# Virendra v. State Of U.P

- **Citation:** (2016) 8 ILRA 1261
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-22
- **Bench:** Pratyush Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/virendra-v-state-of-u-p-44178
- **Pages:** 9

## Headnote

Penal Code, 1860 - Ss. 363, 366 & 376 - Kidnapping and rape of minor girls - Conviction -
Appreciation of evidence of prosecutrix - Two minor victims abducted on false pretext and taken to
another State where they were subjected to repeated sexual assault - Testimony of victims consistent,
cogent and trustworthy - Held, conviction can be based on sole testimony of prosecutrix if it inspires
confidence - Minor discrepancies or absence of medical corroboration not fatal.
Penal Code, 1860 - S. 376 - Consent - Meaning - Victims taken away by deception and subjected to
sexual assault under threat - Submission under fear or coercion does not amount to consent - Plea of
consent rejected.
Criminal Trial - Age of victim - Determination - Age disputed - Medical and radiological evidence visà-vis oral testimony of father considered - In absence of documentary proof under statutory rules, testimony
of parent regarding age can be relied upon - Victims held to be minors - Consequently, question of consent
immaterial.
Evidence - Rape - Medical evidence - Absence of injuries or spermatozoa - Medical opinion
inconclusive regarding rape - Held, absence of injuries or spermatozoa does not discredit prosecution case
where testimony of victim is reliable - Ocular evidence prevails.
Criminal Trial - Delay in FIR - Explanation - Delay in lodging FIR satisfactorily explained - Not fatal
to prosecution case.
In Result: Appeals dismissed; conviction and sentences affirmed; appellant on bail directed to surrender;
appellant in custody to serve remaining sentence.

Cases cited:

Ishvarbhai Fuljibhai Patni Vs. State of Gujarat[1995 Supreme Court Cases (Crl) 222]
Lal Mandi, Appellant v. State of West Bengal, Respondent[1995 Cri.L.J.2659 (Supreme Court), 2659]
State of Punjab Vs. Gurmit SinghAIR (1996), SC 1399
State of H.P. vs. Mango Ram(2000) 7 SCC, 224
Narayanamma vs. State of Karnataka(1994) 5 SCC, 728
1262 INDIAN LAW REPORTS ALLAHABAD SERIES

Shri Narain Saha vs. State of Tripura(2004) SCC 775

## Text

8 All. Virendra Vs State Of U.P.
1261
(2016) 8 ILRA 1261
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.08.2016

BEFORE

THE HON'BLE PRATYUSH KUMAR, J.

Criminal Appeal No.- 2555 Of 2009
&
Criminal Appeal No.- 2797 Of 2009

Virendra ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for the Appellant:
Qazi Vakil Ahmad

Counsel for the Respondent:
Govt. Advocate

Penal Code, 1860 - Ss. 363, 366 & 376 - Kidnapping and rape of minor girls - Conviction -
Appreciation of evidence of prosecutrix - Two minor victims abducted on false pretext and taken to
another State where they were subjected to repeated sexual assault - Testimony of victims consistent,
cogent and trustworthy - Held, conviction can be based on sole testimony of prosecutrix if it inspires
confidence - Minor discrepancies or absence of medical corroboration not fatal.
Penal Code, 1860 - S. 376 - Consent - Meaning - Victims taken away by deception and subjected to
sexual assault under threat - Submission under fear or coercion does not amount to consent - Plea of
consent rejected.
Criminal Trial - Age of victim - Determination - Age disputed - Medical and radiological evidence visà-vis oral testimony of father considered - In absence of documentary proof under statutory rules, testimony
of parent regarding age can be relied upon - Victims held to be minors - Consequently, question of consent
immaterial.
Evidence - Rape - Medical evidence - Absence of injuries or spermatozoa - Medical opinion
inconclusive regarding rape - Held, absence of injuries or spermatozoa does not discredit prosecution case
where testimony of victim is reliable - Ocular evidence prevails.
Criminal Trial - Delay in FIR - Explanation - Delay in lodging FIR satisfactorily explained - Not fatal
to prosecution case.
In Result: Appeals dismissed; conviction and sentences affirmed; appellant on bail directed to surrender;
appellant in custody to serve remaining sentence.

