Allahabad High Court
Vijay Prakash Shukla vs The State Of U.P. on 21 July, 2025
Author: Rajnish Kumar
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:41476 Reserved/AFR
Court No.12
Case :- CRIMINAL APPEAL No. - 200 of 1999
Appellant :- Vijay Prakash Shukla
Respondent :- State
Counsel for Appellant :- Yogendra Singh,Kailash Nath Mishra,Kaushal Mani Tripathi,R.P.Misra,Trishita Singh
Counsel for Respondent :- Government Advocate
Hon'ble Rajnish Kumar, J.
1. Heard Sri Kaushal Mani Tripathi, learned counsel for the appellant and Shri Badrul Hasan, learned Additional Government Advocate (here-in-after referred as AGA).
2. This Criminal Appeal under Section 374(2) of Code of Criminal Procedure Code (here-in-after referred as CrPC) has been filed assailing the judgment and order dated 28.04.1999 passed in Session trial No. 545 of 1987; State vs. Ram Chandra and others, Police Station Wazirganj, District Gonda by 7th Additional Sessions Judge, Gonda by means of which the appellant has been convicted and sentenced two years of rigorous imprisonment under Section 363 of Indian Penal Code (here-in-after referred as IPC), three years rigorous imprisonment under Section 366 IPC, three years rigorous imprisonment under Section 368 IPC and five years rigorous imprisonment and fine of Rs. 20,000/- under Section 376/511 IPC and in default of payment of fine, six months additional simple imprisonment. It has further been provided that all the sentences shall run concurrently.
3. Gomti Prasad on the basis of a written complaint dated 23.11.1986 lodged an FIR bearing Case Crime No. 129 of 1986 under Section 363/366 IPC at Police Station Wazirganj, District Gonda alleging therein that accused Ram Chandra son of Sheetla Prasad, Vijay Prakash Shukla and Anil Kumar Shukla both sons of Jagdamba Prasad took away his daughter Km. Shakuntala Devi, aged about 11 years at 04:00 in the morning of 16.11.1986 for taking bath to Ayodhya. On 17.11.1986 at 04:00 in the evening, two accused(s) namely Ram Chandra and Anil Kumar came back but his daughter did not come back. The said accused informed to the complainant that his daughter is with the accused Vijay Prakash Shukla and she will come with him. Accused Vijay Prakash Shukla came back to home on 18.11.1986 at 10:00 in the night but his daughter did not come back with him. When the complainant asked Vijay Prakash Shukla about his daughter Shakuntala, then he said that he do not know about her. The complainant inquired about his daughter in his relations and a panchayat was called on 22.11.1986 in the evening, in which the inquiry was made from Ram Chandra but he declined to inform anything and stated that he does not know as to where Shakuntala has gone.
4. Subsequently, Km. Shakuntala Devi was recovered on 02.12.1986 along with Vijay Prakash Shukla while they were going via Durjanpur to Parsarampur. Accordingly, the girl was recovered and the accused was arrested. The girl was examined by Dr. Ranjana Singh, Medical Officer posted at District Government Women Hospital, Gonda on 03.12.1986 and her X-ray was done by another Dr. P. C. Shukla on 04.12.1986 for determination of her age. Thereafter, a supplementary report was given by Dr. Ranjana Singh, according to which, the age of girl was about 13 years. It was further reported that there was no intercourse with the girl and no entrance into vagina was found. Sub Inspector Bans Raj Bharti investigated the matter. He recorded the statements of witnesses, prepared the site plan of the place of incident and place of recovery and after investigation submitted charge sheet against the accused(s).
