Ashutosh Mishra vs State Of U.P.

1. Heard Shri Anurag Srivastava Kaalesh, Advocate has filed his vakalatnama on behalf of the appellant, which is taken on record.

2. The appellant Ashutosh Mishra is present in person and he has furnished bail bonds and sureties in furtherance of the order dated 01.04.2026 passed by this Court.

3. The learned counsel for the appellant prays for adjournment of the case saying that he does not have his paper book. As the matter is pending since the year 2012 and the appellant is present in person, this Court does not find it appropriate to adjourn the hearing and proceeds to examine the merits of the case after hearing submissions of Shri Mohd. Asif Khan, the learned AGA-I for the State of U.P.

4. By means of the instant appeal, the appellant has challenged the judgment and order dated 15.12.2012 passed by the learned Session Judge, Raebareli in Session Trial No.599 of 2009 arising out of Case Crime No.476 of 2009 at Police Station- Salon, District- Raebareli, whereby the appellant has been convicted for the offences under Sections 366 and 376 IPC and he has been and sentenced to undergo three years' rigorous imprisonment and pay Rs.10,000/- as fine for the offence under Section 366 IPC and five years' rigorous imprisonment and a fine of Rs.25,000/- for the offence under Section 376 IPC.

5. Briefly stated, facts of the case are that the informant gave a written complaint in Police Station Salon, Raebareli at about 06:15 p.m. on 24.05.2009 stating that her daughter aged about 17 years had gone to the market at about 03:00 p.m. on 16.05.2009. While she was returning home, the appellant enticed her away under allurement of marrying her and he kept on committing the misdeed with her. She was searching for her daughter and found her with the appellant in a grove near Sai river on 24.05.2009 while the informant was accompanied by her relatives Phoolchand son of Mangal, Santlal son of Bhagwati Prasad Yadav (younger brother of the informant's husband) and the informant's son Shatrughna Prasad Yadav.

6. After investigation, a charge sheet was submitted against the appellant for the offences under Sections 366, 376, 368 IPC.

7. In the statement of the informant PW-1, she stated that her daughter was aged about 16 years at the time of the incident. The appellant had taken her daughter away. Her daughter was found after one week. She told that while she was returning from the market, the appellant forcibly made her sit on his motorcycle and took her away. The appellant threatened and forced her to make physical relations. She stayed with the appellant for 7 days during which period he repetitively committed the misdeed with the informant's daughter. After she found her daughter with the appellant, she sent her to the house of her husband's sister at Subedar ka purwa and brought the appellant to the police station.

8. The victim was examined as PW-2. She stated that at the time of the incident i.e. 16.05.2009, she was aged 17 years. The appellant had threatened her and forced her to sit on his motorcycle. He had taken her to Pratapgarh where he kept her in a small room for 6 - 7 days and raped her. On 20.05.2009, the appellant had taken her to an Advocate and married her against her wishes. Her family members found her in a grove besides Sai river on 24.05.2009. After the incident, she was sent to the house of her paternal aunt (bua), while the appellant was taken to the police station. After some time, her brothers came to her bua's house along with a police constable and took her to the police station. She further stated that as per her High School Certificate, her date of birth is 10.09.1989.

9. During cross-examination, the victim stated that the appellant was not carrying any weapon. He had taken her to Pratapgarh on a motorcycle. He had not tied her to the motorcycle. She further stated that there was no bathroom in the room where she stayed and that she did not go out for latrine or for taking bath. According to her she remained without food for five days and used to drink water on the way.

10. The appellant had filed two photographs of himself along with the victim. The victim stated that the photographs were clicked in the year 2009 in Kanhaiya Bazar while she was studying in B.A. first year. She further stated that the appellant used to take her to the market but she never complained to anyone. The appellant had taken her to a studio and got the photographs clicked. She also stated that she had not married the appellant through Court marriage out of her own free will.

11. She further stated that she had suffered internal injuries due to forcible sexual-intercourse committed upon her and she had informed the doctor about the same. The incident had resulted in bleeding and her clothes had blood stains, however, she had not shown the clothes worn by her to the Investigating Officer.

12. The doctor who had medically examined the victim, was examined as PW-4. She stated that there was no mark of injury on the victim's body, including on her private parts. The hymen was old torn. There was no redness, swelling or bleeding. The vagina was normal and had no injury marks. As per the pathological examination report of the vaginal swab, no spermatozoa was present. All the joints of right writ, right elbow and right knee were fused. The doctor stated that no definite opinion could be given regarding commission of rape.

13. In the statement recorded under Section 313 Cr.P.C., the appellant denied all the charges and stated that at the time of the incident, the victim was not less than 20 years of age. He further stated that he had not abducted the victim or committed any offence and that he had been falsely implicated in the case.

14. The victim had gone missing on 16.05.2009, she was recovered on 24.05.2009 and thereafter the FIR was lodged. The trial Court found that there was no unreasonable delay in lodging the FIR.

15. The defence counsel had contended that the statement of the victim was not recorded under Section 164 Cr.P.C., which indicates that the victim was not willing to make a statement against the appellant but subsequently she has given a false statement under pressure from her family members. The trial Court rejected this submission and held that it lies within the discretion of the Investigating Officer to get the statement of the victim recorded under Section 164 Cr.P.C. In case the Investigating Officer had not contemplated that the victim would resile from her statement, he could dispense with recording of statement under Section 164 Cr.P.C. and recording of statement under Section 164 Cr.P.C. is not essential.

