# Yogendra @ Teetu v. State of U.P

- **Citation:** (2019) 2 ILRA 393
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-27
- **Case number:** Jail Appeal No. 4228 of 2013
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yogendra-teetu-v-state-of-u-p-44750
- **Pages:** 11

## Headnote

A. Indian Evidence Act, 1872 - Sections
118 and 134 - Neither number of witness
required to prove a fact nor evidence of a
witness can be rejected only on the
ground of her relationship with the
victim. The whole prosecution case can
be proved by a single witness if evidence
is natural and trustworthy.
That even a singly testimony, which is
unimpeachable, proves case beyond doubt.
Evidence must be weighed and not counted. It
is quality and not quantity which determines
the adequacy of evidence, as has been
provided, under Section 134 of Evidence Act.
Testimony of prosecutrix corroborated with
unimpeachable testimony of informant is
cogent, credible and trustworthy, having ring
of acceptance. (Para 22)
Regarding Section 376 I.P.C., the minimum
sentence provided for offence of rape is seven
years and in case of punishment, less than
seven years, Court is required to write reasons
being adequate and special reasons to be
mentioned in the judgment for imposing a
sentence of imprisonment for a term less than
seven years. (Para 24)
Jail Appeal partly allowed (E-2)
List of Cases Cited: -

## Text

2 All. Yogendra @ Teetu Vs State of U.P.
393
compliance and to apprise the accused
forthwith. Compliance report be also
submitted to this Court.
----------

(2019)10ILR A 393

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.09.2019

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Jail Appeal No. 4228 of 2013

Yogendra @ Teetu ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Anand Kumar Mishra, Sri
Jitendra Kumar, Sri Maqsood Ahmd. Beg
(A.C.), Sri Rajiv Kumar Mishra, Sri
Yogendra Kumar Sonkar

Counsel for the Opposite Party:
A.G.A.

A. Indian Evidence Act, 1872 - Sections
118 and 134 - Neither number of witness
required to prove a fact nor evidence of a
witness can be rejected only on the
ground of her relationship with the
victim. The whole prosecution case can
be proved by a single witness if evidence
is natural and trustworthy.
That even a singly testimony, which is
unimpeachable, proves case beyond doubt.
Evidence must be weighed and not counted. It
is quality and not quantity which determines
the adequacy of evidence, as has been
provided, under Section 134 of Evidence Act.
Testimony of prosecutrix corroborated with
unimpeachable testimony of informant is
cogent, credible and trustworthy, having ring
of acceptance. (Para 22)
Regarding Section 376 I.P.C., the minimum
sentence provided for offence of rape is seven
years and in case of punishment, less than
seven years, Court is required to write reasons
being adequate and special reasons to be
mentioned in the judgment for imposing a
sentence of imprisonment for a term less than
seven years. (Para 24)
Jail Appeal partly allowed (E-2)
List of Cases Cited: -
1. Thakorlal D. Vadgama Vs St. of Guj. AIR
1973 SC 2313
2. St. of Har. Vs Raja Ram AIR 1973 SC 819
3. Kunwar Singh Vs St. of U.P. (1993) 3 AWC 1305
4. State of Karnataka Vs. Batra Sudhakar @
Suttham and Ors. (2008) 11 SCC 8
5. Shahnawaz Vs. St. of U.P. 2011 (2) DNR 626
6. Ramesh Vs. St. of Mah. AIR 1962 SC 1908
7. Narbada Prasad Vs Chhagan Lal & ors. AIR
1969 SC 393
8. Kali Ram Vs St. of H.P. AIR 1973 SC 2773
9. Partap Vs St. of U.P. AIR 1976 SC 966
10. Shankarlal Gyarasilal Dixit Vs St. of Mah.
AIR 1981 SC 765
11. Veer Singh & anr. Vs. St. of U.P. (2014) 84
ACC 681
12. Gopal Singh Vs St. of U.K. (2013) 3 SCC
(Cri) 608
13. St. of U.P. Vs Babu Lal AIR 2008 SC 582

