Allahabad High Court · 2025

community. Before going towards the Ghair, she did not turn towards Nagina. First, she reached the Ghair and her father was not there. In the said Ghair, there are two shades and, at the place where her father usually sat, no hookah was kept there. He was in the forest. She did not know whether Ishtiyaq used to take fertilizer from them. Shubhrati was sitting outside the Ghair. He had put a cloth in her mouth. Thereafter, she had gone towards Nagina, on foot, and they walked seven to eight miles on foot. Shahid was with her. She and Shahid did not go to the railway station, rather Shahid took her to the house of Akhlaq. She does not know whether the house of Akhlaq is in Nagina city. He had taken her to the house of Akhlaq not from the market of Nagina city, rather he had taken her from outside. She was not in visiting terms with Shahid's wife, nor she had visiting terms with Shahid. For the first time on that date, Shahid went to call her, and she went along with him. Shubharti followed her at a sufficient distance from the Ghair, about a mile away. Thereafter, she went to Nagina along with Shahid and Ishtiyaq. Shubharti had came in the middle. She did not know Ishtiyaq before. She had heard the name of Shubharti earlier. At present, she is having a nine month's old child with her. After she was handed over to her father, five to six months later her marriage was conducted with Dharmveer. She did not know Mustafa and Ansar Ali before. The police took them to Nagina Police Station. Dharmveer was not present in the police station. Mukhiya Ramchandra, was present at the police station.

12. Victim's mother had died. Her youngest brother was aged about four years. She used to stay in the house alone, and her father used to work in the forest, and she could not have travelled without her father. Her father had told her not to leave the house alone. Before the incident, she did not know Shahid and Ishtiyaq nor she was ever raped earlier. On the day when they have taken her, only on that night she was raped by the accused persons. In the morning, police had reached there. Police had got conducted her medical examination and thereafter handed over to her father. She was not educated. She cannot tell the year when her brother were born. The mother of the Akhlaq and the wife of Akhlaq were residing there. He is given a room adjoining the room of his wife and the police had taken victim from that room. Shubhrati has lodged a case against her father for theft. Till, she stayed in Nagina, she went on foot only and she did not ride on rickshaw. Other persons were also following her on foot. From her house till Nagina there is no road and they had taken her from outside. On that road some people were also going on vehicle. When she was brought to the police station, various people from Nagina and her village had gathered. She did not know Khalilur Rahman or Ragendra Singh. She did not know whether they came to the police station or not. She has denied the suggestion that the name of Ishtiyaq, Mustafa and Ansar Ali were tutored to her at the police station and that is why she is naming them. She has also denied the suggestions that at the time of incident she was aged about eighteen years or she has not been abducted by anyone and she has gone on her own and she has not been raped.

13. Genda Singh (PW-2), is the father of the victim. He stated in his deposition that at around two years ago his daughter was abducted and Harkesh and Chiranji had told him that his daughter has been taken away by Shubhrati and Shahid. He had lodged the report of the incident at the police on oral dictation. The report was read over to the witness and he has verified the same. The girl was found at Nagina and the police had handed over the girl to him. At that time, her daughter was aged about fourteen years and at that time his elder daughter was aged about sixteen to seventeen years. His elder daughter was married and was living in her matrimonial home. There are three younger sons to the victim. At that time of the incident the son who was younger to the victim, was aged about 12 years and another younger son, who was younger to the another younger son was aged about nine years and the youngest son was about seven years.

14. Shahid, the son-in-law of Subhrati, who was residing with his father-in-law in his village, had taken the daughter of PW2 in the evening. Harkesh has told that the victim was going while following Shahid. Then, Chiranji told him that he has also seen the victim going following Shahid. They were going through village and they were not walking through the road.

15. PW3 is Harswarup Singh alias Harkesh. He stated that it is an incident around two years and two months ago. It was a sunset but not the night and he was giving grass etc., to the cattle. Then, he had seen that the victim was going following Shahid. He has identified Shahid, who was present in the court. On that day he has not informed anybody about the same and he was not having any knowledge of the incident. The next morning the father of the victim was running here and there searching for his daughter. Then, he has informed him that he has seen the victim going following Shahid. Shahid is the son-in-law of Shubhrati and he was residing in the village prior to the incident. Shahid was five-six steps ahead of victim. The victim was five-six steps behind Shahid. Victim was neither tied nor there was any cloth on her mouth. She was going towards her Ghair. Shahid neither works with Genda nor used to come to his house. Where the victim was going, it was not a common road but a road towards forest. However, people used to go that side. Next day, the father of the victim met him. He was tensed. PW3 has informed that he had seen the victim going along with Shahid.

