# Vimlesh v. State of U.P

- **Citation:** (2021) 2 ILRA 1059
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-27
- **Case number:** Criminal Appeal No. 191 of 2016
- **Bench:** Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vimlesh-v-state-of-u-p-46722
- **Pages:** 15

## Headnote

Criminal Law - Indian Penal Code, 1860-
Sections 366 & 376(2)- Rape of minor-
Determination of age- Neither Code nor
I.P.C.
or
POCSO
Act
2012
provides
procedure for determination of victim's
age. Alleged offence was committed on
07.12.2014. Rule 12 of the Juvenile
Justice (Care and Protection of Children)
Rules, 2007 (hereinafter referred to as the
'2007 Rules') framed under Section 67 of
the Juvenile Justice (Care and Protection
of Children) Act 2000, provides procedure
for determination of juvenile's age.

Since neither the IPC and nor the POCSO Act
provide for the methodology to determine the
age of the victim, hence the same is to be
determined in accordance with Rule 12 of the
Juvenile
Justice
(Care
and
Protection
of
Children) Rules, 2007. Where the school
documents or other documents establishing the
age of the victim are absent then the age has to
be determined under Rule 12 (3) of the Act.

Juvenile Justice (Care and Protection of
Children)
Rules,
2007-
Rule
12(3)-
Neither any matriculation nor equivalent
certificate or any date of birth certificate,
from the victim's school or any extract of
Kutumb
Register
(birth
and
death
register) maintained at the level of
Village-Pradhan/Gaon
Sabha
of
the
victim, was filed by the prosecution before
the trial Court. It is also pertinent to note
that the opinion regarding the age of any
person, based on medical and radiological
evidence, can not be treated accurate and
exact. Such determination of age, by
medical expert, may vary in view of race,
gender,
geographical
area,
nutritional
status and other factors like colour of
pubic and armpit hair, development of
sexual characteristics and other changes
in the body of the victim. Such variation
may be of one or two year of either side.
Thus, in the light of the evidence available
on record and in view of the law laid down
by Hon'ble Supreme Court in Jarnail Singh
(supra), Jaya Mala (supra) and Rajak
Mohammad (supra) as well as relying
upon the medical evidence on record, it
may be held that the victim, at the time of
1060 INDIAN LAW REPORTS ALLAHABAD SERIES
occurrence, was more than 16 years but
below to 18 years and the finding of the
trial Court that the victim was below than
16 years is not acceptable.

Where the school documents or other
documents required for establishing the age of
the victim are absent then the age has to be
determined under Rule 12 (3) of the Act,
however the said medical opinion cannot be
regarded as accurate and benefit of two years
on either side has to be given to the accused.

Criminal Law - Indian Penal Code, 1860-
Sections
375
&376(1)-
Although,
according to P.W.-4, no external or
internal injury was present on the private
part of the victim and no spermatozoa was
found from her vagina, merely on the
ground of non presence of injury or
spermatozoa where victim's hymen was
found torn and healed and she was
recovered
from
the
custody
of
the
appellant
after
nine
days
of
the
occurrence, it cannot be said that the
offence of rape was not committed,
particularly, if the victim was below than
18 years because according to Section 375
read with Section 376 I.P.C., if the victim
is below the age of 18 years, her consent
is immaterial in sexual intercourse.

If the age of the victim is found to be below 18
years, then her consent is immaterial and only
on the ground of absence of external or internal
injuries in a delayed medico-legal examination,
it cannot be said that that the offence of rape
was not committed.

Criminal Law - Indian Penal Code, 1860-
Section-376(1)- Section 376(2)- The
conviction and sentence of the appellant
for offence under Section 376 (2) and
Section 366 I.P.C. is altered to for the
offence under Section 376 (1) and Section
366 I.P.C. and the appellant is convicted
and sentenced for the offence under
Section 376 (1) I.P.C., for seven years
rigorous imprisonment with fine of Rs.
10,000/- and so far as the conviction and
sentence for the offence under Secti

## Text

_Characters 0–39,796 of 51,333. This is a partial read: ask again with offset=39796 for what follows._

2 All. Vimlesh Vs. State of U.P.
1059
appellant is sentenced to undergo 7 years of
incarceration with fine of Rs.5000/- and
conviction under Section 4/5 of Explosive
Substances Act,1908 is also reduced to 7
years of rigorous imprisonment looking to
the facts of this case. Conviction and
sentences as far as offences under Sections
452 & 307 of I.P.C. are maintained as the
period of sentence is over even the default
period would be over.

26. Appellant-accused is in jail since
12.11.2011, if 7 years of incarceration is
over for all the offences and the default
would start after the period of seven years,
he shall be released forthwith, if not
required in any other case. The accused
would be entitled to all remissions. The
judgment and order impugned in this
appeal shall stand modified accordingly.