(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. This appeal under Section 374(2)
read with Section 383 of Code of
Criminal Procedure (hereinafter referred
to as 'Cr.P.C.') has been filed against the
394 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment of conviction and sentence
made therein by Court of Additional
Sessions judge, Ex-cadre, Court No. 1,
Ghaziabad, in Sessions Trial No. 1338 of
2012, arising out of Case Crime No. 148
of 2012, under Sections 363, 366 and 376
of I.P.C., Police Station Murad Nagar,
District Ghaziabad, wherein convictappellant Yogendra @ Tittu has been
convicted for offence punishable under
Section 363, 366 and 376 I.P.C. and
thereby he has been sentenced with three
years rigorous imprisonment and fine of
Rs. 3,000/- and in default of making
payment of fine, rigorous imprisonment
of six months under Section 363 of I.P.C.,
five years rigorous imprisonment with
fine of Rs. 5,000/-, and in default one
years additional rigorous imprisonment
for offence punishable under Section 366
of I.P.C., ten years rigorous imprisonment
and fine of Rs. 10,000/-, and in default
two
years
additional
rigorous
imprisonment under Section 376 I.P.C.,
with a direction for concurrent running of
sentences and adjustment of previous
imprisonment, if any, in this very case
crime number as per Section 428 of
Cr.P.C.

2. Memo of appeal contends that
trial Court failed to appreciate facts and
law placed upon record. There was no
proof of rape with victim nor it was
medically corroborated. First Information
Report was delayed and no reason for this
delay, was given. Prosecutrix was major,
thereby,
capable
to
understand
her
wellness. It was a consensual fleeing. She
was pregnant for four months. Offence of
rape was not proved. Rather, prosecutrix,
upon her own volition, had gone to
convict-appellant while being in company
of her own friend. Convict-appellant had
no fault nor it was rape by him. The
sentence was not commensurate to
offence. It was highly excessive, hence,
this appeal for setting aside impugned
judgment of conviction, sentence made
therein, for awarding acquittal of charges,
leveled against convict-appellant.

3. From the very perusal of record of
lower Court, it is apparent that First
Information Report Ex.Ka-8, was got
lodged at Police Station Murad Nagar,
Ghaziabad, on 3.3.2012 at 11:30 A.M. for
an occurrence of 17.12.2011 at 9:00 A.M.
upon the report of Roop Singh son of
Genda Lal against Teetu, resident of
Village Rajapur, Police Station Kavi
Nagar, District Ghaziabad, for offence
punishable under Section 363 and 366
I.P.C., with this contention that Roop
Singh's daughter, prosecutrix, having date
of birth 7.5.1995, student of Class XI, at
Sir Chhotu Ram Girls High School,
Duhai, went for her school at 9:00 A.M.
On 17.12.2011. But she did not turn up.
When enquired from school, it came to
notice that she had not gone to school on
that day. Rather Teetu and Mukesh had
taken her in a white van from Murad
Nagar Bus Stand, which was witnessed by
Ashok son of Sri Ram. Son of 'Bua' of
'Teetu' was also in company of them.
Teetu was residing as tenant in the house
of Udesh Pal and was involved in the
work as T.V. Mechanic at a shop situated
beside
school
at
Murad
Nagar.
Prosecutrix may be murdered by them.
This information was sent to S.S.P.,
Ghaziabad, but of no avail. Hence, an
application under Section 156(3) of
Cr.P.C. was filed before the Court of VIth
Additional Chief Judicial Magistrate,
Ghaziabad, with a prayer for direction to
Station Office of Police Station, Murad
Nagar,
for
registering
a
case
of
kidnapping of a minor girl against Teetu
2 All. Yogendra @ Teetu Vs State of U.P.
395
and
Mukesh.
This
application
was
allowed by Magistrate and this report was
got
lodged.
Investigation
resulted
recording of statement of prosecturix
under Section 164 of Cr.P.C. Ex.Ka-11,
her medical examination and report being
Ex. Ka-5, pathological report being Ex.
Ka-6, spot map Ex. Ka-9 and final
submission of charge-sheet Ex. Ka-10,
against accused Yogendra @ Teetu for
offence punishable under Section 363,
366 and 376 of I.P.C. Ex. Ka-11 was
Certificate-cum-Mark-sheet
of
High
School Examination- 2011, wherein, date
of birth of prosecutrix was written to be
7.5.1995. As offence, punishable under
Sections 363, 366 and 376 I.P.C. was
exclusively triable by Court of Session,
hence, learned Magistrate, vide order
dated 18.8.2012, committed file to Court
of Session. Session Judge made over case
to Court No. 14 of Additional Session
Judge,
Ghaziabad
wherein
learned
counsel for the State and for defence,
were
heard
and
vide
order
dated
25.9.2012, charges for offence punishable
under Section 363, 366 and 376 I.P.C.
were framed against convict-appellant
Yogendra @ Teetu. The same is being
written in its English translation by Court
itself, the vernacular part is not being
reproduced.

