Allahabad High Court

Brahma Singh vs State Of U.P. on 28 August, 2025





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:150753
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
CRIMINAL APPEAL No. - 55 of 1986
 
Court No. - 78
 
Judgement Reserved on 07.08.2025
 
Judgement Delivered on 28.08.2025
 
HON'BLE ANISH KUMAR GUPTA, J.

1. Heard Sri Sunil Kumar Dubey, learned counsel for the appellant and Sri S.K. Ojha, learned A.G.A.-I for the State.

2. The instant criminal appeal has been filed by the appellant herein, being aggrieved by the judgment and order dated 29.11.1985, passed in Sessions Trial No. 137 of 1985, whereby the appellant herein has been convicted for the offences under Sections 363, 366, and 376 of the Indian Penal Code (I.P.C.) and sentenced to undergo: three years rigorous imprisonment with a fine of Rs. 1000/- for the offence under Section 363 I.P.C.; six years rigorous imprisonment with a fine of Rs. 2000/- for the offence under Section 366 I.P.C.; and nine years rigorous imprisonment with a fine of Rs. 3000/- for the offence under Section 376 I.P.C. All the sentences were directed to run concurrently. In default of the payment of fine, sentences of one month rigorous imprisonment, two months rigorous imprisonment, and three months rigorous imprisonment were also directed to be undergone by the appellant.

FACTS

3. The briefly stated prosecution story is that on 22.10.1984 at around 7:00-7:30 P.M., the daughter of the informant, who was aged about fifteen-to-sixteen years and who was unmarried, went for defecation along with her mother outside the village in the corner near Asara. At that time, two persons came there all of a sudden on a motorcycle and had kidnapped/abducted the daughter of the informant at the gunpoint. Both the persons had forcibly put her on the motorcycle and taken her away. The mother of the victim raised an alarm. Thereupon, Brahmachand Sharma, Mahendra Singh, and Dharam Singh etc. reached on the spot and they saw that the accused appellant herein, who was a resident of the Village- Bauli and was working as a medical practitioner in the neighborhood of the informant, was sitting on the back of the motorcycle, was identified by the aforementioned persons. However, the person who was driving the motorcycle could not be identified by those persons. The aforementioned persons tried to run behind the motorcycle, to catch hold of them, but they could not succeed and the accused persons along with the daughter of the informant escaped from the spot.

4. On the date of the incident itself, the PW4, Brahmachand Sharma, had informed about the said incident to the informant that his daughter had been forcibly taken by the accused appellant herein on the motorcycle. Thereupon, the father of the informant continued to search for his daughter and in other relations, when he could not find his daughter, on the next date, on 23.10.1984 at 1:30 P.M., a report was lodged at the Police Station- Kandhla, in District- Muzaffarnagar.

Evidence

5. On the basis of the written report submitted by informant PW1, an F.I.R. being Case Crime No. 190 under Sections 363 and 366 I.P.C. was registered. Thereupon, the Investigating Officer (IO) searched out various places to find the victim and the accused appellant herein and finally, he arrested the accused and recovered the victim from Kandhla Railway Station on 31.10.1984, at around 5:30 P.M. Thereafter, a medical examination of the victim was conducted on 01.11.1984 at 10:30 A.M. In the medical examination of the victim, the following was observed by the doctor:

"Examination- General Built- Healthy

Height - 5'4''

Wt. - 94 lbs.

Teeth- 7+7/7+7, Molar apaces present.

Breast- Well developed

Axillar Hair- Present

No injury present on any part of the body.

Per-Vaginum- Hymen old torn. No bleeding present. Vagina admits two fingers easily. No tenderness present. Uterus normal in size. No vaginal or seminal fluid is present."

6. The girl was found to be habitual of sexual intercourse and was aged, at the time of the medical examination, approximately between 16 to 18 years. Subsequently, a radiological examination of the victim was also conducted, and thereupon, the doctor opined that the age of the victim was between seventeen-to-eighteen years, as per the supplementary affidavit report submitted by the doctor. After the medical examination of the victim, she was handed over to the father. Thereafter, the investigation was completed. The victim's internal and external clothes were recovered, and subsequently, the chargesheet was filed by the Investigating Officer on 13.11.1984, for the offences under Sections 363, 366, and 376 of the I.P.C. against the appellant.

