Shambhu vs State Of U.P.
2023 Latest Caselaw 7245 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

					           Judgement reserved : 07.12.2022
 
					          Judgement delivered : 14.03.2023
 
Court No. - 71
 
Case :- CRIMINAL APPEAL No. - 912 of 1986
 
Appellant :- Shambhu
 
Respondent :- State of U.P.
 
Counsel for Appellant :- V.S. Jauhari, Deepak Kumar Srivastava, Raghuvansh Misra
 
Counsel for Respondent :- A.G.A.
 
Hon'ble Samit Gopal, J.

1. The present criminal appeal under Section 374 Cr.P.C. has been filed by Shambhu alias Dinesh Kumar and Jhabboo against the judgement and order dated 13.3.1986 passed in Sessions Trial No. 520 of 1985, State of U.P. vs. Dinesh and another, convicting and sentencing the appellants under Section 366 I.P.C. for 04 years rigorous imprisonment, a fine of Rs.100/-, in default of payment of fine to 03 months rigorous imprisonment, under Section 376 I.P.C. for 05 years rigorous imprisonment, fine of Rs.100/- and in default of payment of fine to further three months rigorous imprisonment. The sentences have been ordered to run concurrently.

2. During pendency of the present appeal the appellant no. 2 / Jhabboo son of Shyam Lal died. His appeal stood abated vide order dated 15.2.2022 passed by a co-ordinate Bench of this Court. The appeal thus survives for the appellant no. 1 / Shambhu alias Dinesh Kumar only.

3. Name of the prosecutrix is not being disclosed and mentioned in the present judgment in the light of directions of the Apex Court in various judgements and Section 228A of the Indian Penal Code. She is, thus, referred to as victim ''X' in the judgement.

4. The prosecution case as per the application dated 27.2.1985 given by Surendra Pal Singh son of More Singh to Superintendent of Police, Shahjahanpur is that he is a resident of village- Jagat, Police Station Jaitipur. His father is not alive. He has a younger sister victim ''X' who is aged about 15 years who was married about 1½ years back to Abhay Raja Singh son of Karan Singh, resident of village Mootha, Police Station Sindhauli, District Shahjahanpur. Around 2 months back she had come from her sasural to them. On 10 January at about 08.00 PM she had gone to the north of ruins in the village along with her mother Smt. Ram Devi to ease themselves. Shambhu @ Dinesh Kumar and Jhabboo caught hold of his sister. She and her mother raised shout on which the first informant, his elder brothers Gajendra and Netrapal reached the place of occurrence on which both the accused started firing from their illegal weapons and threatened that if anyone would come, would be murdered. The first informant and other persons due to fear could not do anything. Sadhu and Jhabboo forcibly took his sister, on which he and his brother told Shyam Lal to return the girl on which he refused. He and his brother then went to the police station on the next day where Shyam Lal was present from before. Police Officer assured him of getting his sister returned and told him that there is no need to get a report lodged. He since then went to the police station many times but his report could not be lodged and neither did his sister get back. His sister has been forcibly kept in the house of Shyam Lal. He had given an application earlier on 19.1.1985 on which the police of Police Station Jaitipur had called his mother on 23.2.1985 and got her thumb impression affixed and gave a copy of it to her from which it transpires that the police has in their own manner reported the matter. The police is in hands and gloves with Sadhu, Jhabboo and Shyam Lal and is not taking action against them and bent upon to close the case. It is prayed that his sister be got returned and action be taken against the said persons and also against the erring police officers. The said application is Ex. Ka-1 to the records. On the basis of the said application a First Information Report was lodged against Shambhu @ Dinesh Kumar, Jhabboo, Shyam Lal as Case Crime No. 52 of 1985, under Sections 363, 366 I.P.C., Police Station Jaitipur, District Shahjahanpur on 28.3.1985 at 11:30 A.M. The chik F.I.R. is Ex. Ka-7 to the records.