I, Gajendra Kumar, Additional
District and Session Judge, Court No. 14,
do hereby, charge you, Yogendra:

"(1) That on 17.12.2011 while
informant's daughter prosecutrix, who
was student of Class XIth at Chhoturam
Girls College, Duhai, under Police
Station Murad Nagar, Ghaziabad, was on
her way to school made enticing her
thereby took out of the guardianship of
her
legal
guardian.
Thereby
you
committed
offence
of
kidnapping
punishable under Section 363 of I.P.C.
within the cognizance of above Court.

(2) That on above date, time and
place, you did kidnapping of minor Km.
Lalita; daughter of informant Kamal
Singh, from his legal guardianship with
intent that she will be compelled to marry
or likely to marry or likely that she will be
forced or seduced to illicit intercourse,
thereby committed offence punishable
under Section 366 of I.P.C. within the
cognizance of above Court.

(3) That on above date, time and
place, you enticed and thereby kidnapped
minor prosecutrix daughter of informant
and took her somewhere else where you
committed rape against her wishes.
Thereby, committed offence punishable
under Section 376 of I.P.C. within the
cognizance of this Court."

 ------Sd-------

4. Charges were read over to
accused, who pleaded not guilty and
claimed for trial. Prosecution examined
PW-1 prosecutrix daughter of Roop
Singh, PW-2 Roop Singh son of Genda
Lal-informant, PW-3 Dr. Surbhi Sinha
Senior consultant, PW-4 Constable-2282
Mukesh Dabas, PW-5 Sub-Inspector
Vijay Kumar Verma.

5.

With
a
view
to
obtain
explanation, if any, and version of
accused person, his statement was got
recorded under Section 313 of Cr.P.C.
wherein accused Yogendra @ Teetu
answered in a general way in answer of
every question till question No. 17 that it
is incorrect and in answer to question No.
18, this was said to be a false implication
and in answer to question No. 19, he
396 INDIAN LAW REPORTS ALLAHABAD SERIES
replied that father of prosecutrix was
under debt of Rs. 10,000/-, taken from
accused and when it was called back, this
false case was got registered. He is
innocent. He has been falsely implicated.

6. No evidence in defence was
there.

7. After hearing learned Additional
District Government Counsel and learned
counsel for the defence, the impugned
judgment of conviction and sentence
made therein, written as above, was
passed.

8. Heard Sri Rajiv Kumar Mishra,
learned counsel for the appellant and Sri
Ravi Prakash, learned AGA for the State.
Perused the record.

9. Learned counsel for the appellant
argued that charge was made for offence
of kidnapping of minor girl of informant
with name of prosecutrix, who had been
examined as PW-1 whereas charge No. 2
has been leveled for offence punishable
under Section 366 of I.P.C. with offence
of abduction of Kumri Lalita, daughter of
Kamal Singh, with a view to marry and
have sexual intercourse with her. Again,
charge No. 3 has been leveled for offence
of rape with prosecutrix, minor daughter
of informant of this case. But nowhere
name of Kumari Lalita or informant
Kamal Singh is there on record. This
application under Section 156(3) Cr.P.C.
was filed by Roop Singh, son of Genda
Lal, R/o Care of Udesh Pal, Mohalla
Purani Mandi, Police Station Murad
Nagar, District Ghaziabad and no person
as informant Kamal Singh is there nor any
prosecutrix or victim Kumari Lalita is
there. Hence, this charge itself was
defective and convict-appellant has been
convicted for offence punishable under
Section 366 I.P.C. for which there was no
evidence at all, even then, he has been
sentenced for it. Prosecutrix, for whom
offence under Section 363 of I.P.C. was
leveled, was a major and for offence
punishable under Section 363 of I.P.C.,
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, that is the offence of kidnapping
from lawful guardianship, penalized by
this section, is the offence, which is
defined by Section 361 I.P.C. which
provides: "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. The person against
whom the offence is committed must be
under the age of 16, if male, and under the
age of 18, if female." The quintessence of
offence under Section 363 of I.P.C. is
criminal intention. In the present case,
prosecutrix was major, hence, this offence
was not made. The offence punishable
under Section 376 I.P.c. was also not
made out because prosecutrix being major
went to accused upon her own volition.
She lived with him and was pregnant with
four months. It was a consensual
relationship.
Even
then
Court
has
punished
with
such
a
deterrent
punishment. There was no proof beyond
doubt. PW-2 was not eye-witness account
and the witness, who was said to have
seen prosecutrix in company of accused,
has not been examined. Hence, there
remained single testimony of prosecutrix
2 All. Yogendra @ Teetu Vs State of U.P.
397
that
too,
with
major
contradiction.
Convict-appellant
is
in
jail
since
17.5.2012. He suffered more than 7 years
as against maximum ten years sentence
awarded to him. Hence, he be punished
with sentence undergone.

