Rajendra Prasad @ Gappu vs State Of U.P.
2023 Latest Caselaw 7414 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved on 07.02.2023
 
Delivered on 15.03.2023
 
Court No. - 29
 

 
Case :- CRIMINAL APPEAL No. - 1013 of 2000
 
Appellant :- Rajendra Prasad @ Gappu
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Ramakant Jaiswal,Amicus Curiae,Gopesh Tripathi
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Mrs. Renu Agarwal,J.

1. Heard Sri Gopesh Tripathi, learned Amicus Curiae for the appellant and Sri Veer Raghav Chaubey, learned Additional Government Advocate for the State.

2. The instant Criminal Appeal under Section 374 (2) Cr.P.C. has been filed against the judgment and order dated 10.11.2000 passed by the Additional Sessions Judge, Lucknow in Sessions Trial No.460 of 1996 arising out of Case Crime No.234 of 1992, under Sections 363, 366, 376 I.P.C., Police Station Gosaiganj, District Lucknow, whereby the accused-appellant, Rajendra Prasad @ Gappu has been sentenced and convicted under Section 363 I.P.C. to undergo two years' rigorous imprisonment alongwith fine of Rs.1,000/-, under Section 366 I.P.C. to undergo two years' rigorous imprisonment alongwith fine of Rs.1,000/- and under Section 376 I.P.C. to undergo seven years' rigorous imprisonment alongwith fine of Rs.5,000/-. It was further directed in the impugned judgment that in default of payment of fine, the appellant has to undergo six months' additional imprisonment under Section 363 I.P.C., to undergo six months' additional imprisonment under Section 363 I.P.C. and three years' additional imprisonment under Section 376 I.P.C.

3. In the guidelines of Hon'ble Supreme Court, the name of victim is not disclosed. Her name is refereed as letter ''X'.

4. The brief facts of the case are that on 05.05.1992 at about 11:00 P.M., accused Rajendra Prasad @ Gappu entered the house of complainant and enticed away her minor daughter, whose date of birth is 20.08.1980. The incident was witnessed by Vinod Kumar, Motilal, Ram Dashrath and Satrughan. When the accused Rajendra Prasad @ Gappu and the victim were inside the house, these witnesses went inside the house of the complainant. At the time of incident, the complainant had gone to Narainpur to attend a marriage. The complainant searched his daughter but she could not be found. The complainant came to know that Rajendra Prasad @ Gappu had kidnapped his daughter.

5. On the basis of written report, First Information Report under Sections 363 and 366 I.P.C. was lodged in the Police Station Gosaiganj, District Lucknow. Chik report was also prepared endorsing G.D. No.27 at about 15:40 hours on 11.05.1992.

6. The investigation was conducted by the Sub Inspector R.D. Singh, who recorded the statement of complainant and victim, visited place of occurrence and prepared site plan thereof. During the investigation, victim was recovered from Kaiserbagh Bus Stand. The Investigating Officer prepared the recovery memo, Ex. Ka-2 and site plan of the place of recovery, Ex. Ka-6 and handed over the victim to her parents. The victim was medically examined by lady doctor, who prepared medical report, Ex. Ka-4 and she was also medically examined for the purpose of determination of age. The X-ray report, Ex. Ka-3 and X-ray plate, material Ex.-1 is on record. It was opined by doctor that the victim was in between 16 to 17 years of age. After the conclusion of investigation, the charge sheet was submitted before the court of competent jurisdiction.

7. The case was committed to the court of sessions where accused appeared and charges were framed against him under Sections 363, 366 and 376 I.P.C. The accused/appellant denied from the charges levelled against him and claimed to be tried.

8. In order to prove its case, the prosecution has presented following witnesses.

"(i) P.W.-1, Munna Lal (Complainant)

(ii) P.W.-2, the Victim.

(iii) P.W.-3, Dr. J.P. Gupta, Radiologist.

(iv) P.W.-4, Dr. Mridula Sharma

(v) P.W.-5, Sub Inspector R.D. Singh.

(vi) P.W.-6, Ram Sumiran.

(vii) P.W.-7, Retired Sub Inspector Dev Nath Dubey."

9. Besides oral evidence, the following documentary evidences were also prepared and proved in the court.

"(i) Ex. Ka-1, Written Report.

(ii) Ex. Ka-2, Recovery Memo.

(iii) Ex. Ka-3, X-ray report.

(iv) Ex. Ka-4, Medical report.

(v) Ex. Ka-5, Site Plan.