7. After receipt of the charge sheet, the case was committed to the Sessions Court. On 18.07.1985, the trial court has framed the charges for the aforesaid offences against the appellant herein. The appellant herein denied the charges and claimed trial.

Depositions

8. In support of its case, the prosecution examined PW1, the informant, who was informed by the witnesses with regard to the incident of abduction and PW2, is the mother of the victim, who supported the prosecution's case regarding the kidnapping and abduction of the victim. PW3 is the victim herself, who deposed in detail about the entire incident of what happened to her. PW4 is Brahmachand Sharma, who identified the appellant herein while he was taking away the victim on a motorcycle at a gun point. PW5 is Dr. Manorama Gupta, who proved the medical examination report. PW6, Devendra Pal Singh, is the Investigation Officer who arrested the appellant and submitted the charge-sheet after completing the investigation. CW1, is the witness called by the Court for producing the school record regarding the victim's age. Thereafter, a statement under Section 313 Cr.P.C. of the accused appellant was recorded. In support of his defence, he has examined DW1, Gordhan Singh, who was the Marriage Officer posted at Mathura. On the basis of the aforesaid evidence, the trial court convicted the appellant for the offences under Sections 363 and 366 I.P.C., and sentenced him as aforesaid.

9. PW1, who is the father of the victim, supported the prosecution case and the registration of the F.I.R. based on his written report submitted at the police station on the very next day of the incident. However, from the testimony of the PW1, it is apparent that PW1 has not seen any incident, rather he heard the same from the witnesses of the incident and registered the report on the basis of the information provided to him by the PW4. So far as the delay in lodging the F.I.R. is concerned he has categorically stated that he was an illiterate person and since it was a matter of his daughter and he was mentally disturbed, therefore, initially he tired to search and since on the date of incident it has become late night while searching the victim, therefore, the same could not be reported on the date of incident itself. Next date, various people came to the house of the informant and thereafter he has reached to the police station around 10:00-11:00 A.M. and subsequently the report was registered at 1:30 P.M., on next date of the incident. The written report was prepared at the house of the informant at around 9:00 A.M. The report was not lodged on the date of the incident itself because till late night they continued to search out the victim and the appellant at railway station, bus station etc. This witness has also deposed that his daughter was aged about fifteen-to-sixteen years at the time of incident, however, no suggestion was given to him by the defence in the cross-examination disputing the age of the victim.

10. PW-2 is the mother of the victim. She has categorically deposed that on the date of incident around 7:00-7:30 P.M., she and her daughter/the victim herein, had gone for defecation, outside the village in the corner, near Asara. She was sitting for defecation and her daughter was standing nearby. Then, two persons came on the motorcycle and one of them was having a gun. Both of them have forcibly lifted her daughter and kept on the motorcycle. The person who has lifted the victim and kept her on motorcycle is the appellant herein, who was present in court at the time of deposition. When, he kept her daughter on the motorcycle she raised an alarm saying bachao, bachao. On her shouting and alarm, Brahmachand and Mahendra came there. They have the torches, they have followed the accused persons and she has also followed and in the torch light she has identified the appellant herein. At the time when the victim was taken away by the appellant she was aged about sixteen-seventeen years. In the cross-examination she stated that the shop of the accused was eight-nine houses away from the house. She knew the appellant as he had come to the house of this witness for the check-up of her mother-in-law. She has denied that the appellant herein was her tenant. She has also denied the suggestion that the victim used to write letters to the appellant or victim was freely moving with the appellant. She has also denied the suggestion that one month prior to the incident the victim has gone with the appellant herein saying that she was going to Delhi at the place of her uncle. It is further denied by this witness that the victim has never gone to Mathura one month prior to the incident or she has submitted the application for marriage. She has categorically stated that in the light of the torch she and witness Brahmachand have identified the appellant herein. The witness Brahmachand and Mahendra, both had told her that it was the appellant herein who had taken the victim. After coming home she has informed to her husband about the incident and many other persons have also gathered there.

11. PW3 is the victim herself. She has narrated the entire story in great detail. She stated that on 22.10.1984 at around 7:30 P.M. when the victim and her mother went on defecation near Asara, which is outside the village and she has already eased out and her mother was easing out and she was standing there, two persons came on the motorcycle and stopped near her and one of them was Dr. Brahma Singh, who was present in the Court and the other person she could not identify. However, she can identify him, if he is produced before her.