Cases cited:

Ishvarbhai Fuljibhai Patni Vs. State of Gujarat[1995 Supreme Court Cases (Crl) 222]
Lal Mandi, Appellant v. State of West Bengal, Respondent[1995 Cri.L.J.2659 (Supreme Court), 2659]
State of Punjab Vs. Gurmit SinghAIR (1996), SC 1399
State of H.P. vs. Mango Ram(2000) 7 SCC, 224
Narayanamma vs. State of Karnataka(1994) 5 SCC, 728
1262 INDIAN LAW REPORTS ALLAHABAD SERIES

Shri Narain Saha vs. State of Tripura(2004) SCC 775

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

1. The aforesaid appeals filed on behalf of the accused-appellants are directed against the
judgment and orders dated 21st April, 2009 passed in Sessions Trial No.496 of 2007 (State vs.
Mahesh & others) arising out of Case Crime No.411 of 2005, they have been heard together and
decided by a common order.

2. In the aforesaid Criminal Appeal No.2555 of 2009, the appellant Virendra has been
convicted and sentenced as under:-

u/s 376 I.P.C. : 10 years RI with fine of Rs.10,000/-

3. If the said fine was not deposited, the appellant Virendra would undergo six months
further RI.

4. In Criminal Appeal No.2797 of 2009, the appellant Mahesh has been convicted and
sentenced as under:-

u/s 363 I.P.C. : 5 years RI with fine of Rs.5,000/-.
u/s 366 I.P.C. : 10 years RI with fine of Rs.10,000/-.
U/s 376 I.P.C. : 10 yeas RI with fine of Rs.10,000/-

5. If the said fines were not deposited, the appellant Mahesh would further undergo three
months rigorous imprisonment on first count and rigorous imprisonment of six months separately
on both other counts.

6. Heard Sri Qazi Vakil Ahmad and Sri P.K.Vishnoi, learned counsel for the appellants and
Sri Shailendra Singh Rathore, learned AGA for the State-respondent and perused the record.

7. That on 29th October, 2005 at 10.05 a.m. on the basis of written report dated 27th
October, 2005 of Kaderam addressed to Senior Superintendent of Police, District Bareilly, check
FIR was scribed, Case Crime No.411 of 2005 under sections 363, 366 IPC was registered and
investigation was entrusted to S.I. Vinod Kumar. In his application Kaderam has stated that on 16th
October, 2005, his wife fell ill. He brought her to Beg Hospital, Bareilly for treatment. He left his
six children with his mother Ramdei at the house. His eldest daughter victim no.1 aged about 14
years and younger daughter victim no.2 aged about 12 years were taken by accused Mahesh on 18th
October, 2005 on the pretext that they were called by their father at Bareilly. His mother
telephonically informed him on that day at 5.00 p.m. that when she returned from the field after
taking fodder for the goat, youngest daughter Parvati aged about eight years informed her about the
incident. His mother searched for both the girls but neither Mahesh nor the girls could be traced by
his mother. After search was over his mother came to know from Mohanlal that Mahesh was seen
8 All. Virendra Vs State Of U.P.
1263
taking victim no.1 and victim no.2 at 10.00 a.m. on that day and when he enquired, Mahesh
informed him that their father had called them to Bareilly. On 19th October, 2005, he informed the
police of police station Sahi but they had not registered his report nor tried to arrest the accused. He
apprehended that his daughters might be sold or murdered.

8. S.I. Vinod Kumar, started the investigation, examined the witnesses, recovered victim
no.1 and victim no.2 in village Vikam. Girls were medically examined. During investigation
section 376 I.P.C was added. Name of Virendra came into light from the statement of the girls.
Thereafter investigation was transferred to S.I. Om Prakash, who submitted the chargesheet.