27. Let a copy of this judgment along
with the trial court record be sent to the
Court and Jail Authorities concerned for
compliance.
----------
(2021)02ILR A1059
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 27.01.2021

BEFORE

THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 191 of 2016

Vimlesh ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sunil Kumar, Rajiv Mishra, Soniya Mishra

Counsel for the Respondent:
Govt. Advocate
Criminal Law - Indian Penal Code, 1860-
Sections 366 & 376(2)- Rape of minor-
Determination of age- Neither Code nor
I.P.C.
or
POCSO
Act
2012
provides
procedure for determination of victim's
age. Alleged offence was committed on
07.12.2014. Rule 12 of the Juvenile
Justice (Care and Protection of Children)
Rules, 2007 (hereinafter referred to as the
'2007 Rules') framed under Section 67 of
the Juvenile Justice (Care and Protection
of Children) Act 2000, provides procedure
for determination of juvenile's age.

Since neither the IPC and nor the POCSO Act
provide for the methodology to determine the
age of the victim, hence the same is to be
determined in accordance with Rule 12 of the
Juvenile
Justice
(Care
and
Protection
of
Children) Rules, 2007. Where the school
documents or other documents establishing the
age of the victim are absent then the age has to
be determined under Rule 12 (3) of the Act.

Juvenile Justice (Care and Protection of
Children)
Rules,
2007-
Rule
12(3)-
Neither any matriculation nor equivalent
certificate or any date of birth certificate,
from the victim's school or any extract of
Kutumb
Register
(birth
and
death
register) maintained at the level of
Village-Pradhan/Gaon
Sabha
of
the
victim, was filed by the prosecution before
the trial Court. It is also pertinent to note
that the opinion regarding the age of any
person, based on medical and radiological
evidence, can not be treated accurate and
exact. Such determination of age, by
medical expert, may vary in view of race,
gender,
geographical
area,
nutritional
status and other factors like colour of
pubic and armpit hair, development of
sexual characteristics and other changes
in the body of the victim. Such variation
may be of one or two year of either side.
Thus, in the light of the evidence available
on record and in view of the law laid down
by Hon'ble Supreme Court in Jarnail Singh
(supra), Jaya Mala (supra) and Rajak
Mohammad (supra) as well as relying
upon the medical evidence on record, it
may be held that the victim, at the time of
1060 INDIAN LAW REPORTS ALLAHABAD SERIES
occurrence, was more than 16 years but
below to 18 years and the finding of the
trial Court that the victim was below than
16 years is not acceptable.

Where the school documents or other
documents required for establishing the age of
the victim are absent then the age has to be
determined under Rule 12 (3) of the Act,
however the said medical opinion cannot be
regarded as accurate and benefit of two years
on either side has to be given to the accused.

Criminal Law - Indian Penal Code, 1860-
Sections
375
&376(1)-
Although,
according to P.W.-4, no external or
internal injury was present on the private
part of the victim and no spermatozoa was
found from her vagina, merely on the
ground of non presence of injury or
spermatozoa where victim's hymen was
found torn and healed and she was
recovered
from
the
custody
of
the
appellant
after
nine
days
of
the
occurrence, it cannot be said that the
offence of rape was not committed,
particularly, if the victim was below than
18 years because according to Section 375
read with Section 376 I.P.C., if the victim
is below the age of 18 years, her consent
is immaterial in sexual intercourse.

If the age of the victim is found to be below 18
years, then her consent is immaterial and only
on the ground of absence of external or internal
injuries in a delayed medico-legal examination,
it cannot be said that that the offence of rape
was not committed.

Criminal Law - Indian Penal Code, 1860-
Section-376(1)- Section 376(2)- The
conviction and sentence of the appellant
for offence under Section 376 (2) and
Section 366 I.P.C. is altered to for the
offence under Section 376 (1) and Section
366 I.P.C. and the appellant is convicted
and sentenced for the offence under
Section 376 (1) I.P.C., for seven years
rigorous imprisonment with fine of Rs.
10,000/- and so far as the conviction and
sentence for the offence under Section
366 I.P.C., passed by trial Court, is
concerned, it requires no interference.
Since the age of the victim is determined to be
more than 16 years but less than 18 years,
hence the offence is altered to Section 376(1). (
Para 31, 37, 38, 42, 45, 49)

Appeal Partly Allowed. (E-2)

Judgements/ Case law relied-

1. Jarnail Singh Vs St. of Har. (2013) 7 SCC 263

2. Jaya Mala Vs Home Secy. J & K & ors. AIR
1982 SC 1297

3. Rajak Mohammad Vs St. of H.P, (2018) 9 SCC
248

4. St. of M.P. Vs Saleem @ Chamaru, AIR 2005
SC 3996

5. Ramashraya Chakravarti Vs St. of M.P. AIR
1976 SC 392

(Delivered by Hon'ble Virendra Kumar
Srivastava, J.)

