# Vijay Prakash Shukla v. State

- **Citation:** (2025) 7 ILRA 703
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-07-21
- **Case number:** Criminal Appeal No. 200 of 1999
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-prakash-shukla-v-state-54635
- **Pages:** 11

## Headnote

Sections 363, 366, 368, and 376/511 IPC was
legally sustainable based on the evidence
presented, and whether he was entitled to any
relief or benefit under law, including the First
Offender provision.

HEADNOTES
Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section - 164, 313,
374(2), - Indian Penal Code, 1860 -
Section - 363, 366, 368, 376, 511, -
Juvenile Justice Act, 1986 - Section - 24, -
Probation of Offenders Act, 1958 - Section
- 4- Criminal Appeal - against conviction and
sentenced - Appellant convicted for kidnapping
and attempted rape of minor cousin under
Sections 363, 366, 368, and 376/511 IPC - FIR
lodged with delay - court held delay immaterial
due to familial ties and social stigma - Victim's
testimony consistent and corroborated
by
medical and witness evidence - Defence failed
to prove enmity or alibi - no credible explanation
under Section 313 CrPC - Trial court's judgment
upheld - with observation that convicted and
sentenced, beyond any doubt and appeal filed
on misconceived and baseless grounds - held,
benefit of first offender could not be extended
to a culprit who was found guilty of abducting a
teenaged girl and forcing her to sexual
submission with criminal motive - consequently,
Appeal is dismissed. (Para - 12, 27, 28, 29)

Appeal Dismissed. (E-11)

CASE LAW CITED
Satpal Singh v. State of Haryana - 2010 Cri LJ
4283; State of Himachal Pradesh v. Prem Singh
- AIR 2009 SC 1010); Tarkeshwar Sahu v. State
of Bihar
- (AIRONLINE 2006 SC 383);
Pandharinath v. State of Maharashtra - (2009)
14 SCC 537); Koppula Venkat Rao v. State of
Andhra Pradesh - (2004) 3 SCC 602); Chaitu Lal
v. State of Uttarakhand - (2019) 20 SCC 272);
Israil v. State of U.P. - Criminal Appeal No. 40 of
2001); Smt. Devki v. State of Haryana - 1979
(3) SCC 760); Kalu @ Laxminarayan v. State of
M.P. - (2019) 10 SCC 211).

LIST OF ACTS
Code of Criminal Procedure, 1973; Indian Penal
Code,
1860;
Juvenile
Justice
Act,
1986;
Probation of Offenders Act, 1958.

LIST OF KEYWORDS
Criminal Appeal - Kidnapping - Attempt to Rape
- Minor Victim - Familial Abuse - Delay in FIR -
First Offender Denial - Medical Evidence -
Credibility of Testimony - baseless grounds.

CASE ARISING FROM
Date of Judgment and order: 28.04.1999 passed
in Sessions Trial No. 545 of 1987 passed by Trial
Court - 7th Additional Sessions Judge, Gonda.

APPEARANCE OF PARTIES
Counsel for Appellant: - Yogendra Singh, Kailash
Nath Mishra, Kaushal Mani Tripathi, R. P. Misra,
Trishita Singh
704 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel
for
Respondent:
-
Government
Advocate

## Text

7 All. Vijay Prakash Shukla Vs. State
703
petitioner is at liberty to pursue his remedy
elsewhere, as already observed, by
learned Advocate General in the second last
paragraph of the judgment.

12. We make it clear that rejection of
the present contempt application as being
time
barred
would
not
effect
the
proceedings, if any, pursued by the
applicant herein.
----------
(2025) 7 ILRA 703
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.07.2025

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Criminal Appeal No. 200 of 1999

Vijay Prakash Shukla ...Appellant
Versus
State ...Respondent

Counsel for the Appellant:
Yogendra Singh, Kailash Nath Mishra, Kaushal
Mani Tripathi, R.P. Misra, Trishita Singh

Counsel for the Respondent:
G.A.

ISSUE FOR CONSIDERATION
Whether the conviction of the appellant under
Sections 363, 366, 368, and 376/511 IPC was
legally sustainable based on the evidence
presented, and whether he was entitled to any
relief or benefit under law, including the First
Offender provision.