16. PW-4, Shiv Charan Lal, is the IO in the instant case. He has stated that in his deposition that on 18.01.1981, he was posted as Sub- Inspector in the Police Station at Nagina. On that day, this case was registered in his presence. Moharir, Ved Prakash Sharma has entered the case in the GD and he has identified chik report and the signatures of the said Moharir, Ved Prakash Sharma and the report was made at 12:30 A.M. in the GD. He has recorded the copy of the report in the case diary on the same day and recorded the statement of Constable, Ved Prakash Sharma. The statement of complainant was record at the police station and statement of Harkesh and Chiranji was also recorded on the same date at the police station. Thereafter, he has proceeded towards the place of incident to search out the accused persons. Shubhrati and Shahid were arrested from their houses and both the accused persons were sent to the police station and thereafter he has raided the house of Akhlaq and recovered the victim from their house. The mother of Akhlaq was hiding the victim. She was also arrested. A memo of the recovery of the victim was prepared by him and the signatures of the witnesses were obtained upon the same. The statement of victim was recorded at the place of recovery.

17. Thereafter, the place of incident was inspected, and a site-plan was prepared, which has been proved by this witness in court. He had sent the victim and the accused persons to the police station along with the police officials. The next day, he arrested Ansar Ali, Abdul, and other accused persons and after taking them, he came to the police station and the entry was made with regard to his coming back to the police station. A written entry was made by Constable Uma Shankar and the same, he had signed. On the statement of the victim the case was registered under Section 376 I.P.C. On 19.01.1981, Uma Shankar took the salwar of the victim into possession, and a memo of the same was prepared, which was signed by him.

18. On 19.01.1981, PW4 went to the house of the victim, from where the victim was alleged to have been abducted. A site-plan was prepared on 09.02.1981. The statement of the victim was recorded under Section 164 Cr.P.C. The accused, Akhlaq, Mushtaq and Ishtiyaq had surrendered in court, and thereafter, the investigation was completed, and the chargesheet was filed against the accused persons. On 18.01.1981, the victim was sent for medical examination, and her medical examination was conducted. In cross-examination, this witness had stated that Shubhrati and Shahid were found at their houses when he arrived where they had raped the victim. He reached the house of Genda Singh on the same day. The house of Shubharati was one mile away from the house of Genda Singh. Genda Singh gone along with him to the police station. Many other people were gone to the police station. He is not aware whether Mukhiya Ramchandra also went along with him or not. In between the house of Genda and his Ghair, there is only one street. Then, he reached the house of Akhlaq. There were two public witnesses along with him; one of them was witness Khalilur Rahman, who was taken along on the way as he knew him earlier. He is not aware as to whether he has ever investigated the case against said Khalilur Rahman.

19. In another case he has deposed against the accused Akhlaq in court, and in that case, this witness Khalilur Rahman was the complainant. He is not aware whether, prior to the incident, Akhlaq had lodged any case against the said Khalilur Rahman, or were the witnesses in the said case, or whether Akhlaq was a witness in the said incident or not, he is not aware about this. He knew Khalilur Rahman, as he used to prepare wooden showcases, etc. He denied the suggestion at the behest of Khalilur Rahman, he has falsely implicated Akhlaq, his brother, and his mother in the instant case, and the recovery of the victim has been fabricated from his house. He has not recorded the statement of Khalilur Rahman thereafter. The house of Khalilur Rahman is not near the house of Akhlaq, but is at the some distance. He has not produced the victim in the court, rather some other Sub-Inspector has produced her before the Magistrate. For medical examination of the victim, some other police inspector was sent. For recording the statement of the victim in the court, he himself has gone. Anwar Ali, Abdul, and other accused persons were arrested from their houses on 19.01.1981. He has denied the suggestion that he has implicated the names of accused persons who are residents of Nagina at the behest on Habib-Ul- Rehman and he has submitted that the names which were disclosed by the victim have been named as accused persons.