10. Learned AGA has vehemently
opposed the argument by saying that as
per High School Certificate-cum-Marksheet Ex. Ka-11, prosecutrix was minor
on the date of incident. She has said about
offence committed by appellant. There
was no exaggeration, embellishment or
contradiction, in her testimony. This was
corroborated
by
medical
testimony.
Formal
witnesses
have
supported
prosecution case. Hence, trial Court has
rightly convicted and sentenced under
impugned judgment. Appeal be rejected.

11. Section 363 I.P.C. provides:-
"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."
Kidnapping
from
lawful
guardianship has been defined under
Section 361 I.P.C. that "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, i.e. for punishment of
offence under Section 363 I.P.C." Section
361 I.P.C. and its ingredients are to be
proved, which requires taking or enticing
of a minor under 16 if male and under 18
if female, from lawful guardianship or a
person of unsound mind of any age,
without consent of that guardian. Apex
Court in Thakorlal D. Vadgama vs The
State Of Gujarat AIR 1973 SC 2313,
has propounded the words "whoever takes
or entices any minor" under Section 361
I.P.C. and observed as to what actually
means. According to the Supreme Court,
the word "takes", does not necessarily
connote taking by force and does not
confined to use of force, actual or
constructive. These words merely mean
"to cause to woke", "to support" or "to get
into possession". The gravamen of this
offence under Section 361 I.P.C. lies in
the taking or enticing of a minor,
specified in this section out of the keeping
of the lawful guardianship without the
consent of such guardian.

12. On a plain reading of this
Section, the consent of the minor, who is
taken or enticed, is wholly immaterial, it
is only the guardian's consent which takes
the case within its purview. Nor is it
necessary that the taking or enticing must
be shown to have been by means of force
or fraud. Persuasion by the accused
person, which creates willingness on the
part of minor to be taken out of the
keeping of the lawful guardianship would
be sufficient to attract this Section 361
I.P.C., as has been held by Apex Court in
State of Haryana Vs. Raja Ram AIR
1973 SC 819. Prosecutrix, in her
statement, recorded under Section 164
Cr.P.C. Ex. Ka-1, has said that while she
was on her way to her school, where she
was student of Class XI, on 17.12.2011,
Teetu and Mukesh both persuaded her
that they will get her employed in a job
and upon their enticing, she was taken by
them in an unknown village, where she
was being beaten and threatened. Teetu
committed rape on each day against her
wishes, thereby, she became pregnant.
398 INDIAN LAW REPORTS ALLAHABAD SERIES
She, in her testimony, as PW-1 has said
that Teetu @ Yogendra was residing in
the same mohalla of prosecutrix, in house
of Udesh Pal and on 17.12.2011 while she
was on her way to her school Sir
Chhoturam Girls College, Duhai, he came
to her and took her under his persuasion
of getting job for her. She, under his
persuasion, went with him in a white
colour car. She was taken in a village of
Ghaziabad and thenafter was threatened.
She was being beaten and subjected to
repeated rape by him, resulting her
pregnancy. She was with date of birth
7.5.1995. There was one other who was
driving that car and while she was being
taken to Delhi by train on 17.5.2011, she
was apprehended at Railway Station,
Murad Nagar by police. Her statement Ex.
Ka-1, was recorded before Magistrate and
she was medically examined by Medical
Officer. In cross-examination, she has
said about her school but no question
about her date of birth has been asked.
Hence, this date of birth recorded in High
School as of 7.5.1995 is unrebutted fact.