HEADNOTES
Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section - 164, 313,
374(2), - Indian Penal Code, 1860 -
Section - 363, 366, 368, 376, 511, -
Juvenile Justice Act, 1986 - Section - 24, -
Probation of Offenders Act, 1958 - Section
- 4- Criminal Appeal - against conviction and
sentenced - Appellant convicted for kidnapping
and attempted rape of minor cousin under
Sections 363, 366, 368, and 376/511 IPC - FIR
lodged with delay - court held delay immaterial
due to familial ties and social stigma - Victim's
testimony consistent and corroborated
by
medical and witness evidence - Defence failed
to prove enmity or alibi - no credible explanation
under Section 313 CrPC - Trial court's judgment
upheld - with observation that convicted and
sentenced, beyond any doubt and appeal filed
on misconceived and baseless grounds - held,
benefit of first offender could not be extended
to a culprit who was found guilty of abducting a
teenaged girl and forcing her to sexual
submission with criminal motive - consequently,
Appeal is dismissed. (Para - 12, 27, 28, 29)

Appeal Dismissed. (E-11)

CASE LAW CITED
Satpal Singh v. State of Haryana - 2010 Cri LJ
4283; State of Himachal Pradesh v. Prem Singh
- AIR 2009 SC 1010); Tarkeshwar Sahu v. State
of Bihar
- (AIRONLINE 2006 SC 383);
Pandharinath v. State of Maharashtra - (2009)
14 SCC 537); Koppula Venkat Rao v. State of
Andhra Pradesh - (2004) 3 SCC 602); Chaitu Lal
v. State of Uttarakhand - (2019) 20 SCC 272);
Israil v. State of U.P. - Criminal Appeal No. 40 of
2001); Smt. Devki v. State of Haryana - 1979
(3) SCC 760); Kalu @ Laxminarayan v. State of
M.P. - (2019) 10 SCC 211).

LIST OF ACTS
Code of Criminal Procedure, 1973; Indian Penal
Code,
1860;
Juvenile
Justice
Act,
1986;
Probation of Offenders Act, 1958.

LIST OF KEYWORDS
Criminal Appeal - Kidnapping - Attempt to Rape
- Minor Victim - Familial Abuse - Delay in FIR -
First Offender Denial - Medical Evidence -
Credibility of Testimony - baseless grounds.

CASE ARISING FROM
Date of Judgment and order: 28.04.1999 passed
in Sessions Trial No. 545 of 1987 passed by Trial
Court - 7th Additional Sessions Judge, Gonda.

APPEARANCE OF PARTIES
Counsel for Appellant: - Yogendra Singh, Kailash
Nath Mishra, Kaushal Mani Tripathi, R. P. Misra,
Trishita Singh
704 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel
for
Respondent:
-
Government
Advocate

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard Sri Kaushal Mani Tripathi,
learned counsel for the appellant and Shri
Badrul
Hasan,
learned
Additional
Government
Advocate
(here-in-after
referred as AGA).

2. This Criminal Appeal under
Section 374(2) of Code of Criminal
Procedure Code (here-in-after referred as
CrPC)
has
been
filed
assailing
the
judgment and order dated 28.04.1999
passed in Session trial No. 545 of 1987;
State vs. Ram Chandra and others, Police
Station Wazirganj, District Gonda by 7th
Additional Sessions Judge, Gonda by
means of which the appellant has been
convicted and sentenced two years of
rigorous imprisonment under Section 363
of Indian Penal Code (here-in-after referred
as IPC), three years rigorous imprisonment
under Section 366 IPC, three years rigorous
imprisonment under Section 368 IPC and
five years rigorous imprisonment and fine
of Rs. 20,000/- under Section 376/511 IPC
and in default of payment of fine, six
months additional simple imprisonment. It
has further been provided that all the
sentences shall run concurrently.

3. Gomti Prasad on the basis of a
written complaint dated 23.11.1986 lodged
an FIR bearing Case Crime No. 129 of
1986 under Section 363/366 IPC at Police
Station Wazirganj, District Gonda alleging
therein that accused Ram Chandra son of
Sheetla Prasad, Vijay Prakash Shukla and
Anil Kumar Shukla both sons of Jagdamba
Prasad took away his daughter Km.
Shakuntala Devi, aged about 11 years at
04:00 in the morning of 16.11.1986 for
taking bath to Ayodhya. On 17.11.1986 at
04:00 in the evening, two accused(s)
namely Ram Chandra and Anil Kumar
came back but his daughter did not come
back. The said accused informed to the
complainant that his daughter is with the
accused Vijay Prakash Shukla and she will
come with him. Accused Vijay Prakash
Shukla came back to home on 18.11.1986
at 10:00 in the night but his daughter did
not come back with him. When the
complainant asked Vijay Prakash Shukla
about his daughter Shakuntala, then he said
that he do not know about her. The
complainant inquired about his daughter in
his relations and a panchayat was called on
22.11.1986 in the evening, in which the
inquiry was made from Ram Chandra but
he declined to inform anything and stated
that he does not know as to where
Shakuntala has gone.

