# Zulfiqar @ Zillu v. State of U.P

- **Citation:** (2020) 8 ILRA 612
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-10
- **Case number:** Criminal Appeal No. 4812 of 2012
- **Bench:** Mrs. Sunita Agarwal, Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/zulfiqar-zillu-v-state-of-u-p-46066
- **Pages:** 17

## Headnote

Civil Law- The Juvenile Justice (Care
and Protection of Children) Act, 2015-
To determine the age of child being a
victim or otherwise, there is no specific
legal provision except the provision as
embodied under the Juvenile Justice
(Care and Protection of Children) Act
and the Rules framed thereunder. The
procedure for determination of age of a
person to provide him the protection of
the Act "being a child" is by making an
inquiry in accordance with the provision
of Section 94 of the Act. The said
inquiry, by conducting an ossification
test
or
any
other
medical
age
determination test, in absence of birth
certificate
or
school
certificate
is
contemplated in the aforesaid provision
(Section 94) of the Act. The ossification
test is, thus, an approved method of
inquiry for determination of age of a
person.

Rape victim- Determination of age- In
absence of any other legal provision the age
of the victim can only be determined under
the provisions of the Juvenile Justice (Care
and Protection of Children) Act and the
procedure provided under Rule 94, which also
provides for an ossification test for the
determination of age.

Criminal Law- Indian Penal Code, 1860-
Section 376- Rape victim- Age as per
ossification test 17 years- Addition of
two years to the upper-age limit- No
such rule - Inclusion of two additional
years to the age determined by doctor,
is not possible as a matter of course or
in a routine manner- In ossification test,
the concerned doctor had opined the
age of victim to be 17 years .There is no
such rule for adding two additional
years to the age determined by the
doctor.
8 All. Zulfiqar @ Zillu Vs. State of U.P.
613
There is no rule for the addition of two years
on the upper age limit of the victim so as to
make her a major.

Criminal Law- Indian Penal Code, 1860-
Section 375- Section 90-
ConsentInjuries on body of the victim-Evidence
as a whole indicates that there was
resistance by the victim and there is no
sign of voluntary participation of victim
for alleged sexual act. Said incident
cannot be construed as a consented
sexual act. All the circumstances and
evidences available on record clearly
indicate towards the fact that the
victim/prosecutrix had never produced
her body voluntarily, instead she had
resisted to the best of her ability. Even
while resisting the conduct of the
accused she had sustained several
injuries, which is evident from the
Medical
Report.
Thus,
she
freely
exercised choice between resistance
and assent, and she had raised alarm
against the offence committed by the
accused persons. Even otherwise, if she
had been a consented party to the
offence, the injuries caused on her body
would not have been occurred at all.
The injuries on the body of the prosecutrix ,
which are established by the Medical Report,
as well as other circumstances demonstrate
that the prosecutrix was raped and it was not
a case of consensual sex.

Criminal Law- Indian Penal Code, 1860-
Section 375/ 376- Conviction on solitary
testimony- Found to be reliable and
unimpeachable-
Testimony
of
the
prosecutrix is sufficient in itself and can
be made the solitary basis for conviction
of the accused persons. In fact, her
statement is unimpeachable and beyond
reproach. Even otherwise, version of the
prosecution is fully corroborated by the
statement of other witness of fact as
well as Medical Certificates.
It is settled law that where the solitary
testimony of the prosecutrix is credit worthy ,
unimpeachable and corroborated by medical
and other evidence, then the conviction of
the accused can be secured on the basis of
the said solitary testimony.
Criminal
Law-
Code
of
Criminal
Procedure, 1973- Section 313 - Failure
of
accused
to
furnish
explanation-
Adverse inference- Accused has failed to
discharge his onus of proof that the
victim
was
involved
with
him
in
consensual sex. In cross-examination of
the prosecution witnesses and in the
statement of the accused under Section
313 Cr.P.C., n

## Text

_Characters 0–39,755 of 54,596. This is a partial read: ask again with offset=39755 for what follows._

612 INDIAN LAW REPORTS ALLAHABAD SERIES
prosecution has failed to bring home the
guilt of the appellants beyond reasonable
doubt.

75. Accordingly, the judgement and
order dated 08.9.2015 passed by the
learned
Additional
Sessions
Judge,
Mathura in Sessions Trial No. 294 of
2013, arising out of case crime No. 1144
of 2011 under Sections 302 read with
Section 34 IPC, police station Vrindavan,
district Mathura are hereby set aside.

76. The appeal is accordingly
allowed.

77. Appellants Veerpal and Mahesh
are in jail. They shall be released
forthwith unless wanted in any other
case. However, they are directed to
comply with the provisions of Section
437A of Code of Criminal Procedure.

78. Office is directed to transmit a
copy of this order to the court concerned
for compliance.
----------
(2020)08ILR A612
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.07.2020

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE DINESH PATHAK, J.

