Suresh @ Babai vs State Of U.P.

1. Heard Sri Ashok Kumar Verma, the learned counsel for the appellant, Ms. Nikita Mishra, the learned A.G.A. appearing on behalf of the State and perused the records.

2. The appellant-Suresh @ Babai is present in person and he states that he has furnished bail bond and sureties before the Chief Judicial Magistrate concerned in compliance of this court's order dated 01.04.2026.

3. By means of the instant appeal filed under Section 374(2) Cr.P.C. the appellant has challenged the judgment and order dated 15.12.2012, passed by the learned IV Additional Session Judge, Ex-Cadre, Unnao in Session Trial No.312 of 2002, arising out of Case Crime No.93 of 2002, under Sections 363, 366, 368 and 376 I.P.C. Police Station Bara Sagwar, District Unnao, whereby although the appellant has been acquitted of the charges for the offences under Sections 363, 368 and 376 I.P.C., he has been convicted for the offence under Section 366 IPC and has been sentenced to undergo rigorous imprisonment for five years and pay Rs.5,000/- as fine.

4. Briefly stated, the facts of the case are that the informant had given a written complaint to the police on 08.04.2002 stating that he and his wife had gone to reap the crop of wheat in the field of Ramesh at 5:00 a.m. on 04.04.2002, leaving his daughter aged 17 years and son aged 10 years behind. He returned at 10.00 a.m. and found his daughter missing. Rajpal, son of Gokaran, and Raj Bahadur, son of Shiv Mangal told him that the appellant and Balram Singh, son of Digvijay had taken away the informant's daughter towards Tedha at about 6.00 a.m. while both of them were talking to her. The complainant stated that he was searching for his daughter and when he could not find her, he lodged the FIR on 08.04.2002.

5. On the basis of the aforesaid complaint, a first information report was registered at 14:40 hours on 08.04.2002 against the appellant and Balram Singh for offences under Sections 363, 366 IPC. The victim was recovered on 22.06.2002 along with the appellant. During investigation, the allegations against Balram Singh could not be established and a charge sheet was submitted only against the appellant on 08.07.2002 for the offences under Sections 363, 366, 368 and 376 IPC.

6. The victim was examined as PW-1. She stated that she failed the high school examination, her date of birth recorded in the school was 10.07.1987. She had gone to attend the call of nature at about 4-5 a.m. on 04.04.2002. While she was returning, the appellant met her on the way, he shut her mouth, threatened her with a knife and put some intoxicating substance in her mouth, due to which she became unconscious. When she regained consciousness, she was locked in a room. The appellant kept her in the room for 2 months, during which period he kept on raping her repetitively. Whenever she resisted, he used to beat her with a stick, due to which she suffered injury in her leg. During this period the appellant kept her in rooms constructed in groves at several places. After 2 months, the appellant brought her to Lal Kuan petrol pump. While he was taking her away to some other place, police and her parents reached there and caught them.

7. During cross examination, the victim stated that the distance between her village and Village Tedha is about 2.5-3 kms. She stated that no other person had committed any misdeed against her. The appellant wanted to marry her forcibly, but she did not want to marry him.

8. Numerous letters were produced by the appellant in his defence all of which mentioned the name of the victim as the author. All the letters are addressed to the appellant and all of them contained expressions of the love of the victim towards the appellant. A greeting card was also produced by the appellant in defense. The victim denied that the letters were in her handwriting. She stated that she had not written any letter to the accused, she can read and write English but, she has no knowledge of the English language. She merely recognizes English alphabets. She stated that she did not have any communication with the accused prior to the date of the incident.

9. Although the letters were sent to the Forensic Science Laboratory, Mahanagar, Lucknow for expert opinion regarding the handwriting, the forensic science laboratory demanded several other admitted hand writings for giving an expert opinion. It appears that the handwriting samples as demanded by the forensic science laboratory were not given.

10. The informant was examined as PW-2 and he reiterated the F.I.R. version. During cross-examination, he stated that he kept on looking for his daughter for about four days. Two villagers Rajpal and Raj Bahadur had told him that they had seen the appellant and Balram Singh, son of Digvijay Singh talking to his daughter at about 6.00 a.m. and taking her towards Village Terha. He stated that he did not know whether his daughter had gone away herself.

11. The doctor who had conducted the medico-legal examination of the victim was examined as PW-3. She stated that there was a scratch mark of size 5cm X 0.5cm towards the front of the left leg, below the knee. The internal examination revealed that the hymen was old, torn and healed. The vagina admitted one finger easily. The vaginal swab slide was sent for pathological examination. The pathological examination report did not reveal the presence of living or dead spermatozoa. As per the radiological examination report, the joints of the elbow and wrist were fused. The age of the victim was about 18 years. The victim was accustomed of having sexual intercourse. The doctor stated that she could not give any definitive opinion as to whether rape had been committed against her. As per the radiological examination report, the age of the victim could be more than 18 years and not less than 18 years.

12. During cross-examination, PW-3 stated that it is more probable that at the time of the incident, the age of the victim was about 19-20 years.