4. Subsequently, Km. Shakuntala
Devi was recovered on 02.12.1986 along
with Vijay Prakash Shukla while they were
going via Durjanpur to Parsarampur.
Accordingly, the girl was recovered and the
accused was arrested. The girl was
examined by Dr. Ranjana Singh, Medical
Officer posted at District Government
Women Hospital, Gonda on 03.12.1986 and
her X-ray was done by another Dr. P. C.
Shukla on 04.12.1986 for determination of
her age. Thereafter, a supplementary report
was given by Dr. Ranjana Singh, according
to which, the age of girl was about 13
years. It was further reported that there was
no intercourse with the girl and no entrance
into vagina was found. Sub Inspector Bans
Raj Bharti investigated the matter. He
recorded the statements of witnesses,
prepared the site plan of the place of
incident and place of recovery and after
investigation
submitted
charge
sheet
against the accused(s).
7 All. Vijay Prakash Shukla Vs. State
705

5. The learned Magistrate committed
the case to Sessions Court by means of the
order dated 24.08.1987. The charge was
framed against all accuseds under Sections
363 and 366 IPC and against the accusedappellant Vijay Prakash Shukla in addition
to the aforesaid sections, under Sections
368 and 376 IPC also by the Session Court.
The accused(s) pleaded not guilty and
demanded
trial.
On
behalf
of
the
prosecution, 7 witnesses were examined;
Gomti Prasad Shukla as P.W. 1, Shakuntala
Devi as PW. 2, Ram Chabi Shukla as P.W.
3, Dr. P.C. Shukla as P.W. 4, Dr. Ranjana
Singh as P.W. 5, Habibullah Khan SubInspector, who was Head Moharir as P.W. 6
and Sub-Inspector Bans Raj Bharti as P.W.
7. Thereafter, statement of the accused(s)
was recorded under Section 313 CrPC, in
which the accused(s) denied that they had
taken away Shakuntala with them. It was
also stated that no panchayat was held and
on account of enmity for property, they
have
falsely
been
implicated.
The
appellant-Vijay Prakash Shukla also stated
that he was on Homeguard duty at the time
of incident. He had enmity with SubInspector Bans Raj Bharti, therefore, he has
falsely been implicated.

6. In defence evidence, Ganga Prasad
was examined as D.W. 1. Thereafter, after
hearing learned counsel for the parties, the
learned trial court held that the accused
Anil Kumar appears to be lesser than 12
years of age and he was a child on the date
of incident, therefore, his trial would not be
held jointly under Section 24 of the
Juvenile Justice Act, 1986 (here-in-after
referred as JJ Act) and his case would be
referred to the Juvenile Court. Thus, in this
case, the trial will be only in regard to the
accused Ram Chandra and Vijay Prakash
Shukla. Thereafter, after examining the
evidence and material on record convicted
Ram Chandra and the appellant Vijay
Prakash Shukla. The case of Anil Kumar
Shukla for determination of his age and
appropriate action under the JJ Act was
referred to the Juvenile Court. Considering
the age of accused Ram Chandra, who was
aged about 65 years and blind since birth
and had only accompanied the girl along
with the accused and being his first offence,
released him giving the benefit of First
Offender on two sureties and a bond of Rs.
10,000/-. The appellant Vijay Prakash
Shukla has been sentenced awarding the
aforesaid sentences. Hence, this appeal has
been filed by him.

7. The First Information Report was
lodged by Gomti Prasad father of Km.
Shakuntala Devi against the three accused
along with the appellant Vijay Prakash
Shukla. The accused Ramesh Chandra is
the cousin of Gomti Prasad, whereas Vijay
Prakash Shukla and Anil Kumar Shukla are
real brothers and his nephews, who are
sons of cousin brother of Gomti Prasad
namely Jagdambika Prasad. The accuseds
took away Km. Shakuntala Devi, who was
aged about 11-13 years at the time of
incident on the pretext of taking bath in
Saryu River at Ayodhya on Kartik Purnima
i.e. 16.11.1986 at 04:00 in the morning.
They took away the girl without permission
of her parents. P.W.- 1 and 2 both have
proved that the accused had taken away
Km. Shakuntala on 16.11.1986 at about
04:00 in the morning and nothing could be
extracted from them in cross-examination
or shown which may create any doubt
about their testimony.