Criminal Appeal No. 4812 of 2012

Zulfiqar @ Zillu ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Rajeev Sisodia, Sri Manoj Tripathi, Sri
Pawan
Singh
Pundir,
Sri
Shashank
Kumar, Sri Vinod Tripahi, Sri Vishu
Kumar

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

Civil Law- The Juvenile Justice (Care
and Protection of Children) Act, 2015-
To determine the age of child being a
victim or otherwise, there is no specific
legal provision except the provision as
embodied under the Juvenile Justice
(Care and Protection of Children) Act
and the Rules framed thereunder. The
procedure for determination of age of a
person to provide him the protection of
the Act "being a child" is by making an
inquiry in accordance with the provision
of Section 94 of the Act. The said
inquiry, by conducting an ossification
test
or
any
other
medical
age
determination test, in absence of birth
certificate
or
school
certificate
is
contemplated in the aforesaid provision
(Section 94) of the Act. The ossification
test is, thus, an approved method of
inquiry for determination of age of a
person.

Rape victim- Determination of age- In
absence of any other legal provision the age
of the victim can only be determined under
the provisions of the Juvenile Justice (Care
and Protection of Children) Act and the
procedure provided under Rule 94, which also
provides for an ossification test for the
determination of age.

Criminal Law- Indian Penal Code, 1860-
Section 376- Rape victim- Age as per
ossification test 17 years- Addition of
two years to the upper-age limit- No
such rule - Inclusion of two additional
years to the age determined by doctor,
is not possible as a matter of course or
in a routine manner- In ossification test,
the concerned doctor had opined the
age of victim to be 17 years .There is no
such rule for adding two additional
years to the age determined by the
doctor.
8 All. Zulfiqar @ Zillu Vs. State of U.P.
613
There is no rule for the addition of two years
on the upper age limit of the victim so as to
make her a major.

Criminal Law- Indian Penal Code, 1860-
Section 375- Section 90-
ConsentInjuries on body of the victim-Evidence
as a whole indicates that there was
resistance by the victim and there is no
sign of voluntary participation of victim
for alleged sexual act. Said incident
cannot be construed as a consented
sexual act. All the circumstances and
evidences available on record clearly
indicate towards the fact that the
victim/prosecutrix had never produced
her body voluntarily, instead she had
resisted to the best of her ability. Even
while resisting the conduct of the
accused she had sustained several
injuries, which is evident from the
Medical
Report.
Thus,
she
freely
exercised choice between resistance
and assent, and she had raised alarm
against the offence committed by the
accused persons. Even otherwise, if she
had been a consented party to the
offence, the injuries caused on her body
would not have been occurred at all.
The injuries on the body of the prosecutrix ,
which are established by the Medical Report,
as well as other circumstances demonstrate
that the prosecutrix was raped and it was not
a case of consensual sex.

Criminal Law- Indian Penal Code, 1860-
Section 375/ 376- Conviction on solitary
testimony- Found to be reliable and
unimpeachable-
Testimony
of
the
prosecutrix is sufficient in itself and can
be made the solitary basis for conviction
of the accused persons. In fact, her
statement is unimpeachable and beyond
reproach. Even otherwise, version of the
prosecution is fully corroborated by the
statement of other witness of fact as
well as Medical Certificates.
It is settled law that where the solitary
testimony of the prosecutrix is credit worthy ,
unimpeachable and corroborated by medical
and other evidence, then the conviction of
the accused can be secured on the basis of
the said solitary testimony.
Criminal
Law-
Code
of
Criminal
Procedure, 1973- Section 313 - Failure
of
accused
to
furnish
explanation-
Adverse inference- Accused has failed to
discharge his onus of proof that the
victim
was
involved
with
him
in
consensual sex. In cross-examination of
the prosecution witnesses and in the
statement of the accused under Section
313 Cr.P.C., nothing has been emerged
fortifying the defence of consensual sex.

Failure of the accused to provide an
explanation for the accusation he is charged
with, in his statement u/s 313 Cr.Pc, would
lead the Court to take an adverse inference
against him.

Criminal Appeal rejected. ( Para
31,32, 35, 41, 46,48, 49, 54) (E-3)

Case law relied upon/ Cited:-

1. Jarnail Singh Vs St. of Har., (2013) 3
Crimes (SC) 278

2. St. of U.P. Vs Chhoteylal, AIR 2011 SC 697

3. St. of Kar. Vs Bantara Sudhakar @ Sudha &
Ors., (2008) 111 SCC 38

4. Kaini Rajan Vs St. of Ker., (2003) 9 SCC
113

5. Pramod Suryabhan Pawar Vs St. of Maha.
& anr, (2019) 9 SCC 608

6. Uday Vs St. of Kar. (2003) 4 SCC 46

7. Naushad Vs St. of U.P., 2007 (5) ADJ 60
(DB)

8. Punj. Vs Gurmit Singh & ors., (1996) 2 SCC
384

9. Mohd. Ali alias Guddu Vs St. of U.P. (2015)
7 SCC 272

10. St. of Raj. Vs Biram Lal , (2005)10 SCC
714

(Delivered by Hon'ble Dinesh Pathak, J.)
614 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard Sri Pawan Singh Pundir,
learned counsel for the appellant and Sri
L. D. Rajbhar, Advocate assisted by Sri
Prem Shanker Mishra, learned Additional
Government Advocate for the Staterespondent.