13. The radiologist was examined as PW-5 and he stated that the epiphysis of the joints of wrist, elbow and knees were fused. He stated that as per the X-ray examination report, the age of the victim could be 18 years or more.

14. As the trial court has acquitted the appellant for the offences under Sections 363, 368 and 376 IPC, this court has only to examine whether offence under Section 366 of IPC is made out. 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.?

15. The word ?abduction? is defined in Section 362 of the IPC, which reads 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.?

16. The trial court has held that the victim had made physical relations for two months and three weeks with the appellant with her consent. The trial court has also held that the victim had gone with the appellant because of a loving relationship. The doctors have categorically opined that the age of the victim was 18 years or more, and her age could be even 19 or 20 years, and not less than 18 years, but the trial court disbelieved the medical evidence and gave preference to the statement of the victim and her father, although they did not produce any birth certificate. The educational certificate produced by the prosecution was the mark-sheet of Class IX, was not a public document. Mark-sheet of Class IX cannot be given precedence over categorical medical opinions of two experts. In these circumstances, this court is of the view that the trial court has erred in disbelieving the medical report regarding the age of the victim and I am of the considered view that the age of the victim was above 18 years on the date of the incident.

17. As the trial court has already held that the victim had gone with the appellant under a loving relationship and she kept on making physical relations with him repetitively for a period of 2 months and 3 weeks, the prosecution has failed to prove that the appellant had, by force or by any deceitful means, induced the victim to go with her. The victim has not leveled any allegation that the appellant had made any deceitful commitments and he did not fulfill the same. She stated that the appellant had made her eat some intoxicating toffee-like substance, whereafter she fell unconscious. It is highly improbable that the appellant physically carried an unconscious victim on foot. This statement of the victim is belied by the statement of her father that two persons, Rajpal son of Gokaran and Rajbahadur son of Shivmangal had seen the appellant taking away the victim with them and they were talking to her. This discrepancy is a serious discrepancy, which raises a serious doubt against the correctness of the statement of the victim.

18. Although it is true that a conviction can be based on the sole testimony of the victim, but it can only be done where her testimony is of sterling quality. When the statement of the victim suffers from serious discrepancies and it is not corroborated by the other evidence rather, it is contradicted by the other evidence led by the prosecution itself, the testimony of the victim does not inspire confidence and a conviction cannot be based solely on it.

19. As per the informant, Rajpal son of Gokaran and Rajbahadur son of Shivmangal had told him that they had seen the appellant and Balram Singh taking away the victim, but this statement has also not been found to be correct as the allegations regarding involvement of Balram Singh in commission of the offence could not be established and no charge sheet was filed against him.

20. Rajpal son of Gokaran and Rajbahadur son of Shivmangal, the eye-witnesses who had allegedly seen the appellant taking the victim away with him, have not been produced as prosecution witnesses.

21. Section 114 of the Evidence Act provides that the court may presume the existence of any fact which it thinks likely to have happen, regarded being had to the common course of natural events, human conduct, public and private business in relation to the facts of the peculiar case. Illustration (g) appended to Section 114 provides that the court may presume that evidence which could be and is not produced would, if produced, be unfavourable to a person who withholds it.

22. In Davinder Singh v. State of Punjab: (2023) 19 SCC 229, the Hon?ble Supreme Court referred to an earlier precedent on this point in the following passage: -

?9. On the issue of non-examination of material witness, we wish to place reliance on the decision of this Court in Takhaji Hiraji v. Thakore Kubersing Chamansing [(2001) 6 SCC 145]:

?19. So is the case with the criticism levelled by the High Court on the prosecution case finding fault therewith for non-examination of independent witnesses. It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself ? whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses.?

23. Withholding Rajpal son of Gokaran and Rajbahadur son of Shivmangal, the eye-witnesses who had allegedly seen the appellant taking the victim away with him, from examination in the witness box raises a presumption that their evidence would have been detrimental to the prosecution case.

24. Keeping in view of foregoing discussions, I am of the view that the prosecution has failed to establish that the applicant had induced the victim to go with him by use of force or by deceitful means and therefore the offence of abduction is not made out. When the offence of abduction is not made out, the offence of abduction to compel marriage of the victim is also not made out.

25. The trial Court has convicted the appellant for the offence under Section 366 IPC without a proper scrutiny of the evidence,which vitiates the judgment of the trial Court.

26. In view of the foregoing discussions, the criminal appeal is allowed. The impugned order dated 15.12.2012, passed by the learned IV Additional Sessions Judge, Ex-Cadre, Unnao in Sessions Trial No.312 of 2002, arising out of Case Crime No.93 of 2002, under Sections 363, 366, 368 and 376 I.P.C. Police Station Bara Sagwar, District Unnao convicting the appellant under Section 366 I.P.C. is hereby set aside and the appellant is acquitted of the charges levelled against him.

27. The accused-appellant is on bail. His personal bail and the sureties shall hold good under Section 437-A Cr.P.C. for a period of six months for his appearance before the Hon?ble Supreme Court in case an appeal is filed against this judgment.

(Subhash Vidyarthi,J.)

May 7, 2026

Ram.