5. The learned Magistrate committed the case to Sessions Court by means of the order dated 24.08.1987. The charge was framed against all accuseds under Sections 363 and 366 IPC and against the accused-appellant Vijay Prakash Shukla in addition to the aforesaid sections, under Sections 368 and 376 IPC also by the Session Court. The accused(s) pleaded not guilty and demanded trial. On behalf of the prosecution, 7 witnesses were examined; Gomti Prasad Shukla as P.W. 1, Shakuntala Devi as PW. 2, Ram Chabi Shukla as P.W. 3, Dr. P.C. Shukla as P.W. 4, Dr. Ranjana Singh as P.W. 5, Habibullah Khan Sub-Inspector, who was Head Moharir as P.W. 6 and Sub-Inspector Bans Raj Bharti as P.W. 7. Thereafter, statement of the accused(s) was recorded under Section 313 CrPC, in which the accused(s) denied that they had taken away Shakuntala with them. It was also stated that no panchayat was held and on account of enmity for property, they have falsely been implicated. The appellant-Vijay Prakash Shukla also stated that he was on Homeguard duty at the time of incident. He had enmity with Sub-Inspector Bans Raj Bharti, therefore, he has falsely been implicated.
6. In defence evidence, Ganga Prasad was examined as D.W. 1. Thereafter, after hearing learned counsel for the parties, the learned trial court held that the accused Anil Kumar appears to be lesser than 12 years of age and he was a child on the date of incident, therefore, his trial would not be held jointly under Section 24 of the Juvenile Justice Act, 1986 (here-in-after referred as JJ Act) and his case would be referred to the Juvenile Court. Thus, in this case, the trial will be only in regard to the accused Ram Chandra and Vijay Prakash Shukla. Thereafter, after examining the evidence and material on record convicted Ram Chandra and the appellant Vijay Prakash Shukla. The case of Anil Kumar Shukla for determination of his age and appropriate action under the JJ Act was referred to the Juvenile Court. Considering the age of accused Ram Chandra, who was aged about 65 years and blind since birth and had only accompanied the girl along with the accused and being his first offence, released him giving the benefit of First Offender on two sureties and a bond of Rs. 10,000/-. The appellant Vijay Prakash Shukla has been sentenced awarding the aforesaid sentences. Hence, this appeal has been filed by him.
7. The First Information Report was lodged by Gomti Prasad father of Km. Shakuntala Devi against the three accused along with the appellant Vijay Prakash Shukla. The accused Ramesh Chandra is the cousin of Gomti Prasad, whereas Vijay Prakash Shukla and Anil Kumar Shukla are real brothers and his nephews, who are sons of cousin brother of Gomti Prasad namely Jagdambika Prasad. The accuseds took away Km. Shakuntala Devi, who was aged about 11-13 years at the time of incident on the pretext of taking bath in Saryu River at Ayodhya on Kartik Purnima i.e. 16.11.1986 at 04:00 in the morning. They took away the girl without permission of her parents. P.W.- 1 and 2 both have proved that the accused had taken away Km. Shakuntala on 16.11.1986 at about 04:00 in the morning and nothing could be extracted from them in cross-examination or shown which may create any doubt about their testimony.
8. Km. Shakuntala Devi i.e. P.W.-2 has stated that about 101/4 years back while she was sleeping on the thatches (पैरा) on the door of her house, Ram Chandra had awaken her in early morning and stated that let us go for bath to Ayodhya. At that time, there was fair of Kartik Purnima. Besides her and Ram Chandra, Vijay Prakash and Anil Kumar were also with them. They had gone to Tikri Railway Station from her house on foot. From Tikri Railway Station to Katra Railway Station by train. Thereafter, from Katra to Ayodhya on foot. At the time of incident her age was 10-11 years. In Ayodhya, they had taken bath in Saryu River and after taking bath they had gone to certain temples. Thereafter, they stayed at hut of a Hermit, where they had taken food and stayed in night. She also stated that from the hut of hermit to Tikri, they went on foot. The accused(s) had some talk in the first night, thereafter, they came on foot to Katra. In Katra, they sat in a bus, but when the bus started, Ramesh Chandra and Anil Kumar got down leaving her with Vijay Prakash. Thereafter, Vijay Prakash took her somewhere. She could not know as to where she was taken. In the night, he used to keep her at some place in small market or in any school. Wherever she stayed, Vijay Prakash had done bad work with her. She was wearing Salwar Kameez. He used to open the Salwar and on the threat to life, used to try to penetrate his penis in her vagina. He used to do it from the outside. He had done such work many times. Whenever he used to try to penetrate, she used to cry. She was recovered after 8-9 days of kidnapping. In the cross-examination, she stated that she was tired at that time and the appellant used to scold her, therefore, she used to keep mum and could not raise voice. She also stated that even in the first night Vijay Prakash had done bad work with her. However, whenever he had done bad work there was no bleeding. Thus, she was firm on her statement given in the examination-in-chief and the statement under Section 164 CrPC and nothing could be extracted in the cross-examination, which may create any doubt about her testimony. It is also noticed that the P.W. 2 has given the aforesaid evidence, while she appeared for evidence after her marriage, even at the stake of her matrimonial life. It is also not in dispute that the appellant Vijay Prakash was her cousin brother. He was working in Homeguard at that time. Therefore, the appellant has not only abused the close relationship but disciplined force also. He, being an Homeguard, instead of saving her cousin sister, committed such a crime with a girl aged about 11-13 years.