(vi) Ex. Ka-6, Site Plan of recovery.

(vii) Ex. Ka-7, Charge sheet.

(viii) Ex. Ka-8, Chik report.

(ix) Ex. Ka-9, Carbon copy of G.D. dated 11.05.1992."

10. The learned trial court heard Government Counsel and learned counsel for the accused and after perusing the record, reached to the conclusion that the victim was minor on the date of incident and the consent of minor has no effect and the accused enticed the victim of minor age for the purpose of marriage and raped her. The trial court also reached to the conclusion that accused was 25 years' of age and found the accused guilty of the alleged offence. Aggrieved with judgment and order dated 10.11.2000, the present appeal is preferred.

11. It is submitted by learned counsel for the appellant that judgment and order passed by the learned trial court is erroneous and against the facts of the case. The victim was 18 years' old at the time of incident and the first information report was lodged with inordinate delay. No eye witness was produced in the court and if the prosecution story may be assumed to be true, the consent of prosecutrix ought to be inferred from the material available on record. Therefore, it is prayed that the conviction and sentence fixed against the appellant may be set aside.

12. Per contra, learned A.G.A. submitted that according to the first information report, the victim was minor and her date of birth was mentioned in the F.I.R. itself as 20.08.1980 and the incident happened on 05.05.1992. In the light of above facts, the victim was minor and her consent cannot be presumed. The judgment and order of the trial court is in consonance with the evidence produced in the trial court hence the appeal is liable to be rejected.

13. To recapitulate the evidence of the prosecution, P.W.-1 Munna Lal stated that he went to Narainpur in a marriage of his relative alongwith his wife Saraswati Debi and his daughter i.e. the victim and his son i.e. Brij Mohan were at home. His daughter was aged about 12 years' old at the time of incident. Dinesh Chandra Sharma went to inform him about the incident in Narainpur. When he came, his daughter was missing from his house and co-villagers, Vinod Kumar, Motilal, Ram Dashrath and Satrughan had informed him that they had seen the accused, Rajendra Prasad @ Gappu entering his home and they locked the door of kothari where there was accused with the victim. The accused, Rajendra Prasad @ Gappu removed one part of the door and took the victim alongwith him from the back side. It is also deposed by the complainant that the victim had taken Rs.3,000/- and jewellery from the house. He searched his daughter in the village but could not ascertain her whereabout. This witness proved written report dated 11.05.1992 and stated on oath that he mentioned the date of birth of his daughter as 20.08.1980. P.W.-1 proved recovery memo of his daughter and identified his signature on it.

14. P.W.-2, the victim deposed that on the date of incident, her parents were gone to attend a marriage. Her brother went to the shop for sleeping. The accused, Rajendra Prasad @ Gappu and Urmila came to her house at about 10:00 P.M. to 11:00 P.M. and knocked the door. The victim had a small shop in her house. The accused Rajendra knocked the door and Urmila was also with him. On hearing the voice of Urmila, she opened the door. The accused Rajendra asked for pukar (pan masala). On this, she replied that shop is locked and she could not give pukar (pan masala) at this time. Urmila said that they are standing outside, she can give pan masala to them. When she entered the kothari (small room) from window, the accused also entered in the kothari (small room) and the Urmila shut the door from outside. On hearing hue and cry, the neighbors gathered there and shut the door from outside. The accused, Rajendra Prasad @ Gappu threatened the victim to kill by knife, if she does not accompany him and carried the victim with him. The accused, Rajendra Prasad @ Gappu carried her to Lucknow then Faizabad and kept her in a house for one month. The old land lady provided her food and clothes. The accused committed rape upon her. When she was coming to Lucknow with accused on 10.06.1992, she saw Ram Autar and Puranmasi, who were known to her, she raised alarm then the police personnel arrested the accused at the distance of 10 steps. Recovery memo was prepared and she affixed her thumb impression on it.

15. P.W.-3, Dr. J.P. Gupta who performed X-ray and prepared X-ray report and X-ray plate. Both the papers were proved by him in the court and he determined the age of the victim in between 16 to 17 years.

16. P.W.-4 Dr. Mridula Sharma deposed that she examined the victim on 11.06.1992 at about 12:15 P.M., who was brought by C.P. 2259 Siddheswari Tiwari. No external injuries were found on the person of the victim. According to pathological and radiological report, no opinion about rape could be given. P.W.-4 also proved medical report as Ex. Ka-4.