8. Km. Shakuntala Devi i.e. P.W.-2
has stated that about 101/4 years back
while she was sleeping on the thatches (पैरा)
on the door of her house, Ram Chandra had
awaken her in early morning and stated that
706 INDIAN LAW REPORTS ALLAHABAD SERIES
let us go for bath to Ayodhya. At that time,
there was fair of Kartik Purnima. Besides
her and Ram Chandra, Vijay Prakash and
Anil Kumar were also with them. They had
gone to Tikri Railway Station from her
house on foot. From Tikri Railway Station
to
Katra
Railway
Station
by
train.
Thereafter, from Katra to Ayodhya on foot.
At the time of incident her age was 10-11
years. In Ayodhya, they had taken bath in
Saryu River and after taking bath they had
gone to certain temples. Thereafter, they
stayed at hut of a Hermit, where they had
taken food and stayed in night. She also
stated that from the hut of hermit to Tikri,
they went on foot. The accused(s) had some
talk in the first night, thereafter, they came
on foot to Katra. In Katra, they sat in a bus,
but when the bus started, Ramesh Chandra
and Anil Kumar got down leaving her with
Vijay Prakash. Thereafter, Vijay Prakash
took her somewhere. She could not know
as to where she was taken. In the night, he
used to keep her at some place in small
market or in any school. Wherever she
stayed, Vijay Prakash had done bad work
with her. She was wearing Salwar Kameez.
He used to open the Salwar and on the
threat to life, used to try to penetrate his
penis in her vagina. He used to do it from
the outside. He had done such work many
times. Whenever he used to try to
penetrate, she used to cry. She was
recovered after 8-9 days of kidnapping. In
the cross-examination, she stated that she
was tired at that time and the appellant used
to scold her, therefore, she used to keep
mum and could not raise voice. She also
stated that even in the first night Vijay
Prakash had done bad work with her.
However, whenever he had done bad work
there was no bleeding. Thus, she was firm
on her statement given in the examinationin-chief and the statement under Section
164 CrPC and nothing could be extracted in
the cross-examination, which may create
any doubt about her testimony. It is also
noticed that the P.W. 2 has given the
aforesaid evidence, while she appeared for
evidence after her marriage, even at the
stake of her matrimonial life. It is also not
in dispute that the appellant Vijay Prakash
was her cousin brother. He was working in
Homeguard at that time. Therefore, the
appellant has not only abused the close
relationship but disciplined force also. He,
being an Homeguard, instead of saving her
cousin sister, committed such a crime with
a girl aged about 11-13 years.

9. Dr. Ranjana Singh, who appeared
as P.W. 5 stated in her examination-in-chief
that there were no injuries on the outer
parts of body. In the internal examination,
she found that no hairs on the private part
and under the shoulder. Hymen was
broken. No sign of injury was found on the
outer side. There was no bleeding or sign of
bleeding. She gave an opinion that there
was no penetration in the vagina. She also
stated that if there may be any minor injury
on private part about 12 to 14 days ago,
then it would not be found on the date of
examination and in minor injury, some
signs may be found between 24 hours to
one
week.
P.W.
4-Dr
P.C.
Shukla,
Radiologist proved the X-ray report. On the
basis of above, P.W.-5 opined that the age
of victim could have been between 9 years
to 13 years. Thus, the offence under Section
376, though is not proved but the attempt to
rape i.e. offence under Section 376/511 IPC
is proved because as deposed by P.W. 2, the
appellant used to rub his penis on her
vagina and tried to penetrate into vagina
after opening her salwar but on account of
this, she used to cry, therefore, he could not
penetrate. It was an attempt to rape and it is
apparent that due to minor girl and pain to
her even in attempt, he could not commit
7 All. Vijay Prakash Shukla Vs. State
707
rape. Thus, the offence of attempt to rape is
proved beyond doubt.

10. P.W. 3-Ram Chabi Shukla has
stated that a panchayat was called on the
request of Gomti Prasad in which he had
told that the accused had taken away his
daughter
Shakuntala
for
bathing
in
Ayodhya but she has not come back. In
panchayat, except the accused Vijay
Prakash Shukla, two accused(s) had come
and they informed that Shakuntala is with
Vijay Prakash Shukla. These proceedings
were held in writing. In the crossexamination, he also stated that Vijay
Prakash was in homeguard at that time. The
panchayat was held within a week of going
of the girl and during this period he had not
seen Vijay Prakash.

11. P.W. 6-Hamidullah Khan Sub
Inspector stated that on 13.11.1986 at 09:
15 in the morning the complainant Gomti
Prasad had given a written complaint
(tehrir), on the basis of which he had
prepared the Chick No. 119, Case Crime
No. 129 of 1986 under Section 363/366
IPC and proved the same. He further stated
that investigation of the case was handed
over to Bans Raj Bharti. Bans Raj Bhari
appeared as P.W. 7 and proved the
statements recorded by him and the site
plan etc. He also stated that with the
permission of learned Magistrate, he had
copied the statements recorded under
Section 164 CrPC. He also proved the
recovery of the girl. Thus, the case was
proved by the prosecution witnesses.

12. In the statement under Section
313 CrPC, the appellant stated that report
has been lodged on account of enmity. The
recovery is forged. There was no panchayat
and he has been implicated on account of
enmity for property but he failed to prove
any enmity and also could not adduce any
evidence contrary to evidence adduced by
the
prosecution.
Ganga
Prasad
was
produced in defence as D.W.-1 and tried to
prove that the appellant was on duty on the
relevant dates. However, he specifically
stated that he does not know as to whether
he was posted on the police station on the
relevant dates or not. He also stated that he
had come to give the evidence on being
called by the appellant Vijay Prakash
Shukla. Thus, he tried to give evidence in
support of the appellant but no material
evidence could be adduced in support of
him.