9. Dr. Ranjana Singh, who appeared as P.W. 5 stated in her examination-in-chief that there were no injuries on the outer parts of body. In the internal examination, she found that no hairs on the private part and under the shoulder. Hymen was broken. No sign of injury was found on the outer side. There was no bleeding or sign of bleeding. She gave an opinion that there was no penetration in the vagina. She also stated that if there may be any minor injury on private part about 12 to 14 days ago, then it would not be found on the date of examination and in minor injury, some signs may be found between 24 hours to one week. P.W. 4-Dr P.C. Shukla, Radiologist proved the X-ray report. On the basis of above, P.W.-5 opined that the age of victim could have been between 9 years to 13 years. Thus, the offence under Section 376, though is not proved but the attempt to rape i.e. offence under Section 376/511 IPC is proved because as deposed by P.W. 2, the appellant used to rub his penis on her vagina and tried to penetrate into vagina after opening her salwar but on account of this, she used to cry, therefore, he could not penetrate. It was an attempt to rape and it is apparent that due to minor girl and pain to her even in attempt, he could not commit rape. Thus, the offence of attempt to rape is proved beyond doubt.
10. P.W. 3-Ram Chabi Shukla has stated that a panchayat was called on the request of Gomti Prasad in which he had told that the accused had taken away his daughter Shakuntala for bathing in Ayodhya but she has not come back. In panchayat, except the accused Vijay Prakash Shukla, two accused(s) had come and they informed that Shakuntala is with Vijay Prakash Shukla. These proceedings were held in writing. In the cross-examination, he also stated that Vijay Prakash was in homeguard at that time. The panchayat was held within a week of going of the girl and during this period he had not seen Vijay Prakash.
11. P.W. 6-Hamidullah Khan Sub Inspector stated that on 13.11.1986 at 09: 15 in the morning the complainant Gomti Prasad had given a written complaint (tehrir), on the basis of which he had prepared the Chick No. 119, Case Crime No. 129 of 1986 under Section 363/366 IPC and proved the same. He further stated that investigation of the case was handed over to Bans Raj Bharti. Bans Raj Bhari appeared as P.W. 7 and proved the statements recorded by him and the site plan etc. He also stated that with the permission of learned Magistrate, he had copied the statements recorded under Section 164 CrPC. He also proved the recovery of the girl. Thus, the case was proved by the prosecution witnesses.
12. In the statement under Section 313 CrPC, the appellant stated that report has been lodged on account of enmity. The recovery is forged. There was no panchayat and he has been implicated on account of enmity for property but he failed to prove any enmity and also could not adduce any evidence contrary to evidence adduced by the prosecution. Ganga Prasad was produced in defence as D.W.-1 and tried to prove that the appellant was on duty on the relevant dates. However, he specifically stated that he does not know as to whether he was posted on the police station on the relevant dates or not. He also stated that he had come to give the evidence on being called by the appellant Vijay Prakash Shukla. Thus, he tried to give evidence in support of the appellant but no material evidence could be adduced in support of him.
13. The learned trial court, after considering the aforesaid evidence and material on record, convicted the appellant and sentenced as above.