17. P.W.-5, Sub Inspector R.D. Singh appeared in the court and proved site plan, Ex. Ka-5, recovery memo, Ex. Ka-2, site plan of recovery, Ex. Ka-6 and charge sheet, Ex. Ka-7. He also stated that he produced the victim for recording of the statement under Section 164 Cr.P.C.

18. P.W.-6, Ram Sumiran, the scriber of first information report, who reduced in writing which was stated by the complainant Munna Lal, proved F.I.R. in court that it is his hand writing.

19. P.W.-7, Sub Inspector Dev Nath Dubey is a formal witness, who proved the chik report no.143 dated 11.05.1992, Ex. Ka-8 and G.D., Ex. Ka-9.

20. After the conclusion of prosecution evidence, the statement of accused was recorded under Section 313 Cr.P.C. wherein accused stated that he has been falsely implicated in the case. He had a dispute with complainant Munna on account of reaping water chestnut (singhada) and, therefore, he is falsely roped in the case. The appellant adduced two witnesses in defence i.e. D.W.-1, Urmila and D.W.-2, Ram Autar:-

"D.W.-1, Urmila stated that she knew that victim had fled away with accused but she was at her home because she had delivered a child two days prior to the date of incident.

D.W.-2, Ram Autar stated that he was not present at the time of occurrence. The Sub Inspector obtained his thumb impression on a plain paper."

21. From the perusal of record, it is evident that the incident occurred on 05.05.1992, however, first information report was lodged on 12.05.1992 with the delay of five days. The distance of police station is 7 km. West to the place of occurrence.

22. Learned counsel for the appellant argued that the F.I.R. is lodged with inordinate delay of five days but the delay is explained in the F.I.R. itself by the complainant and it is mentioned in the F.I.R. that he searched his daughter in village, when he could not find out his daughter then the F.I.R. was lodged in the police station. Therefore, the delay in F.I.R. has no effect on the truthfullness of the F.I.R.

23. It is also pertinent to mention here that on 10.06.1992, the victim was recovered when she was coming with accused appellant on rickshaw. Recovery memo is on record as Ex. Ka-2, which is signed by accused, Rajendra Prasad @ Gappu also. Therefore, it is undisputed fact that the accused enticed away the victim with him and she remained in the custody of Rajendra Prasad @ Gappu during this period till she was recovered from the possession of accused.

24. Learned counsel for the appellant has submitted that no external or internal injury was found on the person of the victim. P.W.-4, Dr. Mridula Sharma stated on oath that there are no external fresh injury on any part of the victim. Hymen was torn and healed and according to pathological report, no opinion of rape was given by the doctor but P.W.-2, the victim herself corroborated prosecution version that the accused carried her to Lucknow and, thereafter, Faizabad by bus. She explained that she did not raise alarm as accused threatened her to kill. She has also stated that if Urmila had not knocked her house, she would not have opened door. Witness in so many words stated that accused raped her against her consent, on her statement, on page no.8, she stated that she used force to refrain the accused from committing rape with her. She could not escape from the room as accused always locked that room. Therefore, there is no question of consent from the side of victim.

25. Section 114-A of the Indian Evidence Act, 1872 is being quoted hereunder:-

"114A. Presumption as to absence of consent in certain prosecutions for rape.--In a prosecution for rape under clause

(a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of section 376 of the Indian Penal Code, (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.]"

26. Hon'ble Supreme Court in the case of XYZ Vs. State of Gujarat reported in (2019) 10 SCC 337 has held in para 15 as under:-

"During the course of hearing, learned counsel for the appellant, brought to our notice provision/Section 114-A of the Indian Evidence Act, 1872. Section 114-A of the Indian Evidence Act, 1872 deals with the presumption as to absence of consent in certain prosecution for rape. A reading of the aforesaid Section makes it clear that, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped, and such woman states in her evidence before the Court that she did not consent, the court shall presume that she did not consent."

27. Further, Hon'ble Supreme Court in the case of Javed Vs. State of NCT of Delhi reported in 2022 SCC OnLine Del 4182 has held in para 7 as under:-

"The consent of the minor at the age of 16 years, specially, when the applicant was 23 years old and already married also disentitles the applicant for grant of bail. Consent of a minor is no consent in the eyes of law."

28. It is submitted by the learned A.G.A. that the victim was 12 years' of age, therefore, the consent of minor has no effect.

29. Learned counsel for the appellant submitted that medical age of the victim is found between 16 to 17 years as the epiphysis around knee were partly fused and epiphysis around wrist not fused, therefore, in the opinion of doctor, the age is about 16-17 years.