1. This Criminal Appeal, under
Section 374 Code of Criminal Procedure,
1973 (hereinafter referred to as 'Code'), has
been preferred by the appellant-Vimlesh
(hereinafter referred to as 'appellant')
against the judgment and order dated
28.1.2016, passed by Additional Sessions
Judge,
Court
No.
10/Special
judge
Protection
of
Children
from
Sexual
Offences Act, 2012 (hereinafter referred to
as 'POCSO Act'), Unnao, in Special
Sessions Trial No. 15/2015 (State vs.
Vimlesh), arising out of Case Crime No.
1043/2014, P.S. Makhi, District Unnao,
whereby the appellant has been convicted
and sentenced for offence under Section
376 (2) I.P.C., for 10 years rigorous
imprisonment with a fine of Rs. 10,000/-
and for offence U/s 366 I.P.C., for 5 years
rigorous imprisonment with a fine of Rs.
5,000/- with further direction that all the
sentences shall run concurrently.
2 All. Vimlesh Vs. State of U.P.
1061

2. The prosecution case, in brief, is
that Dharam Pal (P.W.-2), father of victim
(P.W.-3), lodged the first information
report (Ext.-Ka-2) (in short F.I.R.) on
15.12.2014, at about 15:30 p.m. at P.S.
Makhi, District Unnao, alleging that P.W.-3
aged about 14 years, had left her house on
07.12.2014 to go to her maternal uncle
(mama)'s
house
situated
in
Village
Kokarikhurd, but it was found that she did
not reach there. It was also found that the
appellant, who is distant relative, as mama
(maternal
uncle)
of
the
victim,
r/o
Mustafabad h/o Pakhraura, had enticed the
victim away with the help of appellant's
elder brother-Kamlesh, his father-Gauri
Shankar and his mother-Nanhi. It is further
alleged that the victim had also taken away
Rs. 35,000/- in cash, a silver anklet of 200
grams and 2 mobile phones bearing no.
7309354605 and 7052809921 with her.

3. On the said information, a criminal
case was registered against the appellantVimlesh, Kamlesh along with co-accusedGauri Shankar and Smt. Nanhi and the
investigation was handed over to S.I.,
Suresh Chandra (P.W.-8), who, during
investigation, recorded the statement of
Dharam Pal (P.W.-2), visited the place of
occurrence, prepared site plan (Ext.-Ka11), arrested the appellant along with
victim (P.W.-3), prepared a recovery memo
(Ext.-Ka-3) and sent the P.W.-3 for medico
legal examination.

4. Dr. Sanju Agarwal (P.W.-4),
examined the victim on 16.12.2014, at
about 3:45 p.m. According to her, at the
time of examination, the victim was aged
about 15 years ; no external or internal
injury was found on the person of victim;
her hymen was old and torn ; two slides of
vaginal smear were prepared and sent for
pathological examination. According to her
further, she had prepared medico legal
examination
report
(Ext.Ka-6)
and
supplementary medico legal examination
report
(Ext.-Ka-7)
on
the
basis
of
pathological report, but no dead or alive
sperm was found and the victim was also
sent for determination of her age to
radiological expert.

5. Dr. Rajendra Kumar (P.W.-1)
conducted the radiological examination of
the victim and according to him, on the
basis of x-ray report (Ext.-Ka-1) and x-ray
plates (material Ex.1), the right knee joint
of the victim was fused, whereas the wrist
joints were not fused and the victim was
aged about 15 years.

6. Meanwhile, investigation was
transferred to S.I., Pramod Kumar Yadav
(P.W.-7), who produce the victim before
the concerned Judicial Magistrate for
recording her statement under Section 164
of the Code.

7. The statement, under Section 164
of the Code (Ext.-Ka-5), of the victim
(P.W.-3), was recorded on 19.12.2014 by
the concerned Judicial Magistrate, wherein
she stated that the appellant-Vimlesh had
come at her home and enticed her to come
with money, which was kept by her father.
She further stated that he (appellant)
enticed her away and kept moving her till 8
days. She further stated that he used force
(rape) with her ; she had requested him to
carry her to her home but police had caught
her at Chakalbansi. She further stated that
the appellant is her maternal uncle (mama)
in distant relationship and sometimes he
used to come at her home. She further
stated that he did not make any attempt to
outrage her modesty (galat-kaam) at her
home; she had not gone according to her
own will ; and he (appellant) had asked her
1062 INDIAN LAW REPORTS ALLAHABAD SERIES
for a visit to Chakalbansi. She further
stated that she wanted to go with her
parents ; rape was committed with her ; and
she understood the meaning of rape.

8. Meanwhile, again the investigation
was transferred to S.I., Srikant Dwivedi,
who recorded the statement of witnesses
and after investigation, filed the chargesheet
(Ext.-Ka-8)
only
against
the
appellant, for offence under Sections 363,
366, 376 I.P.C. and Section 3/4 POCSO
Act before the concerned Magistrate, who
took the cognizance of the offence and
since the offence was exclusively triable by
the Court of Sessions, after providing the
copies of relevant police papers, as required
under Section 207 of the Code, committed
the case to the Court of Sessions, Unnao,
for trial.