16. It was next contended by the defense counsel that the victim knew the appellant from the time when she was studying in Intermediate. According to the material available on record, the victim was about 20 years of age at the time of incident. She had herself called the appellant at the place on incident and went away with her. The trial Court observed that in the FIR, the age of the victim was mentioned as 16 years, in her statement she told her age to be 17 years whereas as per the medico-legal examination report, her age was opined to be around 20 years. As per the High School Examination Certificate, her date of birth was recorded as 10.09.1989. However, the victim stated that as she had never been admitted to school, her grandfather had mentioned her false date of birth by increasing her age.

17. The Court disbelieved this statement of the victim and held that at the time of the incident, the victim was more than 18 years of age and she could possibly have been around 20 years old.

18. The trial Court held that the victim herself had stated that the appellant had not induced her to go with him by any deceitful means and he had merely threatened her. When the appellant had threatened her, he was not carrying a pistol. The appellant had taken her on a motorcycle and he had not tied her. She had not shown the blood stained clothes to the Investigating Officer. The appellant used to pass by her house. She knew him since before. She went to markets and several public places with him. In case she was not a consenting party, she could have raised an alarm and could have made and attempt to escape. The victim did not do so which shows that she has gone with the appellant out of her own free will and the appellant had not threatened her or induced her by deceitful means.

19. The trial Court further held that the Investigating Officer ought to have collected the victim's clothes for forensic examination but this defect in investigation would not have any effect on the prosecution case where the testimony of the victim inspires confidence. The victim's father has died. Her family consisted of widowed mother and younger siblings. In these circumstances, the victim may be threatened by the appellant.

20. The trial Court held that the victim had stated that the victim had suffered injury in her private parts during intercourse and blood had come out. The absence of injury in medico-legal examination report has been discarded by the trial Court as the incident commenced on 16.05.2009 and the medical examination was conducted on 25.05.2009. By this time, the injury might have healed. The trial Court concluded that the victim was aged 18-20 years at the time of incident. The appellant had kept in her a room although he used to take out for excursions and had taken her to a studio and shop, the victim did not complain about it to any person because of fear. The trial Court held that the prosecution could not establish the offences under Section 363, 368 IPC but the charges for offences under Sections 366, 376 IPC were proved beyond reasonable doubt.

21. The trial Court held that as per the statement of the victim recorded by the Investigating Officer, she stated that the appellant used to pass-by the passage in front of her house and he used to see her. The victim used to get involved in household chores in front of her house and thereafter, the appellant started talking to her. He used to meet her on the way while she was going to market and developed acquaintance. While she was returning from the market on 16.05.2009, the appellant met her on the way and by inducing to marry her, took her with him on a motorcycle. He kept her at the house of her acquaintances. The victim objected that this is not the manner of marrying. The appellant stated that he was making arrangement of money and thereafter he will marry her in a temple as well as in Court. On 20.05.2009, the appellant took her to Pratapgarh Court, prepared some document through an Advocate and submitted the same in the Court. Thereafter, both of them were caught by the mother and other family members.

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

23. The word 'abduction' is defined in Section 362 of the IPC as follows: - "362. Abduction.-Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person."

24. The trial Court has ignored the fact that in the initial statement recorded by the Investigating Officer, the victim had not alleged use of force or threat extended by the appellant and she had merely stated that the appellant had induced her under allurement of marrying her. She further stated that when the appellant kept her in the house of some acquaintance, she had objected that this was not a manner to marry a girl whereupon the appellant had taken her to Pratapgarh to marry her. The statement given in the Court was contrary to the previous statement as in the subsequent statement, she alleged threats extended by the appellant. In these circumstances, non-recording of statement under Section 164 Cr.P.C. assumes significance and the reasoning assigned by the trial Court that it lied in the discretion of the Investigating Officer and as he was confident that the victim could not alter her statement, he did not deem it proper to get the statement recorded under Section 164 Cr.P.C., becomes relevant as the statement of the victim recorded under Section 161 Cr.P.C. and one given in her examination before the trial Court, are self-contradictory.

25. The allegations of the victim regarding use of force and injuries suffered by her are not supported by any material. The victim used to roam around on the motorcycle of the appellant. Both of them used to go to the market to shops and to photo-studio and to court, but the victim did not raise her voice against any misdeed committed by the appellant. Till the appellant and the victim were found, her family members did not raise their voice and did not lodge any complaint. It was only after the victim's family members found her that she has levelled the allegation of use of force against the appellant. It shows that the victim, who was major on the date of the incident, was in a consensual relationship with the appellant.

26. In these circumstances, when the victim has given self-contradictory statements and her testimony which is not corroborated by any other evidence, does not inspire confidence and conviction cannot be based on such a testimony. The prosecution has failed to prove the case set up against the appellant.

27. Accordingly, the present appeal is allowed. The judgment and order dated 15.12.2012 passed by the learned Sessions Judge, Raebareli in Session Trial No.599 of 2009 arising out of Case Crime No.476 of 2009 at Police Station- Salon, District- Raebareli is hereby set aside.

28. The personal bond furnished by the appellant before the Chief Judicial Magistrate concerned in compliance of the order dated 01.04.2026 passed by this Court, shall hold good for appearance of the appellant 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, as per the provision contained in Section 437-A Cr.P.C.

(Subhash Vidyarthi,J.)

May 7, 2026

-Amit K-