30. From the perusal of record, it is clear that no proof of age is collected by the Investigating Officer. However, complainant specifically noted the date of birth of the victim as per school document as 20.06.1980. It was the duty of the Investigating Officer to verify the age of the victim from the school document. If the date of birth is not verified from the school certificate by the Investigating Officer, it is fault on behalf of the Investigating Officer for which the age of the victim could not be disputed. The prosecution case cannot be brushed aside on the lacuna made by the Investigating Officer.

31. Further, in the case of Ram Bihari Yadav Vs. State of Bihar and Ors. reported in MANU/SC/0302/1998, Hon'ble Supreme Court has held that in a situation of lapses on the part of the Investigating Officer, the prosecution evidence must be looked at de hors such omissions to find out whether the said evidence is reliable or not.

"In such cases, the story of the prosecution will have to be examined de hors such ommissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice."

32. It is well established law that where there is specific proof of age from educational document then the opinion of doctor could not be taken into account. However, learned counsel for the appellant stated that this law has been incorporated vide amendment in Juvenile Justice Act, 2013. Before this amendment, the medical evidence was admissible as proof of age. It is assumed that medical evidence is admissible then too, the medical age is merely opinion and the medical opinion is based on guess work. The complainant had given specific date of birth in the first information report itself. It is evident from the date of birth that victim was 12 years old at the time of incident.

33. Learned counsel for the appellant argues that it is stated by P.W.-3 in his cross-examination that "the age of the victim can neither be determined as 15 years nor 18 years", therefore, age of victim cannot be less than 15 years and the age of the victim as mentioned by the prosecution is not reliable.

34. Again at the cost of reiteration that the medical opinion is just an opinion which cannot substitute the date of birth mentioned in F.I.R. as well as proved by complainant who is the father of victim. Prosecution has discharged its burden regarding age of victim. No evidence is led by accused in defence to contradict the age of victim proved by the prosecution.

35. It is also contended by learned counsel for the appellant that the statement of the victim recorded under Section 164 were not found on record. However, the statement of victim was recorded as such. It is true that the statement of the victim was recorded under Section 164 Cr.P.C. on 17.06.1992. But learned trial court did not discuss the statement recorded under Section 164 Cr.P.C. in this judgment. No statement under Section 164 Cr.P.C. is found on record but it is established law that plethora of judgments of Hon'ble Apex Court held that the statement of the victim under Section 164 Cr.P.C. is mere piece of evidence. The evidentiary value of statement of the victim recorded under Section 164 Cr.P.C. is to corroborate or to contradict the prosecution version. The victim had corroborated the prosecution version in her statement recorded on oath before P.O. during the trial. Therefore, if the statement of victim under Section 164 Cr.P.C. are not discussed in the judgment, it do not render statement of victim recorded in court false and unreliable.

36. There is no major contradictions in the statement of the victim recorded during the trial and statement inspired confidence to the level that the accused may be convicted on the basis of statement of the victim only.

37. The relevant paras of Phool Singh Vs. The State of Madhya Pradesh reported in (2022) 2 SCC 74, are being quoted hereunder wherein Hon'ble Supreme Court has opined as under:-

4.1 It is submitted that in the present case both, the learned trial Court as well as the High Court have rightly convicted the accused for the offence under Section 376 IPC, relying upon the sole testimony of the prosecutrix/victim. It is submitted that as such there is no reason to doubt the credibility and trustworthiness of the prosecutrix. It is submitted that even no question was asked to the prosecutrix while cross-examining the prosecutrix that a false case was filed against the accused.

4.2 It is submitted that once it is found that the prosecutrix is reliable and trustworthy, in that case, there can be a conviction for the offence of rape - Section 376 IPC, relying upon the deposition of the sole witness/victim. Reliance is placed on the decisions of this Court in the cases of Ganesan v. State, (2020) 10 SCC 573; Santosh Prasad v. State of Bihar, (2020) 3 SCC 443; State of H.P. v. Manga Singh, (2019) 16 SCC 759; and State (NCT of Delhi) v. Pankaj Chaudhary, (2019) 11 SCC 575.

4.3 It is submitted that in the case of Pankaj Chaudhary (supra), it is specifically observed and held by this Court that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence and that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration.

5.2 In the case of Ganesan (supra), this Court has observed and held that there can be a conviction on the sole testimony of the victim/prosecutrix when the deposition of the prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality.