9. The appellants stood for trial before the Court of Session where they were charged under
sections 363, 366, 376(2)(g) I.P.C. They denied the charges and claimed to be tried. They were
tried, convicted and sentenced, as above.

10. Feeling aggrieved, these appeals have been separately filed by the accused appellants.
On behalf of the appellants, the learned counsel have submitted that the learned trial Judge has not
appreciated the evidence in proper perspective for the reasons indicated below:-

(a) Medical evidence does not support the commission of rape.

 (b) There are contradictions in the statements of victims on material points.

(c) Recovery memo Exhibit Ka-14 and account of recovery given by Shakuntala
and Premwati are at variance.

(e) Victims were major at the time of occurrence. They were consenting parties.
They had not raised any alarm during journey up to Punjab and during their stay at Punjab.

11. On the strength of these facts, learned counsel for the appellants submit that prosecution
could not prove charges against the present appellants beyond doubt and the learned trial judge has
recorded erroneous findings of fact which are liable to be set aside.

12. On behalf of the State-respondents, these arguments have been repelled and it has been
submitted that evidence has been properly appreciated. Findings recorded by the trial Judge are
well substantiated from the record. Cogent reasons have been given in support thereof. The appeals
have no substance, they deserve to be dismissed.

13. In reference to my obligation as an appellate court hearing appeal against conviction, I
would like to refresh my mind by recalling the observation made by the Apex Court in the case of
Ishvarbhai Fuljibhai Patni Vs. State of Gujarat [1995 Supreme Court Cases (Crl) 222]. Para-4
of the judgment reads as under:
1264 INDIAN LAW REPORTS ALLAHABAD SERIES

"4. Since, the High Court was dealing with the appeal in exercise of its appellate
jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and
discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the
evidence, we do not find that the High Court even cared to notice the evidence led in the case. None
of the arguments of the learned counsel for the appellant have been noticed, much less considered
and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with
the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of
justice, the High Court while dealing with a first appeal against conviction and sentence is
expected to, howsoever briefly depending upon the facts of the case, consider and discuss the
evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the
discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities
pointed out by us, the judgment under appeal cannot be sustained."

14. In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [1995
CRI.L.J.2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given caution
to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would
be gainful to reproduce the observation made in para-5 of the report, extracted below:

"5. To say the least, the approach of the High Court is totally fallacious. In an
appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the
record and if two views are possible on the appraisal of the evidence, the benefit of reasonable
doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot
legally interfere with" the order of conviction where the trial court has found the evidence as
reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a
different conclusion on reassessment of the evidence. The observation made in Tota Singh's case,
which was an appeal against acquittal, have been misunderstood and mechanically applied.
Though, the powers of an appellate court, while dealing with an appeal against acquittal and an
appeal against conviction are equally wide but the considerations which weigh with it while
dealing with an appeal against an order of acquittal and in an appeal against conviction are
distinct and separate. The presumption of innocence of accused which gets strengthened on his
acquittal is not available on his conviction. An appellate court may give every reasonable weight to
the conclusions arrived at by the trial court but it must be remembered that an appellate court is
duty bound, in the same way as the trial court, to test the evidence extrinsically as well as
intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the
record so as to arrive at an independent finding regarding guilt or innocence of the convict. An
Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the
evidence on the record and arrive at an independent finding based on the appraisal of such
evidence."

15. Before entering into the merits of the arguments, it would be gainful to place on record
the evidence adduced during trial by the parties.
8 All. Virendra Vs State Of U.P.
1265
16. Kaderam, P.W.-1- He is the first informant and father of the victims. He has reiterated
the facts mentioned in his written report Exhibit Ka-1 and proved it.

17. Mohan Lal, P.W.-2- He has stated that two years before at about 10-11 a.m., he had
seen Mahesh taking two daughters of Kaderam, victim no.1 and victim no.2. When he had asked
Mahesh about them, Mahesh replied that their mother was ill, he was taking them to the hospital.
Two sisters of Mahesh have been married in his village.