9. The learned trial Court framed the
charges for offence under Sections-363 and
366 and 376 I.P.C. alternatively for offence
under Section 3/4 POCSO Act against the
appellant to which he denied and claimed
for trial.

10. Prosecution, in order to prove its
case, examined Dr. Rajendra Kumar (P.W.-
1) (Radiologist), Dharam Pal (P.W.-
2/informant),
victim
(P.W.-3),
Lady
Doctor-Sanju
(P.W.-4),
S.I.
Srikant
Dwivedi
(P.W.-5/investigating
officer),
Constable-Moharir Chandra Pal (P.W.-6),
S.I.,
Pramod
Kumar
Yadav
(P.W.-
7/Investigating Officer) and S.I., Suresh
Chandra (P.W.-8/Investigating Officer),
wherein, Dharam Pal (P.W.-2) and victim
(P.W.-3) are witnesses of fact and rest are
formal witnesses.

11. The prosecution has also relied
upon documentary evidence i.e. x-ray
report of the victim (Ex.Ka-1); x-ray plate
(material Ex.1), written report (Ext.-Ka-2),
recovery memo of victim (Ext.-Ka-3),
statement of victim recorded by police
(Ext.-ka-4), statement of victim under
Section 164 of the Code (Ext.-Ka-5),
medico legal examination report of victim
(Ext.-Ka-6), supplementary medico legal
examination report (Ext.-Ka-7), chargesheet (Ext.-ka-8), Chik F.I.R. (Ext.-Ka-9),
G.D. Report (Ext.-ka-10) and site plan of
the place of occurrence (Ext.-Ka-11).

12. After conclusion of prosecution
evidence, the statement of the appellant
was recorded under Section 313 of the
Code, wherein he denied the prosecution
story as well as evidence adduced by the
prosecution. The appellant further stated
that the marriage of the victim with him
was settled, but due to dispute arose in their
settlement,
marriage
could
not
be
solemnized and due to that enmity, a false
report was lodged against him. In support
of defence, no evidence was adduced by
the appellant.

13. Learned trial Court, after hearing
the learned counsel for both the parties and
considering the material available on
record,
convicted
and
sentenced
the
appellant as above by the impugned
judgment. Aggrieved by the said judgment,
the appellant has preferred this appeal.

14. Heard Sri Rajiv Mishra, learned
counsel for the appellant, Sri Tilak Raj
Singh, learned A.G.A. for the State and
peruse the record.

15. Learned counsel for the appellant
has submitted that the appellant is innocent
and has been falsely implicated, due to
failure of settlement of marriage of the
victim with appellant, between the parents
of the appellant and father of the victim.
2 All. Vimlesh Vs. State of U.P.
1063
Learned counsel further submitted that both
the appellant and victim are members of
scheduled caste and the appellant is distant
relative of the victim as mama. Learned
counsel further submits that the victim was
aged about more than 16 years, although
her age was not proved by the prosecution.
Learned counsel further submitted that
according to the prosecution evidence, the
victim had gone from her home according
to her own will and the appellant had not
taken her away. Learned counsel further
submitted that Dharam Pal (P.W.-2) is not
an eye-witness and the F.I.R. was lodged
by him by delay of 7 days, without any
explanation.
Learned
counsel
further
submitted that the prosecution evidence is
self contradictory and is not reliable.
Learned counsel further submitted that the
trial Court, without applying its proper
judicial
mind
as
well
as
without
considering the evidence available on
record, convicted the appellant and the
impugned judgment and order is against the
provision of law, which is liable to be set
aside.

16. Learned counsel further submitted
that the appellant is languishing in jail since
2014 ; he, at the time of occurrence, was
aged about 18-19 years old ; and he has no
criminal history. Therefore, if the offence is
made out, a lenient view may be adopted
by the Court in passing the sentence against
the appellant.

17. Per-contra, learned A.G.A. has
vehemently
opposed
the
submission
advanced by learned counsel for the
appellant and submitted that at the time of
occurrence, the victim was less than 16
years and the said offence is proved by the
prosecution evidence against the appellant
beyond reasonable doubt. Learned A.G.A.
further
submitted
that
there
is
no
contradiction between the ocular evidence
and medical evidence. Learned A.G.A.
further submitted that the recovery of the
victim from custody of appellant is not
disputed and delay in lodging the F.I.R. is
natural and is not fatal to the prosecution
case. Learned A.G.A. further submitted that
there is no illegality in the impugned
judgment and order passed by Court below
and the appeal is liable to be dismissed.

18. I have considered the rival
submission of learned counsel for both the
parties and perused the record.

19. Learned trial Court, after
considering
the
prosecution
evidence,
found that the prosecution had succeeded to
establish the age of victim at the time of
occurrence as 15 years and the appellant
had
kidnapped
her
from
lawful
guardianship and committed rape with her,
thus, found the appellant guilty for the
offence under Sections 366 and 376 (2)
I.P.C. and Section 3/4 POCSO Act and
convicted and sentenced him for the
offence under Section 376 (2) and 366
I.P.C. as above.