2. The instant criminal appeal has
been preferred by appellant Zulfiqar alias
Zillu against the judgment and order
dated
03.11.2012
passed
by
the
Additional Sessions Judge (Court No.2),
Bijnor in Sessions Trial No.655 of 2011
(Zulfiqar @ Zillu vs. State of U.P.),
convicting him under Sections 376 (2) G
and 506 IPC. He has been sentenced
under Section 376(2) G IPC to undergo
life imprisonment along with fine to the
tune of Rs.10,000/- and in default
thereof, he shall undergo additional
imprisonment for six month. He was also
sentenced under Section 506 IPC to
undergo 5 years rigorous imprisonment
(in short 'R.I.') with fine amounting
Rs.500/- and in default thereof, he shall
undergo additional imprisonment for two
months.

3. The allegations in the First
Information Report (hereinafter referred
to as 'FIR') are that the prosecutrix, (PW2) had been continuously subjected to
sexual assault under threat to her life and
coercion for the last one month on
blackmailing by the accused-appellant
Zulfiqar @ Zillu, who had taken
photographs of prosecutrix/victim in his
mobile and threatened her to distribute
her pictures amongst the villagers, in
case, she leaks anything about the
incident to anyone. On 18.05.2011 at
about 11.00 A.M., when the prosecutrix
aged about 16 years went to collect
fodder for the cattle from the forest,
accused Zulfiqar @ Zillu along with his
friend Faizaan caught hold of her and
sexually assaulted her by taking turn one
by one. She was threatened by the
accused to not to disclose the incident to
anyone otherwise they will make her
photographs public among the villagers
and she would be killed. On hearing her
screams, one Atiq-ur-Rehman s/o Hajibur-Rehman and Gaffar son of Mohd.
Hanif reached at the place of incident but
by that time, accused Zulfiqar @ Zillu
and Faizaan had fled away from the spot.
After returning from the forest i.e. place
of
incident,
the
prosecutrix/victim
narrated the incident to her mother Smt.
Naseema (PW-1), who took her to Police
Station-Sherkot, but her complaint was
not registered. Consequently, she took
her daughter to the Government Hospital,
Dhampur
and
got
her
medically
examined.
Thereafter,
she
made
representations dated 19.05.2011 and
21.05.2011 with respect to the incident in
question to the Superintendent of Police,
Bijnor, but no
action
was
taken.
Ultimately, she moved an application
under Section 156 (3) Cr.P.C. and in
pursuance thereof, FIR was ordered to be
lodged in Police Station-Sherkot.

4. In this backdrop, FIR dated
27.06.2011 (Exhibit Ka-6) was lodged
against Zulfiqar @ Zillu (appellant) and
Faizaan under Sections 363, 376 G and
506 IPC, which was registered as Case
Crime No.107 of 2011, Police StationSherkot, District-Bijnor.

5. Initially, victim/prosecutrix was
medically examined on 18.05.2011 at
about 4.00 P.M. at the Primary Health
Centre, Dhampur, Bijnor (hereinafter
referred to as "PHC") by Dr. Pramod
Kumar Gupta (PW-4). Six wounds have
been mentioned in the Medical Report
8 All. Zulfiqar @ Zillu Vs. State of U.P.
615
dated 18.05.2011 (Exhibit Ka-5) signed
by Dr. Gupta (PW-4), which are being
noted herein below :

(i) Abraded contusion red in
colour on left side 5 cm outer to left
angle of mouth.

(ii) Abraded contusion red in
colour front of left side chest. Just above
left nipple.

(iii) Abraded contusion, red in
colour, 4.5 cm x 3 cm on front of right
side chest, 3 cm outer to left nipple at
about 9 O' Clock position.

(iv) Abrasion red in colour 6
cm x 4 cm on back of left side chest on
scapular region.

(v) Abrasion red in colour 6 cm
x 4.5 cm on back of right side chest on
scapular region.

(vi) Contusion red in colour 4.5
cm x 3 cm on front of right forearm just
above right wrist joint.

6. After registration of the FIR,
prosecutrix/victim was again medically
examined on 30.06.2011 at 4.00 P.M. by
Dr. Saroj Arora (PW-3), who was a
Medical Officer at the District Women
Hospital, Bijnor. Dr. Arora (PW-3) had
submitted
Medical
Report
dated
30.06.2011 (Exhibit Ka-3) signed by her
and mentioned following details in it :

On external examination :

No injury seen on the body.
Height : 150 cm, Weight :37 kg, Teeth
:14/21, Breasts developed.

Examination of private parts :

No injury seen on the private
parts. Hymen old torn. Vagina admits
two fingers easily. Vaginal smear taken
for examination of sperms and sent to
Pathology, District Hospital, Bijnor.
Regarding age advised X-ray. Right
elbow joint, Right knee joint and right
wrist joint.

Supplementary report pending
till pathology 2 X-ray reports.