18. Victim No.2, P.W.-3 has stated that two years before in the month of 'Quwar' she and
her sister victim no.1 were in the house, her mother was ill and hospitalized at Bareilly. Her father
was with her mother. Mahesh came to her house and told her and her sister that their father
telephonically asked him to bring them to Bareilly. She and her sister left the house with him and
reached Ghaneta Phatak where Mahesh had made them, eat chat, pakauri, thereafter she felt
drowsiness and fell unconscious. When she regained consciousness, she was travelling in a train.
On asking Mahesh told her that he was taking them to their mother. On that pretext, he took them to
Punjab. In Punjab nephew of Mahesh Virendra used to sell chat. Mahesh kept them in the room of
Virendra. Virendra had committed rape on her. When she protested, he used to threatened her by
showing country made pistol. She has proved her statement recorded by the magistrate under
section 164 Cr.P.C. Exhibit Ka-2.

19. Victim No.1, P.W.-4 has reiterated the facts stated by her younger sister. According to
her, she was kept in the room of Virendra where by showing country made pistol, Mahesh
committed rape on her for 15 days. She was kept in confinement and Mahesh committed rape on
her repeatedly during that period.

20. Dr. Vinita Chaturvedi, P.W.-5 has stated that on 9th November, 2005 at 12.05 p.m,
she medically examined victim no.2. According to her, neither any external mark of injury nor any
injury on her private parts were found. Hymen was old torned. On the same day at 12.15 p.m. she
medically examined victim No.1 with the same result. She has proved medical examination report
Exhibit Ka-5, medical examination report of victim no.1, Exhibit Ka-5 pathology reports Exhibits
Ka 6 and 7. Supplementary reports of victim No.2 Exhibit Ka-8 and of the victim no.1 Exhibit Ka9.

21. In the supplementary report, the doctor has opined that no definite opinion about rape
could be given and age of the victim no.2 would be about 16 1⁄2 years. In reference to victim no.1,
she has opined that no definite opinion about rape could be given. Age of the victim no.1 could be
18 years.

22. H.M.Madan Pal Singh, P.W.-6 is the scribe of check FIR. He has proved check FIR
Exhibit Ka-10, copy of the report of general diary Exhibit Ka-11.
1266 INDIAN LAW REPORTS ALLAHABAD SERIES

23. S.I.Vinod Kumar Anand, P.W.-7 is the investigating officer. He gave details of the steps taken
in the course of investigation. He has proved site plans Exhibits Ka- 12 & Ka-13, recovery memo of the girls
Exhibit Ka-14.

24. Dr.Arvind Gupta, P.W.-8 was the senior radiologist. X-ray examination of the victims were
conducted in his supervision. He has identified x-ray plates material Exhibits 1 and 2. He has also proved xray reports Exhibits Ka-15 & Ka-16.

25. S.I. Om Prakash, P.W.-9 is the second investigating officer. He has proved chargesheets
Exhibits Ka-17 & Ka-18.

26. The case of the defence before the trial court was of simple denial. According to appellants,
victim had given false evidence on account of pressure of their parents.

27. Appellant Virendra in his statement recorded under section 313 Cr.P.C.n has denied the facts
stated by the prosecution witnesses and claimed false implication due to his relationship with Mahesh.
Appellant Mahesh also denied the correctness of the facts stated by the prosecution witnesses in his statement
recorded under section 313 Cr.P.C. and reiterated the defence version. In the defence, no evidence was given.

28. The trial Judge has found the statements of the victims worthy of reliance. He has concluded that
in the present case, delay in FIR has been satisfactorily explained by the prosecution. On the basis of
observation of the Hon'ble Apex Court laid in the case of State of Punjab Vs. Gurmit Singh; AIR (1996),
SC 1399, he has rejected the argument that not raising of alarm by the victim was evidence of their consent.
He found both the victims minor and recorded findings of guilt against the present appellants.