5. The victim was subjected to medical examination on 20.6.1985 at 11.20 A.M. by the Medical Officer, Womens Hospital, Saharanpur. The doctor conducting her medical examination has noted physical developments of the victim as follows :-

"Ht. 151Cm, wt. 51 kg, teeth 14/14. Breast well developed. Milk secreting. Pubic and axillary hair present."

While examining her abdomen the doctor found that she was having a pregnancy of 28 weeks and noted therein as follows :-

"Foetus of ut 28 weeks, vertex presentation. Fetal heart sound present."

On internal examination the doctor noted as follows:-

"Cervix soft, ut size 28 weeks. Vertex. Hymen torn

with well healed up edges, no recent injury detected."

Vaginal smear was sent for examination of sperms and she was advised X-ray for ascertainment of her age. Conclusion drawn by the doctor was that she is 28 weeks pregnant. The said report is Ex. Ka-3 to the records.

X-ray examination of the victim was conducted on 21.6.1985 in which the doctor found as follows :-

"All epiphysis seen around Rt. Elbow, wrist and knee joints have fused with their respective shafts."

The said X-ray report is Ex. Ka-2 to the records.

Subsequently a supplementary report dated 16.9.1985 was given by the Medical Officer, Womens Hospital, Saharanpur, opining as follows:-

" She is used to sexual intercourse. No opinion about rape can be given. She is 28 weeks pregnant. Age in my opinion is above 19 years."

The said report is Ex. Ka-4 to the records.

A duplicate copy of the medical examination report of the victim ''X' was also produced in the trial court which was proved as Ex. Ka-5 to the records.

6. The Investigating Officer prepared a site plan on 28.3.1985, the same was proved as Ex. Ka-6 to the records.

7. Investigation concluded and a charge sheet no. 107 of 1985, dated 21.9.1985 was filed against Dinesh Kumar @ Sadhu and Jhabboo under Sections 366, 376 I.P.C.

8. Vide order dated 5.12.1985 passed by the VII Additional Sessions Judge, Shahjahanpur, charges under Sections 363, 366, 376 I.P.C. were framed against the accused-appellants. They pleaded not guilty and claimed to be tried.

9. The trial in the aforesaid matter was taken up which concluded vide the judgement and order dated 13.3.1986 convicted the appellants as aforesaid and acquitted them of charges levelled against them under Section 363 I.P.C.

10. It would be relevant to point out at this stage that in the trial genuineness of certain documents were not disputed by the defence which are as follows :-

(1) X-ray Examination Report dated 21.6.1985, Ex. Ka-2,

(2) Medical Examination Report dated 20.6.1985, Ex. Ka-3,

(3) Supplementary report dated 16.9.1985, Ex. Ka-4,

(4) Duplicate copy of medical examination report dated 20.6.1985, Ex. Ka-5.

Formal proof thus stood dispensed with for the said documents.

11. The trial in the case started in which the prosecution produced and examined its four witnesses being Surendra Pal Singh as P.W.-1 who is the first informant and the brother of the victim ''X', Smt. Ram Devi as P.W.-2 the mother of Surendra Pal Singh/P.W.-1 and also the mother of the victim ''X', the victim ''X' as P.W.-3 and Mahendra Pal Singh Sub-Inspector who was the Investigating Officer of the matter as P.W.-4.

12. The accused Dinesh Kumar @ Shambhu in his statement under Section 313 Cr.P.C. stated of false implication. He stated that victim ''X' was married to Abhay Raj Singh and was aged about 20-22 years. He states that Surendra had come to his grinding mill and wanted his wheat to be grinded but since he did not used to give money, he refused grinding his wheat. He was in joint ownership of the land with Surendra. Surendra used to take his crops also due to which 2-3 times they had quarrel between them.

13. The accused Jhabboo in his statement under Section 313 Cr.P.C. stated that the victim ''X' was aged about 20-22 years and she was married to Abhay Raj Singh. He does not know that she came to her maternal house prior to the incident as he resides in village Saundha which is 7-8 kilometres away from the house of the victim. He states that Dinesh is his younger brother and as such he has been falsely implicated in the matter.