20. Section 361 I.P.C. defines the
offence of kidnapping. Section 375 defines
offence of rape, Section 363 deals with
punishment of kidnapping from lawful
guardianship,
Section
366
I.P.C.
is
aggravated form of kidnapping and deals
with punishment for offence of kidnapping,
abducting or inducing woman to compel
her marriage, Section 376 I.P.C. deals with
the punishment for the offence of rape and
Sections 3 and 4 POCSO Act deals with
definition and punishment of penetrative
sexual assault. Sections 361, 363, 366, 375
and 376 I.P.C. and Sections 3 and 4
POCSO Act as it were in the year of 2014
are as under :
1064 INDIAN LAW REPORTS ALLAHABAD SERIES

"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
said to kidnap such minor or person from
lawful guardianship.

363.
Punishment
for
kidnapping.--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.

366. Kidnapping, abducting or
inducing woman to compel her marriage,
etc.--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; and whoever, by means of criminal
intimidation as defined in this Code or of
abuse of authority or any other method of
compulsion, induces any woman to go from
any place with intent that she may be, or
knowing that it is likely that she will be,
forced or seduced to illicit intercourse with
another person shall also be punishable as
aforesaid.

" Section 375. A man is said to
commit "rape" if he-

(a) penetrates his penis, to any
extent, into the vagina, mouth, urethra or
anus of a woman or makes her to do so
with him or any other person; or

(b) inserts, to any extent, any
object or a part of the body, not being the
penis, into the vagina, the urethra or anus
of a woman or makes her to do so with him
or any other person; or

(c) manipulates any part of the
body of a woman so as to cause penetration
into the vagina, urethra, anus or any part
of body of such woman or makes her to do
so with him or any other person; or

(d) applies his mouth to the
vagina, anus, urethra of a woman or makes
her to do so with him or any other person,
under the circumstances failing under any
of the following seven descriptions:-

First. Against her will.

Secondly. Without her consent.

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

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

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

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

Seventhly. When she is unable to
communicate consent.

Explanation 1. For the purposes
of this section, "vagina" shall also include
labia majora.

Explanation 2. Consent means
an unequivocal voluntary agreement when
2 All. Vimlesh Vs. State of U.P.
1065
the woman by words, gestures or any form
of verbal or non-verbal communication,
communicates willingness to participate in
the specific sexual act:

Provided that a woman who does
not physically resist to the act of
penetration shall not by the reason only of
that fact, be regarded as consenting to the
sexual activity.

Exception 1. ................

Exception 2. .................

"Section
376.
(1)
Whoever,
except in the cases provided for in subsection (2), commits rape, shall be
punished with rigorous imprisonment of
either description for a term which shall be
less than seven years, but which may
extend to imprisonment for life, and shall
also be liable to fine.

(2) Whoever_

(a) .....................

(b) .....................

(c) .....................

(d) .....................

(e) .....................

(f) being a relative, guardian or
teacher of, or a person in a position of trust
or authority towards the woman, commits
rape on such woman ; or.

(g)
commits
rape
during
communal or sectarian violence; or.

(h) commits rape on a woman
knowing her to be pregnant ; or

(i) commits rape on a woman
when she is under sixteen years of age; or

(j) commits rape, on a woman
incapable of giving consent; or

(k) being in a position of control
or dominance over a woman, commits rape
on such woman; or

(l) commits rape on a woman
suffering
from
mental
or
physical
disability; or

(m) while committing rape causes
grievous bodily harm or maims or
disfigures or endangers the life of a
woman; or

(n) commits rape repeatedly on
the same woman,

shall be punished with rigorous
imprisonment for a term which shall not be
less than ten years, but which may extend
to imprisonment for life, which shall mean
imprisonment for the remainder of that
person's natural life, and shall also be
liable to fine.

Explanation. .................."

Section 3. Penetrative sexual
assault - A person is said to commit
"penetrative sexual assault" if-

(a) he penetrates his penis, to any
extent, into the vagina, mouth, urethra or
anus of a child or makes the child to do so
with him or any other person ; or

(b) he inserts, to any extent, any
object or a part of the body, not being the
penis, into the vagina, the urethra or anus
of the child or makes the child to do so with
him or any other person ; or

(c) he manipulates any part of the
body of the child so as to cause penetration
into the vagina, urethra, anus or any part
of body of the child or makes the child to
do so with him or any other person ; or

(d) he applies his mouth to the
penis, vagina, anus, urethra of the child or
makes the child to do so to such person or
any other person.

Section
4.
Punishment
for
penetrative sexual assault - Whoever
commits penetrative sexual assault shall be
punished with imprisonment of either
description for a term which shall not be
less than seven years but which may extend
to imprisonment for life, and shall also be
liable to fine.

