This witness has accepted
that in the first statement, the victim had not
named accused Shailendra, or that Shailendra
had caught her hands, Malik Chandra had
caught her legs and Manvendra had made her
smell something, and that she regained
consciousness at Auraiya at 10:00 a.m. The
victim told him that she had gone to Gujarat.
The victim had also not told him that
Shailendra had gone to Gujarat and they had
resided in Gujarat. The victim had also not
told that Shailendra had committed rape upon
her. The victim was apprehended with Malik
Chandra. This witness has acknowledged that
in the statement given to the Doctor, the
victim had not named any accused, but had
told that the son-in-law of her aunt (Bua) had
taken her to Gujarat, where she had
solemnized marriage in a temple. He had
firstly recorded the statement of the victim on
19.05.2014, in which she had not disclosed
that Malik Chandra and others had raped her.
On perusal of the victim's first statement
under Section 164 Cr.P.C, no offence was
found to have been committed by any
accused. The victim had not told him that her
parents had deliberately shown her to be
underage in the school records. After about
12 days, the victim's father had returned
home.

21. The prosecution has examined
Balram Prasad as P.W.-6, who has
mentioned in his examination-in-chief that
he had registered the F.I.R on 08.04.2014 at
11:30 hours, on the basis of typed
application of informant, which is Case
Crime No. 629 of 2014, under Sections
363, 366 I.P.C. This witness has proved the
check F.I.R, as Ex.Ka-8 and the carbon
copy of G.D. Entry No.18 at 11:30 hours as
Ex.Ka-9.

22. The prosecution examined S.I.
Vikram Singh as P.W.-7, who concluded
the investigation of this case. He proved the
charge sheet against accused Shailendra
Kushwaha as Ex.Ka-10.

23. The accused in their statement
recorded under Section 313 Cr.P.C have
denied the prosecution story and have
submitted that they have been falsely
implicated in the case due to enmity.

24.
The
accused,
Shailendra
Kushwaha has examined Raja Ram as
D.W.1,
who
has
mentioned
in
his
5 All. Shailendra Kushwaha Vs. State of U.P.
1725
examination-in-chief that since morning of
31.03.2014, Shailendra remained present in
the village or in the adjoining village and
had also told this, to the police on the date
of incident, that he was present in the
village, and had not kidnapped the victim.

25.
Learned
counsel
for
the
appellants have submitted that the victim in
her first statement under Section 161
Cr.P.C and 164 Cr.P.C has mentioned that
she had eloped of her sweet will with the
accused Malik Chandra, and had gone to
Gujarat,
where
she
had
solemnized
marriage with Malik Chandra but no
physical relations were established between
them.
Subsequently,
in
her
second
statement under Section 164 Cr.P.C, she
had implicated all the three accused-
Shailendra Kushwaha, Manvendra Singh @
Jhamman Pal and Malik Chandra in the
crime.
Learned
counsel
has
further
submitted
that
there
is
material
improvement between the first statement
and the second statement of the victim, and
her subsequent examination in the trial
court, as such the evidence of victim is not
trustworthy. The victim was major, who
had gone of her own will, as such the trial
court had committed illegality in convicting
all the accused. Learned counsel has also
submitted that the informant 'M' P.W.-2 is
not an eye-witness. In her examination-inchief she had said that she neither had
signed the tehrir nor submitted it to the
police for registration of F.I.R. In view of
this statement of informant P.W.-2, the
prosecution story has not been proved.
Learned counsel have further submitted
that the victim had also told the Doctor
P.W.-3 that she went with the son-in-law of
her aunt to Gujarat, where she had
solemnized marriage with him. Learned
counsel has submitted that since the victim
had gone of her own sweet will from her
house, as such the offence of enticement,
elopement and rape has not been proved
beyond reasonable doubt against all the
accused and further no medical evidence of
rape is available on the record. Learned
counsel have submitted that the victim's
sole testimony has not been corroborated
by any other witness, as such only on the
basis
of
victim's
inconsistent
and
untrustworthy
testimony,
the
accused
cannot be convicted. The trial court has
erred in convicting the accused. With these
submissions, it has been prayed that both
the criminal appeals be allowed and all the
accused be acquitted of the charges levelled
against them.

26. Learned A.G.A for the State
has submitted that the victim's testimony is
trustworthy. In her second statement
recorded under Section 164 Cr.P.C and
examination-in-chief in the Court she
named all the three accused persons, which
has been believed by the trial court.
Learned A.G.A has further submitted that
the informant P.W.-2 is an illiterate lady
and as such her evidence regarding First
Information Report, should not be given
undue importance. Learned A.G.A has
further
submitted
that
the
victim's
testimony is trustworthy, which does not
require any corroboration. The victim was a
minor at the time of the occurrence and as
such her consent is immaterial. With these
submissions, it has been prayed that this
criminal appeal has got no merits and is
liable to be rejected.

27. Having heard counsel for the
parties, from the perusal of the evidence of
informant 'M' P.W.-2, it is evident that she
is not an eye-witness of the incident. On the
day of incident, she woke up in the
morning and found that victim 'X' was not
present in her house. She had searched for
1726 INDIAN LAW REPORTS ALLAHABAD SERIES
her in the neighbourhood, but 'X' could not
be traced out. After about 40 days, 'X' was
apprehended by the police, alongwith the
accused Malik Chandra and then 'X' had
told her that she was forcibly taken by all
the three accused persons to Gujarat and
was also forcibly raped by them

28. Yet the informant 'M' P.W.-2
has simultaneously accepted that the Tehrir
paper No. 5Ka, does not bear her signature
and she had also not submitted it to the
police. It is pertinent to mention here that
on the basis of informant's application
(paper No. 5Ka) F.I.R regarding the
incident has been registered on 08.04.2014
at 11:30 a.m. Since the informant has
denied that the basis of F.I.R i.e. her
purported application (paper No. 5Ka) was
not given by her, as such the whole
prosecution story becomes doubtful. It is
true that F.I.R is not a substantive piece of
evidence, but it's contents are required to
be proved in accordance with law, which
the prosecution has failed to prove beyond
reasonable doubt in this case. This will
become apparent from our subsequent
analysis.

29. The Hon'ble Apex Court in the
case of Suresh N. Bhusare and others vs.
State of Maharashtra (1999) 1 SCC 220,
has held that where evidence of the
prosecutrix is found suffering from serious
infirmities and inconsistencies with other
material, prosecutrix making deliberate
improvements on material point with a
view to rule out consent on her part and
there being no injury on her person even
though her version may be otherwise, no
reliance can be placed upon her evidence.

30. The Hon'ble Apex Court in the
case of Tameezuddin @ Tammu vs State
(NCT Of Delhi) (2009) 15 SCC 566, has
held that it is true that in a case of rape the
evidence of the prosecutrix must be given
predominant consideration, but to hold that
this evidence has to be accepted even if the
story is improbable and belies logic, would
be doing violence to the very principles
which govern the appreciation of evidence
in a criminal matter.

31. The Hon'ble Apex Court in the
case of Narender Kumar vs. State (NCT
of Delhi) AIR 2012 SC 2281, has held that
prosecution has to prove its case beyond
reasonable doubt and cannot take support
from the weakness of the case of defence.
There must be proper legal evidence and
material on record to record the conviction
of the accused. Conviction can be based on
sole testimony of the prosecutrix provided
it lends assurance to her testimony.
However, in case the court has reason not
to accept the version of prosecutrix on its
face value, it may look for corroboration. In
case the evidence is read in its totality and
the story projected by the prosecution is
found to be improbable, the prosecution
case becomes liable to be rejected.

32.