14. In defense the accused produced Ashok Kumar Dhruv, an Advocate, Notary, Shahjahanpur as D.W.-1.

15. P.W.-1 Surendra Pal Singh is the first informant and brother of victim ''X'. He states that the victim ''X' is his sister. She has been married around three years back in village Moora, Police Station Sindhauli, District Shahjahanpur with Abhay Raj Singh. She came from her sasural twice. Around a year back at about 08.00 P.M. his mother Ram Devi and his sister victim ''X' had gone to ease themselves in the north of ruins of village. Sadhu @ Dinesh Kumar and Jhabboo caught hold of her and pulled her. His mother shouted. On hearing shout Netrapal Singh, Gajendra and he himself reached there on which the said two accused persons flashed their country made pistols and took away his sister. When the first informant and others moved forward then Jhabboo made a fire from his weapon, due to fear from fire, they came back. After 10-12 days he asked Sadhu @ Dinesh to send his sister back. On the next day he asked Jhabboo to send his sister back. They had said to send her back but did not send her. On the next day he went to Police Station Jaitipur where Shyam Lal the father of Jhabboo was present since before. He met Inspector who told him that he will get his sister.  Constable clerk did not write his report for sometimes, then Police Inspector told him that he would make him meet his sister on which he did not get a report lodged. Constable clerk made him put his thumb impression on some report. When his sister did not return till 10-12 days, he sent an application to Superintendent of Police, DIG and Chief Minister about the incident. The said application was a typed application which he had dictated. After being typed it was read to him and then he affixed his thumb impression on it. He proved the said application and his thumb impression on it which was marked as Ex. Ka-1 to the records. His sister had come from her sasural around 2-3 months before and was living with them. She was aged about 15 years. Dinesh and Jhabboo used to come to his village. He knew them from before. His sister was recovered after about six months of being taken away. His sister was taken away without her consent forcibly.

In his cross-examination he states that More Singh is his father and Netrapal the witness, is named as Gokaran Singh. Mohar Singh and Gokaran Singh are sons of Mitan Singh. Netrapal the witnesses is his cousin and Gajendra the witness, is his real brother. His village has abadi of about 300-400 people. It was very cold at the time of incident but there was no fog. His sister and mother had gone around 8-10 steps from the house on the north side to ease themselves. He did not receive any injury from fire at the place of occurrence. He does not remember whether he told Dinesh to return his sister or not and whether he had dictated the same in the tahrir or not. He does not remember whether he had written about Jhabboo on the next day to return his sister or not in the tahrir. He states that it is incorrect to say that he requested Jhabboo on the next day of the incident to return his sister. He further states that it is incorrect to state that Police Inspector did not say to send his sister back. His report was not registered at the Police Station even after going there 2-4 times. Accused Dinesh had a wheat grinding mill in the village till sometimes before. He has a house in the village. After 10-12 days of taking away of his sister he got a typed application given. He states that it is incorrect to say that he gave the said application after about 2 months. He has no doors in his house outside. Netrapal has doors and frames in his house. He states that it is incorrect to say that the victim ''X' used to sleep in the house of Netrapal at the time of incident. There is only one license holder in his village. His sister after being recovered, did not go to her sasural neither did they come to take her. She is living in village Udaipur, Police Station Jalalabad where he has a relative. It is incorrect to state that before the incident victim ''X' was left by her in-laws. It is also incorrect to state that he had sold the jewellery of her in-laws due to which her in-laws were angry. He has two sisters, one is married to Shivram in village Atvara. It is incorrect to state that he wanted to get victim ''X' married at a different place by taking money. It is further incorrect to state that he wanted victim ''X' to be married to some other man due to which she went from house on her own. He did not try to lodge a report at any other Police Station except for Jaitipur. It is incorrect to state that he did not know of his sister going away and as such gave an application after two months. It is further incorrect to state that his sister is above 15 years of age and is aged about 20 years. It is further incorrect to state that he is having enmity with Dinesh Kumar @ Sadhu due to which he has implicated the accused persons. It is incorrect to state that he has taken away all the machines of accused Dinesh from his wheat mill. 