14. The girl of 11-13 years was kidnapped by the accused(s) from the lawful guardianship of her parents on the pretext of taking bath in Saryu River in Ayodhya taking benefit of their being close relatives and living in the near vicinity. Shakuntla Devi has not only given the evidence before the court during trial but also supported her statement under Section 164 CrPC in which she had also supported the prosecution. Thus, the offence under Section 363 CrPC, which provides punishment for kidnapping any person from lawful guardianship is proved.
15. The aforesaid evidence adduced by P.W. 2 indicates that she was kidnapped in order to force or seduce her to illicit intercourse because the appellant made repeated efforts of rape but could not succeed as the girl was minor and used to cry, whenever he tried to do so. Thus, the offence under Section 366 has also been proved against the appellant. As per evidence of the P.W. 2, she was confined at several places after kidnapping with the aforesaid intention. Thus, the offence under Section 368 IPC is also made out.
16. Section 363 IPC provides punishment for kidnapping. It provides that whoever kidnaps any person, from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Section 366 IPC provides kidnapping, abducting or inducing woman to compel her for marriage, etc. It provides that whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. The definition of rape has been given in Section 375 IPC. Section 376 provides the punishment for rape. Section 511 IPC provides punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment. It provides that whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both. Thus, where a person attempts to commit an offence punishable by this Code, he can be punished for a term which may extend to one half of the imprisonment provided for the offence or with fine or both.
17. In view of above, the learned trial court after considering the evidence and material on record has rightly and in accordance with law came to the conclusion that the offences under Sections 363/366/368 and 376/511 IPC are proved against the appellant and accordingly he has been convicted taking aid of Section 222(3) CrPC and sentenced. This Court does not find any illegality or error in the findings recorded by the trial court. The explanation for delay in lodging FIR has been given. Even otherwise the delay in such cases is immaterial, particularly when the girl was taken away by the relatives, even if there may be mute consent of mother on account of close relation and a brother-in-law (जेठ) was also accompanying as she could not have expected that the appellant would commit such a crime with his cousin.
18. The Hon'ble Supreme Court, in the case of Satpal Singh vs. State of Haryana; 2010 CRI. L. J. 4283, considering the judgment of Hon'ble Supreme Court in the case of State of Himachal Pradesh vs. Prem Singh; 2009 (64) ACC 287, has held that in case of sexual offence, the criteria may be different altogether. As honour of the family is involved, its members have to decide whether to take the matter to the court or not. In such a fact-situation, near relations of the prosecutrix may take time as to what course of action should be adopted. Thus, delay is bound to occur. The relevant paragraphs 15, 16 and 17 are extracted hereinbelow:-
"15. However, no straight jacket formula can be laid down in this regard. In case of sexual offences, the criteria may be different altogether. As honour of the family is involved, its members have to decide whether to take the matter to the court or not. In such a fact-situation, near relations of the prosecutrix may take time as to what course of action should be adopted. Thus, delay is bound to occur. This Court has always taken judicial notice of the fact that "ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon" [vide Satyapal Vs. State of Haryana AIR 2009 SC 2190]. 16. In State of Himachal Pradesh Vs. Prem Singh AIR 2009 SC 1010, this Court considered the issue at length and observed as under :-
"So far as the delay in lodging the FIR is concerned, the delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition bound society prevalent in India, more particularly, rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR."
17. Thus, in view of the above, the delay in lodging FIR in sexual offences has to be considered with a different yardstick."
19. The Hon'ble Supreme Court, in the case of Tarkeshwar Sahu vs. State of Bihar (Now Jharkhand); AIRONLINE 2006 SC 383, has held that the important ingredient of the offence under Section 375 punishable under Section 376 IPC is penetration. No offence under Section 376 IPC can be made out unless there was penetration to some extent.
20. The Hon'ble Supreme Court, in the case of Pandharinath vs. State of Maharashtra; (2009) 14 SCC 537, has held that if the accused- appellant had removed her clothes and he had not rebutted this statement of the prosecutrix in his examination-in-chief, it is definitely a case of attempt to rape.