21. Dharam Pal (P.W.-2), father of the
victim, is not an eye witness of the
occurrence.
He
has
stated
that
on
1066 INDIAN LAW REPORTS ALLAHABAD SERIES
7.12.2014, the victim had left her house to
go to her maternal uncle's house situated in
Village Kukarikhurd. He further stated that
after two days, he got the information that
the victim had not reached there and
thereafter he got information that the victim
was seen in company of appellant-
Vimlesh. He further stated that at the time
of her (victim) departure, she had taken
away Rs. 35,000/- in cash, a silver anklet of
200 grams along with two mobile phones.
Stating that he got the report written
(Ex.Ka-2) by a person and after copying
the same, lodged the F.I.R. at concerned
police station, he further stated that the
victim was recovered on 16.12.2014 and
the
recovery
memo
(Ext.-Ka-2)
was
prepared in his presence. In crossexamination, he admitted that at the time of
lodging the report, he had gone at
concerned police station with his father-inlaw, wife and brother-in-law (sala) and the
said report (Ext.-ka-1) was written by his
brother-in-law (behnoi). Stating that he did
not know the name and identity of the
person who had informed him that the
victim had gone with the appellant, he
further stated that when the victim was
recovered,
both
mobiles
were
also
recovered from custody of appellant and
later on, it were handed over to him, but
those mobiles were not sealed by the
police. He further stated that on the day of
recovery of the victim, the police met him
at 3:30 p.m. and thereafter, the victim and
the appellant were arrested in chakalbansi
when they were getting down from a tempo
on 16.12.2014.

22. Victim (P.W.-3), star witness, has
stated that on 7.12.2014, she was going to
her maternal uncle's house situated in
Village Kukarikhurd and when she was on
her way, the appellant met her and asked to
visit Chakalbansi with him. She further
stated that thereupon she went with him to
Chakalbansi and thereafter to Kanpur. She
further stated that she was kept moving
hither and thither by the appellant for 6-7
days and the appellant had also kept her in
the house of his maternal aunt (mausi). She
further stated that during that period, the
appellant had committed rape with her on
twice occasions. She further stated that on
16.12.2014, the police had caught her with
the appellant in presence of her parents and
recovery memo (Ext.-Ka-3) was also
prepared, whereupon she had also put her
signature. She further stated that her
statement (Ext.-Ka-5) was also recorded by
the Magistrate and her Medico Legal
Examination and x-ray was also conducted
at District Hospital.

23. Dr. Sanju Agarwal (P.W.-4) has
stated that she had examined the victim on
16.12.2014 at about 3:45 p.m. According to
her, the height of the victim was 152.5 cm ;
her weight was 46 kg ; teeth were 14+14 ;
and her breasts were developing. This
witness has also stated that neither any
external nor any internal injury was found
on the body of the victim and on internal
examination, it was found that her hymen
was torn and old. She further stated that the
two slides of vaginal smear were prepared
and sent to find out the sperm (dead or
alive) to Chief Medical Officer, Unnao.
She further stated that she had also
prepared
Medico
Legal
Examination
Report (Ext.-Ka-6) and supplementary
Medico Legal Examination Report (Ext.-
Ka-7), but no sperm either dead or alive
was found. According to her, the victim
was aged about 15 years.

24. Dr. Rajendra Kumar (Radiologist)
(P.W.-1) has stated that radio-logical
examination, for determination of age of
the victim, was conducted by him and it
2 All. Vimlesh Vs. State of U.P.
1067
was found that her knee joint were in
process of fusion ; elbow joint were fused
whereas wrist joint were not fused. He
further stated that the victim's age was
about 15 years; he had prepared x-ray
report (Ext.-Ka-1) and on the basis of x-ray
plate (Material Ex.1), the victim's age
might be 14 years also.

25. Constable-Chandra Pal Singh
(P.W.-6) has stated that on the basis of
written report (Ext.-Ka-2), Chik-F.I.R.
(Ext.-Ka-9) was prepared by him on
15.12.2014 and a Criminal Case No. 1043
of 2014 under Sections 363, 366 I.P.C. and
Section
11/12
of POCSO
Act
was
registered and the said information was
entered in G.D. Report (Ext.-Ka-10).

26. S.I., Suresh Chandra Shukla
(P.W.-8), first Investigating Officer, has
stated that he had recorded the statement of
Dharam Pal (P.W.-2), visited the place of
occurrence and prepared site plan (Ext.-Ka11). He further stated that he had also
recovered the victim and arrested the
appellant, prepared the recovery memo
(Ext.-Ka-3) on the spot.

27. S.I., Pramod Kumar Yadav (P.W.-
7), second Investigating Officer, has stated
that he had produced the victim before the
concerned Magistrate for recording her
statement under Section 164 of the Code
and after recording her statement, the
offence of Section 376 I.P.C, 3/4 POCSO
Act were added, during investigation.