7. In pursuance of advice given by
Dr. Arora (PW-3), Ossification Test and
Swab Test of vagina was conducted on
02.07.2011 and its supplementary report
(Exhibit Ka-4) was prepared and signed
by Dr. Arora (PW-3) herself with
following observations :

Pathology
Report-
VS
72/DH/11 on dated 01.07.2011 at District
Hospital, Bijnor reported by Dr. S. K.
Sharma, Senior Pathologist, District
Hospital,
Bijnor.
On
examination,
spermatazoa not seen.

X Ray report :

X-ray
plate
No.73837385/MLPC on dated 01.07.2011 at
District Hospital, Bijnor reported by Dr.
D. K. Jain, Senior Radiologist, District
Hospital, Bijnor.

X-ray right elbow joint - Epiphysis
around right elbow joint are fused.

X-ray
right
knee
joint
-
Epiphysis around right knee joint are
almost fused.

X-ray
right
wrist
joint
-
Epiphysis around the right joint are not
fused completely.

Opinion : Her age is around 17
years. No definite opinion regarding rape
can be given.
616 INDIAN LAW REPORTS ALLAHABAD SERIES

8. In Ossification Test Report, the
estimated age of victim/prosecutrix is
opined to be 17 years. Santosh Kumar
Tyagi (PW-7), Investigating Officer
(hereinafter referred to as "I.O.") had
conducted investigation of the case. He
had prepared the Site Map (Exhibit Ka-8)
and submitted Charge Sheet dated
10.07.2011
(Exhibit
Ka-9)
against
accused-appellant Zulfiqar @ Zillu and
Faizaan under Sections 376 (2) G and
506 IPC.

9. It is pertinent to mention here
that present Sessions Trial No.655 of
2011 is conducted against appellant
Zulfiqar @ Zillu whereas case of coaccused Faizaan was separated and tried
as a juvenile. Therefore, present appeal
arising of Sessions Trial No.655 of 2011
is concerned only with respect to
accused-appellant Zulfiqar @ Zillu.

10. Vide order dated 25.08.2011,
Trial Court framed charges against the
accused-appellant for the offences under
Sections 376 (2) G and 506 IPC.

11. In order to establish the charges
levelled
against
accused-appellant,
prosecution has examined as many as
seven witnesses.

12. PW-1, Naseema, w/o Sharafat,
mother of victim/prosecutrix had proved
application dated 23.05.2011 filed under
Section 156 (3) Cr.P.C. as Exhibit Ka-1
and affidavit filed in its support as
Exhibit Ka-2. She had corroborated
statement of victim/prosecutrix proving
the incident in question. She clearly
stated that her daughter (i.e. prosecutrix,
PW-2) has told about the entire incident
that she had been raped by accused
persons, who had threatened her for life
and to make her pictures viral all over the
village if she disclosed anything about
the incident. The prosecutrix also told her
that she was being victimised for rape for
the last one month. She had further stated
that she approached concerned police
station and moved an application before
the concerned Police Officer, but no
action was taken. She, ultimately, moved
an application under Section 156 (3)
Cr.P.C.

13.

PW-2,
prosecutrix/victim
(daughter of Sharafat and Naseema),
aged about 16 years, has categorically
stated that she had been raped in the
forest, while she went to collect fodder,
by Zulfiqar @ Zillu and his friend
Faizaan, who had threatened her that her
photographs would be made viral all over
the village, in case she discloses anything
about the incident to any person. She had
elaborately narrated the incident which
took place on 18.05.2011 as to how she
had been forcefully raped by accusedpersons. She had also stated that she was
mauled by accused persons as a result of
which she sustained injuries. She further
deposed that during incident while she
screamed, Atiq-ur-Rehman and Gaffar
had reached on the spot. Consequently,
both accused persons fled away.

14. PW-3 Dr. Saroj Arora, Senior
Consultant,
District
Women
Hospital,
Bijnor had proved Medical Report dated
30.06.2011
as
Exhibit
Ka-3
and
Supplementary
Medical
Report
dated
02.07.2011 with respect to the Vaginal Test
and Ossification Test as Exhibit Ka-4. Dr.
Arora had clearly stated that probability of
commission of rape cannot be denied.

15. PW-4, Dr. Pramod Kumar
Gupta had proved first Medical Report
8 All. Zulfiqar @ Zillu Vs. State of U.P.
617
dated 18.05.2011 as Exhibit Ka-5, who
had medically examined victim, at the
initial stage, and mentioned six injuries
over body of the victim in the report.

16. PW-5, Atiq-ur-Rehman is an
independent witness of fact and he had
categorically narrated the incident that
while reaching on the spot, upon hearing
screams of the victim/prosecutrix, he saw
that Faizaan was holding her hand and
Zulfiqar @ Zillu was committing rape.

17. PW-6, Vinod Kumar, Constable
Clerk in Police Station-Sherkot, Bijnor
had proved FIR as Exhibit Ka-6 and its
entry in the General Diary as Exhibit Ka7.

18. PW-7, Santosh Kumar Tyagi,
I.O. had proved the Site Map as Exhibit
Ka-8 and Charge Sheet dated 10.07.2011
as Exhibit Ka-9. He had investigated the
matter and deposed the process of
investigation.