12. The appellant herein was having the gun and he caught hold of her and forcibly made her to sit on the motorcycle. When he was forcibly taking her away, she and her mother both of them shouted. At their shouting, two persons came there and flashed the torchlight, and also followed the accused for some distance. The accused had taken her to Bavli on motorcycle, and thereafter the other person took the motorcycle and went away. The appellant herein took her to his house in Village- Bavli, and in the night, he committed rape on her and before committing rape, he forced her by pointing the gun, stating that if she did not cooperate, she would be killed. On the next day, the appellant took her to Mathura Court and made her sign on various blank papers. Before signing the blank papers, the appellant threatened to kill her. Therefore, due to these threat perceptions, she signed the documents. Thereafter, the appellant took her to his village at Nagla, where his parents reside. There he kept her in a locked room. Since the appellant had kidnapped her, every night, he committed rape on her and used to threaten her. Subsequent thereto, from Nagla, he took her to Muzaffarnagar and then to Kandhla Railway Station on 31.10.1984, where he was apprehended by the police personnel in presence of his brother Rajendra. Therefrom, the police had brought them to the police station on 01.11.1984. Her medical examination was conducted. The police recovered her trousers. The other clothes were brought by her mother, were worn by her. She categorically denied that she had gone to Delhi to meet her brother or her uncle. She knew the appellant one year before the incident, however, he did not use to come to her house. The appellant has not come to check-up her grandmother. Since the appellant was running his medical practice in the neighborhood, therefore, she knew him. The appellant's shop was 10-15 houses away from her house. She has also denied the suggestion that the appellant was their tenant. Everyday, they used to go for defecation near Asara. The appellant never used to write letters to her, nor were any letter written by him. She has also not written any letter to him. The letters were forcibly got written by the appellant, which bears her signature. After seeing the Exhibit Ka-1, however, she stated that this letter was got written by the appellant at Kehri Nagla forcibly from her. The appellant had got the picture snapped at her house at Nagla. After seeing the photographs, she has stated that those photographs were snapped at the house of the appellant by the photographer. She did not know whether she was produced before the Marriage Officer. However, she was forced to say that she was marrying out of her own will, at the gun point, forcibly. Many blank papers were got signed from her. She has denied the suggestion that, in the month of September 1984, she had gone with the appellant to Mathura out of her free will, where an application for marriage was submitted. After perusing the Exhibit Kha-9 she stated that this letter is not in her handwriting, however, she can read the letter. The letters which were written by her in the name of the appellant were forcibly got written from her. For two to three days, she was forced to write the letters. They reached Bavli in the night of the incident, at 8:00-9:00 P.M. in the night. That house did not have any electricity connection and no one was residing there. The house was vacant and she did not meet any other person in the said house. On that date, no food was provided to her.

13. She further stated that the rape was first committed upon her at Bavli, prior to that no rape was committed upon her. Rape was committed by the appellant in the midnight. She refused to the appellant, however, he did not pay heed and committed rape upon her. She has denied the suggestion that she already had sexual intercourse with the appellant one to two months ago from the date of incident, and that she was pregnant. Next day, the driver and one more person came there to carry her. The appellant had also gone along with her. However, she did not speak about the rape to the driver because the other persons were also there. She has stated before the Magistrate that the appellant had threatened her with a gun and got her snaps taken, and thereafter took her to court. She stayed in Nagla for a week. She was not allowed to go outside. She was kept locked in a room. When the accused used to come, only then he used to open the lock. He used to go outside. There, she could not shout. Before taking her to the Marriage Officer the appellant had threatened her, therefore, she had made the statement before the Marriage Officer that she had married the appellant on her own will. The Marriage Official had not asked her about her age, nor she remembers about the same. She further submits that in Mathura, no medical examination was conducted by the senior doctor. Then, the accused had taken her to a senior doctor at Mathura with regard to her age. However, she did not remember whether the doctor has asked her to sign. After seeing the Documents No. 15/7, she identified her signatures and submitted that the signatures were forcibly obtained from her. She further stated that she had told the doctor that this medical examination was conducted out of her free will, but she had said so because of fear and threats given by the appellant. She further stated that she could not tell her date of birth. The appellant brought her to Kandhla on 31.10.1984. When the police arrested the appellant, she caught hold of hand of her brother and thereafter, from Kandhla, she wanted to go to her house. She did not know from Kandhla, where the appellant was taking her. She has denied the suggestion that prior to the incident she was in love or a relationship with the appellant.