13. The learned trial court, after
considering the aforesaid evidence and
material on record, convicted the appellant
and sentenced as above.

14. The girl of 11-13 years was
kidnapped by the accused(s) from the
lawful guardianship of her parents on the
pretext of taking bath in Saryu River in
Ayodhya taking benefit of their being close
relatives and living in the near vicinity.
Shakuntla Devi has not only given the
evidence before the court during trial but
also supported her statement under Section
164 CrPC in which she had also supported
the prosecution. Thus, the offence under
Section
363
CrPC,
which
provides
punishment for kidnapping any person
from lawful guardianship is proved.

15. The aforesaid evidence adduced
by P.W. 2 indicates that she was kidnapped
in order to force or seduce her to illicit
intercourse because the appellant made
repeated efforts of rape but could not
succeed as the girl was minor and used to
cry, whenever he tried to do so. Thus, the
offence under Section 366 has also been
proved against the appellant. As per
708 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence of the P.W. 2, she was confined at
several places after kidnapping with the
aforesaid intention. Thus, the offence under
Section 368 IPC is also made out.

16. Section 363 IPC provides
punishment for kidnapping. It provides that
whoever kidnaps any person, from India or
from
lawful
guardianship,
shall
be
punished with imprisonment of either
description for a term which may extend to
seven years, and shall also be liable to fine.
Section 366 IPC provides kidnapping,
abducting or inducing woman to compel
her for marriage, etc. It provides that
whoever kidnaps or abducts any woman
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 in order that she may be forced or
seduced to illicit intercourse, or knowing it
to be likely that she will be forced or
seduced to illicit intercourse, shall be
punished with imprisonment of either
description for a term which may extend to
ten years, and shall also be liable to fine.
The definition of rape has been given in
Section 375 IPC. Section 376 provides the
punishment for rape. Section 511 IPC
provides punishment for attempting to
commit
offences
punishable
with
imprisonment
for
life
or
other
imprisonment. It provides that whoever
attempts to commit an offence punishable
by this Code with imprisonment for life or
imprisonment, or to cause such an offence
to be committed, and in such attempt does
any act towards the commission of the
offence, shall, where no express provision
is made by this Code for the punishment of
such
attempt,
be
punished
with
imprisonment of any description provided
for the offence, for a term which may
extend to one-half of the imprisonment for
life or, as the case may be, one-half of the
longest term of imprisonment provided for
that offence, or with such fine as is
provided for the offence, or with both.
Thus, where a person attempts to commit
an offence punishable by this Code, he can
be punished for a term which may extend
to one half of the imprisonment provided
for the offence or with fine or both.

17. In view of above, the learned trial
court after considering the evidence and
material on record has rightly and in
accordance
with
law
came
to
the
conclusion that the offences under Sections
363/366/368 and 376/511 IPC are proved
against the appellant and accordingly he
has been convicted taking aid of Section
222(3) CrPC and sentenced. This Court
does not find any illegality or error in the
findings recorded by the trial court. The
explanation for delay in lodging FIR has
been given. Even otherwise the delay in
such cases is immaterial, particularly when
the girl was taken away by the relatives,
even if there may be mute consent of
mother on account of close relation and a
brother-in-law (जेठ) was also accompanying
as she could not have expected that the
appellant would commit such a crime with
his cousin.

18. The Hon'ble Supreme Court, in
the case of Satpal Singh vs. State of
Haryana;
2010
CRI.
L.
J.
4283,
considering the judgment of Hon'ble
Supreme Court in the case of State of
Himachal Pradesh vs. Prem Singh; 2009
(64) ACC 287, has held that in case of
sexual offence, the criteria may be different
altogether. As honour of the family is
involved, its members have to decide
whether to take the matter to the court or
not. In such a fact-situation, near relations
of the prosecutrix may take time as to what
course of action should be adopted. Thus,
7 All. Vijay Prakash Shukla Vs. State
709
delay is bound to occur. The relevant
paragraphs 15, 16 and 17 are extracted
hereinbelow:-

"15. However, no straight jacket
formula can be laid down in this regard. In
case of sexual offences, the criteria may be
different altogether. As honour of the family
is involved, its members have to decide
whether to take the matter to the court or
not. In such a fact-situation, near relations
of the prosecutrix may take time as to what
course of action should be adopted. Thus,
delay is bound to occur. This Court has
always taken judicial notice of the fact that
"ordinarily the family of the victim would
not intend to get a stigma attached to the
victim.
Delay
in
lodging
the
First
Information Report in a case of this nature
is a normal phenomenon" [vide Satyapal
Vs. State of Haryana AIR 2009 SC 2190].

