Smt. Guddi & Ors. vs State Of U.P.

Hon'Ble Abdul Shahid, J.

Heard learned counsel for the appellants and the learned AGA for the State.

Since, both the aforesaid criminal appeal arise out of same judgment and order passed in same session trial, hence, they are being heard and decided together by this common order.

The present criminal appeal has been filed against the judgment and order dated 15.1.2004, passed by learned Special Judge/Additional Sessions Judge, Aligarh in Sessions Trial No. 65 of 2002 (State Vs. Mahendra Singh and others), under Section 366, and 376 IPC, Police Station Gabhana, district Aligarh.

The criminal appeal No. 307 of 2004 has been filed by five appellants, namely, (1) Smt. Guddi, (2) Smt. Raj Kumari alias Gulkandi, (3) Mahendra Singh, (4) Jaipal Singh and (5) Rishipal. The appellant no.3-Mahendra Singh in said appeal had died during the pendency of the criminal appeal, hence proceedings against him is already abated on 19.9.2025.

The criminal appeal No. 648 of 2004 has been filed by two appellants, namely, Raju and Mahesh. Both are real brothers. The appellant no.1, Raju had died during the pendency of the appeal, hence proceedings against him is already abated on 6.10.2026.

Now, the appeals are limited to only appellants, (1) Smt. Guddi, (2) Smt. Raj Kumari alias Gulkandi, (3) Jaipal Singh (4) Rishipal, and (5) Mahesh.

Learned counsel for the appellants has submitted at the outset that the victim was aged about 19 years at the time of incident as per medical ossification test. There is no injury found on the body of the victim and further there is no eye witness of the incident. The incident is alleged to have took place in the night of 26/27.12.2000 at 2.00 am. The victim was recovered on 30.12.2000. She was recovered in full state of mind. She had been recovered alongwith accused Raju and Rishipal, whereas Raju had already died, who was the main accused.

Learned counsel for the appellants has further submitted that there is no mark of injury has been found. The victim was major and well understood the nature of her act. It is corroborated by the timing that she left the house at 2.00 am in the night. She is a consenting party it could not be ruled out. As per Ext. Ka-7, the date of birth of the victim is 25.8.1982 which is verified whereas the incident is of 26/27.12.2000 and as per her medical ossification test, she is 19 years old. Hence, by all means, she is major.

The FIR of the said incident was registered on 28.12.2000 at 6.10 am only under Section 363/366 IPC. The FIR has been lodged with delay. The written complaint/Tahrir which is submitted by Rajveer Singh, he has submitted that the incident is of 26/25.12.2000 around 2.00. He stated in the complaint that I am Rajveer Singh, son of Shri Surajmal Singh, resident of village Bhamarola, police station Gabhana, district Aligarh. The incident took place on the night of 26/27-12-2000 at about 2 o'clock, Mahendra Singh s/o Raghuvar Singh, Raju son of Mahendra Singh, Mahesh son of Mahendra Singh, Guddi wife of Mahesh Chandra, Rajkumari alias Gulkandi wife of Mahendra Singh, Jaipal son of Govind Singh, resident of village Bhamarola, police station Gabhana, Aligarh and Rishipal son of unknown, resident of Hariya Pur, police station Tappal, district Aligarh, who is the nephew of Sohan Lal, son of Tikam Singh of the village, these people have abducted my niece/victim aged about 17 years, by forcibly luring her. Witnesses Smt. Rajwala Devi, wife of Ranveer Singh, Omwati, wife of late Dalveer Singh, Rajveer Singh, s/o Surajmal Singh, Bhav Singh, s/o Ramprasad, and Ramveer, s/o Talevar Singh, saw them being taken away. I have been searching for the girl till now but have not found any trace.

They have got information on the very same day and even eye witnesses had saw, even thereafter they did not file prompt FIR, whereas in the written complaint, who is scribe by Ranveer Singh son of Suraj Mal Singh, the complainant is Rajveer Singh son of Surajmal Singh.The complainant is uncle whereas scribe of the FIR is real father of the victim.

In the written complaint, the date of incident is 26/27.12.2000 at 2.00 am whereas in the check FIR, Ext. ka-10 it is written as 26/25.12.2000 at 2.00 am. The victim has been recovered on 30.12.2000 and had been handed over to her father. The medical examination of the victim took place on 30.12.2000 at 2.15 pm by Medical Officer, M.L. C. Government Women Hospital, Aligarh which is Ext. Ka-7. In the medical examination, the doctor opined that girl was average body built, no mark of injury was found. Hymen torn old tear. Vagina admits two fingers. Vaginal smear taken and sent for pathological examination.

As per supplementary report prepared on the basis of X-ray of the victim which is Ext. Ka-8 dated 4.1.2001, she is found above 19 years of age.