14. PW4, Brahmchand is the person who reached on the spot after the alarm was raised by the victim and her mother, and he identified the appellant herein in the torch light. He supported the prosecution story that on a motorcycle, Brahma Singh was carrying the gun and the motorcycle was being driven by some other person. The person who was driving the motorcycle was not known to him and Mahendra and other persons also reached the spot. The appellant used to do medical practice from a medical clinic in the village. The appellant was identified by this witness in court. The motorcycle came from the side of Asara and he had also gone to easing out himself on that side. The motorcycle passed in front of him and stopped at the three-way crossing. At the time when he heard the noise he had already washed his hands and Mahendra was also sitting near him. When he flashed the torch he saw the victim as well as the appellant, and the motorcycle started proceeding. On their shouting the accused did not fire. The mother of the victim was also standing five to six steps ahead of the three-way crossing. She did not tell him, however, after following the accused for some distance, he came back and informed the mother of the victim. After the incident, he informed the father of the victim. On 23.10.1984, the Investigation Officer met him and he showed him the spot.

15. PW5 is Dr. Manorama Gupta, who medically examined the victim on 01.11.1984. She supported the medical examination as noted above. She also proved her signatures as well as the victim's signature on the medical examination report. She stated that elbow fusion starts between fourteen-to-sixteen years. The statement given by her is based on Modi Authority. If there is no wrist union, then the age is below sixteen and a half to eighteen years.

16. This witnesses has identified the victim and said that she is the same person whom she has examined. After seeing the report, CMO-Mathura submits that she is also agreeing with the report that the girl was aged about eighteen years, which means that she could be four-six months more or less from eighteen years. Thus, she has prepared the report on the basis of an X-ray report from the radiologist. In her report she has stated that the victim's age was seventeen to eighteen years, that means the victim would be four to six months less than seventeen years or two to four months more than eighteen years.

17. PW6 Devender Pal Singh, is the Investigation Officer of the instant case. He was posted at the police station- Kandhla on 23.10.1984 when the report was registered. The investigation was handed over to him, and thereafter he proceeded with the investigation, on 24.10.1984. On the same date, he recorded the statement of witnesses and also inspected the spot and recorded the statements of witnesses Brahmachand and Mahendra and also prepared the site-plan on the indication of the mother of the victim. Thereafter, he inquired from the family members of the victim regarding the possibility of the places where the accused could take the victim and when he searched the victim on various places, on 31.10.1984, he arrived at Nagla, but the accused and victim could not be found and when he received the information that the accused had brought the girl to Muzaffarnagar and when he came while tracing out the accused and the girl on 31.10.1984, he came to the Bus StationKandhla, then, he came to know that the accused alongwith victim is at the railway station in Kandhla and he was trying to go somewhere else. Then, he, along with another police officer and brother of the victim, reached at the railway station around 5:25 P.M. and when he reached there, then the brother of the victim indicated that the victim was there and also indicated that the person along with her, was the accused. Thereupon, he arrested the accused. Thereafter, he took the accused and the victim into his custody, and an arrest memo was prepared. Subsequently, the statements of the victim and the accused were recorded by him, and a site-plan for all the places where the victim and the accused were arrested was also prepared.

18. A statement of Head Constable Moharrir, who had recorded the F.I.R, was also taken. After completing the investigation, he submitted the charge-sheet on the specific question asked by the defence whether during the investigation, he came to know that the accused had married to the victim on 20.10.1984 at Mathura Court, he answered that he first time came to know from the statement of victim that she was forced to say before the Marriage Officer that she was marrying the accused out of her free will. He did not inquire anything about this statement.

19. CW1 Shukhpal, the Principal of Alam Inter College, is the person who was called as a witness in the instant case by the court, who has brought School Leaving Register from the school according to which the date of birth of the victim was 15.06.1969 and in the said register the entry of the victim was made at S.N. No. 6897, which bears his signature as well. On the basis of the same on 01.11.1984, he has issued Transfer Certificate of the victim. In the said register the School Leaving Certificate of any other student except the victim was not enclosed. He has brought the School Leaving Certificate from the record of the school. He cannot tell upon what basis the date of birth of the victim was recorded on the School Leaving Certificate of primary.