19. Accused-appellant denied his
involvement in the crime in question in
his statement recorded under Section 313
Cr.P.C. and pleaded his innocence and
claimed to be tried on merits.

20. Trial Court had found accusedappellant guilty of committing rape upon
the victim and had convicted and
sentenced him vide its judgment and
order dated 03.11.2012 in the manner as
mentioned above.

21. Learned counsel for appellant
submitted that victim was a consenting
party, therefore, incident which took
place, cannot be treated as commission of
rape. Medical report and statement of
witnesses are not corroborating the
statement of victim/prosecutrix (PW-2).
No recovery of video or clothes had been
made to prove the incident in question.
He further contended that mother of
victim had already admitted relationship
of
victim
and
Faizaan.
Further
submission is that there is contradiction
between two medical report, first dated
18.05.2011, conducted at PHC, Dhampur
and second report dated 30.06.2011
prepared and submitted by Dr. Saroj
Arora (PW-3) a doctor in the District
Women
Hospital,
Bijnor
and
in
subsequent medical report, no injury was
found in medical examination on body of
victim/prosecutrix. Present appellant has
been falsely implicated in the instant case
to protect co-accused Faizaan, who is
known to victim/prosecutrix.

22. Per contra, learned Additional
Government Advocate appearing for the
State-respondent
had
supported
the
impugned judgment and order passed by
Trial Court and submitted that the
statement of victim/prosecutrix, PW-2 is
fully corroborated with statements of
PW-1 and PW-5. Difference between two
medical reports with respect to the
injuries on the body of victim is possible
in the present case owing to gap occurred
between preparation of two reports which
is indisputably of about 1 and 1⁄2 months.
Victim was never a consenting party to
the offence and even otherwise, her
consent is of no value in the eyes of law,
inasmuch as, she was less than 18 years
on the date of the incident as per Medical
Report (Exhibit Ka-4) submitted by Dr.
Saroj Arora (PW-3) and intercourse with
her, whether with or without her consent,
would amount to commission of rape.
The
prosecution
has
successfully
established its accusation beyond all
reasonable doubts.
618 INDIAN LAW REPORTS ALLAHABAD SERIES

23. We have carefully considered
the chronological events of present case,
rival submissions advanced on behalf of
counsel for the parties as well as
evidences available on record.

24. In the matter at hands, moot
question to be decided is as to whether
prosecutrix
is
victimised
for
rape
committed by accused-appellant or she
was a consenting party to such sexual act.

25. On the date of occurrence i.e.
18.05.2011 at about 11:00 a.m. when the
prosecutrix, aged about 16 years, (as
mentioned in the FIR) went to the forest
to collect fodder for cattle. Present
appellant with his accomplice Faizaan
caught hold of her in the field and
forcibly sexually assaulted her against
her will. During the incident while the
victim raised alarm, two persons namely
Atiq-ur-Rehman and Gaffar reached on
spot but by that time accused persons ran
away from the scene.

26. Offence of rape generally refers
to non consensual sexual intercourse that
is committed by applying physical force,
threat of injury to body, reputation etc, or
other duress. Under common law it is
defined as unlawful intercourse by a man
against a woman, who is not his wife, by
force or threat and against her will.

27. Definition of rape is codified in
Section 375 of IPC wherein rape has
been defined as a certain sexual acts
when committed on a victim falling
under any of the seven descriptions
FIRST-- Against her will; SECOND--
Without her consent; THIRD-- With her
consent, when her consent has been
obtained under fear of death or of hurt;
FOURTH--Where consent is given by
the victim in wrong belief that the man is
her husband; FIFTH--When consent is
given when she is of unsound mind or
intoxicated and unable to understand the
nature of consequences of that to which
she is consenting; SIXTH-- With or
without her consent, when she is under
eighteen years of age; SEVENTH-When
she is not in a position to communicate
the consent.

28. Learned counsel for appellant
had emphasized his argument on the
consent of victim on the ground that coaccused Faizaan was known to her and
the consensual sex was conducted with
the victim who was major at that time.

29. Before considering the consent
of victim, her age for consent is required
to be discussed. Before Act No. 13 of
2013, description no. sixthly to Section
375 IPC was mentioned as "With or
without her consent, when she is under
16 years of age"; but subsequently the
aforesaid section was amended via Act
No. 13 of 2013 w.e.f. 03.02.2013 and the
age of girl was enhanced from 16 years
to 18 years. FIR version evinces that on
the date of incident victim was aged
about
16
years.
After
conducting
Ossification Test in the supplementary
medical report dated 02.07.2011 (Exhibit
Ka-4), doctor had opined her age to be 17
years.

30. PW-1 Naseema (mother of
victim) in her deposition has failed to
give correct date of birth of victim and
told
the
age
of
her
daughter
approximately 16 years. PW-2 victim, in
her deposition, has also admitted her age
to be 16 years. Learned counsel for the
appellant
has
submitted
that
in
ossification test, the concerned doctor
8 All. Zulfiqar @ Zillu Vs. State of U.P.
619
had opined the age of victim to be 17
years and after including 2 additional
years, it could be 19 years. Therefore, she
was major at that time and was in a
position to indulge herself in consensual
sex.