16. P.W.-2 Smt. Ram Devi is the mother of victim ''X' and also the mother of P.W.-1 Surendra Pal Singh. She states that victim ''X' was married to Abhay Raj Singh in village Moora, after marriage she went twice to her sasural. She was living in the house since 2-3 months prior to incident. Around a year back at about 8.00 P.M. victim ''X' and she were going to ease themselves on the north of ruins of the village. Dinesh and Jhabboo caught hold of her daughter. She raised a shout and on hearing it Gajendra and Netrapal reached there. No one else came there. She then states that Surendra also came there. The accused caught hold of her daughter. On challenging them, they flashed their country made pistols. Her daughter had shouted but they closed her mouth. As country made pistols were flashed, they retracted. The accused fired a shot. Netrapal, Surendra Pal and Gajendra went back after firing. Her daughter was taken away forcibly. She was recovered after about six months of the incident. She went to the Police Station. She did not get any report lodged. Her thumb impression was got affixed. She is illiterate. She knows accused Dinesh and Jhabboo from since before as they were her neighbours. Her daughter was aged about 16-17 years at the time of incident.

In her cross-examination she states that it is incorrect to state that victim ''X' was aged about more than 20 years at the time of incident. She states that it is incorrect to state that when the victim ''X' was recovered after six months she came and told her another name to them. It is incorrect to state that her in-laws had left her before the incident. Her daughter is living in village Atvara, Police Station Jalalabad, she does not wish to disclose the address. Her son does farming. She states that it is incorrect to state that she sold jewellery of in-laws of her daughter. At the time of incident it was cold. The ruins from where victim ''X' was taken, was a house where village was cut by a river. When the accused caught hold of her daughter she did not try to get her released as she could not gather courage. One of the accused closed her mouth and other took her away. When she raised a shout her son had come and by that time, the accused were going away. It is incorrect to state that no such incident has taken place, as stated by her. It is further incorrect to state that her daughter was being sold to an old man. It is incorrect to state that the old man had come to her house with her son-in-law Shivraj. It is incorrect to state that due to the said reason victim ''X' went from the house all alone. It is incorrect to state that since she was not recovered for two months a false story was cooked up. Further it is incorrect to state that she has sold victim ''X' at another place.

17. P.W.-3 the victim ''X' states that at the time of incident she was living in Jagarpur in her maika. Her father is dead. Surendra Singh and Gajendra Singh are her brothers. She was married prior to incident and had lived around a year in her sasural with her husband before the incident. She had gone along with her mother at about 8.00 P.M. to ease themselves towards river from the house. She was easing herself and her mother was sitting at a distance wherein Dinesh and Jhabboo the accused came who were armed with country made pistols. Dinesh closed her mouth and Jhabboo caught hold of her. She shouted once on which Surendra Singh and Gajendra Singh came. Dinesh fired towards her brothers. Then they took her with them. Due to fear her brothers did not follow her. She was taken to the house of Shyam Lal in Saundha village. She was kept in the house of Shyam Lal in the night. Dinesh and Jhabboo committed rape on her. From Saundha the accused took her to Tilhar at about 10.00 A.M. In Tilhar she was kept in a hotel where both accused were present. She was kept for a night there and both accused established physical relationship with her forcibly. On the next day she was taken to Kamlapur in the afternoon. She stayed there for two days at a place the name of which she does not remember. Forceful sexual relationship was again established. Then she was taken to Nevdiya at about 12.00 P.M. at the house of bua of Jhabbu. She does not remember the name of his bua and her family members. She was kept there for 8 days. There also sexual relationship was established forcefully. Then they moved out from Nevdiya on train to Punjab at 12.00 P.M. and reached Govindgarh where they stayed for one month in a rented room. Both the accused lived with her. From Govindgarh they went to Bhawanigarh and stayed in a rented room for a month. At Govindgarh and Bhawanigarh also sexual relationship was established without her consent by both the accused. From Bhawanigarh they went to Sangroor where they stayed for four months in a rented room. Both the accused lived with her where also they established physical relationship without her consent. From there they came by bus to Katra which is near Tilhar. When bus stopped in Katra, Dinesh and Jhabboo went to drink water and she remained alone in the bus. She saw a police inspector standing there to whom she told that Dinesh and Jhabboo have forcibly taken her away. Both the accused on seeing her talking to the police personnel ran away. The police inspector brought her from bus stop to Jaitipur Police Station and informed her mother about it. Her mother and brother came there. From Police Station  she was sent to Shahjahanpur for medical examination where it was done and her X-ray examination was also done. She was interrogated by the Investigating Officer and her statement was recorded by the Magistrate. She identifies the accused persons in court.