20. After the prosecution witnesses were examined the statement of accused was recorded under Section 313 Cr.P.C. He denied the charges and stated that on 18.09.1984 the victim had gone along with him to Mathura where on 19.09.1984 an application for marriage was submitted before the Marriage Official by both of them. On 19.10.1984 at around 7:30 A.M. they have gone to Delhi and thereafter, in the night at 11:20 P.M. they came to Mathura and on 20.10.1984 they have soleminzed the marriage before the Marriage Officer and thereafter they stayed at Nagla as husband and wife and on 31.10.1984 he was arrested from Nagla. Thereafter, she was taken to P.S.- Gordhan. Thereafter, he was taken to Delhi and came to Kandhla police station. They were brought to Kandhla Police Station along with victim and her brother and after stopping the car the brother of the victim had got down from the car and thereafter he came along with his parents at P.S.- Kandhla. He was kept in the lock-up in the police station and the victim was handed over to her parents. The victim was pressurized for making statement and electricity shock was also given to him. The police has brought his clothes as well as the clothes of the victim from Nagla. These were the clothes other than the clothes worn by them. The victim used to write letters since last one year and he also used to write letters to her and on both occasions the victim gone with him out of her free will. On 29.10.1984 the medical examination of the victim was also got conducted by the victim out of her own free will and first time he had physical relations with the victim in January, 1984. He used to rely upon the letters written by the victim. At the time of marriage the victim was aged about nineteen years.

21. In support of his defence the appellant has also examined DW1 Gordhan Singh who was the Marriage Officer at Mathura. He has stated that 19.09.1984 the accused appellant along with victim and their advocate, G.S. Sharma came to them and submitted the notices in three sets. The original notices are there with him which had been brought by him which bears the signatures of the appellant and the victim along with date and also bears his signature along with date. The notices were submitted by them by appearing personally. On 20.10.1984 the accused and victim both appeared along with three witnesses and accordingly, their marriage was registered by him and the Marriage Certificate was issued on his signature and stamp and in the Register also the signatures of the accused, victim and their witnesses were obtained by him. On 19.09.1984 the accused and the Victim both have submitted the notice along with the affidavit to him which was placed on record and he after satisfying the age of the boy and girl has, conducted the proceedings of marriage between them.

22. In the cross examination this witnesses admitted that on the address of the father of the girl he has not issued the notice because he did not find any necessity for the same because the notice is not mandatory. The girl has given the affidavit and as per the general appearance she appears not less than twenty years of age. Therefore, he did not find it necessary to get her medical examination done. He denied the suggestion that he has committed any irregularity in conducting the marriage between the parties.

Submissions:-

23. It is submitted by learned counsel for the appellant that at the time of the incident, the victim, as per the medical opinion of the doctor, was aged about seventeen-to-eighteen years. So far as the documentary evidence i.e., the School Leaving Certificate, which was produced by CW1 Sukhpal Singh is concerned, according to which the date of birth of the victim was stated to be 15.07.1969, has been disbelieved by the trial court itself. The trial court holding that the copy of the document on the basis of which the entries were made in the admission register has not been produced by Sukhpal and consequently, the School Leaving Certificate was issued by CW1, who is the principal of Alam Inter College. Since the School Leaving Certificate has been disbelieved by the trial court, the only material available for the prosecution is the ossification report and the medical opinion with regard to age of the victim, according to which the victim was aged about seventeen-to-eighteen years. Thus, since there is no definite opinion with regard to the age of the victim and there is no documentary evidence available, the benefit of doubt should be given to the accused/appellant and the age should be presumed to be eighteen years at the time of the incident.

24. It is further submitted by learned counsel for the appellant that as per the prosecution's story, the victim was abducted at gunpoint on a motorcycle and the motorcycle was driven by some other person other than the accused/appellant. The victim has also deposed that she was forced by the appellant at the gunpoint to have physical relationship with him and also to marry the accused/appellant herein. However, in the entire process of investigation neither the gun was recovered nor the motorcycle on which the victim was carried has been identified or recovered nor the person who was driving the motorcycle has been apprehended and prosecuted by the prosecution. It is further submitted by learned counsel for the appellant that if he go through the entire story of the prosecution, as narrated by PW3, the victim herself, though she alleges with regard to the threat perceptions, however, she admits that she has gone with the appellant at various places with various modes of transportation. She also admits the fact that she appeared before the Marriage Officer and did not raise any alarm at any point in time at any place. Therefore, version of defence is more reliable that the victim herself had gone with him. Victim was aged about eighteen years old and was major at the time of the incident and she voluntarily went along with the appellant herein and they have married and Marriage Certificate was issued after following due procedure by the Marriage Officer and consequently, when the victim and the appellant were apprehended at Kandhla Railway Station, thereafter under the pressure of the family member the victim has deposed against the appellant herein, concealing the real facts of the case.