28. S.I., Srikant Dwivedi (P.W.-5),
third Investigating Officer, has stated that
during investigation, he had recorded the
statement
of
witnesses
and
after
investigation, the involvement of other
accused except appellant-Vimlesh was
not proved and he had submitted the
charge-sheet (Ext.-Ka-8) only against the
appellant-Vimlesh.

29. The said occurrence was
happened on 7.12.2014 i.e. after the
enforcement
of
Criminal
Law
Amendment Act, 2013. For offence of
kidnapping, as provided under Section
361 read with Section 363 I.P.C. and
Section 366 I.P.C. and for offence of
rape, as provided under Section 375 read
with Section 376 I.P.C., the age of the
victim is very important and if the victim
is below than 18 years, her consent is
immaterial either for offence of rape or
for kidnapping.

30. Section 376 (1) I.P.C. provides
that accused, for offence of rape, shall be
punished with rigorous imprisonment for
not less than 7 years which may extend to
imprisonment for life and also for fine
but if rape is committed with victim
below than 16 years, such offence is
covered under Section 376 (2) I.P.C.,
wherein the accused shall be punished for
rigorous imprisonment which shall not be
less than ten years which may extend to
imprisonment actual reminder life. The
appellant has been convicted by trial
Court for offence under Section 376 (2)
I.P.C. Therefore, it has to be determined
whether the prosecution has succeeded to
prove the age of victim below than 16
years or not.

31. Neither Code nor I.P.C. or
POCSO Act 2012 provides procedure for
determination of victim's age. Alleged
offence was committed on 07.12.2014.
Rule 12 of the Juvenile Justice (Care and
Protection
of
Children)
Rules,
2007
(hereinafter referred to as the '2007 Rules')
framed under Section 67 of the Juvenile
Justice (Care and Protection of Children)
1068 INDIAN LAW REPORTS ALLAHABAD SERIES
Act
2000,
provides
procedure
for
determination of juvenile's age. This
provision is as under :

"12. Procedure to be followed in
determination of Age.

(1) In every case concerning a
child or a juvenile in conflict with law, the
court or the Board or as the case may be
the Committee referred to in rule 19 of
these rules shall determine the age of such
juvenile or child or a juvenile in conflict
with law within a period of thirty days from
the date of making of the application for
that purpose.

(2) The Court or the Board or as
the case may be the Committee shall decide
the juvenility or otherwise of the juvenile or
the child or as the case may be the juvenile
in conflict with law, prima facie on the
basis of physical appearance or documents,
if available, and send him to the
observation home or in jail.

(3) In every case concerning a
child or juvenile in conflict with law, the
age
determination
inquiry
shall
be
conducted by the court or the Board or, as
the case may be, the Committee by seeking
evidence by obtaining

(a) (i) the matriculation or
equivalent certificates, if available; and in
the absence whereof;

(ii) the date of birth certificate
from the school (other than a play school)
first attended; and in the absence whereof;

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

(b) and only in the absence of
either (i), (ii) or (iii) of clause (a) above,
the medical opinion will be sought from a
duly constituted Medical Board, which will
declare the age of the juvenile or child. In
case exact assessment of the age cannot be
done, the Court or the Board or, as the
case may be, the Committee, for the
reasons to be recorded by them, may, if
considered necessary, give benefit to the
child or juvenile by considering his/her age
on lower side within the margin of one year

and, while passing orders in such
case shall, after taking into consideration
such evidence as may be available, or the
medical opinion, as the case may be,
record a finding in respect of his age and
either of the evidence specified in any of
the clauses (a) (i), (ii), (iii) or in the
absence whereof, clause (b) shall be the
conclusive proof of the age as regards such
child or the juvenile in conflict with law.

(4) If the age of a juvenile or
child or the juvenile in conflict with law is
found to be below 18 years on the date of
offence, on the basis of any of the
conclusive proof specified in sub-rule (3),
the Court or the Board or as the case may
be the Committee shall in writing pass an
order stating the age and declaring the
status of juvenility or otherwise, for the
purpose of the Act and these rules and a
copy of the order shall be given to such
juvenile or the person concerned.

(5) Save and except where,
further inquiry or otherwise is required,
inter alia, in terms of section 7A, section
64 of the Act and these rules, no further
inquiry shall be conducted by the court or
the Board after examining and obtaining
the certificate or any other documentary
proof referred to in sub-rule (3) of this
rule.