16. In State of Himachal Pradesh Vs.
Prem Singh AIR 2009 SC 1010, this Court
considered the issue at length and observed
as under :-

"So far as the delay in lodging the
FIR is concerned, the delay in a case of
sexual assault, cannot be equated with the
case involving other offences. There are
several factors which weigh in the mind of
the prosecutrix and her family members
before coming to the police station to lodge
a complaint. In a tradition bound society
prevalent in India, more particularly, rural
areas, it would be quite unsafe to throw out
the prosecution case merely on the ground
that there is some delay in lodging the
FIR."

17. Thus, in view of the above, the
delay in lodging FIR in sexual offences has
to be considered with a different yardstick."

19. The Hon'ble Supreme Court, in
the case of Tarkeshwar Sahu vs. State of
Bihar (Now Jharkhand); AIRONLINE
2006 SC 383, has held that the important
ingredient of the offence under Section 375
punishable under Section 376 IPC is
penetration. No offence under Section 376
IPC can be made out unless there was
penetration to some extent.

20. The Hon'ble Supreme Court, in
the case of Pandharinath vs. State of
Maharashtra; (2009) 14 SCC 537, has
held that if the accused- appellant had
removed her clothes and he had not
rebutted this statement of the prosecutrix in
his examination-in-chief, it is definitely a
case of attempt to rape.

21. The Hon'ble Supreme Court, in
the case of Koppula Venkat Rao vs. State
of Andhra Pradesh; (2004) 3 SCC 602,
has
held
that
the
plea
relating
to
applicability of Section 376 read with
Section
511
IPC
needs
careful
consideration. In every crime, there is first,
intention to commit, secondly preparation
to commit it, thirdly, attempt to commit it.
If the third stage, that is, attempt is
successful, then the crime is complete. If
the attempt fails the crime is not complete,
but law punishes the person attempting the
Act under Section 511 IPC The relevant
paragraphs 8, 11, 12 and 13 are extracted
hereinbelow:-

"8.
The
plea
relating
to
applicability of Section 376 read with
Section
511
IPC
needs
careful
consideration. In every crime, there is first,
intention to commit, secondly preparation
to commit it, thirdly, attempt to commit it. If
the third stage, that is, attempt is
successful, then the crime is complete. If
the attempt fails the crime is not complete,
but law punishes the person attempting the
Act, Section 511 is a general provision
dealing with attempts to commit offences
710 INDIAN LAW REPORTS ALLAHABAD SERIES
not made punishable by other specific
sections. It makes punishable all attempts
to
commit
offences
punishable
with
imprisonment
and
not
only
those
punishable with death. An attempt is made
punishable,
because
every
attempt,
although it falls short of success, must
create alarm, which by itself is an injury,
and the moral guilt of the offender is the
same as if he had succeeded. Moral guilt
must be united to injury in order to justify
punishment. As the injury is not as great as
if the act had been committed, only half the
punishment is awarded.

11. The sine qua non of the
offence of rape is penetration, and not
ejaculation.
Ejaculation
without
penetration constitutes an attempt to
commit
rape
and
not
actual
rape.
Definition of "rape" as contained in Section
375 IPC refers to "sexual intercourse" and
the Explanation appended to the Section
provides that penetration is sufficient to
constitute the sexual intercourse necessary
to the offence of rape. Intercourse means
sexual connection.

12. In the instant case that
connection has not been established.
Courts below were not correct in their view.

13. When the evidence of the
prosecutrix is considered in the proper
perspective, it is clear that the commission
of actual rape has not been established.
However, the evidence is sufficient to prove
that attempt to commit rape was made.
That being the position, conviction is altered
from Section 376 IPC to Section 376/511 IPC.
Custodial sentence of 3 and '/2 years would
meet the ends of justice. The accused who is on
bail shall surrender to custody to serve
remainder of his sentence."

22. The Hon'ble Supreme Court, in the
case of Chaitu Lal vs. State of Uttarakhand;
(2019) 20 SCC 272, held that the attempt to
commit an offence begins when the accused
commences to do an act with the necessary
intention.

23. A coordinate Bench of this Court, in
Israil vs. State of Uttar Pradesh; Criminal
Appeal 40 of 2001, has held that for the
commission of every offence there are three
stages, the first is the intention to commit the
offence, thereafter comes the preparation to
commit the offence and third is attempt to
commit offence. If the attempt succeeds, he has
committed the offence, if it fails due to reasons
beyond his control, he is said to have attempted
to commit the offence. Attempt to commit an
offence can be said to begin when the
preparations are complete and the culprit
commences to do something with the intention
of committing the offence and which is a step
towards the commission of the offence. The
moment he commences to do an act with the
necessary intention, he commences his attempt
to commit the offence. Thereafter, considering
several reports of the Hon'ble Supreme Court
on the issue, the Court observed that in view of
the case laws referred, it is clear that in order to
hold the accused guilty of an attempt to commit
rape the Court has to be satisfied that the
accused, when he laid down the prosecutrix not
only desired to gratify the passion upon her but
that he intended to do so in all events,
notwithstanding any resistance on her part. The
Court after dealing with situation to the facts of
the present case held that the conclusion is
irresistible when the offence committed by the
accused falls within the category of attempt of
rape and it cannot, by any stretch of
imagination, be said to be an offence under
Section 354 IPC. The relevant paragraphs
14 and 21 are extracted hereinbelow:-