21. The Hon'ble Supreme Court, in the case of Koppula Venkat Rao vs. State of Andhra Pradesh; (2004) 3 SCC 602, has held that the plea relating to applicability of Section 376 read with Section 511 IPC needs careful consideration. In every crime, there is first, intention to commit, secondly preparation to commit it, thirdly, attempt to commit it. If the third stage, that is, attempt is successful, then the crime is complete. If the attempt fails the crime is not complete, but law punishes the person attempting the Act under Section 511 IPC The relevant paragraphs 8, 11, 12 and 13 are extracted hereinbelow:-
"8. The plea relating to applicability of Section 376 read with Section 511 IPC needs careful consideration. In every crime, there is first, intention to commit, secondly preparation to commit it, thirdly, attempt to commit it. If the third stage, that is, attempt is successful, then the crime is complete. If the attempt fails the crime is not complete, but law punishes the person attempting the Act, Section 511 is a general provision dealing with attempts to commit offences not made punishable by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with death. An attempt is made punishable, because every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded.
11. The sine qua non of the offence of rape is penetration, and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. Definition of "rape" as contained in Section 375 IPC refers to "sexual intercourse" and the Explanation appended to the Section provides that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Intercourse means sexual connection.
12. In the instant case that connection has not been established. Courts below were not correct in their view.
13. When the evidence of the prosecutrix is considered in the proper perspective, it is clear that the commission of actual rape has not been established. However, the evidence is sufficient to prove that attempt to commit rape was made. That being the position, conviction is altered from Section 376 IPC to Section 376/511 IPC. Custodial sentence of 3 and '/2 years would meet the ends of justice. The accused who is on bail shall surrender to custody to serve remainder of his sentence."
22. The Hon'ble Supreme Court, in the case of Chaitu Lal vs. State of Uttarakhand; (2019) 20 SCC 272, held that the attempt to commit an offence begins when the accused commences to do an act with the necessary intention.
23. A coordinate Bench of this Court, in Israil vs. State of Uttar Pradesh; Criminal Appeal 40 of 2001, has held that for the commission of every offence there are three stages, the first is the intention to commit the offence, thereafter comes the preparation to commit the offence and third is attempt to commit offence. If the attempt succeeds, he has committed the offence, if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. Thereafter, considering several reports of the Hon'ble Supreme Court on the issue, the Court observed that in view of the case laws referred, it is clear that in order to hold the accused guilty of an attempt to commit rape the Court has to be satisfied that the accused, when he laid down the prosecutrix not only desired to gratify the passion upon her but that he intended to do so in all events, notwithstanding any resistance on her part. The Court after dealing with situation to the facts of the present case held that the conclusion is irresistible when the offence committed by the accused falls within the category of attempt of rape and it cannot, by any stretch of imagination, be said to be an offence under Section 354 IPC. The relevant paragraphs 14 and 21 are extracted hereinbelow:-
"14. For the commission of every offence there are three stages, the first is the intention to commit the offence, thereafter comes the preparation of commit the offence and third is attempt to commit offence. If the attempt succeeds, he has committed the offence, if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word "attempt" is not itself defined and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not to be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. The point as to what would amount to attempt to rape has been considered by Hon'ble Apex Court in several cases.