29. Appreciation of evidence by the trial court has been criticized on behalf of the appellants. Since
appellant Mahesh has been convicted under section 363 IPC, I am required to re-examine and re-assess the
prosecution evidence in reference to age of the victims. In the medical evidence, both have been found to be
above 16 years of age. However, their parent Kaderam, P.W.-1 has deposed victim no.1 to be aged about 14
years and victim no.2 to be aged about 12 years. In the x-ray reports, Dr. Arvind Kumar, P.W.-8 has recorded
the following findings:-

Victim No.1-

(a) Right elbow all four epiphysis were fused.
(b) Right knee epiphysis are partly fused, partly not fused.
(c) Right wrist ulna end of radius (sic) not fused vide Exhibit Ka- 16.

Victim No.2-

(a) Right elbow all four epiphysis were fused.
(b) Right knee epiphysis are not fused.
(c) Right wrist ulna end of radius (sic) not fused vide Exhibit Ka- 15.
8 All. Virendra Vs State Of U.P.
1267
Count of teeth

Victim No.1- 14/14
Victim No.2- 14/14

30. According to Dr. Modi, eruption of second molars takes place between 12 to 14 years. Though
on average, such eruption has been noticed from the age of 11.79 years on average. Eruption of third molars
begins from 17th years. Thus, count of teeth indicates both the victims to be below 17 years of age. Dr. Modi
has also given in a tabular form indication of age on the basis of fusion of some epiphysis. Though from the
opinions of different authorities, evidence obtained by ossification tests also depend on geographical
situation, eating habits and status of family. The victims belong to Bareilly district. They are residents of
village. They belong to poor family but all the authorities appeared to be unanimous that all the joints are
fused up to the age of 18 in any case. When we take the radiological findings into consideration alongwith the
background of the victims, it would become clear none of the victims could be held to be 18 years of age.
Considering their family background, poverty, their ages have been over estimated by the doctor.

31. This is a grey area and I would not like to base my finding on such criteria. In the present case,
on the point of age, statement of father of the victim Kaderam, P.W.-1 during cross examination, remained
intact. In absence of any evidence envisaged in Rule-12 of the Juvenile Justice Rules, 2007, I feel statement
of the father of the victim on the point of age of the victim commands respect and it can be safely relied on.
Thus, on the basis of statement of Khaderam, P.W.-1, I hold victim No.1 to be aged about 14 years and
victim No.2 aged about 12 years at the relevant time. Arguments contrary to this, are rejected.

32. As soon as it is established that victims were minor at the relevant time, not raising alarm by
them looses its importance. With these observations, arguments advanced on behalf of the appellants in this
regard is, rejected.

33. At this juncture, I would like to re-examine and re-assess the evidence of victim nos. 1 and 2 in
the light of the contradictions pointed out on behalf of the appellants. Victim no.1, P.W.-4 has not made any
contradictory statement on the point of her kidnapping, on the point of her confinement, about the place of
confinement, in the manner she was subjected to rape. She withstood the test of cross examination
successfully.

34. Same is the case with the statement of victim no.2.

35. Before I proceed further, I would like to take counsel on the point; how the evidence of the
victim should be evaluated in case of rape. Hon'ble Apex Court in the case of State of Punjab vs. Gurmit
Singh (supra) has made the following observations:-

"The courts must, while evaluating evidence, remain alive to the fact that in a case of rape,
no self-respecting woman would 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 victim in such cases is
vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the
1268 INDIAN LAW REPORTS ALLAHABAD SERIES

courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an
accused where her testimony inspires confidence and is found to be reliable. ....The evidence of a victim of
sexual assault stands almost on par with the evidence of an injured witness and to an extent is even more
reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be selfinflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the
evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration
notwithstanding."

36. Thereafter, I would like to refer some cases wherein the Hon'ble Apex Court has laid down
guidelines on various points raised before me in reference to appreciation of evidence of the victim.