In her cross-examination she states that she had come around 2-3 months back to her maika from sasural. In three months her husband Abhay Raj had come to her maika once. They had sexual relationship in her maika. Her husband had come around 4 days before the incident. She remained with the accused for about 4-5 months. She was medically examined after being apprehended. She was found pregnant. The doctor found her pregnant but did not tell her about its duration. She had told the Magistrate of the accused taking her at about 11.00 P.M. No one tutored her to give statement. The accused had taken her at about 11.00 P.M. She under some confusion had stated the time as about 8.00 P.M. She was taken from Saundha village to Tilhar by the accused at about 10.00 A.M. It is at a distance of about 4-5 kose. Her face was forcibly covered. She was kept at a hotel in Tilhar. There is no other room in the hotel. There were many other persons in the railway coach apart from the accused. The accused did not let her talk in the train. They kept her face covered and were sitting near her. If she would have spoken they would kill her. When she got out from the train in Punjab there was a lot of rush. Her mouth and hand were held by the accused and as such she could not see the police and coolie there. The accused kept her firstly in Bhawanigarh in Punjab in a rented room. House of landlord was some distance away from the place. It was about 2 lathis away. Landlord was living with two ladies and 2-3 children. He used to come to the room to take rent. She then states that the accused used to go to his house to give rent. From amongst the two accused one used to go one day and one used to remain there. She did not make any complaint to landlord or ladies present in the house as she did not get any opportunity. From Bhawanigarh to Govindgarh the accused took her on a bus. There were other passengers also in the bus apart from herself and the accused. Her face was got covered. In Govindgarh she was kept in a rented room. Landlord did not used to live in the house. One person used to go and bring grocery whereas the other used to remain with her. From Govindgarh they took her on a bus to Sangroor. There were many people in the bus apart from herself and the accused. She was kept in a Dharmshala for 2-3 days. The other rooms were vacant. In the room one accused always used to remain present. There was a Manager in the Dharmshala. She did not make any complaint to him as she did not get any opportunity to do so. In the bus the accused used to get her hand and mouth covered. One person used to go and bring ticket and the other used to sit near her. She was not kept in Budaun. The accused took her from Nevdiya to Budaun by train and got her photograph clicked and then brought her back to Nevdiya. She was shown a photograph numbered as Photo Number 19/Kha which she states to be of her with Dinesh and was clicked. She states that in the photograph her hand is on the leg of Dinesh. She states that Dinesh had pulled hand on his leg. She was taken inside a shop in Budaun for getting photograph clicked. After clicking of photograph her face was again covered and she was brought to Nevdiya. She did not make any complaint to Photographer as Dinesh was with her and would murder her if she would make a complaint. From Sangroor the accused brought her to Shahjahanpur once by train. There were many people this time again with them in the train. She went to the District Court Shahjahanpur. In the District Court her hand and face were got covered and her thumb impression was got affixed on a paper. Dinesh was dictating something to a person. She was produced before a lawyer but her face and hand were got covered. She was not let to speak. Her thumb impression was got affixed. There was lot of rush in the District Court. Her face and hand were covered and the accused was near her. There were many police personnels in the crowd. From Shahjahanpur she was again taken to Punjab by train. Apart from them there were many other passengers travelling. At Shahjahanpur Railway Station and Sangroor Railway Station there was lot of crowd. She then stayed for a month in Sangroor in a rented room. Landlord was living around 4 lathi away from room. She does not know as to how many people were living with landlord. One of the accused used to go to give him rent and one used to remain with her. From Sangroor she was brought to Katra. Upto Bareilly she travelled by train and then from Bareilly onwards by bus. There were  lot of other passengers and crowd. There was lot of rush at Bareilly Railway Station. From Bareilly Railway Station they went to bus stand on a tempo. She did not make a complaint to tempo driver as the accused were with her. At the bus stand there were constables roaming around but her face and hands were covered and the accused were with her. Abhay Raj is her husband. He had come to her maika after the incident but she did not go to her sasural later on. Shivraj is her behnoi who lives in Atvara village. A day before the incident Shivraj had come to the village. Her husband had gone and Shivraj was all alone. Her in-laws had gifted her gold and silver ornaments. The ornaments were not sold in maika. She had some ornaments which Dinesh had sold. She does not have door in her room in maika. Netrapal has doors in his house. She is also called by another name in the house. There is one other name of hers. Dinesh had given her a name. It is incorrect to state that Abhay Raj had left her around two years prior to the incident. It is incorrect to state that her behnoi Shivraj had come with an aged person and her mother was trying to sell her to him. It is incorrect to state that on getting disturbed because of the said reason she left her house at about 11.00 P.M. on her own sweet will. It is incorrect to state that she kept on travelling from one place to other place out of her own sweet will. It is incorrect to state that Dinesh and Jhabboo did not catch her forcibly and no such incident has taken place as she stated. Her brother did not go to meet her in Sangroor. It is incorrect to state that her brother with Bajrang Singh and Vinod went to meet her in Nevdiya. It is incorrect to state that the said persons met her and she refused to go back to Punjab with them and she was working as a labour in Punjab. Her mother has come today with her. A private counsel has been engaged by her who was present in court throughout the time her statement was being recorded. Today she has come from the house of Jadunath of Udrapur who is her behnoi. Jadunath has not come. It is incorrect to state that her mother has taken money from Jadunath and has got her marriage fixed with him. It is incorrect to state that Dinesh and Jhabboo have been falsely implicated and she is giving statement against them on being tutored. She gave birth to a baby girl after about one month of being apprehended. She was living at Jyoti village in Mainpuri. She did not send  any letter to the accused from there. Dinesh and Jhabboo are sons of Shyam Lal. Jhabboo is elder and Dinesh is younger. It is incorrect to state that Dinesh and Jhabboo did not do any wrongful act with her.