20. PW-5, is Dr. Ved Wati, who had medically examined the victim at around 4:30 P.M. on 18.01.1981. The thumb impression of the victim is present on the medical examination report. During the examination she was found the victim to be an average built and her weight was 39 KG and height was 4'11'. Breasts were well developed. The hairs on the auxillary and pubic region were hard and black. Her teeth were 14 X 14 and space for III molars on both sides of both the jaws was seen. Old torn hymen was present, three fingers could easily be passed through Vagina. C.X. or U.T. were normal. The blood was oozing out from C.X. The Victim was on period. Vaginal smeer was taken and for pathological sperm examination she was sent to the closest District Hospital, Bijnor. For X-ray of knee, elbow and wrist joint the victim was sent to the District Hospital Bijnor.

21. On 30.01.1981, the PW5 was posted at District Hospital, Bijnor and prepared the supplementary medical report on the basis of X-ray report. There was no sperm in the vaginal smear. As per the medical examination, in the opinion of the doctor, the victim was aged about sixteen and a half years at that time. She was habitual of intercourse. It is very difficult to say that whether she was raped or not. In the cross-examination she admits that sperm can be found after thirty-two hours of the intercourse and it can be found upto forty-eight hours if the intercourse was done for the first time. Rape can be ascertained looking at the injuries on the private part of the persons and the condition of hymen. If it is an intercourse for the first time, then, hymen, would be freshly torn and therefore, there could be tearing of the hymen and due to the injury on the hymen, the sperm can be even found after seventy-two hours of the intercourse but they will not be alive upto twenty-four to forty-eight hours of the intercourse. There is a possibility of finding sperm alive. Her opinion with regard to victim was based on Modi's Authoriy. There could be differences in the age for about six months. On the aforesaid basis she had given her opinion with regard to the age.

22. On the basis of the aforesaid evidence, trial was concluded and the prayer was made for acquittal of the three accused persons. She was habitual to intercourse and the accused persons have been falsely implicated in the case due to the enmity at the behest of the father of the victim as well as Habib-Ul-Rehman, who was the witness of the recovery of the victim. Therefore, the conviction of the appellant cannot be sustained.

23. Learned counsel for the appellants submits that the victim left her house alongwith the appellant, Shahid, according to the prosecution's story, without there being any force involved on the part of any of the appellants. Even as per PW3, Harswarup, though he had seen the victim in the company of the appellant, Shahid, no allegations have been made whether the victim was being forced by the appellant, Shahid, to accompany him. Further, it is submitted that from the medical examination report it has been categorically recorded by the doctor that the victim was accustomed to sexual intercourse and was of consenting age. It is further submitted that from the statements of the victims itself it is apparent that she was kept in the adjoining room of the wife of Akhlaq and she was staying there. Therefore, the implication of the appellant no.1, Nasima as she was guarding her or keeping the victim in her custody, is not established from the deposition of the victim itself. It is further submitted that so called independent witness of the recovery has not been examined by the prosecution. Therefore, the appellant herein have been falsely implicated in the instant case and no offence as alleged has taken place at all.

24. Per contra, learned A.G.A. for the State submits that from the careful examination of the statement of witnesses specifically, the victim it is apparent that she has levelled the allegation of rape only against the four persons and not against the other persons and she has narrated the entire story in great detail. There is no discrepancy in deposition with regard to involvement of the appellants as stated herein above. Thus, the victim has categorically stated that Nasima was also actively involved in the offence and was guarding the victim and not allowed to leave her, and was also instigating the other accused persons to take her to Delhi and sell her out and before they could succeed in their design to sell her out in Delhi, the police recovered her from the house of Akhlaq and she was rescued. In view of the statement of the victim, coupled with the other evidence, it cannot be said that the alleged offence did not take place.

25. Learned A.G.A further submits that regarding the medical opinion with regard to the victim being habitual to sexual intercourse, that doesn't give a license to accused persons to commit rape upon her. Merely, because the victim was accustomed to sexual intercourse, would not lead to the conclusion that no rape was committed upon her. Specifically, when the victim was recovered from the house of Akhlaq and she was seen in the company of Shahid while leaving the village. Her statement is corroborated. She testified that she was following him from her house till the Ghair and thereafter, it is categorically stated by the victim, that thereafter Shubharti and Shahid had put a cloth in her mouth so that she could not shout. Then, they took her to Nagina and kept her in the house of Akhlaq. Therefore, there is no illegality in the conviction and sentence of the appellants herein, as awarded by the learned trial court. Consequently, the appeal deserves to be dismissed.