21. In view of the aforementioned case laws it is clear that in order to hold the accused guilty of an attempt to commit rape the Court has to be satisfied that the accused, when he laid down the prosecutrix not only desired to gratify the passion upon her but that he intended to do so in all events, notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts of rape. In order to come to a conclusion that the conduct of the accused was suggestive of determination to gratify his passion at all events and inspite of all resistance, there must be material on record. The offence under Section 354 IPC is much lesser than the offence under Sections 376/511 IPC. Even if a person gives slight slap in public view on the posterior of a lady with a culpable intention, then the offence under Section 354 IPC is complete. But in order to commit an offence under Section 376 read with Section 511 IPC, as stated above, there must be evidence on record to show that the accused had all the intention to satisfy his lust. When the aforesaid settled legal position is applied to the facts of the present case then the conclusion is irresistible then the accused has committed an offence to commit rape because he has not only undressed the victim but has also undressed himself, took her inside the Arhar field and laid on the victim. He was moving his waist at that time. He left the victim only when her grand mother reached on the place of occurrence and pulled him by holding his hairs. It is only thereafter he ran away from the place of occurrence. Therefore, the offence committed by the accused falls within the category of attempt of rape and it cannot, by any stretch of imagination, be said to be an offence under Section 354 IPC. A half hearted argument regarding the false implication of the appellant has also been raised but there is nothing on record to support such false implication. The victim has stated that the accused was his uncle and this fact has not been challenged in the cross-examination. It is absolutely unbelievable that the grand father would involve his grand daughter aged about 9 years in such an offence and thereby he would destroy her future because the stigma attached with the victim of offence of rape, in the Indian perspective, remains attached with her throughout her life and a great damage is done not only to the victim but to the entire family of the victim. No specific enmity, nor any other material is on record to justify the theory of false implication due to enmity"
24. The Hon'ble Supreme Court, in the case of Deepak vs. State of Haryana; (2015) 4 SCC 762, has held that no self- respecting woman would ever come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her and the testimony of the prosecutrix in such cases is vital and the same cannot be rejected unless there is any justification. The relevant paragraph 26 is extracted here-in-below:-
"26. We are alive to the law laid down by this Court wherein it is ruled that in a case of rape, no self- respecting woman would ever come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. The testimony of the prosecutrix in such cases is vital and unless there are compelling reasons, which necessitate looking for corroboration of her statement or where there are compelling reasons for rejecting of her testimony, there is no justification on the part of the court to reject her testimony."
25. The judgment of a co-ordinate Bench in the case of Rajesh Kumar dubey vs. State of U.P.; 2022 SCC OnLine All 1719 relied by learned counsel for the appellant is of no assistance to the appellant as in the said case the view as held by this Court was that the view taken by the trial court was against the weight of the evidence.
26. The judgment in Mushtaq Vs. State; MANU/UP/0226/1954 is also not of any assistance to the appellant as it is distinguishable on the facts of the present case because the appellant in this case was not a minor at the time of incident.
27. Learned counsel for the appellant, relying on Shyam @ Shyamoo vs. State of Uttar Pradesh; Criminal Appeal No. 178 of 2000 by a co-ordinate Bench, had argued that the appellant is entitled for benefit of first offender as he has no criminal history, whereas the said benefit is not available to him in view of the heinous crime of the appellant with a minor girl, who was his cousin while he was working in homeguard. The co-ordinate Bench has also observed that the Hon'ble Supreme Court, in the case of Smt. Devki vs. State of Haryana; 1979 (3) SCC 760, has held that benefit of Section 4 of the Act of 1958 could not be extended to a culprit who was found guilty of abducting a teenaged girl and forcing her to sexual submission with criminal motive. Thus, the appellant is not entitled for benefit of first offender.
28. The Hon'ble Supreme Court, in the case of Kalu @ Laxminarayan vs. State of Madhya Pradesh; (2019) 10 SCC 211, has held that once the prosecution established a prima facie case, the appellant was obliged to furnish some explanation under Section 313, Cr.P.C. with regard to the circumstances. His failure to offer any explanation whatsoever therefore leaves no doubt for the conclusion of his being the assailant. In the present case, the appellant has failed to do so as discussed above.
29. In view of above and considering the overall facts and circumstances of the case, there is no room of doubt that the offences under which the appellant has been convicted and sentenced have been proved beyond doubt before the trial court and the appellant has failed to give any explanation and prove anything contrary even by producing a defence witness, which may give any benefit to the appellant. This Court is of the view that looking to the crime committed by the appellant, the trial court has passed the impugned judgment and order in accordance with law, after considering the evidence and material on record, which does not suffer from any illegality or error. Thus, The appeal has been filed on misconceived and baseless grounds.
30. The appeal is, accordingly, dismissed.
Order Dated:21.07.2025/Raj