13 . This Court in a Division Bench
Judgment in Kunwar Singh Vs. State of
U.P.
1993
(3)
AWC
1305
has
propounded the effect of non crossexamination
of
witness
on
a
fact
appearing in Examination-in-Chief under
Section 137 of Evidence Act and held that
if some fact has been averred in
Examination-in-Chief of testimony of a
witness and same is not being cross
examined
in
examination-in-cross,
truthfulness of that uncontroverted part of
a fact shall be accepted. In the present
case, it was specifically said by this
witness, in her Examination-in-Chief that
she was minor, having date of birth
7.5.1995 and this fact was not crossexamined by learned counsel for the
defence. Hence, this portion of fact is full
truth and is to be accepted. Moreso, this is
with corroboration of Certificate-cumMark-sheet of High School Ex. Ka-11,
filed and proved on record, having date of
birth of prosecutrix recorded as 7.5.1995
and this occurrence was of 17.12.2011 i.e.
prosecutrix was below 18 years on above
date and as per her testimony, she was
enticed and taken by convict-appellant by
way of persuasion for getting her engaged
in a job. This was with no consent of
lawful guardian, informant i.e. Roop
Singh. Hence, ingredients of offence
under Section 361 I.P.C. punishable under
Section 363 of I.P.C. was fully proved by
testimony of prosecutrix PW-1. This has
further been corroborated by testimony of
PW-2 Roop Singh-informant that her
daughter was at her school but she did not
turn
up
and
ultimately
she
was
apprehended by police and her date of
birth was 7.5.1995, who was minor.
Convict-appellant took her out of his legal
guardianship without his consent and he
got this case registered by presenting an
application Ex. Ka-4 supported with
affidavit Ex. Ka-2, 3, before the Court of
Additional Chief Judicial Magistrate,
Ghaziabad, under Section 156(3) Cr.P.C.,
which was allowed and then after this
case crime number was got registered at
above police station, Murad Nagar for
offence of kidnapping and rape against
accused
persons.
This
witness
has
formally proved Ex.Ka-2, Ex. Ka-3 and
Ex. Ka-4. In cross-examination, question
about the siblings of this witness and
difference of age amongst them have been
asked but no cross-examination about
date of birth of prosecutrix, said by this
witness in his Examination-in-Chief, has
been made by learned counsel for the
defence. Thereby, this fact is unrebutted
in cross-examination and a suggestive
2 All. Yogendra @ Teetu Vs State of U.P.
399
question has been put to this witness that
there had been a love affair amongst
prosecutrix and accused, as a result of
which, she had gone with accused and this
question has been answered in negative.
Meaning thereby, by this suggestive
question itself, learned counsel for the
defence has said that prosecutrix was
taken by convict-appellant because of
love affairs between them. This taking
from lawful possession has been proved
by this witness. Though this witness is not
eye-witness
account
of
taking,
but
prosecutrix, while being in company of
this convict-appellant, was recovered and
she had proved this taking. Hence, by
factual evidence of these two witnesses,
offence punishable under Section 363
I.P.C. was fully proved.

14. In medical age determination,
Chief Medical Officer, Ghaziabad has
held on 19.5.2012, the age of prosecutrix
about 18 years. But this report was not
proved before Court and as per law of
Apex Court in State of Karnataka Vs.
Batra Sudhakar @ Suttham and others
(2008) 11 SCC 8, as has been quoted in
the judgment of trial Court that two years
on upper side for determining age of
minor was not held to be proper, rather as
per law of Apex Court in Shahnawaz Vs.
State of U.P. 2011 (2) DNR 626, the age
determination on the basis of High School
Certificate was held to be proper,
provided the same was duly proved and
admissible. In the present case, the
condition of proof was fulfilled by
prosecution. Beside it, the testimony, of
prosecutrix PW-1 as well as PW-2
informant is of this fact that date of birth
of prosecutrix was 7.5.1995 and no crossexamination on this point is there. Hence,
it was unrebutted testimony to be
accepted as such, hence, argument of
learned
counsel
for
the
appellant
regarding
offence
punishable
under
Section 363 I.P.C. is not sustainable.