"14. For the commission of every
offence there are three stages, the first is
the intention to commit the offence,
thereafter comes the preparation of commit
7 All. Vijay Prakash Shukla Vs. State
711
the offence and third is attempt to commit
offence. If the attempt succeeds, he has
committed the offence, if it fails due to
reasons beyond his control, he is said to
have attempted to commit the offence.
Attempt to commit an offence can be said to
begin when the preparations are complete
and the culprit commences to do something
with the intention of committing the offence
and which is a step towards the commission
of the offence. The moment he commences
to do an act with the necessary intention,
he commences his attempt to commit the
offence. The word "attempt" is not itself
defined and must, therefore, be taken in its
ordinary meaning. This is exactly what the
provisions of Section 511 require. An
attempt to commit a crime is to be
distinguished from an intention to commit
an offence, not followed by any act, cannot
constitute an offence. The will is not to be
taken for the deed unless there be some
external act which shows that progress has
been made in the direction of it, or towards
maturing and effecting it. Intention is the
direction of conduct towards the object
chosen upon considering the motives which
suggest the choice. Preparation consists in
devising or arranging the means or
measures necessary for the commission of
the offence. It differs widely from attempt
which is the direct movement towards the
commission after preparations are made.
The point as to what would amount to
attempt to rape has been considered by
Hon'ble Apex Court in several cases.

21. In view of the aforementioned
case laws it is clear that in order to hold
the accused guilty of an attempt to commit
rape the Court has to be satisfied that the
accused, when he laid down the prosecutrix
not only desired to gratify the passion upon
her but that he intended to do so in all
events, notwithstanding any resistance on
her part. Indecent assaults are often
magnified into attempts of rape. In order to
come to a conclusion that the conduct of
the
accused
was
suggestive
of
determination to gratify his passion at all
events and inspite of all resistance, there
must be material on record. The offence
under Section 354 IPC is much lesser than
the offence under Sections 376/511 IPC.
Even if a person gives slight slap in public
view on the posterior of a lady with a
culpable intention, then the offence under
Section 354 IPC is complete. But in order
to commit an offence under Section 376
read with Section 511 IPC, as stated above,
there must be evidence on record to show
that the accused had all the intention to
satisfy his lust. When the aforesaid settled
legal position is applied to the facts of the
present case then the conclusion is
irresistible then the accused has committed
an offence to commit rape because he has
not only undressed the victim but has also
undressed himself, took her inside the
Arhar field and laid on the victim. He was
moving his waist at that time. He left the
victim only when her grand mother reached
on the place of occurrence and pulled him
by holding his hairs. It is only thereafter he
ran away from the place of occurrence.
Therefore, the offence committed by the
accused falls within the category of attempt
of rape and it cannot, by any stretch of
imagination, be said to be an offence under
Section 354 IPC. A half hearted argument
regarding the false implication of the
appellant has also been raised but there is
nothing on record to support such false
implication. The victim has stated that the
accused was his uncle and this fact has not
been challenged in the cross-examination.
It is absolutely unbelievable that the grand
father would involve his grand daughter
aged about 9 years in such an offence and
thereby he would destroy her future
because the stigma attached with the victim
712 INDIAN LAW REPORTS ALLAHABAD SERIES
of
offence
of
rape,
in
the
Indian
perspective, remains attached with her
throughout her life and a great damage is
done not only to the victim but to the entire
family of the victim. No specific enmity, nor
any other material is on record to justify
the theory of false implication due to
enmity"

24. The Hon'ble Supreme Court, in
the case of Deepak vs. State of Haryana;
(2015) 4 SCC 762, has held that no self-
respecting woman would ever come
forward in a court just to make a
humiliating statement against her honour
such as is involved in the commission of
rape on her and the testimony of the
prosecutrix in such cases is vital and the
same cannot be rejected unless there is any
justification. The relevant paragraph 26 is
extracted here-in-below:-

"26. We are alive to the law laid
down by this Court wherein it is ruled that
in a case of rape, no self- respecting
woman would ever come forward in a court
just to make a humiliating statement
against her honour such as is involved in
the commission of rape on her. The
testimony of the prosecutrix in such cases is
vital and unless there are compelling
reasons, which necessitate looking for
corroboration of her statement or where
there are compelling reasons for rejecting
of her testimony, there is no justification on
the part of the court to reject her testimony."

25. The judgment of a co-ordinate
Bench in the case of Rajesh Kumar dubey
vs. State of U.P.; 2022 SCC OnLine All
1719 relied by learned counsel for the
appellant is of no assistance to the appellant
as in the said case the view as held by this
Court was that the view taken by the trial
court was against the weight of the evidence.

