Allahabad High Court Upholds Conviction For Kidnapping And Attempted Rape | Delay In FIR Immaterial | Victim’s Testimony Proves Forced Abduction And Undressing
Safiya Malik
The High Court of Judicature at Allahabad, Single Bench of Justice Rajnish Kumar, delivered a judgment upholding the conviction and sentencing awarded to the appellant by the Trial Court in a case involving charges under Sections 363, 366, 376/511, and 354 of the Indian Penal Code. The court dismissed the criminal appeal, affirming the Trial Court's conclusion that the appellant had forcibly kidnapped the victim, outraged her modesty, and attempted to commit rape. It held that the appeal was devoid of merit and based on unfounded grounds, thus requiring no interference with the lower court's judgment.
The criminal appeal was filed under Section 374(2) of the Code of Criminal Procedure challenging the judgment and order dated 06.02.2009 passed by the Additional Sessions Judge/Fast Track Court No. 2, Lucknow, in Session Trial No. 391/2008. The appellant had been convicted in Case Crime No. 266/04 under Sections 363, 366, 376/511, and 354 IPC at Police Station Aliganj, District Lucknow.
According to the FIR dated 31.08.2004 mother of the victim, reported that her 16-year-old daughter had been missing since 10.08.2004. After unsuccessful attempts to trace her, she learned from local sources that the appellant had allegedly abducted her daughter. Based on this information, the FIR was lodged under Sections 363 and 366 IPC. Subsequently, the victim was recovered from the custody of the appellant on the same day.
Upon investigation, including medical examination and the statement of the victim under Section 164 CrPC, charges under Sections 376/511 and 354 IPC were added. The prosecution produced five witnesses: the complainant (P.W.1), the victim (P.W.2), the medical officer (P.W.3), the constable who registered the FIR (P.W.4), and the Investigating Officer (P.W.5).
P.W.1 stated that the victim was abducted by the appellant and later recovered by the police. P.W.2 testified that while she was on her way to the market, the appellant forcibly took her in a vehicle to Sitapur and kept her in a relative's house for about 20 days. She alleged that the appellant attempted to engage in sexual acts with her against her will.
Dr. Shobha Rani Dwivedi, P.W.3, examined the victim on 31.08.2004 and stated that the hymen was torn and the injury appeared old. The victim's medical age was found to be around 18 years, and no definite opinion about rape could be given. Nonetheless, the statement and medical report were consistent with attempted sexual assault.
The appellant, in his statement under Section 313 CrPC, claimed innocence and alleged false implication due to enmity. He denied the charges and submitted some letters and an application to the District Magistrate, attempting to prove a consensual relationship. However, the victim denied writing the letters.
The trial court, after evaluating the evidence, convicted the appellant and awarded 10 years rigorous imprisonment under Section 376/511 IPC, 7 years simple imprisonment under Section 366 IPC, 5 years simple imprisonment under Section 363 IPC, and 1 year simple imprisonment under Section 354 IPC, with all sentences to run concurrently. Fines were also imposed with a direction that part of the fine be paid to the victim as compensation.
Justice Rajnish Kumar carefully examined the testimony of the victim and the corroborating evidence and "recorded a finding that the victim had not gone with her will with the accused rather she was forcibly taken away by the accused."
The Court referred to the victim's statement under Section 164 CrPC, noting: "She had cried but none had heard. He had taken her to the house of his relative, who resides at Sitapur Road. She was kept by the appellant there for about 20 days forcibly."
In addressing the charge under Section 376/511 IPC, the Court stated: "She had stated that the accused had done bad work with her... However, he could not do intercourse but he could not done bad work with her."
On the delay in lodging the FIR, the Court quoted the Supreme Court's judgement in Satpal Singh vs. State of Haryana and observed: "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 Court cited various Supreme Court judgments, including Koppula Venkat Rao vs. State of Andhra Pradesh, noting: "In every crime, there is first, intention to commit, secondly preparation to commit it, thirdly, attempt to commit it... However, the evidence is sufficient to prove that attempt to commit rape was made."
Further, it was recorded: "The appellant had undressed her, however on her protest, he could not do intercourse." The act was classified as an attempt to commit rape, not mere indecent assault.
In relation to consent, the Court stated, drawing from State of Himachal Pradesh vs. Shree Kant Shekari: "It is significant to note that during cross-examination and the statement recorded under Section 313... plea of consent was not taken or pleaded."
Regarding the letters presented in defense, the Court remarked: "The appellant also tried to establish prior relationship with the victim... which have been denied to be written by the victim... and no cogent material could be placed on record to prove the same."
The Court held that the Trial Court had "rightly and in accordance with law convicted and punished under Sections 363, 366, 376/511 and 354 IPC."
The Court concluded: "The appeal has been filed on misconceived and baseless grounds and it is liable to be dismissed." Accordingly, the judgment and order dated 06.02.2009 passed by the Additional Sessions Judge/Fast Track Court No. 2, Lucknow, convicting the appellant under Sections 363, 366, 376/511 and 354 IPC was upheld.
The Court reaffirmed: "The impugned judgment and order has been passed after considering the evidence and material on record... it does not call for any interference by this Court."
It further recorded: "The delay in lodging the FIR has properly been explained in the FIR itself and in view of law laid down by the Hon’ble Apex Court... the delay is immaterial in such cases, particularly when the prosecution has proved its case."
Therefore, the Court dismissed the criminal appeal and directed that the sentence awarded by the trial court be carried out accordingly.
Advocates Representing the Parties:
For the Appellant: B.S. Patel, Advocate; Ashutosh Singh, Amicus
For the Respondent: Shri Badrul Hasan, Additional Government Advocate
Case Title: XYZ vs. State of U.P.
Neutral Citation: 2025: AHC-LKO:36985
Case Number: Criminal Appeal No. 889 of 2009
Bench: Justice Rajnish Kumar