15. Offence punishable under
Section 366 I.P.C. requires three principal
ingredients (I) kidnapping or abduction to
any women (II) such kidnapping or
abduction must be (i) with intent that she
may be compelled or knowing it to be
likely that she will be compelled to marry
any person against her will; or (ii) in order
that she may be forced or seduced to illicit
intercourse or knowing it to be likely that
she will be forced or seduced to illegal
intercourse, or (iii) by means of criminal
intimidation or otherwise by enticing any
women to any place with intent that she
may be or knowing that she will be forced
or seduced to illicit intercourse. It is
immaterial whether the women kidnapped
is married women or not. To bring him an
offence punishable under Section 366
I.P.C., the prosecution is to prove (a) that
the accused kidnapped has understood
Section 360 or 361 I.P.C. or abducted the
victim has understood Section 362 I.P.C.;
(b) that the victim of the aforesaid
kidnapping or abduction was a female; (c)
that the accused during the kidnapping or
abduction had intention or knew it likely
that (1) such women might or would be
forced to marry a person against her will,
or (2) that she might or would be forced
or seduced to illicit intercourse, or (3) by
means
of
criminal
intimidation
or
otherwise by enticing a women to go from
any place with intent that she may be or
knowing that she will be forced or
seduced to illicit intercourse. As in the
present case, prosecutrix was said to be
minor, hence, regarding minor for such
offence punishable under Section 366A
I.P.C. As per the Apex Court in Ramesh
Vs. State of Maharashtra AIR 1962 SC
400 INDIAN LAW REPORTS ALLAHABAD SERIES
1908, three principal ingredients are to be
proved by prosecution for charge under
Section 366A I.P.C. (a) that a minor girl
below the age of 18 years is induced by
the accused, (b) that she is induced to go
from any place or to do any act, and (c)
that she is so induced 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. In the
present case, charge was framed for
enticing and seducing minor Kumari
Lalita daughter of informant Kamal
Singh. Whereas neither prosecutrix is
Kumari Lalita nor the informant of this
case is Kamal Singh. Where from these
two names came in the charge, framed?
And how it is proved? is not there on
record. Case crime number was lodged
with regard to kidnapping of prosecutrix,
a minor girl of informant Roop SinghPW-2 and offfence of rape was committed
by accused Yogendra @ Teetu with
prosecutrix minor daughter of informant
Roop Singh. But the charge of offence
punishable under Section 366 of I.P.C.
was leveled for kidnapping of minor girl
Lalita daughter of Kamal Singh informant
of the case, for which there is no evidence
on record. Hence, finding of trial Court
was apparently erroneous and regarding
conviction and sentence for offence
punishable under Section 366 I.P.C. for
which this appeal in part is to be allowed.

16. Regarding charge No. 3 i.e.
offence of rape, punishable under Section
376 I.P.C., Section 375 of I.P.C. provides
"A man is said to commit "rape" who,
except in the case hereinafter excepted,
has sexual intercourse with a woman
under circumstances falling under any of
the six following descriptions:--

(Firstly) -- 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 giving 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 sixteen years
of
age.
Explanation.--Penetration
is
sufficient
to
constitute
the
sexual
intercourse necessary to the offence of
rape.

(Exception) --Sexual intercourse
by a man with his own wife, the wife not
being under fifteen years of age, is not
rape.

17. Section 376 I.P.C. provides for
punishment of rape that - (1) "Whoever,
except in the cases provided for by subsection (2), commits rape shall be
punished with imprisonment of either
description for a term which shall not be
less than seven years but which may be
2 All. Yogendra @ Teetu Vs State of U.P.
401
for life or for a term which may extend to
ten years and shall also be liable to fine
unless the women raped is his own wife
and is not under twelve years of age, in
which cases, he shall be punished with
imprisonment of either description for a
term which may extend to two years or
with fine or with both: Provided that the
court may, for adequate and special
reasons to be mentioned in the judgment,
impose a sentence of imprisonment for a
term of less than seven years."