18. P.W.-4 Mahendra Pal Singh was posted as Circle Officer in January 1985 of Police Station Jaitipur, District Shahjahanpur. He took up the investigation of the matter from 28.3.1985. He recorded statements of witnesses, inspected the place of occurrence and prepared site plan (Ex. Ka-6 to the records). The chik F.I.R. was transcribed by Head Constable Suleman Khan. He identifies his writing and proves the same which is Ex. Ka-7 to the records. The corresponding G.D. was also proved by him, which was in the writing of Head Constable Suleman Khan which is Ex. Ka-8 to the records. Harnandan Singh had also done the investigation of the matter who has concluded it and submitted charge sheet against the accused persons on 21.9.1985. He proves the handwriting of Harnandan Singh.

In his cross-examination he states that he was posted at Police Station Jaitipur from July 1984. He states that it is incorrect to state that Surendra Pal Singh came to police station many times but his report was not lodged as stated by him in the court. He recorded the statement of Sarvesh, Chandrapal, Sompal and other persons. The said witnesses did not state of hearing any such sound of fire. The place of occurrence is bank of river Bahgul. On one side there is abandoned house and the other side there is a river. He did not get any cartridge, pellets and wading etc. at the place of occurrence. He denies the suggestion that he had got a false case lodged in connivance with Surendra Pal Singh.

19. Ashok Kumar Dhruv, Advocate Notary is D.W.-1. He states that he is an Advocate since the year 1966 and is practising in Shahjahanpur. He is working as Notary since 1977. On 10.5.1985 at about 2.50 P.M. the victim ''X' aged about 22 years, resident of village Jagar, Police Station Jaitipur, District Shahjahanpur (U.P.) at present residing in Punjab, came to him with an affidavit which was having a typed matter. After understanding the matter and reading it out to her, he notarized the same. She affixed her thumb impression on it. He affixed his rubber stamp, signed on it and made the necessary note therein. The victim ''X' was identified by Sri Virendra Pal Singh, Advocate. He proved the said affidavit which is Ex. Kha-1 to the records.