25. It is further submitted by learned counsel for the appellant that as per the deposition of the Marriage Officer, before this incident the victim has earlier also appeared before the Marriage Officer. The aforesaid facts also support the case of defense that the victim was in love relationship with the appellant and was ready and willing to marry. The appellant had, in fact, married on 23.10.1984 after due notice. Therefore, no offence under Sections 366 or 376 of the I.P.C. is made out in this case. Therefore, learned counsel for the appellant seeks acquittal of the appellant herein from all the charges leveled against the appellant herein.

26. Per contra, Sri S.K. Ojha, learned A.G.A.-I for the State submits that, so far as the age of the victim is concerned, CW-1 Sukhpal has produced the school record, and as per the School Leaving Certificate of the victim, her date of birth was 15.06.1969. Thus, in view of the school record, available on record, the victim's age on the date of the incident was between fifteen-to-sixteen years. Thus, she was less than sixteen years of age. Since the school records are available, no reliance can be placed on the ossification report or the medical opinion regarding the victim's age. It is further categorically stated by P.W.-2, P.W.-3, as well as P.W.-4 that the victim was forcibly kidnapped/abducted by the appellant herein, and the appellant herein, who was known to the witness prior to the incident, was duly identified in the light of torch by the victim herself as well as by P.W.-4 Brahmachand and from the statement of P.W.-3, the victim herself has categorically stated that she was forced at the gunpoint by the appellant to have a sexual relationship and also to sign documents and write some letters and also to pretend before the marriage officer that she was being married out of her own will. Considering the tender age of the victim and the age of the accused who was approximately double the age of the victim, the threat perception was so much that she had followed the dictates of the appellant herein, as there was no one else to help her out of the situation. She has categorically stated that the appellant herein repeatedly raped her and she did not like the sexual intercourse committed by the appellant with the victim. The victim stood firm during the deposition before the court regarding the allegations of kidnapping, abduction, rape and the forcible solemnization of marriage by the opposing party no.2. Thus, all the offences alleged against the appellant herein are fully proved. Therefore, the trial court rightly convicted the appellant herein for the offences under Sections 363, 366, and 376 I.P.C.

27. Having heard the rival submissions so made by learned counsels for the parties, this Court has carefully gone through the record of the case.

28. From the argument advanced by learned counsel for the parties the following questions are required to be decided in the instant appeal for the offences:

1) What was the age of the victim at the time of the incident?

2) Whether the victim was forcibly kidnapped/abducted and married by the accused?

29. So far as the age of the victim is concerned the father of the victim has deposed that his daughter was aged about fifteen-sixteen years. In the cross-examination the same has not been questioned by the defence. Similarly, PW-2, the mother of the victim, has stated the age of the victim to be sixteen-seventeen years. Though, various questions were asked to this witness with regard to the other family members, however, that doesn't lead to any conclusion with regard to the age of the victim. The other evidence with regard to the age of the victim is the report of the doctor, who has medically examined the victim on 01.11.1984. As per her initial report, the victim was approximately sixteen-to-eighteen years and in the supplementary report it has been reported on the basis of the ossification test that the age of the victim was between seventeen-to-eighteen years, which has been further explained by the PW5, the doctor, to mean that it may be four-to-six months less than seventeen years and two-four months more than eighteen years. Another piece of evidence with regard to the age of the victim is the School Leaving Certificate and the school register produced by CW1, Shukhpal Singh, who was the Principal of Alam Inter College. As per the record of the school, the date of birth of victim is 15.06.1969, which was entered in the register on the basis of the Transfer Certificate of the primary school in the Inter College. Thus, the School Leaving Certificate, which was issued by the primary school before she was admitted in the Inter College in the year, 1982, has been duly produced by CW-1 Sukhpal.