18. In the present case, prosecutrix
as
PW-1,
in
her
testimony
in
Examination-in-Chief has, specifically
said that she was subjected to repeated
rape by accused against her wishes by use
of
force
and
threat
resulting
her
conception of two months. She was
prohibited to communicate with any other
and regarding this statement, given in
fact,
there
is
no
contradiction
or
exaggeration in Examination-in-Cross.
Rather, a suggestive question has been
given to PW-2 and has been argued by
learned counsel for the appellant that
prosecutrix was under love affair with
convict-appellant and it was a consensual
living and she used to have visit to
convict-appellant. This defence shows
that having physical relation is not being
disputed rather the same is being said to
be under consensual affairs. Whereas
prosecutrix,
by
her
unimpeachable
testimony, has proved about forceful rape
with her and this was having medical
corroboration of testimony of PW-3 Dr.
Surbhi
Sinha,
who
had
medically
examined prosecutrix and has held her
height 141 cm, her weight 41 kg. and
teeth 14/14 with fetus of 16 to 18 months.
Though, she was having no injury over
her private part but she was subjected to
physical relationship. Ex. Ka-5 and Ka-6,
has been formally proved by this witness.

19. PW-4 Constable Mukesh Dabas
is the formal witness, who has proved
registration of this case crime number and
this G.D. Entry and chick F.I.R. as Ex.
Ka-7 and Ka-8, for which there is no
contradiction or embellishment.

20. PW-5, is the Investigating Officer,
Vijay Kumar Verma, who has proved his
formal investigation of this case crime
number and preparation of site map upon
the pointing of witness, proved and
exhibited as Ex. Ka-9, on record. Date of
birth of prosecutrix to be of 7.5.1995 and
she being recovered while being in
possession of convict-appellant and thereby
on the basis of statement recorded under
Section 164 Cr.P.C. offence of rape
punishable under Section 376 I.P.C. was
added by G.D. Entry No. 46 on 19.5.2012.
Thenafter,
prosecutrix
was
given
in
possession of her mother, in accordance
with order of Magistrate and investigation
resulted submission of charge-sheet Ex. Ka10, under handwriting and signature of this
witness.
In
cross-examination
dispute
regarding date of birth, has not been put
except that original certificate of High
School was not taken on record. Convictappellant was apprehended from Railway
Station Murad Nagar on 17.5.2012 on 17:00
P.M. while he was with possession of
prosecutrix. There is no embellishment,
contradiction or exaggeration in testimony
of this witness. He has formally proved the
case of prosecution.

21. Apex Court in Narbada Prasad
vs Chhagan Lal And Ors AIR 1969 SC
393, has held that in an appeal the burden is
on the appellant to prove how the judgment
under appeal is wrong? He must show
402 INDIAN LAW REPORTS ALLAHABAD SERIES
where the assessment has gone wrong? In
criminal trial Apex Court in Kali Ram vs
State Of Himachal Pradesh AIR 1973 SC
2773, has propounded that the onus is upon
the prosecution to prove the different
ingredients of the offence and unless it
discharges that onus, the prosecution cannot
succeed. In Partap vs The State of U.P.
AIR 1976 SC 966, Apex Court has held
that prosecution has to prove case beyond
all reasonable doubt whereas accused is to
prove only establishing preponderance of
probabilities. Though Apex Court in
Shankarlal Gyarasilal Dixit vs State Of
Maharashtra AIR 1981 SC 765 has
propounded that feasibility of defence does
not shape prosecution case and suspicion
how so strong cannot take place of proof.

22. In present case, prosecution has
proved its case. The argument of learned
counsel for the appellant that it was single
testimony of prosecutrix on the basis of
which this judgment of conviction has
been passed, is not of any weight because
repeatedly this Court as well as Apex
Court has propounded that even a singly
testimony,
which
is
unimpeachable,
proves case beyond doubt, case of
prosecution is not to be thrown out. Apex
Court Veer Singh and another Vs. State
of U.P., 2014 (84) ACC 681 at para 17
has propounded - "Legal system has laid
emphasis on value, weight and quality of
evidence
rather
than
on
quantity,
multiplicity or plurality of witnesses. It is
not the number of witnesses, but, quality
of their evidence which is important, as
there is no requirement under the law of
evidence, that any particular number of
witness
is
to
be
examined
to
prove/disapprove a fact. Evidence must be
weighed and not counted. It is quality and
not quantity which determines the adequacy
of evidence, as has been provided, under
Section 134 of Evidence Act. As a general
rule, Court can and may act on the
testimony of a single witness provided he is
wholly reliable". In this case, itself Court
has propounded "testimony of a witness
cogent, credible and trustworthy, having
ring of truth, deserve its acceptance." In the
present case, testimony of prosecutrix
corroborated with unimpeachable testimony
of PW-2 informant is cogent, credible and
trustworthy, having ring of acceptance.
Accordingly, judgment of conviction is
fully based on evidence placed on record.
There was no illegality or irregularity in
passing of judgment of conviction regarding
charge leveled for offence punishable under
Sections 363 and 376 of I.P.C. Regarding
Section 366 I.P.C., charge was not proved.