In his cross-examination he states that he does not know the victim ''X' personally. He further states that it is incorrect to state that the girl did not come before him and the said fact is incorrect that he did not read out the contents of the affidavit to her and she did not affix her thumb impression on it.

20. The trial court then convicted and sentenced the accused-appellants as stated above.

21. Heard Sri Raghuvansh Misra, learned counsel for the appellant no. 1- Shambhu alias Dinesh Kumar and Sri B.B. Upadhyay, learned Additional Government Advocate for the State of U.P. and perused the records.

22. Learned counsel for the appellant argued that the incident in the present case is alleged to have taken place on 10.1.1985 at about 08.00 P.M. but the first information report was lodged on 28.3.1985 at about 11.30 A.M. which after delay of about 2 months and 18 days for which there is no plausible explanation. It is argued that as per the F.I.R. the victim ''X' went away with the accused persons on 10.1.1985 and was then recovered on 19.6.1985. She remained with the accused persons out of her own sweet will for about six months. It is argued that during the period of six months the victim travelled to various places with the accused persons through various modes being train, bus, tempo and even may be other modes but she did not even try to resist her being forcibly taken by the accused persons. It is argued that the victim ''X' during the period of six months stayed in a hotel, Dharmashala, rented accommodation and house of relative but did not make any effort to resist the act of the accused persons. She states that there had been a lot of crowed at various places and even she could see many policemen and other connected persons but she did not raise any alarm or to make any complaint whatsoever to them. The victim ''X' /prosecutrix had been given false excuses for her not raising any alarm or resisting the act of the accused persons. It is argued that she was previously married woman who was abandoned by her husband and then she came to live in her maika and was being sold to an elderly man by her mother, after which she left her maika in the night on her own sweet will with the appellants. It is argued that even the factum of recovery of the victim ''X' and the accused persons is missing. There is no document in the nature of any recovery, arrest memo or fard recovery or by any other description which would show as to how and when the victim ''X' was recovered and when the accused persons were arrested. It is argued that although the victim is a major married woman, the doctor has opined her age to be above 19 years in the supplementary report and even the fact regarding the victim being a major is not disputed by the prosecution. It is argued that the victim was living with the accused out of her own sweet will as would also appear from Ex. Kha-1 which is her photograph with one of the accused namely Dinesh Kumar and an affidavit, which would go to show that she had even visited the place of photographer for getting her photographs clicked and also the District Court for getting the affidavit notarized but without any objection or resistance. It is argued that the said affidavit of the victim ''X' has been proved by D.W.-1. She was duly identified by an Advocate while getting it notarized. It is argued that the appellant has been falsely implicated in the present case. Learned counsel has further relief upon the judgement rendered by this Court in Criminal Appeal No. 901 of 1984 (Vijai Kumar vs. State of U.P.) decided on 26.7.2022 and has stated that this Court has in almost similar circumstances where the victim had travelled with the accused person to various places, hold that the same was with consent and without any resistance and even she had involved in physical relationship on her own sweet will, the Court had allowed the said appeal and had acquitted the accused therein of the charges levelled against him. It is argued that as such the present appeal deserves to be allowed and the appellant deserves to be acquitted of the charges levelled against him.