31. In our opinion, inclusion of two
additional years to the age determined by
doctor, is not possible as a matter of
course or in a routine manner. To
determine the age of child being a victim
or otherwise, there is no specific legal
provision
except
the
provision
as
embodied under the Juvenile Justice
(Care and Protection of Children) Act
and the Rules framed thereunder. The
Hon'ble Supreme Court in the case of
Jarnail Singh vs. State of Haryana
reported in (2013) 3 Crimes (SC) 278
has expounded that even though the
Rules framed under the Juvenile Justice
Act only provides procedure to determine
the age of child in conflict with law, but
the statutory provision could be made the
basis for determining the age, even of a
child who is a victim of crime. It has
been further explained that there is hardly
any difference insofar as the issue of
minority is concerned, between a child in
conflict of law, and a child who is victim
of crime. In the aforesaid matter, a girl
child was subjected to rape and in
determining
her
age,
the
Hon'ble
Supreme Court has thought it just and
proper to apply the provisions as
embodied under the Juvenile Justice Act.
It is relevant to mention here that the
Juvenile Justice (Care and Protection of
Children) Act, 2000 is repealed and in its
place new Act came into force known as
the Juvenile Justice (Care and Protection
of Children) Act, 2015 which has been
enacted with an object to act in the
interest of children in need of care and
protection by not only catering to their
basic
needs
through
proper
care,
protection but by disposal of matters in
the best interest of children. The
definition of '"child in need of care and
protection" includes a child who has been
abused, tortured or exploited for the
purpose of sexual abuseor illegal acts.
The "child" as defined in the Act is a
person who has not completed eighteen
years
of
age.
The
procedure
for
determination of age of a person to
provide him the protection of the Act
"being a child" is by making an inquiry
in accordance with the provision of
Section 94 of the Act. The said inquiry,
by conducting an ossification test or any
other medical age determination test, in
absence of birth certificate or school
certificate
is
contemplated
in
the
aforesaid provision (Section 94) of the
Act. The ossification test is, thus, an
approved
method
of
inquiry
for
determination of age of a person.

32. As far as the submission of
learned counsel for the appellant that 2
years be added in the estimated age of the
victim and that would make her major,
we may note that the Supreme Court
expounded
in
State
of
U.P.
vs.
Chhoteylal reported in AIR 2011 SC
697, after considering the Full Bench
decision of its Court in the case of State
of Karnataka vs. Bantara Sudhakar @
Sudha & Others reported in (2008) 111
SCC 38, that there is no such rule for
adding two additional years to the age
determined by the doctor. In the said case
victim was shown to be 13 years of age
at the time of incident dated 19.09.1980
and doctor has opined that victim is aged
about 17 years. Learned Trial Court has
convicted the accused treating the girl
minor under 16 years. Hon'ble High
620 INDIAN LAW REPORTS ALLAHABAD SERIES
Court has given 2 years additional benefit
and presumed the age of prosecutrix to
be 19 years. Relevant paragraph no. 11 of
the judgment is quoted below :-

"11. We find ourselves in
agreement with the view of the trial court
regarding the age of the prosecutrix. The
High court conjectured that the age of
the prosecutrix could be even 19 years.
This appears to have been done by
adding two years to the age opined by
PW-5. There is no such rule much less an
absolute one that two years have to be
added to the age determined by a doctor.
We are supported by a 3-Judge Bench
decision of this Court in State of
Karnataka v. Bantara Sudhakara @
Sudha and Another, wherein this Court
at page 41 of the Report stated as under :

"Additionally, merely because
the doctor's evidence showed that the
victims belong to the age group of 14 to
16, to conclude that the two years' age
has to be added to the upper age-limit is
without any foundation."

33. Be that as it may, in our
opinion, description no.Sixth of Section
375 IPC is not attracted in the present
facts and circumstances of the case
because the prosecutrix was found to be
above 16 years of age, although below 18
years of age as the incident had occurred
prior to the amendment for raising the
age of consent for sexual acts by a girl.

34. Now the question would be as
to whether she was a consenting party in
the sexual act with the accused. From the
statement of prosecutrix, it has clearly
emerged that she had been forcibly
subjected to sexual intercourse by two
accused persons without her consent. In
this factual background too, question of
the age of prosecutrix would pale into
insignificance.
In
the
facts
and
circumstances of present case, the case of
consent cannot be inferred by any
prudent person. Statements of witnesses
and chronology of events clearly indicate
towards victimization of prosecutrix
under
threat
of
blackmailing
and,
thereafter, subjecting her to sexual
intercourse.

35. The term "consent" had not
been defined in Section 375 of IPC,
rather Section 90 of IPC denotes that
which incidents are not to be treated as
consent of victim. Inference with respect
to consent could only be drawn on the
basis
of
evidences
and
attendant
circumstances of the instant case. In the
case at hands, the evidences very clearly
establish that on the date of incident i.e.
18.05.2011, the prosecutrix had been
grabbed
by
accused
persons
and
forcefully
subjected
to
sexual
intercourse.
Aforesaid
incident
was
witnessed by one Atiq-ur-Rehman (PW5), who is an independent witness and
had corroborated the version of the
prosecutrix regarding date, time and the
manner in which the incident took place.