30. From the statement of CW1, it is crystal clear that the said register was maintained by the school in due course and the entry of the victim is at Serial No. 6897, which also bears the signature of the clerk as well as the Principal and the entry with regard to the date of birth of the victim was made on the basis of the School Leaving Certificate received from the primary school and the original School Leaving Certificate of the primary school has been produced by the principal from the record of the school. Therefore, in the testimony of the said witness there is nothing on the record to disbelieve this testimony and this witness was called by the court to produce the school record and this witness even doesn't know personally to the victim. Thus, this witness is more reliable witness. Therefore, the school record produced by this witness cannot be doubted. Accordingly, the age of the victim was 15.06.1969 and thus according to this the age of the victim on the date of the incident would come to fifteen years, four months and seven days. Once, the school record is available with regard to the date of birth of the victim, further reliance on the ossification test or the medical opinion, which is not a determinative one is not required.

31. Therefore, in view of the aforesaid evidences of CW1, which is also supported by the statement of PW1 the age of the victim at the time of the incident is hereby determined as fifteen years, four months and seven days. Therefore, the victim was minor on the date of the incident.

32. All the fact witnesses of the case categorically supported the case of the prosecution with regard to the fact that victim was forcibly taken away by the appellant herein at the gun point and the victim herself has categorically stated that she was forcibly taken away by the appellant and she has never volunteered to go with the appellant. The so called marriage which was allegedly solemnized at the behest of the appellant herein was conducted by the appellant herein under the threat perceptions at the gun point created by the appellant on mind of the victim who was of tender age.

33. Thus, this Court do not find any difficulty in holding that it is appellant herein who had forcibly taken away the victim from the lawful guardianship of her mother and thereafter with intent to solemnize the marriage and had sexual intercourse with her. It is further relevant to note that the victim has categorically stated that the appellant herein has forcibly raped her at gun point by continuously creating pressure upon her, which was never clarified. The appellant in his statement under Section 313 Cr.P.C. also categorically admitted that he solemnized the marriage with the victim and lived with her as husband and wife at Nagla and he was also having physical relations with victim since January, 1984.

34. So far as the argument advanced by learned counsel for the appellant that no alarm was raised by the victim whereas she has alleged to have been taken at various places, it is relevant to keep in mind that the age of the victim was less than sixteen years and she was of tender age. She was continuously threatened at gunpoint by the appellant herein and threat perception was so much that she followed the defecate of the appellant in writing the letters, signing the blank papers wherever she was asked to do. Rather, she was produced before the CMO- Mathura as well as before the Marriage Officer and due to threat perceptions she could not raise any alarm to save her life as there was no one else along with her to save her. Immediately after the accused was arrested she volunteered to go with her parents and seeing her brother at the Railway Station where the accused was apprehended, she immediately caught hold of the hand of her brother. In view thereof, this Court concludes that it was the appellant herein who has forcibly taken the victim from the lawful guardianship of her parents with intent to marry her and to establish sexual relationship with her.

35. Therefore, in the considered opinion of this Court the offence under Sections 363 and 366 I.P.C. are categorically made out against the appellant herein. So far the offence under Section 376 I.P.C., is concerned, it is the admitted case of the appellant herein that he had sexual relationship as he lived as husband and wife after the forced marriage with the victim. Therefore, the offence under Section 376 I.P.C. is also categorically made out against the appellant herein. Thus, this Court does not find any illegality in the conviction of the appellant for the offence under Sections 363, 366 and 376 I.P.C.

36. In the considered opinion of this Court, the trial court has taken a very reasonable view of the matter while awarding sentence and fine to the appellants herein. However, since the instant appeal is pending here since last thirty-nine years and now appellant is aged about 68 years and during the aforesaid period of 39 years the appellant has not been found involved in any other criminal proceedings, in view thereof, while upholding the sentence of three years rigorous imprisonment and fine of Rs. 1000/- for the offence under Section 363 I.P.C as well as six years rigorous imprisonment with fine of Rs. 2,000/- for the offence under Section 366, this Court finds it appropriate to reduce the sentence of the appellant for the offence under Section 376 I.P.C. to seven years rigorous imprisonment,, which is the minimum punishment mandated under Section 376 I.P.C. with fine of Rs. 10,000/-, which would serve the ends of justice.

37. In view thereof, instant appeal is partially allowed and while upholding the conviction of the appellant for the offence under Sections 363, 366 and 376 I.P.C., the sentence under Section 376 I.P.C. is modified accordingly.

38. Since, the appellant herein is on bail, he is directed to surrender immediately before the trial court concerned for undergoing the remaining sentences.

39. The trial court record along with copy of the judgement be sent back to the trial court concerned for further compliance.

(Anish Kumar Gupta,J.)

August 28, 2025

Shubham Arya