23. Per contra, learned Additional Government Advocate for the State of U.P. argued that delay in lodging of the F.I.R. was only because of the reason of inaction on the part of the police as the first informant has stated that he went to the police station several times but his report was not lodged and he was only given an assurance of getting his sister returned. It is argued that the first information report has been lodged before recovery of the victim ''X'. It is argued that the victim was recovered on 19.6.1985 after which her statement was recorded under Section 161 Cr.P.C., her medical examination was done and her statement under Section 164 Cr.P.C. was also recorded in which there are allegations against the appellant. It is argued that with regards to arrest of the accused and recovery of the victim ''X' question no. 8 in the statement recorded under Section 313 Cr.P.C. has been put to the accused which reads that in the evidence it has come that the victim ''X' was being brought from Punjab on a bus to Bajpur and on 19.6.1985 at Katra Bus Stand where bus stopped and the accused persons went to drink water on which the victim getting an opportunity, immediately told of the entire incident to a police person present there after which she was recovered but the accused persons ran away. It is argued that the same goes to show that this a fact against the accused which was put to him in the statement under Section 313 Cr.P.C. and has to be considered. It is argued that the prosecution has proved its case beyond reasonable doubt and as such the present appeal deserves to be dismissed.

24. After having heard learned counsels for the parties and perusing the records, it is evident that as per the prosecution case the victim ''X' was married about 1-1/2 years prior to the incident and around 3-4 months prior to the incident she had come back to her maika. She was aged about 19 years. On 10th January 1985 at about 8.00 P.M. while she had gone with her mother to ease themselves the accused persons caught hold of her and took her away. They also fired a shot to scare the first informant and other persons who had reached there on the shout of his mother. She was then stated to be recovered on 19.6.1985. The First Information Report of the present case was lodged on 28.3.1985 which is after about 02 months and 18 days of the incident. Although the first informant states that he visited the police station several times but he was given only assurance of getting his sister return and as such there was no use of lodging of a report for which he returned back, the said fact does not transpires confidence particularly when as per his own version the accused armed with country made pistols at the time of incident, had fired a shot on an effort to stop them from taking his sister but still he took the same as an easy mode and did not report at the police station immediately. The victim as her own statement was taken to various places being Saundha village, Tilhar, Kamalpur, Nevdiya, Govindgarh (Punjab), Bhawanigarh (Punjab), Sangroor and Katra where she stayed for one night, one night, two days, 8 days, one month in rented accommodation, one month in a rented accommodation and 4 months in a rented accommodation and travelled to the said places by train, bus and tempo and may be other means which was not disclosed by her and in between she stayed in hotel and Dharmshala also and states of the coaches of train, bus, bus stand, railway station being crowded and also having many police personnels also around there but still she did not even try to raise any alarm or resisted her forcibly being taken by the accused persons against her wish. She remained for about 6 months with the accused persons at the said places. The statement of the victim including cross-examination would go to show that there were no serious and actual efforts by her to raise any alarm whatsoever. Ex. Kha-1 being the photograph of the victim which has been proved by her goes to show that she even went to a photo studio for getting a photograph clicked. There is an affidavit on which she has put her thumb impression which is duly notarized by Public Notary which was put to her for which she states to have visited the district court also for the same. Even there she did not make any effort to raise any alarm or show any fear or resistance of any act of the accused persons. The said affidavit was sworn by a Public Notary who has been produced and examined as D.W.-1 before the trial court. The genuineity of the said affidavit is not under doubt. Even the photograph as clicked is not in any manner under doubt. This Court comes to a conclusion that for six months the victim ''X' remained with the accused appellant out of her own sweet will, travelled with them to various places without any resistance or any effort to raise any hue and cry. Even further there is nothing on record to show as to how and where she was apprehended except for the bald statement of the victim ''X' herself. The prosecution did not make any effort to prepare any document regarding the same which would ex-facie lead to a conclusion that the manner as suggested by the prosecution for her being recovered is corroborated and thus looking to the conduct of the victim as stated above since last six months, the same would also not transpire confidence.

25. In view of the same, the Court comes to a conclusion that implication of the appellant in the present case is not based on cogent and

reliable evidence on record.

26. The appeal succeeds and is allowed. The judgement and order dated 13.3.1986 passed in Sessions Trial No. 520 of 1985, State of U.P. vs. Dinesh and another, is hereby set aside. The appellant no. 1- Shambhu alias Dinesh Kumar is acquitted of the charges levelled against him.

27. The appellant is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged.

(Samit Gopal, J.)

Dated :- 14.03.2023

Naresh