26. Having heard the learned counsel for the parties, this Court has carefully gone through the record and has already taken note of the judgment and order of the trial court. The victim stated her age to be thirteen years, whereas her father stated her age to be fourteen years. However, in the medical examination, the victim's age was found to be sixteen and a half years, which could be plus or minus of two years. The trial court concluded the victim's age to be sixteen years after analyzing the entire evidence from the victim and her father. Since, there was no definite opinion regarding the victim's age, and relying upon the medical evidence, the victim is to be treated as aged about sixteen and a half years old. So far as the other question arising in this case – whether she went voluntarily along with accused Shahid, and Ishtiyaq or was abducted, the victim's deposition is trustworthy or she went voluntarily up till Ghair on the calling of Shahid and then, Shahid and his father-in- law, Shubharti gagged her mouth with cloth, thereafter she was taken towards Nagina by Shahid. In the way, Ishtiaq has also joined them. Thereafter, she was sent to the house of Akhlaq at Nagina. Therefore, from such evidence it is apparent she went voluntarily with Shahid to Ghair of her father. Thereafter, Shahid and Istiyaq kidnapped the victim and kept her in the house of Akhlaq against her will. Therefore, the offences under Section 366 I.P.C. is categorically made out against the accused Shahid and Ishtiyaq.

27. Further, she has categorically stated that the other four accused persons, namely Shahid, Mustaq, Ansar Ali, and Ishtiyaq, had raped her in the house of Akhlaq, though the same could not be corroborated in the medical examination, due to the fact that she was habitual to sexual intercourse. However, it is not given in the opinion of the doctor that the offence of rape was not committed against the victim. She only said that definite opinion regarding the rape cannot be given. When the victim was taken against her will, which is well established in the instant case, and she was kept in the house of Akhlaq against her will, therefore, the allegations of rape levelled by the victim, which is otherwise trustworthy, cannot be discarded or disbelieved. Therefore, this Court finds that the accused Shahid, Mushtaq, Ansar Ali, and Ishtiyaq are liable for the offences under Section 376 I.P.C. as, according to the victim, they committed rape on her. So far as the role of appellant no.1, Nasima, is concerned, as per the victim's statement she was actively involved in the instant case; she guarded the victim and did not allow her to leave the house but rather instigated the other accused persons to sell her out in Delhi. Therefore, this Court is of the considered opinion that she has been rightly convicted under Section 368 I.P.C.

28. Therefore, in the considered opinion of this Court, there is no illegality in the judgment and order convicting the appellant for the offences as stated herein above. So far as the sentence awarded to the accused persons is concerned, the appellant no.1 Nasima has been awarded sentence of probation for two years under the Probation of Offenders Act, 1958, under Section 368 I.P.C., which she has completed. So far as the sentence for the offence under Section 376 I.P.C. against Mushtaq, Ansar Ali, and Ishtiyaq is concerned, they have been awarded a minimum sentence of seven years rigorous imprisonment, which has been liberally awarded by the trial court. So far as the accused Shahid is concerned, he has been awarded a sentence of four years under Section 366 I.P.C., which has also been imposed rightly. In view thereof, no interference is called for in the sentences awarded to the appellants, Shahid, Ansar Ali and Ishtiyaq.

29. Thus, the instant appeal is dismissed. The conviction and sentences awarded by the trial court against the above appellant is upheld.

30. The appellants Shahid, Mushtaq, Ansar Ali, and Ishtiyaq are on bail. The lower court records be sent to the trial court. The trial court concerned shall take them into custody and send them to jail to serve out the sentences awarded by the trial court and affirmed by this Court.