36. In the matter of Kaini Rajan
vs. State of Kerala reported in (2003) 9
SCC 113, Hon'ble Supreme Court has
expounded definition of rape and consent
in paragraph 12, which is being quoted
below :-

"12. Section 375 IPC defines
the expression "rape", which indicates
that the first clause operates, where the
woman is in possession of her senses,
and therefore, capable of consenting but
the act is done against her will; and
8 All. Zulfiqar @ Zillu Vs. State of U.P.
621
second, where it is done without her
consent; the third, fourth and fifth, when
there is consent, but it is not such a
consent as excuses the offender, because
it is obtained by putting her on any
person in whom she is interested in fear
of death or of hurt. The expression
"against her will" means that the act
must have been done in spite of the
opposition of the woman. An inference as
to consent can be drawn if only based on
evidence or probabilities of the case.
"Consent" is also stated to be an act of
reason coupled with deliberation. It
denotes an active will in the mind of a
person to permit the doing of an act
complained of. Section 90 IPC refers to
the expression "consent". Section 90,
though, does not define "consent", but
describes what is not consent. "Consent",
for the purpose of Section 375, requires
voluntary participation not only after the
exercise of intelligence based on the
knowledge of the significance and moral
quality of the act but after having fully
exercised the choice between resistance
and assent. Whether there was consent or
not, is to be ascertained only on a careful
study of all relevant circumstances."

37. In a recent decision in the case
of Pramod Suryabhan Pawar vs State
of Maharashtra and another, reported
in 2019 (9) SCC 608 in paragraph 12,
Hon'ble Supreme court has concised the
concept of consent. Paragraphs 12 is
being reproduced below :-

12. This Court has repeatedly
held that consent with respect to Section
375 of the IPC involves an active
understanding of the circumstances,
actions
and
consequences
of
the
proposed act. An individual who makes a
reasoned choice to act after evaluating
various alternative actions (or inaction)
as
well
as
the
various
possible
consequences flowing from such action
or inaction, consents to such action. In
Dhruvaram Sonar which was a case
involving the invoking of the jurisdiction
under Section 482, this Court observed:

"15. ... An inference as to
consent can be drawn if only based on
evidence or probabilities of the case.
"Consent" is also stated to be an act of
reason coupled with deliberation. It
denotes an active will in mind of a person
to permit the doing of the act complained
of."

This understanding was
also emphasised in the decision of this
Court in Kaini Rajan v State of Kerala,
(2013) 9 SCC 113:

"12. ... "Consent", for the
purpose
of
Section
375,
requires
voluntary participation not only after the
exercise of intelligence based on the
knowledge of the significance of the
moral quality of the act but after having
fully exercised the choice between
resistance and asset. Whether there was
consent or not, is to be ascertained only
on a careful study of all relevant
circumstances."

38. Hon'ble Supreme Court has
further held in paragraph 18 of the
aforesaid judgment as under :

"18. To summarise the legal
position that emerges from the above
cases, the "consent" of a woman with
respect to Section 375 must involve an
active and reasoned deliberation towards
the proposed act. To establish whether
the
"consent"
was
vitiated
by
a
622 INDIAN LAW REPORTS ALLAHABAD SERIES
"misconception of fact" arising out of a
promise to marry, two propositions must be
established. The promise of marriage must
have been a false promise, given in bad faith
and with no intention of being adhered to at
the time it was given. The false promise itself
must be of immediate relevance, or bear a
direct nexus to the woman's decision to
engage in the sexual act."

39. Learned counsel for appellant
has relied upon Uday vs. State of
Karnataka reported in (2003) 4 SCC 46
and Naushad vs. State of U.P. reported in
2007 (5) ADJ 60 (DB) to define the term
"consent" and tried to defend the offence
under the garb of consensual sex, but
aforesaid cited cases are of no help to the
accused in defending his case.

40. In the case of Uday (Supra),
the Hon'ble Supreme Court had observed
that there is no straight jacket formula for
determining whether consent given by
the prosecutrix for sexual intercourse is
voluntary or whether it is given under
misconception of fact. In the ultimate
analysis the test laid down by the Courts
provided at best guidance to the judicial
mind while considering the question of
consent but the Court must, in each case,
consider
the
evidence
and
the
surrounding
circumstances,
before
arriving at the conclusion because each
case has its own peculiar facts which
may have bearing on the question
whether the consent was voluntary or
was given under the misconception of
fact.
Hon'ble
Apex
Court
further
observed that Court must also weigh the
evidence keeping in view the fact that the
burden is on the prosecution to prove
each and every ingredient of the offence,
absence of consent being one of them.

41. Moreover, question of consent
is the defence taken by the accused in the
instant case and it was incumbent upon
him to place adequate material on record
to show that the consent was given by the
prosecutrix. At this juncture, it is
significant to note that during crossexamination of the prosecution witnesses
and recording of statement of the
accused-appellant under Section 313
Cr.P.C., plea of consent was neither
taken nor suggested by the accusedappellant. In fact, in the statement under
Section 313 Cr.P.C., the accused had
taken the plea of complete denial and
false implication. Nothing emerged in the
cross-examinations of PW-1 and PW-2
as well as in the testimony of PW-5 (an
independent witness), about the consent
of victim at the time of incident or prior
to the incident. Vague denial made by the
accused in their statement under Section
313 Cr.P.C. cannot be inferred for the
consent of the victim who had been
threatened and subjected to sexual
intercourse against her will.

42. Further, to prove the offence of
rape
committed
by
the
accused,
testimony of the prosecutrix alone could
be made basis for conviction of the
accused persons unless there are some
compelling
reasons
for
seeking
corroboration.
In
several
decisions,
Hon'ble
Supreme
Court
has
laid
emphasis on the testimony of prosecutrix
unless something infers adverse to the
conclusion of conviction. In the matter of
State of Punjab vs. Gurmit Singh and
others, reported in (1996) 2 SCC 384,
wherein the prosecutrix aged about 16
years was abducted and raped, Hon'ble
Supreme Court expounded importance of
testimony of the victim in paragraph 8 of
8 All. Zulfiqar @ Zillu Vs. State of U.P.
623
the judgment. The relevant portion of
paragraph 8 is being reproduced below :

"8.
............................The
testimony of the victim in such cases is
vital and unless there are compelling
reasons which necessitate looking for
corroboration of her statement, the
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.
Seeking
corroboration of her statement before
relying upon the same, as a rule, in such
cases amounts to adding insult to injury.
Why should the evidence of a girl of a
woman who complains of rape or sexual
molestation, be viewed with doubt,
disbelief or suspicion? The Court while
appreciating
the
evidence
of
a
prosecutrix may look for some assurance
of her statement to satisfy its judicial
conscience, since she is a witness who is
interested in the outcome of the charge
levelled by her, but there is no
requirement of law to insist upon
corroboration of her statement to base
conviction of an accused. The evidence of
a victim of sexual assault stands almost
at 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 self inflicted, 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. Corroborative evidence
is not an imperative component of
judicial credence in every case of rape.
Corroboration as a condition for judicial
reliance
on
the
testimony
of
the
prosecutrix is not a requirement of law
but a guidance of prudence under given
circumstances. It must not be over-looked
that a woman or a girl subjected to
sexual assault is not an accomplice to the
crime but is a victim of another persons's
lust and it is improper and undesirable to
test her evidence with a certain amount
of suspicion, treating her as if she were
an accomplice. Inferences have to be
drawn from a given set of facts and
circumstances with realistic diversity and
not dead uniformity lest that type of
rigidity in the shape of rule of law is
introduced through a new form of
testimonial tyranny making justice a
casualty. Courts cannot cling to a fossil
formula and insist upon corroboration
even if, taken as a whole, the case spoken
of by the victim of sex crime strikes the
judicial mind as probable. In State of
Maharashtra
Vs.
Chandraprakash
Kewalchand Jain (1990 (1) SCC 550)
Ahmadi, J. (as the Lord Chief Justice
then was) speaking for the Bench
summarised the position in the following
words:

"A prosecutrix of a sex offence
cannot be put on par with an accomplice.
She is in fact a victim of the crime. The
Evidence Act nowhere says that her
evidence cannot be accepted unless it is
corroborated in material particulars. She
is undoubtedly a competent witness
under Section 118 and her evidence must
receive the same weight as is attached to
an injured in cases of physical violence.
The same degree of care and caution
must attach in the evaluation of her
evidence as in the case of an injured
complainant or witness and no more.
What is necessary is that the court must
be alive to and conscious of the fact that
it is dealing with the evidence of a person
624 INDIAN LAW REPORTS ALLAHABAD SERIES
who is interested in the outcome of the
charge levelled by her. If the court keeps
this in mind and feels satisfied that it can
act on the evidence of the prosecutrix,
there is no rule of law or practice
incorporated in the Evidence Act similar
to illustration (b) to Section 114 which
requires it to look for corroboration. If
for some reason the court is hesitant to
place implicit reliance on the testimony
of the prosecurtix it may look for
evidence which may lend assurance to
her testimony short of corroboration
required in the case of an accomplice.
The nature of evidence required to lend
assurance to the testimony of the
prosecutrix must necessarily depend on
the facts and circumstances of each case.
But if a prosecutrix is an adult and of full
understanding the court is entitled to
base a conviction of her evidence unless
the same is shown to be infirm and not
trustworthy.
If
the
totality
of
the
circumstances appearing on the record
of the case disclose that the prosecutrix
does not have a strong motive to falsely
involve the person charged, the court
should ordinarily have no hesitation in
accepting her evidence."

43. Further in the matter of Mohd.
Ali alias Guddu vs. State of U.P.
reported in (2015) 7 SCC 272, wherein
14 years aged girl was abducted from
outside of her house and raped by the
accused persons, Hon'ble Supreme Court
had given importance to deposition of the
prosecutrix.
Paragraph
30
of
said
judgment is being reproduced below :-

"30.