In the aforesaid case, this Court had an occasion to consider the series of judgments of this Court on conviction on the sole evidence of the prosecutrix. In paragraphs 10.1 to 10.3, it is observed and held as under:

10.1. Whether, in the case involving sexual harassment, molestation, etc., can there be conviction on the sole evidence of the prosecutrix, in Vijay [Vijay v. State of M.P., (2010) 8 SCC 191], it is observed in paras 9 to 14 as under: (SCC pp. 195-98)

"9. In State of Maharashtra v. Chandraprakash Kewalchand Jain [State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550] this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under:

''16. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more.

10. In State of U.P. v. Pappu [State of U.P. v. Pappu, (2005) 3 SCC 594] this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under: (SCC p. 597, para 12).

12. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.'

11. In State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384], this Court held that in cases involving sexual harassment, molestation, etc. the court is duty-bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice.

12. In State of Orissa v. Thakara Besra [State of Orissa v. Thakara Besra, (2002) 9 SCC 86], this Court held that rape is not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence.

13. In State of H.P. v. Raghubir Singh [State of H.P. v. Raghubir Singh, (1993) 2 SCC 622], this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P. [Wahid Khan v. State of M.P., (2010) 2 SCC 9] placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan [Rameshwar v. State of Rajasthan, AIR 1952 SC 54].

14. Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix."

5.3 In the case of Pankaj Chaudhary (supra), it is observed and held that as a general rule, if credible, conviction of accused can be based on sole testimony, without corroboration. It is further observed and held that sole testimony of prosecutrix should not be doubted by court merely on basis of assumptions and surmises. In paragraph 29, it is observed and held as under:

"29. It is now well-settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence [Vishnu v. State of Maharashtra [Vishnu v. State of Maharashtra, (2006) 1 SCC 283]. It is well-settled by a catena of decisions of this Court that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the "probabilities factor" does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. [State of Rajasthan v. N.K. [State of Rajasthan v. N.K., (2000) 5 SCC 30]."

38. Learned counsel for the appellant had drawn attention on the statement of defence witness Urmila as the same lady who is said to have come to knock the door of the victim alongwith accused Rajendra Prasad @ Gappu and she stated on oath that she did not come with Rajendra Prasad @ Gappu as she delivered a child two days back. She is interested witness and to some extent, she assisted the appellant in commission of crime, therefore, the statement of the defence witness Urmila cannot be relied upon. So far as D.W.-2 Ram Autar is concerned, he is the witness of recovery, who affixed his thumb impression on recovery memo. He admitted his signature on recovery memo during trial, but he denied the contents of recovery memo. It is already proved that victim was with accused when she was recovered and recovery memo was signed by accused Rajendra Prasad @ Gappu, therefore recovery memo could not be doubted even though contents are denied by D.W.2 Ram Autar.

39. It is a case of appellant that he had dispute over water chestnuts, which were sown by Munna and reaped by accused appellant unlawfully but there is no F.I.R. regarding the incident. It appears that this was not major incident. In the the entire evidence the prosecution proved the fact that the victim was enticed away by Rajendra Prasad @ Gappu on 05.05.1992 and she was recovered from the possession of accused Rajendra Prasad @ Gappu on 10.06.1992. Recovery memo is signed by accused as well as witnesses, delay is explained, the age of the victim is specifically mentioned in F.I.R. by way of date of birth as well as in the statement of the complainant. The victim is proved minor and her consent has no effect. Moreover, the consent of the victim could not be presumed in favour of the accused. Consent is to be proved by the accused appellant by clear evidence.

40. All the factum have been discussed and dealt by the trial court in its judgment. There is no ambiguity and illegality in the judgment of the trial court and the judgment of the trial court is liable to be confirmed and the appeal is liable to be dismissed.

41. So far as the punishment is concerned, learned trial court has considered the young age of the appellant at the time of passing the order and passed seven years' rigorous imprisonment under Section 376 I.P.C., which is bare minimum punishment prescribed in the case. Learned counsel for the appellant could not show any circumstances to mitigate the sentence awarded by the trial court, therefore, the punishment awarded by trial court is also confirmed.

42. The appeal is dismissed. The accused is on bail, he shall surrender before the C.J.M concerned within one month from the date of judgment and shall be sent to jail and serve out the punishment awarded by the trial court.

43. Personal Bond and bail bonds of the accused are cancelled.

44. Let certified copy of this judgment alongwith lower court record be sent to the trial court concerned for necessary information and compliance.

Order Date :-15.03.2023					(Renu Agarwal,J.)
 
Saurabh/VKG