31. Office is directed to send a copy of this order to the trial court concerned forthwith for compliance.

32. This court appreciates the assistance provided by Sri Shreyas Srivastava, learned Amicus Curiae, who has assisted the Court and for the service rendered by him, an honorarium of Rs. 10,000/- shall be paid to him as per rules. Order Date :- 31.7.2025 Shubham Arya (Anish Kumar Gupta, J.)

community. Before going towards the Ghair, she did not turn towards Nagina. First, she reached the Ghair and her father was not there. In the said Ghair, there are two shades and, at the place where her father usually sat, no hookah was kept there. He was in the forest. She did not know whether Ishtiyaq used to take fertilizer from them. Shubhrati was sitting outside the Ghair. He had put a cloth in her mouth. Thereafter, she had gone towards Nagina, on foot, and they walked seven to eight miles on foot. Shahid was with her. She and Shahid did not go to the railway station, rather Shahid took her to the house of Akhlaq. She does not know whether the house of Akhlaq is in Nagina city. He had taken her to the house of Akhlaq not from the market of Nagina city, rather he had taken her from outside. She was not in visiting terms with Shahid's wife, nor she had visiting terms with Shahid. For the first time on that date, Shahid went to call her, and she went along with him. Shubharti followed her at a sufficient distance from the Ghair, about a mile away. Thereafter, she went to Nagina along with Shahid and Ishtiyaq. Shubharti had came in the middle. She did not know Ishtiyaq before. She had heard the name of Shubharti earlier. At present, she is having a nine month's old child with her. After she was handed over to her father, five to six months later her marriage was conducted with Dharmveer. She did not know Mustafa and Ansar Ali before. The police took them to Nagina Police Station. Dharmveer was not present in the police station. Mukhiya Ramchandra, was present at the police station.

12. Victim's mother had died. Her youngest brother was aged about four years. She used to stay in the house alone, and her father used to work in the forest, and she could not have travelled without her father. Her father had told her not to leave the house alone. Before the incident, she did not know Shahid and Ishtiyaq nor she was ever raped earlier. On the day when they have taken her, only on that night she was raped by the accused persons. In the morning, police had reached there. Police had got conducted her medical examination and thereafter handed over to her father. She was not educated. She cannot tell the year when her brother were born. The mother of the Akhlaq and the wife of Akhlaq were residing there. He is given a room adjoining the room of his wife and the police had taken victim from that room. Shubhrati has lodged a case against her father for theft. Till, she stayed in Nagina, she went on foot only and she did not ride on rickshaw. Other persons were also following her on foot. From her house till Nagina there is no road and they had taken her from outside. On that road some people were also going on vehicle. When she was brought to the police station, various people from Nagina and her village had gathered. She did not know Khalilur Rahman or Ragendra Singh. She did not know whether they came to the police station or not. She has denied the suggestion that the name of Ishtiyaq, Mustafa and Ansar Ali were tutored to her at the police station and that is why she is naming them. She has also denied the suggestions that at the time of incident she was aged about eighteen years or she has not been abducted by anyone and she has gone on her own and she has not been raped.

13. Genda Singh (PW-2), is the father of the victim. He stated in his deposition that at around two years ago his daughter was abducted and Harkesh and Chiranji had told him that his daughter has been taken away by Shubhrati and Shahid. He had lodged the report of the incident at the police on oral dictation. The report was read over to the witness and he has verified the same. The girl was found at Nagina and the police had handed over the girl to him. At that time, her daughter was aged about fourteen years and at that time his elder daughter was aged about sixteen to seventeen years. His elder daughter was married and was living in her matrimonial home. There are three younger sons to the victim. At that time of the incident the son who was younger to the victim, was aged about 12 years and another younger son, who was younger to the another younger son was aged about nine years and the youngest son was about seven years.

14. Shahid, the son-in-law of Subhrati, who was residing with his father-in-law in his village, had taken the daughter of PW2 in the evening. Harkesh has told that the victim was going while following Shahid. Then, Chiranji told him that he has also seen the victim going following Shahid. They were going through village and they were not walking through the road.

15. PW3 is Harswarup Singh alias Harkesh. He stated that it is an incident around two years and two months ago. It was a sunset but not the night and he was giving grass etc., to the cattle. Then, he had seen that the victim was going following Shahid. He has identified Shahid, who was present in the court. On that day he has not informed anybody about the same and he was not having any knowledge of the incident. The next morning the father of the victim was running here and there searching for his daughter. Then, he has informed him that he has seen the victim going following Shahid. Shahid is the son-in-law of Shubhrati and he was residing in the village prior to the incident. Shahid was five-six steps ahead of victim. The victim was five-six steps behind Shahid. Victim was neither tied nor there was any cloth on her mouth. She was going towards her Ghair. Shahid neither works with Genda nor used to come to his house. Where the victim was going, it was not a common road but a road towards forest. However, people used to go that side. Next day, the father of the victim met him. He was tensed. PW3 has informed that he had seen the victim going along with Shahid.

