Allahabad High Court
Pawan Kumar vs State Of Up And 3 Others on 24 November, 2025
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:210513-DB
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 2041 of 2024
Pawan Kumar
.....Appellant(s)
Versus
State Of Up And 3 Others
.....Respondent(s)
Counsel for Appellant(s)
:
Kamla Singh, Vijay Shanker Singh
Counsel for Respondent(s)
:
Ashutosh Singh, G.A.
Court No. - 46
HON'BLE SIDDHARTH, J.
HON'BLE VINAI KUMAR DWIVEDI, J.
1. Heard Mrs. Kamla Singh, learned counsel for the appellant, Mr. Ashutosh Singh, learned Amicus Curiae appearing on behalf of the informant, learned A.G.A. for the State and perused the record.
2. This criminal appeal has been filed against the judgement and order dated 06.01.2024 passed by Special Judge (POCSO Act)/Additional District and Sessions Judge, Firozabad, in P.S.T. No. 0001568 of 2020 (State Vs. Pawan Kumar) arising out of Case Crime No. 117 of 2020, under Sections 363, 366, 376 IPC, Section 3/4 POCSO Act and Section 3(2)5 SC/ST Act, Police Station Khairgarh, District Firozabad whereby the appellant has been convicted under Section 3/4 POCSO Act for life imprisonment and fine of Rs.10,000/- and in default of payment of fine to undergo one year's additional rigorous imprisonment, under Section 363 IPC for five years' rigorous imprisonment and fine of Rs. 5000/- and in default to pay fine five months' additional rigorous imprisonment, under Section 366 IPC for seven years' rigorous imprisonment and fine of Rs. 7000/- and in default to pay fine seven months' additional rigorous imprisonment and under Section 3(2)5 SC/ST Act for life imprisonment and fine of Rs. 10,000/- and in default of payment of fine one year's additional rigorous imprisonment. All the sentences were ordered to run concurrently.
3. The prosecution case is that daughter of the informant aged about 15 years was enticed away by Ajay Kumar.
4. During investigation, the appellant, Pawan Kumar, was arrested and implicated in this case when he was not named in the F.I.R. After submission of charge-sheet, charges were framed against the appellant under Sections 363, 366, 376 IPC, Section 3/4 POCSO Act and Section 3(2)(5) SC/ST Act. The appellant denied the charges and sought trial.
5. To prove the prosecution case, the prosecution examined PW-1 Dhan Devi (informant); PW-2 Lady Constable Nisha Pal; PW-3 victim; PW-4 Ram Kishan (father of the victim); PW-5 Harendra Singh, Sub Inspector (First Investigating Officer); PW-6 Arjun (brother of the victim); PW-7 Smt. Reshma (sister of the victim); PW-8 Vipin Kumar (Principal of the School); PW-9 Dr. R.V. Singh and PW-10 Baldeo Singh Khaneda (Second Investigating Officer).
6. PW-1 stated that she lodged the F.I.R. against Ajay Kumar, who is friend of the appellant, Pawan Kumar. Ajay Kumar used to come to her village because his sister is married in her village. She is Jatav by caste while Pawan is Thakur by caste. In cross-examination, she admitted that she got the application written by a boy but she does not know her name. She further stated that when her daughter was recovered, she was given in custody of her elder daughter, Reshma. Then the victim informed that she was abducted by the appellant, Pawan Kumar.
7. PW-2 proved the lodging of the F.I.R. on the basis of an application given by S.H.O. at the police station and recording of G.D. entry.
8. PW-3 stated that on 23.08.2020 at about 02:30 P.M., when she was aged about 17 years, she was abducted by the appellant who used to come to her neighbourhood and she had developed friendship with him. On the date of incident, the appellant called her for visiting Mathura Vrindavan but he took her to his house, married her in a temple and entered into forcible physical relationship with her, like husband and wife. The police recorded her statement wherein she informed that the appellant forcibly married her and committed forceful rape against her. She admitted that her statement under Section 164 Cr.P.C. is genuine and bears her signatures. She also stated that aforesaid statement was recorded under the pressure of the police wherein she had not made any allegation against the appellant regarding forceful marriage, rape, abduction or threatening. She also stated in her statement under Section 164 Cr.P.C. that she does not knows Ajay. She clearly stated that she left her house on her own and married the appellant.
9. PWs-4, 5, 6 and 7 are not the eye-witnesses of the incident and information which they received from PW-1 they stated before the Court.
10. PW-8, who is Head Master of the Primary School, stated that the victim was admitted in his school on 20.07.2009 in Class I as per the SR register of the school. He has brought the attendance register of Class 1 and 2 of the victim.
11. PW-9 Dr. R.V. Singh stated that he got the ossification test of the victim conducted through the medical board wherein he was also one of the member, apart from C.M.O. The age of the victim was determined as 19 years on the basis of ossification test report.
12. PW-10 stated that he submitted the charge-sheet against the appellant after collecting evidence regarding age of the victim from the school.
13. The statement of the appellant was recorded under Section 313 Cr.P.C. wherein he alleged false implication in the case. He stated that the victim was not minor but major aged about 20 years, which she admitted in her statement under Section 164 Cr.P.C.
14. The trial Court after considering the evidence on record has convicted and sentenced the appellant for committing the offences under Sections 3/4 POCSO Act, Sections 363, 366 IPC and Section 3(2)(5) SC/ST Act. For committing the offences under Section 3/4 POCSO Act and offences under Section 3(2)(5) SC/ST Act, the appellant has been convicted for life alongwith fine of Rs. 10,000/- under each Section.
15. After hearing the rival submissions of the parties, we find that there is no justification for awarding the life sentence to the appellant under Section 3/4 POCSO Act when he has been found to have committed the offence of rape against the victim aged between 17-18 years by the trial Court. There is no evidence of the appellant making any caste related comments/abuses against the victim or committing the alleged offence against her on the ground that she belongs to SC/ST caste, therefore, implication of the appellant under Section 3(2)(5) SC/ST Act is absolutely unwarranted.
16. Regarding the offences under Section 3/4 POCSO Act, this Court finds that the offence is covered under Section 3/4(2) POCSO Act and not under Section 3(4)(1) of POCSO Act. Since the victim was aged above 16 years at the time of alleged offence, therefore, maximum sentence which could have been imposed upon the appellant was 10 years alongwith fine of Rs. 10,000/-. The implication of the appellant under Sections 363 IPC was also unwarranted in view of the judgment of the Apex Court in the case of S. Varadarajan Vs. State of Madras, 1964 Law Suit SC 209, since the victim left the company of her guardian on her own and was not forcibly abducted from their guardianship, the implication of the appellant under Section 366 IPC is upheld and he shall undergo 07 years rigorous imprisonment alongwith fine of Rs. 7000/- as awarded by the trial Court.
17. The findings of the trial Court regarding the conviction and sentence of the appellant under Section 3/4 POCSO Act and Section 3(2)(5) SC/ST Act and under Section 363 IPC are hereby set aside.
18. The appeal is partly allowed.
19. The period of sentence already undergone by the appellant shall be adjusted. 20. Let the trial Court record be returned by the office within a period of two weeks alongwith copy of this judgment.
(Vinai Kumar Dwivedi,J.) (Siddharth,J.)
November 24, 2025
Shubham