26. The judgment in Mushtaq Vs.
State; MANU/UP/0226/1954 is also not of
any assistance to the appellant as it is
distinguishable on the facts of the present
case because the appellant in this case was
not a minor at the time of incident.

27. Learned counsel for the appellant,
relying on Shyam @ Shyamoo vs. State of
Uttar Pradesh; Criminal Appeal No. 178 of
2000 by a co-ordinate Bench, had argued that
the appellant is entitled for benefit of first
offender as he has no criminal history,
whereas the said benefit is not available to
him in view of the heinous crime of the
appellant with a minor girl, who was his
cousin while he was working in homeguard.
The co-ordinate Bench has also observed that
the Hon'ble Supreme Court, in the case of
Smt. Devki vs. State of Haryana; 1979 (3)
SCC 760, has held that benefit of Section 4 of
the Act of 1958 could not be extended to a
culprit who was found guilty of abducting a
teenaged girl and forcing her to sexual
submission with criminal motive. Thus, the
appellant is not entitled for benefit of first
offender.

28. The Hon'ble Supreme Court, in the
case of Kalu @ Laxminarayan vs. State of
Madhya Pradesh; (2019) 10 SCC 211, has
held that once the prosecution established a
prima facie case, the appellant was obliged to
furnish some explanation under Section 313,
Cr.P.C. with regard to the circumstances. His
failure to offer any explanation whatsoever
therefore
leaves
no
doubt
for
the
conclusion of his being the assailant. In the
present case, the appellant has failed to do
so as discussed above.

29. In view of above and considering
the overall facts and circumstances of the
case, there is no room of doubt that the
offences under which the appellant has
7 All. Kanhaiya & Ors. Vs. State of U.P.
713
been convicted and sentenced have been
proved beyond doubt before the trial court
and the appellant has failed to give any
explanation and prove anything contrary
even by producing a defence witness,
which may give any benefit to the
appellant. This Court is of the view that
looking to the crime committed by the
appellant, the trial court has passed the
impugned
judgment
and
order
in
accordance with law, after considering the
evidence and material on record, which
does not suffer from any illegality or error.
Thus, The appeal has been filed on
misconceived and baseless grounds.

30. The appeal is, accordingly,
dismissed.
----------
(2025) 7 ILRA 713
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.07.2025

BEFORE

THE HON'BLE SIDDHARTH, J.
THE HON'BLE AVNISH SAXENA, J.

Criminal Appeal No. 2125 of 1984

Kanhaiya & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Gagan Mehta, Kalp Nath, Parmeshwar Kr.
Chaudhary

Counsel for the Respondent:
A.G.A.

Issue for Consideration

I. Whether the youthful offenders/appellants are
to be punished like an adult.
II. The role of two child- accused in their
individual acts and also whether they were the
members of unlawful assembly.
Head Notes

The Code of Criminal Procedure, 1973 -
Section 374 - The Uttar Pradesh Children
Act, 1951 - Sections 2(4), 2(13), 27, 33,
63 - Conviction of the accused persons
under sections 302 r/w 149 & 147 IPC-
The trial judge has specifically mentioned
the age of accused Chhedi and Madan are
15 years and 13 years, respectively - Child
less than sixteen years of age is a youthful
offender - Trial judge has committed an
error of law and fact in failing to
determine the age of the child and
sentencing the appellants as an adult -
Appellants
were
child
and
youthful
offenders at the time of incident though
rightly been considered to be involved in
the offence of being a member of unlawful
assembly but incorrectly being sentenced
as an adult - Appeal Partly allowed.

Held - Appellants who were child and youthful
offenders at the time of incident though rightly
been considered to be involved in the offence of
being a member of unlawful assembly but
incorrectly being sentenced as an adult - Section
27 of the Act further clarifies that a child, who is
12 years of age or upward may be committed to
prison when the court certifies that the child is
(1) so unruly, (2) so depraved a character that
he is not fit to be sent to an 'approved school'.
The trial judge has not even considered this
aspect of punishment and sent the appellants to
the prison - The conviction of accused
appellants being youthful offenders is upheld
but their sentences are being reduced to period
already undergone. (Para 37, 38, 39 & 40)
(E-15)

Case Law Cited
Ashok Kumar Mehra and another Vs. State of
Punjab [AIR 2019 SC 1903]; Mohd. Gufran Vs.
State of U.P [(1990) All. L.J. 540]; Kalika Tiwari
Vs. state of Bihar [(1997) 4 SCC 2186]; Shivraj
Bapuray Jadhav and others Vs. State of
Karnataka [(2003) 6 SCC 392];

List of Acts

The Code of Criminal Procedure, 1973 -
The Uttar Pradesh Children Act, 1951