16. PW-4, Shiv Charan Lal, is the IO in the instant case. He has stated that in his deposition that on 18.01.1981, he was posted as Sub- Inspector in the Police Station at Nagina. On that day, this case was registered in his presence. Moharir, Ved Prakash Sharma has entered the case in the GD and he has identified chik report and the signatures of the said Moharir, Ved Prakash Sharma and the report was made at 12:30 A.M. in the GD. He has recorded the copy of the report in the case diary on the same day and recorded the statement of Constable, Ved Prakash Sharma. The statement of complainant was record at the police station and statement of Harkesh and Chiranji was also recorded on the same date at the police station. Thereafter, he has proceeded towards the place of incident to search out the accused persons. Shubhrati and Shahid were arrested from their houses and both the accused persons were sent to the police station and thereafter he has raided the house of Akhlaq and recovered the victim from their house. The mother of Akhlaq was hiding the victim. She was also arrested. A memo of the recovery of the victim was prepared by him and the signatures of the witnesses were obtained upon the same. The statement of victim was recorded at the place of recovery.

17. Thereafter, the place of incident was inspected, and a site-plan was prepared, which has been proved by this witness in court. He had sent the victim and the accused persons to the police station along with the police officials. The next day, he arrested Ansar Ali, Abdul, and other accused persons and after taking them, he came to the police station and the entry was made with regard to his coming back to the police station. A written entry was made by Constable Uma Shankar and the same, he had signed. On the statement of the victim the case was registered under Section 376 I.P.C. On 19.01.1981, Uma Shankar took the salwar of the victim into possession, and a memo of the same was prepared, which was signed by him.

18. On 19.01.1981, PW4 went to the house of the victim, from where the victim was alleged to have been abducted. A site-plan was prepared on 09.02.1981. The statement of the victim was recorded under Section 164 Cr.P.C. The accused, Akhlaq, Mushtaq and Ishtiyaq had surrendered in court, and thereafter, the investigation was completed, and the chargesheet was filed against the accused persons. On 18.01.1981, the victim was sent for medical examination, and her medical examination was conducted. In cross-examination, this witness had stated that Shubhrati and Shahid were found at their houses when he arrived where they had raped the victim. He reached the house of Genda Singh on the same day. The house of Shubharati was one mile away from the house of Genda Singh. Genda Singh gone along with him to the police station. Many other people were gone to the police station. He is not aware whether Mukhiya Ramchandra also went along with him or not. In between the house of Genda and his Ghair, there is only one street. Then, he reached the house of Akhlaq. There were two public witnesses along with him; one of them was witness Khalilur Rahman, who was taken along on the way as he knew him earlier. He is not aware as to whether he has ever investigated the case against said Khalilur Rahman.

19. In another case he has deposed against the accused Akhlaq in court, and in that case, this witness Khalilur Rahman was the complainant. He is not aware whether, prior to the incident, Akhlaq had lodged any case against the said Khalilur Rahman, or were the witnesses in the said case, or whether Akhlaq was a witness in the said incident or not, he is not aware about this. He knew Khalilur Rahman, as he used to prepare wooden showcases, etc. He denied the suggestion at the behest of Khalilur Rahman, he has falsely implicated Akhlaq, his brother, and his mother in the instant case, and the recovery of the victim has been fabricated from his house. He has not recorded the statement of Khalilur Rahman thereafter. The house of Khalilur Rahman is not near the house of Akhlaq, but is at the some distance. He has not produced the victim in the court, rather some other Sub-Inspector has produced her before the Magistrate. For medical examination of the victim, some other police inspector was sent. For recording the statement of the victim in the court, he himself has gone. Anwar Ali, Abdul, and other accused persons were arrested from their houses on 19.01.1981. He has denied the suggestion that he has implicated the names of accused persons who are residents of Nagina at the behest on Habib-Ul- Rehman and he has submitted that the names which were disclosed by the victim have been named as accused persons.