The charges under Section 376 IPC has been framed against Raju and Mahesh, both are real brother. Normally, it is not happened that two real brother commit this type of bad act at the same time with the same girl. The other accused, Mahendra Singh, Raju, Mahesh, Smt. Guddi, Smt. Raj Kumari, Jaipal and Rishipal had been charged under Section 366 IPC.

The statement of victim had been recorded as PW-1 on 19.9.2002, where she has stated her age as about 19 years. She has stated that the incident is of 26/27.12.2-000 around 2.00 am in the night. At the same time, accused, Raju, Mahesh, Mahendra, Rishipal, Jaipal, Raj Kumari alias Gulkandi and Guddi came without any prior consultation or meeting. She has stated that Rishipal is the relative of her co-villager Sohan Lal and he resides in the village prior to the incident. She has further stated that country made pistol had been put on her and they smelled her something, hence she became unconscious. She has not mentioned that who had done it. The story is appeared to be very filmy. The substance is not appeared to be in said story. Further, she stated that they took her into different place. I do not know name of that village. They had took myself in a 'matador'. Both her statement is contradictory to each other. If she became unconscious, then how she could know that all took her by sitting her in the matador. She has further stated that when the accused persons had abducted her then she had raided noise. On said noise, her mother, Smt. Rajbala Devi, my aunt Omwati Devi and uncle Rajveer Singh and Mab Singh, Ramveer, who is my uncle, they all had saw that these accused were taking to myself. The incident appears to be of 2.00 am in the night and at that time, several members of the accused and all family members of the victim were also present on the same time. It is not appeared to be trustworthy or creditworthy. Even then, neither they took any attempt to stop the accused persons nor they have lodged any FIR before the concerned police station immediately.

She has further stated that on the next day, she became conscious in the village. She does not know name of that village. The accused had kept her in said village for next three days. The accused, Raju and Mahesh had committed forceful rape with myself without my consent. Both have done rape twice. The accused, Mahesh is present in court today and accused Raju is not present in court. The story is not appeared to be very truth that these two accused are real brothers and they had committed forceful rape with her at the same time and that too twice.

She further stated that on 30.12.2000, when the accused persons Raju and Rishipal taking her to another place and we were going on foot, as soon as we reached near crossing of Daurau, then police came and arrested all these three persons. Thereafter, the police has completed documentation and at the time of recovery, she does not show presence of other accused Mahesh. She has introduced Rishipal. She admitted that both were taking on road which is a public place, she has neither raised alarm nor seek any help. This conduct of the victim appeared to be consenting party. There has been no injury found on the victim either externally or internally and as per her medical examination of ossification test, she has been found above 19 years of age.

In the cross-examination, she has stated that when she left the house in the night at 2.00 am, it was dark. All the accused persons had abducted her in the dark. Thereafter, I had screamed and the accused had abducted myself. Whereas, she has stated in her examination-in-chief that they put a country made pistol on her and smelled something to her, she became unconscious. Thereafter, they had taken her to any village. All the statements of the victim herself are contradictory to each other. They are not inspiring any confidence. She has further stated that she screamed and on her screaming, members of her family were came. None other than them came, whereas neither they had tried to save her nor they had tried to lodge FIR timely. Further, she has stated that the accused person were having country made pistol, hence due to fear, none of them had saved me. Members of my family also raised alarm, but none of the village person came nor they came to save myself. Thereafter, she has further improved that they had took her into matador after smelling something. She stated that she became conscious in the matador, hence she identified the accused persons. She further stated that when I had identified them, then it was the day and they had taken down myself from the matador in a village. I know all the seven accused persons. All the accused persons taken her in some house in the village and they had kept myself in said house. There was no male or female in said house. The accused persons kept me in said house for next three days. The accused brought food from the market and we ate it. I had not gone for next three days outside for urination or latrine. Neither, she did make any resentment nor seek any help. It is highly unbelievable that when she ate food for next three days and she did not having requirement to go to toilet. It is neither natural nor probable. She has stated that after three days, accused persons on their own consent exited from the said house and then we came at the crossing of Daurau on foot. The distance between said house to the crossing is about 4-5 km. It is categorical clear that it is a public place and thorough fair. There appears to be consent of the victim with the accused persons as neither she made any alarm nor seek any help. Thereafter, police came and arrested us. There were several persons were present there. They have arrested Raju and Rishipal and police took myself. Raju who is the main accused had died.

She further stated that it is belied to state that I want to get marry with the accused Raju and my members of family were not consenting, hence I had lodged false case against him. The house of Raju and Rishipal is two house away from my house. Our family members never used to visit to the house of Raju and Rishipal, because there is enmity with our family. Case is also pending between us in the court. I went outside the house after awakening at 2.00 am for urination. I had not awakened any members of the family that I am going for urination. All the members of my family were sleeping. Raju and Rishipal were already present in said 'gher' prior to visit of myself. Prior consent of meeting of mind could not be ruled out in view of the facts and circumstances of the case. She has further stated that the accused persons took her around 100 paces, at that time, I was in full conscious condition. Rishipal had holded myself. I was in conscious. