Anirudh @ Anurag vs State Of U.P.

1. Heard Shri Anil Kumar Singh, the learned counsel for the appellant and Shri Vishal Agarwal, the learned AGA for the State of U.P.

2. By means of the instant appeal filed under Section 374(2) Cr.P.C. the appellant has challenged the validity of a judgment and order dated 19.11.2011, passed by the Additional Session Judge, Court No. IV, Hardoi in Session Trial No. 813 of 2010, arising out of Case Crime No. 578 of 2010 under Sections 363, 366, 376 I.P.C., Police Station Bilgram, District Hardoi whereby the trial court has convicted the appellant for the aforesaid offences and has sentenced him to undergo imprisonment for three years and pay Rs.2,000/- as fine for the offence under Section 363 I.P.C., imprisonment of three years and fine of Rs.3,000/- for the offence under Section 366 I.P.C. and imprisonment for seven years and fine of Rs. 5,000/- for the offence under Section 376 I.P.C. The appeal was admitted by means of an order dated 01.12.2011. The appellant was enlarged on bail and recovery of fine was also stayed by the aforesaid order.

3. Briefly stated, facts of the case are that the complainant gave a written complaint dated 04.06.2010 to the police stating that the appellant and his mother had forcefully enticed away the informant's daughter aged 15 years on 29.05.2010 at about 06:00 a.m. Being under pressure of the search that was being conducted to find the complainant's daughter, the appellant and his mother came and abandoned her near 'Panchayat Ghar, Negpur Newada', on 31.05.2010 at around 2 p.m. She also stated that one Harish Chandra from her village had witnessed the alleged kidnapping of the victim as well as the incident of her being left near 'Panchayat Ghar, Negpur Newada'. The complainant also stated that it was because of fear that she had not come forward to lodge a complaint till that day and she came to file the complaint after getting a suitable opportunity.

4. F.I.R. No. 578 of 2010 was lodged in furtherance of the aforesaid complaint against the appellant and his mother for the offences under Sections 363, 366 I.P.C. The investigating officer prepared a site plan of the incident and took the victim for medical examination at the District Women's Hospital, Hardoi.

5. In the statement of the informant recorded under Section 161 Cr.P.C., she reiterated the FIR version but she further stated that besides Harish Chandra, Ashwani son of Babu Ram Dwivedi had also witnessed the victim being kidnapped by the appellant and her mother and being dropped back by both of them. The investigating officer recorded the statements of Harish Chandra and Ashwani, both of whom stated that they had seen the appellant taking the victim in a Jeep at about 06 or 07 hours on 29.05.2010 and they had seen the appellant dropping her back

6. In the statement of the victim recorded under Section 161 Cr.P.C., she stated that the appellant's mother came to her house at about 06:00 a.m. on 29.05.2010 and she took her to her house for doing some work. She used to take her earlier also and the victim used to return after washing the utensils and doing house cleaning work and, therefore, she went with the appellant's mother. The appellant had already gone away from his home. The appellant's mother gave her a glass of milk, after drinking which she started feeling intoxicated. The appellant's mother took her to 'Dulamdas baba ki madhi', the appellant came there in a jeep. He enticed her away in the jeep to an unknown place. Some neighbors made inquiries from the appellant about the victim and asked him to drop the victim back whereupon the appellant took her to Kannauj by bus . From, Kannauj he brought her on a motorcycle to near Panchayat Ghar Newada. She stated that Harish Chandra and Ashwani had witnessed the appellant dropping her back. After this, her mother came there and took her home.

7. The medico legal examination report of the victim revealed no mark of injury or sign of use of force on any part of her body, including her private parts. The hymen was old and torn. The pathological examination report of vaginal swab did not show presence of live or dead spermatozoa. No opinion could be given regarding sexual violence or rape having been committed on the victim as per the medical examination report. As per radiological examination, age of the victim was opined to be between 16-18 years.

8. In the statement recorded under Section 164 Cr.P.C., the victim stated that the appellant's mother had taken her to her home about one month ago. She offered her a glass of milk. She took her to village Nevada under pretext of getting her medicine. At some distance the appellant was standing with a Jeep near 'Dulamdas baba ki madhi', the appellant was standing there along with a jeep. The appellant's brother Khannu and Raghuraj @ Raghu pushed her inside the Jeep. The appellant and Khannu took her to Kanpur where she was kept in a room. The appellant draped a saree around her. The appellant and Khannu both made physical relations with her. When she asked them to drop her back, after 2-3 days they dropped her back near the trisection and Khannu informed her mother. Her mother, father, grand mother, Rakesh, Pintu, Rammohan reached there and they took her with them brought her back by bus near village Newada.

9. An independent witness stated that Khannu and Raghuraj @ Raghu had been implicated falsely.

10. A charge-sheet was filed against the appellant and his mother for the offences under Section 363, 366 I.P.C. The trial Court framed charges for the offences under Sections 363, 366 and 376 against the appellant and Sections 363, 366 against his mother.

11. The complainant was examined as PW-1. She reiterated the version of her written complaint in her examination in chief. During cross examination, she stated that she was told by some priest from her village that her daughter had been enticed away by the appellant. She stated that the appellant's mother had taken the victim away on foot till 'Gulariya Tiraha' and that the appellant abandoned her daughter at the very same place on the third day after the incident. She stated that she or any member from her family had not witnessed the victim being taken away or being dropped at the 'Gulariya Tiraha' and nobody had informed her about this. She further stated that when she went to the appellant's home, his mother had stated that the victim had already left her home. Later, when her daughter was not found anywhere, the appellant's sister in law came to her house and told that the appellant had enticed away her daughter at 3 a.m. in the night and this fact was reaffirmed by the victim when she was recovered.

12. The victim was examined as PW-2 and she stated that about seven months ago, the appellant's mother came to her home and took her to her own home for preparing food. When she went to her home, she was made to do some work and was thereafter given milk, after drinking which she started feeling dizzy. The appellant's mother offered to take her to village Newada to get medicine for her. When she reached a place called 'Dulamdas baba ki madhi', the appellant was standing there along with a jeep. He forcibly got her into the jeep and drove her to Kanpur where he kept her confined in a room. The appellant and another person Khannu committed the misdeed against her. Khannu brought her back by bus near village Newada. She stated that Harish Chandra and Ashwani had witnessed the appellant taking her away and Khannu dropping her back. After this, her father came there and took her home. Thereafter, her mother lodged the F.I.R.

13. During her cross examination, the victim was shown her photograph with the appellant to which she responded that the said photograph was taken by the appellant forcefully, against her wishes.

14. The doctor who had examined the victim was examined as PW-3. In her statement, she stated that as per the X-ray report the victim could be aged between 16 to 18 years since the bones of her right knee were still not fused but in her cross examination, she categorically stated that the age of the victim is below 17 years since there was no eruption of her third molar which naturally comes between the age of 17 to 25 years.

15. Harish Chandra, who is alleged to have witnessed the incident by the victim and the complainant, was examined as PW-5. He stated that he knew the victim whose age was 15 years at the time of the incident. He stated that he had seen the appellant and Khannu taking the victim in a jeep while she was screaming inside the jeep on 29.05.2010 between 6:00-7:00 o'clock. He stated that he tried to stop the vehicle but the appellant did not stop it.

16. The Radiologist was examined as PW-7. He stated that the bones of the right elbow were fused but since the bones of the right knee were still in the process of fusing, therefore, the age of the victim must be between 16 to 17 years and that she must not be 18 years of age.

17. In their examination under Section 313 Cr.P.C, the accused persons denied the allegations and stated that they had been falsely implicated.

18. DW-1 was a neighbor of the victim. She stated that the victim was aged between 21-22 years. In her cross examination, she stated that she could not tell the date of birth of the victim but she had been married for 16 years and the victim was born after her marriage.

19. A certified copy of the Parivar Register was filed which mentions the year of birth of the victim to be 1992, as per which the victim attained majority in the year 2010. The Village Development Officer was examined as DW-2 and he proved the Parivar register. However, he could not state the basis of recording the year of birth of the victim as 1992 in the parivar register.

20. The Trial court acquitted the appellant's mother Smt. Sushila holding that it appeared unlikely that a mother will encourage her son for enticing away a girl and, therefore, it appears that Smt Sushila had no role to play in the incident. As regards the appellant, the Trial Court held that the victim has consistently stated that she was threatened throughout the way when she was being taken away because of which she couldn't reach out to anyone for help and that the appellant had sexual intercourse with her against her wish. She further added that while committing the misdeed too, the appellant had shut her mouth because of which she failed to raise an alarm. The Trial Court has held that the appellant had removed the minor victim from the lawful custody of her guardian with the intention of marrying her after threatening her and he engaged in sexual intercourse with her against her wish, therefore, he is guilty of the offences under Sections 363, Section 366 and Section 376 I.P.C.

21. Section 361, 363 and 366 IPC provide as follows: -

"361 Kidnapping from lawful guardianship- Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

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363. Punishment for kidnapping.?Whoever kidnaps any person from 362[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.

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366. Kidnapping, abducting or inducing woman to compel her marriage, etc.?Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; 368[and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid."

22. A bare perusal of Section 361 read with Section 363 shows that there are two essential ingredients which must be present to constitute an offence under the aforesaid section, one is that the victim must be below the age of 18 years and secondly, she must have been "taken away" or "enticed" by the accused.

23. As far as the age of the victim is concerned to decide the culpability of the accused under Section 363, the radiological examination report for the determination of age shows the age of the victim to be between 16 -18 years. In Alamelu and Ors. vs. State represented by Inspector of Police: (2011) 2 SCC 385, the Hon'ble Supreme Court has discussed the aspect of variation which must be allowed to the benefit of the accused when age is computed as per medical examination/test, in the following words: -

"45. In fixing the age of the girl as below 18 years, the High Court relied solely on the certificate issued by PW 8 Dr. Gunasekaran. However, the High Court failed to notice that in his evidence before the court, PW 8, the x-ray expert had clearly stated in the cross-examination that on the basis of the medical evidence, generally, the age of an individual could be fixed approximately. He had also stated that it is likely that the age may vary from individual to individual. The doctor had also stated that in view of the possible variations in age, the certificate mentioned the possible age between one specific age to another specific age. On the basis of the above, it would not be possible to give a firm opinion that the girl was definitely below 18 years of age.

46. In addition, the High Court failed to consider the expert evidence given by PW 13 Dr. Manimegalaikumar, who had medically examined the victim. In his cross-examination, he had clearly stated that a medical examination would only point out the age approximately with a variation of two years. He had stated that in this case, the age of the girl could be from 17 to 19 years. This margin of error in age has been judicially recognized by this Court in Jaya Mala v. Govt. of J&K [(1982) 2 SCC 538]. In the aforesaid judgment, it is observed as follows:

"9. ? However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side."

47. We are of the opinion, in the facts of this case, the age of the girl could not have been fixed on the basis of the transfer certificate. There was no reliable evidence to vouchsafe the correctness of the date of birth as recorded in the transfer certificate. The expert evidence does not rule out the possibility of the girl being a major. In our opinion, the prosecution has failed to prove that the girl was a minor, at the relevant date."

24. In Jyoti Prakash Rai v. State of Bihar: (2008) 15 SCC 223, the Hon'ble Supreme Court held that: -

"13. A medical report determining the age of a person has never been considered by the courts of law as also by the medical scientists to be conclusive in nature. After a certain age it is difficult to determine the exact age of the person concerned on the basis of ossification test or other tests. This Court in Vishnu v. State of Maharashtra [(2006) 1 SCC 283] opined:

"20. It is urged before us by Mr Lalit that the determination of the age of the prosecutrix by conducting ossification test is scientifically proved and, therefore, the opinion of the doctor that the girl was of 18-19 years of age should be accepted. We are unable to accept this contention for the reasons that the expert medical evidence is not binding on the ocular evidence. The opinion of the Medical Officer is to assist the court as he is not a witness of fact and the evidence given by the Medical Officer is really of an advisory character and not binding on the witness of fact."

In the aforementioned situation, this Court in a number of judgments has held that the age determined by the doctors should be given flexibility of two years on either side."

25. In Rajak Mohammad v. State of H.P.: (2018) 9 SCC 248, it was held that: -

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

10. We will, therefore, have to hold that in the present case the prosecution has not succeeded in proving that the prosecutrix was a minor on the date of the alleged occurrence. If that is so, based on the evidence on record, already referred to, we will further have to hold that the possibility of the prosecutrix being a consenting party cannot be altogether ruled out.

11. We will, therefore, have to conclude that the appellant-accused deserves to be acquitted on the benefit of doubt. We, consequently, set aside the order of the High Court and the conviction recorded as well as the sentence imposed and acquit the appellant-accused of the offences alleged. We further direct that the appellant-accused be released from custody forthwith unless his custody is required in connection with any other case."

26. In the present case also the age of the victim has been determined by radiological examination, which means that there is room for an error of two years on either side of the calculated approximate age. It is settled law that in any case of doubt other things being equal, the benefit of the doubt must go the accused. In the facts at hand, if a variation of two years is allowed to the benefit of the accused then the possibility of the girl being major on the date of the incident cannot be ruled out. Therefore, in absence of any other evidence proving the victim's age, it cannot be conclusively held that she was minor on the relevant date. Accordingly, the first ingredient of Section 363 being unfulfilled, the offence under the said section is not made out against the accused.

27. In Santosh Prasad v. State of Bihar: (2020) 3 SCC 443, the Hon'ble Supreme Court referred to certain precedents in the following paragraphs: -

"5.4.1. In Raju [Raju v. State of M.P., (2008) 15 SCC 133], it is observed and held by this Court in paras 11 and 12 as under: (SCC p. 141)

11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.

12. Reference has been made in Gurmit Singh case[State of Punjab v. Gurmit Singh, (1996) 2 SCC 384] to the amendments in 1983 to Sections 375 and 376 of the Penal Code making the penal provisions relating to rape more stringent, and also to Section 114-A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that Sections 113-A and 113-B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualized as the presumption under Section 114-A is extremely restricted in its applicability. This clearly shows that insofar as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally, her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined.

5.4.2. In Rai Sandeep [Rai Sandeep v.State (NCT of Delhi), (2012) 8 SCC 21], this Court had an occasion to consider who can be said to be a sterling witness. In para 22, it is observed and held as under: (SCC p. 29)

22. In our considered opinion, the sterling witness should be of a very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be a missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a sterling witness whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely oral, documentary, material objects should match the said version in material particulars in order to enable the court trying the offence to rely on core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.

5.4.3.In Krishan Kumar Malik v. State of Haryana[(2011) 7 SCC 130], it is observed and held by this Court that no doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality.

5.5 With the aforesaid decisions in mind it is required to be considered, whether is it safe to convict the accused solely on solitary evidence of the prosecutrix? Whether the evidence of the prosecutrix inspires confidence and appears to be absolutely trustworthy, unblemished and is of sterling quality?"

28. The judgment of the Trial Court mentions that the prosecution had placed before the Trial court a photograph where the accused and the victim were seen together relying on which the Trial Court has held that the appellant had taken away the victim with him and thus committed an offence under Section 363 read with Section 366. Even if the prosecution version were to be believed, at the most, it merely makes out a case of the victim being taken by the accused. In order to make out an offence under Section 366 IPC, it is necessary that the intention of the accused of kidnapped the woman with an intention to marry or to seduce her for an illicit intercourse is proved. In absence of forceful or deceitful means by which the victim was taken away from the lawful custody of her guardian, abduction simpliciter cannot be a ground adequate enough to hold him guilty under Section 366 I.P.C.

29. In Kavita Chandrakant Lakhani v. State of Maharashtra: (2018) 6 SCC 664, the Hon'ble Supreme Court held that: -

"16. In order to constitute the offence of 'abduction', a person must be carried off illegally by force or deception, that is, to compel a person by force or deceitful means to induce to go from one place to another. The intention of the accused is the basis and the gravamen of an offence under this section. The volition, the intention and the conduct of the accused determine the offence; they can only bear upon the intent with which the accused kidnapped or abducted the woman, and the intent of the accused is the vital question for determination in each case. Once the necessary intent of the accused is established, the offence is complete, whether or not the accused succeeded in effecting his purpose, and whether or not the woman consented to the marriage or the illicit intercourse.

17. Apart from this, to constitute an offence under Section 366 IPC, it is necessary for the prosecution to prove that the accused induced the complainant woman or compelled by force to go from any place, that such inducement was by deceitful means, that such abduction took place with the intent that the complainant may be seduced to illicit intercourse and/or that the accused knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her abduction. Mere abduction does not bring an accused under the ambit of this penal section. So far as charge under Section 366 IPC is concerned, mere finding that a woman was abducted is not enough, it must further be proved that the accused abducted the woman with the intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. Unless the prosecution proves that the abduction is for the purposes mentioned in Section 366 IPC, the court cannot hold the accused guilty and punish him under Section 366 IPC."

30. In view of the law laid down above, it is clear that for making out an offence punishable under Section 366 IPC, the prosecution had to establish that the appellant, by deceitful means, induced the victim to leave her home with the intent to compel her to marry any person against her will or to force her into illicit intercourse. The prosecution has failed to prove that the victim was taken or abducted forcefully or by deceit with an intention of marriage or for the purpose of illicit sexual intercourse. Therefore, in my opinion the offence under Section 366 is also not made out against the accused.

31. It is trite law that in a criminal trial, the prosecution must prove the case beyond reasonable doubt in order to fasten the guilt upon an accused. In the present case, the prosecution's version is full of numerous material discrepancies some of which are mentioned in the impugned judgment of the Trial Court itself.

32. The complaint states that the appellant and his mother had forcibly enticed away the informant's daughter. The allegation of involvement of the appellant's mother has not been proved and the trial Court has acquitted her. The complaint stated that the appellant and his mother dropped the victim near 'Panchayat Ghar, Negpur Newada', and Harish Chandra from her village had witnessed the alleged kidnapping of the victim as well as the incident of her being left near 'Panchayat Ghar, Negpur Newada'.

33. In the statement of the informant recorded under Section 161 Cr.P.C., she stated that besides Harish Chandra, Ashwani son of Babu Ram Dwivedi had also witnessed the victim being kidnapped by the appellant and her mother and being dropped back by both of them. The investigating officer recorded the statements of Harish Chandra and Ashwani, both of whom stated that they had seen the appellant taking the victim in a Jeep at about 06 or 07 hours on 29.05.2010 and they had seen the appellant dropping her back

34. In the statement of the victim recorded under Section 161 Cr.P.C., she stated that the appellant's mother came to her house at about 06:00 a.m. on 29.05.2010 and she took her to her house for doing some work. The appellant had already gone away from his home. The appellant's mother gave her a glass of milk, after drinking which she started feeling intoxicated. The appellant's mother took her to 'Dulamdas baba ki madhi', the appellant came there in a jeep. He enticed her away in the jeep to an unknown place. Some neighbors made inquiries from the appellant about the victim and asked him to drop the victim back whereupon the appellant took her to Kannauj by bus. From, Kannauj he brought her on a motorcycle near Panchayat Ghar Newada. She stated that Harish Chandra and Ashwani had witnessed the appellant dropping her back. After this, her mother came there and took her home.

35. In the statement recorded under Section 164 Cr.P.C., the victim stated that the appellant's mother offered her a glass of milk, she took her to village Nevada under pretext of getting her medicine. At some distance the appellant was standing with a Jeep near 'Dulamdas baba ki madhi'. The victim added that the appellant's brother Khannu and Raghuraj @ Raghu pushed her inside the Jeep, whereas her statement recorded under Section 161 Cr.P.C. does not name Khannu and Raghuraj. She alleged that the appellant and Khannu both made physical relations with her, whereas in her first statement she had not levelled allegation of making physical relations. In this statement the victim stated that after 2-3 days the appellant and Khannu dropped her back near the trisection and Khannu informed her mother. Her mother, father, grand mother, Rakesh, Pintu, Rammohan reached there and they took her with them, whrereas in the statement under Section 161 Cr.P.C. she had only stated that her mother had come to take her.

36. An independent witness stated that Khannu and Raghuraj @ Raghu had been implicated falsely and the investigating officer also found that Khannu and Raghuraj @ Raghu had been falsely implicated and a charge-sheet was filed against the appellant and his mother only.

37. PW-1 (the complainant) stated that the appellant's mother had taken the victim away on foot till 'Gulariya Tiraha' and that the appellant abandoned her daughter at the very same place on the third day after the incident. She stated that she or any member from her family had not witnessed the victim being taken away or being dropped at the 'Gulariya Tiraha' and nobody had informed her about this. The victim (PW-2) stated that after drinking milk given by the appellant's mother, she started feeling dizzy and the appellant's mother offered to take her to village Newada under pretext of getting medicine for her, whereas she had not told this thing to the Investigating Officer or the Magistrate. In this statement she stated Harish Chandra and Ashwani had witnessed the appellant taking her away and Khannu dropping her back.