20. PW-5, is Dr. Ved Wati, who had medically examined the victim at around 4:30 P.M. on 18.01.1981. The thumb impression of the victim is present on the medical examination report. During the examination she was found the victim to be an average built and her weight was 39 KG and height was 4'11'. Breasts were well developed. The hairs on the auxillary and pubic region were hard and black. Her teeth were 14 X 14 and space for III molars on both sides of both the jaws was seen. Old torn hymen was present, three fingers could easily be passed through Vagina. C.X. or U.T. were normal. The blood was oozing out from C.X. The Victim was on period. Vaginal smeer was taken and for pathological sperm examination she was sent to the closest District Hospital, Bijnor. For X-ray of knee, elbow and wrist joint the victim was sent to the District Hospital Bijnor.

21. On 30.01.1981, the PW5 was posted at District Hospital, Bijnor and prepared the supplementary medical report on the basis of X-ray report. There was no sperm in the vaginal smear. As per the medical examination, in the opinion of the doctor, the victim was aged about sixteen and a half years at that time. She was habitual of intercourse. It is very difficult to say that whether she was raped or not. In the cross-examination she admits that sperm can be found after thirty-two hours of the intercourse and it can be found upto forty-eight hours if the intercourse was done for the first time. Rape can be ascertained looking at the injuries on the private part of the persons and the condition of hymen. If it is an intercourse for the first time, then, hymen, would be freshly torn and therefore, there could be tearing of the hymen and due to the injury on the hymen, the sperm can be even found after seventy-two hours of the intercourse but they will not be alive upto twenty-four to forty-eight hours of the intercourse. There is a possibility of finding sperm alive. Her opinion with regard to victim was based on Modi's Authoriy. There could be differences in the age for about six months. On the aforesaid basis she had given her opinion with regard to the age.

22. On the basis of the aforesaid evidence, trial was concluded and the prayer was made for acquittal of the three accused persons. She was habitual to intercourse and the accused persons have been falsely implicated in the case due to the enmity at the behest of the father of the victim as well as Habib-Ul-Rehman, who was the witness of the recovery of the victim. Therefore, the conviction of the appellant cannot be sustained.

23. Learned counsel for the appellants submits that the victim left her house alongwith the appellant, Shahid, according to the prosecution's story, without there being any force involved on the part of any of the appellants. Even as per PW3, Harswarup, though he had seen the victim in the company of the appellant, Shahid, no allegations have been made whether the victim was being forced by the appellant, Shahid, to accompany him. Further, it is submitted that from the medical examination report it has been categorically recorded by the doctor that the victim was accustomed to sexual intercourse and was of consenting age. It is further submitted that from the statements of the victims itself it is apparent that she was kept in the adjoining room of the wife of Akhlaq and she was staying there. Therefore, the implication of the appellant no.1, Nasima as she was guarding her or keeping the victim in her custody, is not established from the deposition of the victim itself. It is further submitted that so called independent witness of the recovery has not been examined by the prosecution. Therefore, the appellant herein have been falsely implicated in the instant case and no offence as alleged has taken place at all.

24. Per contra, learned A.G.A. for the State submits that from the careful examination of the statement of witnesses specifically, the victim it is apparent that she has levelled the allegation of rape only against the four persons and not against the other persons and she has narrated the entire story in great detail. There is no discrepancy in deposition with regard to involvement of the appellants as stated herein above. Thus, the victim has categorically stated that Nasima was also actively involved in the offence and was guarding the victim and not allowed to leave her, and was also instigating the other accused persons to take her to Delhi and sell her out and before they could succeed in their design to sell her out in Delhi, the police recovered her from the house of Akhlaq and she was rescued. In view of the statement of the victim, coupled with the other evidence, it cannot be said that the alleged offence did not take place.

25. Learned A.G.A further submits that regarding the medical opinion with regard to the victim being habitual to sexual intercourse, that doesn't give a license to accused persons to commit rape upon her. Merely, because the victim was accustomed to sexual intercourse, would not lead to the conclusion that no rape was committed upon her. Specifically, when the victim was recovered from the house of Akhlaq and she was seen in the company of Shahid while leaving the village. Her statement is corroborated. She testified that she was following him from her house till the Ghair and thereafter, it is categorically stated by the victim, that thereafter Shubharti and Shahid had put a cloth in her mouth so that she could not shout. Then, they took her to Nagina and kept her in the house of Akhlaq. Therefore, there is no illegality in the conviction and sentence of the appellants herein, as awarded by the learned trial court. Consequently, the appeal deserves to be dismissed.