(6) The provisions contained in
this rule shall also apply to those disposed
of cases, where the status of juvenility has
not been determined in accordance with the
provisions contained in sub-rule (3) and
the Act, requiring dispensation of the
sentence under the Act for passing
appropriate order in the interest of the
juvenile in conflict with law."
2 All. Vimlesh Vs. State of U.P.
1069

32. Hon'ble Supreme Court in Jarnail
Singh v. State of Haryana (2013) 7 SCC
263, deciding the issue of procedure for
determination of age of victim of rape, was
of the view that the procedure for
determination of juvenile's age as provided
in Rule 12 (supra) may be adopted for
determination of victim's age. The Supreme
Court in Jarnail Singh (supra) has held as
under :

"Even though Rule 12 is strictly
applicable only to determine the age of a
child in conflict with law, we are of the
view that the aforesaid statutory provision
should be the basis for determining age,
even for a child who is a victim of crime.
For, in our view, there is hardly any
difference in so far as the issue of minority
is concerned, between a child in conflict
with law, and a child who is a victim of
crime.
Therefore,
in
our
considered
opinion, it would be just and appropriate to
apply Rule 12 of the 2007 Rules, to
determine the age of the prosecutrix VWPW6. The manner of determining age
conclusively, has been expressed in subrule (3) of Rule 12 extracted above. Under
the aforesaid provision, the age of a child
is ascertained, by adopting the first
available basis, out of a number of options
postulated in Rule 12(3). If, in the scheme
of options under Rule 12(3), an option is
expressed in a preceding clause, it has
overriding effect over an option expressed
in a subsequent clause. The highest rated
option
available,
would
conclusively
determine the age of a minor. In the scheme
of Rule 12(3), matriculation (or equivalent)
certificate of the concerned child, is the
highest rated option. In case, the said
certificate is available, no other evidence
can be relied upon. Only in the absence of
the said certificate, Rule 12(3), envisages
consideration of the date of birth entered,
in the school first attended by the child. In
case such an entry of date of birth is
available, the date of birth depicted therein
is liable to be treated as final and
conclusive, and no other material is to be
relied upon. Only in the absence of such
entry, Rule 12(3) postulates reliance on a
birth certificate issued by a corporation or
a municipal authority or a panchayat. Yet
again, if such a certificate is available, then
no other material whatsoever is to be taken
into consideration, for determining the age
of the child concerned, as the said
certificate would conclusively determine
the age of the child. It is only in the
absence of any of the aforesaid, that Rule
12(3) postulates the determination of age
of the concerned child, on the basis of
medical opinion." (Emphasis supplied)

33. In this case, the trial Court, relying
on the statement of victim (P.W.-3), her
father (P.W.-2), Dr. Rajendra Kumar (P.W.-
1) and Dr. Snaju Agarwal (P.W.-4), has held
that the victim's age was below to 16 years, at
the time of occurrence.

34. It is also pertinent to note that the
opinion regarding the age of any person,
based on medical and radiological evidence,
can not be treated accurate and exact. Such
determination of age, by medical expert, may
vary in view of race, gender, geographical
area, nutritional status and other factors like
colour of pubic and armpit hair, development
of sexual characteristics and other changes in
the body of the victim. Such variation may be
of one or two year of either side.

35. Supreme Court in Jaya Mala v.
Home Secretary J & K and Ors. AIR 1982
SC 1297 has held as under:

"However, it is notorious and one
can take judicial notice that the margin of
1070 INDIAN LAW REPORTS ALLAHABAD SERIES
error in age ascertained by radiological
examination is two years on either side."

36. In Rajak Mohammad vs. State of
Himachal Pradesh, (2018) 9 SCC 248,
where radiologist had given an opinion that
the age of prosecution was between 17 to
18 years, three Judges Bench of Supreme
Court treating the prosecutrix above than
18 years and expressing its doubt on
accuracy of radiological age, has held as
under :

"9. While it is correct that the
age determined on the basis of a
radiological examination may not be an
accurate determination and sufficient
margin either way has to be allowed, yet
the totality of the facts stated above read
with the report of the radiological
examination leaves room for ample doubt
with regard to the correct age of the
prosecutrix. The benefit of the aforesaid
doubt, naturally, must go in favour of the
accused." (Emphasis supplied)

37. Now the question arises whether
or not, the evidence produced by the
prosecution to prove the age of victim
below to 16 years, is reliable and
trustworthy.
Admittedly,
neither
any
matriculation nor equivalent certificate or
any date of birth certificate, from the
victim's school or any extract of Kutumb
Register
(birth
and
death
register)
maintained at the level of VillagePradhan/Gaon Sabha of the victim, was
filed by the prosecution before the trial
Court.

38. Dharam Pal (P.W.-2) has stated
that the victim, at the time of occurrence,
was aged about 14 years and the victim
(P.W.-3) has stated that she was student of
class VI and when she attended the school
for the first time, she was aged about 5
years.
Stating
that
at
the
time
of
occurrence, she was studying in class VI,
she further stated that she had left the
school
after
the
occurrence.
The
prosecution
has
not
filed
any
document/certificate
of
educational
qualification, issued by the said school, to
prove the exact date of birth of the victim.
According to Dr. Rajendra Kumar (P.W.-1)
and Dr. Sanju Agarwal (P.W.-4), at the
time of examination, the victim was aged
about 15 years. Dr. Sanju Agarwal (P.W.-
4) was not cross-examined by the defence
on the point of age of victim, whereas Dr.
Rajendra Kumar (P.W.-1) has rejected the
suggestion of defence counsel at the time of
occurrence, the victim was more than 17
years.