38. During her cross examination, the victim was shown her photograph with the appellant to which she responded that the said photograph was taken by the appellant forcefully, against her wishes. However, the photographs show that the victim was in an affectionate relationship with the appellant and it does not appear that any force was used against her.

39. PW-5 Harish Chandra, who is alleged to have witnessed the incident by the victim and the complainant, stated that he had seen the appellant and Khannu taking the victim in a jeep while she was screaming inside the jeep on 29.05.2010 between 6:00-7:00 o'clock. As has already been stated, the allegations against Khannu have been found to be false. Harish Chandra did not state that he had witnessed the victim being dropped back.

40. It is quite unnatural that when PW-5 saw the jeep passing through a public place and the victim being taken away forcibly, then also he did not raise an alarm or inform this happening to the informant. This unnatural behavior of PW-5 raises a serious doubt against his testimony. Harish Chandra did not state that Ashwani was present there and he had also witnessed the incident. Ashwani has not been produced as a prosecution witness.

41. As per the prosecution's version, the victim went missing on 29.05.2010. Strangely, the complaint was not filed immediately thereafter. The victim came back on 31.05.2010. The written complaint was filed only as late as on 04.06.2010. The informant has stated that out of fear she could not go to lodge the complaint timely but this reason seems to be improbable and therefore unreliable.

42. Regarding the statement of the victim that she was threatened and force was used against her to commit the misdeed upon her, no weapon has been alleged to have been used for threatening and no such thing has been recovered during investigation. The victim has stated that she was left at Negpur Newada on 31.05.2010 by Khannu and both of them travelled by bus during this return journey. The informant has stated that it was the appellant and his mother who had left her on 31.05.2010 near Panchayat Ghar Negpur Newada.

43. The medico-legal examination report of the victim shows no marks of injury or sign of use of force and there is no definitive and confirmatory opinion about sexual assault having been committed upon her. Medical evidence although not conclusive proof of the offence yet when the testimony of the victim contains discrepancies, its non-corroboration by medical evidence further weakens the prosecution case and makes it doubtful.

44. The aforesaid material discrepancies in the testimonies of prosecution witnesses have been ignored by the learned trial Court, which vitiates its findings.

45. In light of the law laid down by the Hon'ble Supreme Court in the aforesaid precedents and taking into consideration the material omissions and contradictions as stated above, I find that the testimony of the victim and her mother do not inspire confidence so as to convict the accused on the basis thereof, without their testimony being corroborated by any other evidence, including medical evidence.

46.The aforesaid discrepancies in the testimonies of witnesses are material, go to the very root of the case and thus have an effect of demolishing the entire prosecution story. Therefore, in absence of sufficient corroborating material, they cannot be relied upon to convict the accused. The aforesaid inconsistencies impeach the credit of the witnesses and make it clear that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Mere probabilities about the happening of the offence cannot be a ground to bring home the guilt of the accused and he cannot be convicted solely on the basis of preponderance of probabilities that the offence "might have" or "is likely" to have been committed. There must be a strong and pressing reasons to believe that the circumstances and the evidence squarely point towards no other possibility than the guilt of the accused in order to uphold a conviction which are certainly absent in the present factual matrix.

47. In view of the foregoing discussion, I am of the considered view that the judgment under challenge in this appeal is unsustainable in law.

48. Accordingly, the appeal is allowed. The impugned judgment and order dated 19.11.2011, passed by the Additional Sessions Judge, Court No. IV, Hardoi in Sessions Trial No. 813 of 2010, arising out of Case Crime No. 578 of 2010, whereby the appellant has been convicted and sentenced for the offences under Sections 363, 366 and 376 is set-aside. The appellant is acquitted of all the charge under Sections 363, 366 and 376 I.P.C.

49. The appellant is directed to comply with the provisions of Section 437-A Cr.P.C. and execute bail bonds with sureties within a period of one week, to appear before the Hon'ble Supreme Court in case any appeal is filed against this order and the Hon'ble Supreme Court issues notice of the appeal and such bail bonds shall be in force for six months.

(Subhash Vidyarthi,J.)

May 7, 2026

-Amit K-