26. Having heard the learned counsel for the parties, this Court has carefully gone through the record and has already taken note of the judgment and order of the trial court. The victim stated her age to be thirteen years, whereas her father stated her age to be fourteen years. However, in the medical examination, the victim's age was found to be sixteen and a half years, which could be plus or minus of two years. The trial court concluded the victim's age to be sixteen years after analyzing the entire evidence from the victim and her father. Since, there was no definite opinion regarding the victim's age, and relying upon the medical evidence, the victim is to be treated as aged about sixteen and a half years old. So far as the other question arising in this case – whether she went voluntarily along with accused Shahid, and Ishtiyaq or was abducted, the victim's deposition is trustworthy or she went voluntarily up till Ghair on the calling of Shahid and then, Shahid and his father-in- law, Shubharti gagged her mouth with cloth, thereafter she was taken towards Nagina by Shahid. In the way, Ishtiaq has also joined them. Thereafter, she was sent to the house of Akhlaq at Nagina. Therefore, from such evidence it is apparent she went voluntarily with Shahid to Ghair of her father. Thereafter, Shahid and Istiyaq kidnapped the victim and kept her in the house of Akhlaq against her will. Therefore, the offences under Section 366 I.P.C. is categorically made out against the accused Shahid and Ishtiyaq.

27. Further, she has categorically stated that the other four accused persons, namely Shahid, Mustaq, Ansar Ali, and Ishtiyaq, had raped her in the house of Akhlaq, though the same could not be corroborated in the medical examination, due to the fact that she was habitual to sexual intercourse. However, it is not given in the opinion of the doctor that the offence of rape was not committed against the victim. She only said that definite opinion regarding the rape cannot be given. When the victim was taken against her will, which is well established in the instant case, and she was kept in the house of Akhlaq against her will, therefore, the allegations of rape levelled by the victim, which is otherwise trustworthy, cannot be discarded or disbelieved. Therefore, this Court finds that the accused Shahid, Mushtaq, Ansar Ali, and Ishtiyaq are liable for the offences under Section 376 I.P.C. as, according to the victim, they committed rape on her. So far as the role of appellant no.1, Nasima, is concerned, as per the victim's statement she was actively involved in the instant case; she guarded the victim and did not allow her to leave the house but rather instigated the other accused persons to sell her out in Delhi. Therefore, this Court is of the considered opinion that she has been rightly convicted under Section 368 I.P.C.

28. Therefore, in the considered opinion of this Court, there is no illegality in the judgment and order convicting the appellant for the offences as stated herein above. So far as the sentence awarded to the accused persons is concerned, the appellant no.1 Nasima has been awarded sentence of probation for two years under the Probation of Offenders Act, 1958, under Section 368 I.P.C., which she has completed. So far as the sentence for the offence under Section 376 I.P.C. against Mushtaq, Ansar Ali, and Ishtiyaq is concerned, they have been awarded a minimum sentence of seven years rigorous imprisonment, which has been liberally awarded by the trial court. So far as the accused Shahid is concerned, he has been awarded a sentence of four years under Section 366 I.P.C., which has also been imposed rightly. In view thereof, no interference is called for in the sentences awarded to the appellants, Shahid, Ansar Ali and Ishtiyaq.

29. Thus, the instant appeal is dismissed. The conviction and sentences awarded by the trial court against the above appellant is upheld.

30. The appellants Shahid, Mushtaq, Ansar Ali, and Ishtiyaq are on bail. The lower court records be sent to the trial court. The trial court concerned shall take them into custody and send them to jail to serve out the sentences awarded by the trial court and affirmed by this Court.

31. Office is directed to send a copy of this order to the trial court concerned forthwith for compliance.

32. This court appreciates the assistance provided by Sri Shreyas Srivastava, learned Amicus Curiae, who has assisted the Court and for the service rendered by him, an honorarium of Rs. 10,000/- shall be paid to him as per rules. Order Date :- 31.7.2025 Shubham Arya (Anish Kumar Gupta, J.)