(1) In the State of H.P. vs. Mango Ram ; (2000) 7 SCC, 224, in this case, the Hon'ble
Apex Court has observed that submission of body in fear or terror does not amount to consent.

(2) In Narayanamma vs. State of Karnataka ; (1994) 5 SCC, 728, the Hon'ble Apex Court
has held that non-finding of spermatozoa in the vaginal smear would not falsify the version of the prosecutrix.

(3) Shri Narain Saha vs. State of Tripura; (2004) SCC 775- in this case, Hon'ble the Apex
Court has held that if the testimony of the prosecutrix is reliable, conviction on the basis thereof is
permissible.

37. In this case, Hon'ble Apex Court has also observed that minor discrepancies in evidence were of
no consequence.

38. In the light of the legal position, as gathered from the above mentioned cases, arguments
advanced by the learned counsel for the appellants, the victims were consenting parties, contradictions in their
statements and variance between their statements and recovery memo about their recovery have no
substance, hence, they are rejected. Statements of the victims also receives corroboration from the statement
of Khaderam, P.W.-1 and statement of Mohanlal, P.W.-2.

39. Thus, no argument against the correctness of the conviction of the appellants survive. On behalf
of the appellants, it has been submitted that lenient view may be taken on the point of sentence. Considering
the seriousness of the offence, I do not think any ground is made out to reduce the sentences to which the
appellants have been punished with.

40. Therefore, appeals have no substance, consequently they are dismissed. Appellant Virendra is in
jail. He shall serve out his remaining sentence. Appellant Mahesh is on bail. He is directed to surrender before
the trial court within 30 days failing which the presiding Judge of the trial court is directed to take appropriate
steps to procure his presence and send him to jail to serve out his sentences.

41. Office is directed to communicate this order to the court concerned and to send back the record
to the court below.
----------
8 All. Raghvendra Singh Vs State Of U.P. & Ors.
1269
(2016) 8 ILRA 1269
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.08.2016

BEFORE

THE HON'BLE VIPIN SINHA, J.

Criminal Revision No.- 3119 Of 2003

Raghvendra Singh ...Revisionist
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Revisionist:
Prabhakar Tripathi, S.P.S. Raghav

Counsel for the Respondents:
Govt. Advocate, Manish Tiwari

Criminal Procedure Code, 1973 - Ss. 397 & 401 - Revisional jurisdiction - Scope -
Interference with acquittal - Revision filed against acquittal - Held, High Court in revisional jurisdiction
does not act as appellate court and cannot re-appreciate evidence - Interference permissible only in
exceptional cases involving manifest illegality, perversity or miscarriage of justice - No such infirmity found in
impugned judgment.
Criminal Trial - Appreciation of evidence - Contradictions and delay in FIR - Trial court recorded
findings of material contradictions in prosecution evidence and unexplained delay in lodging FIR - Such
findings justified acquittal - No perversity or illegality warranting interference.
Criminal Procedure Code, 1973 - Revisional power - Limitation - Conversion of acquittal into
conviction - High Court cannot convert acquittal into conviction in revision - At best, in exceptional cases,
retrial may be ordered - Revisional power to be exercised sparingly.
In Result: Revision dismissed; order of acquittal upheld.

Cases cited:
State of Kerala Vs. Putthumana ILLath Jathavedan Namboodiri,AIR 1999 SC 981
State Of Karnataka vs. Appa Balu Ingale and others,AIR 1993 SC 1126
Jagannath Chaudhary Vs. Ramayan Singh,AIR 2002 SC 2229
Munna Devi Vs. State of Rajasthan and others,AIR 2002 SC 107
K. Chinnaswamy Reddy vs. State of Andhra Pradesh and anr.AIR 1962 SC 1788
Vimal Singh v. Khuman Singh and othersJT 1998 (7) SC 98

(Delivered by Hon'ble Vipin Sinha, J.)

1. Heard Sri Prabhakar Tripathi, the learned counsel for the revisionist and the learned
AGA for the State.