23. Learned counsel for convictappellant
vehemently
argued
about
sentence, being highly excessive and not
in commensurate with degree of offence.
Regarding,
Section
363
I.P.C.,
the
punishment provided is up to seven years
whereas trial Court has awarded sentence
of
three
years,
which
is
well
commensurate to offence. It is neither
excessive nor unwarranted.

24. Regarding Section 376 I.P.C., the
minimum sentence provided for offence of
rape is seven years and in case of punishment,
less than seven years, Court is required to
write reasons being adequate and special
reasons to be mentioned in the judgment for
imposing a sentence of imprisonment for a
term less than seven years.

25. Apex Court in Gopal Singh vs
State Of Uttarakhand (2013) 3 SCC
(Cri) 608 has propounded:-

"Just
punishment
is
the
collective cry of the society. While the
collective cry has to be kept uppermost
2 All. Yogendra @ Teetu Vs State of U.P.
403
in
the
mind,
simultaneously
the
principle of proportionality between
the crime and punishment cannot be
totally brushed aside. The principle of
just punishment is the bedrock of
sentencing in respect of a criminal
offence. A punishment should not be
disproportionately
excessive.
The
concept of proportionality allows a
significant discretion to the Judge but
the same has to be guided by certain
principles. In certain cases, the nature
of culpability, the antecedents of the
accused,
the
factum of age,
the
potentiality of the convict to become a
criminal in future, capability of his
reformation and to lead an acceptable
life in the prevalent milieu, the effect -
propensity to become a social threat or
nuisance, and sometimes lapse of time
in the commission of the crime and his
conduct in the interregnum bearing in
mind the nature of the offence, etc.
etc."

26 . Though in a case of rape, when
an adult commits rape on a girl of tender
age, deterrent punishment is called for,
taking a lenient view is out of question.
Once a person is convicted for offence of
rape, he should be treated with heavy
hands and undeserved indulgence or
liberal attitude in not awarding adequate
sentence is improper. As per law laid
down by Apex Court in State of U.P. vs.
Babu Lal, AIR 2008 SC 582, the
adequate and proper sentencing is to be
made. In the present case, convictappellant has been sentenced with ten
years rigorous imprisonment whereas
award of eight years and fine of Rs.
10,000/-, and in default two years
rigorous imprisonment will proved to be
adequate sentence under Section 376 of
I.P.C.

27. Accordingly, this appeal is to be
partly allowed regarding conviction for
setting aside conviction and sentence for
offence punishable under Section 366
I.P.C., hence, the conviction and sentence
awarded by trial Court is being amended
as follows:-

Order

(1)
Convict-appellant
Yogendra @ Teetu is being convicted
for offence punishable under Section
363 and 376 I.P.C. He is being
sentenced with three years rigorous
imprisonment and fine of Rs. 3,000/-,
and in default six months additional
rigorous
imprisonment
for offence
punishable under Section 363 I.P.C. He
is further being sentenced with rigorous
imprisonment of eight years and fine of
Rs. 10,000/-, and in default two years
rigorous
imprisonment
for offence
punishable under Section 376 I.P.C.

(2) Both of above sentences
shall run concurrently and convictappellant
will
be
benefited
with
adjustment of previous imprisonment in
this case crime number under Section 428
of I.P.C. He is being acquitted of the
charge leveled for offence punishable
under Section 366 of I.P.C.

(3) Copy of the judgment along
with lower Court record be transmitted to
trial Court for amendment of warrant of
conviction and sentence as per above
conviction and sentence and for follow up
action.
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(2019)10ILR A 404

APPELLATE JURISDICTION
CRIMINAL SIDE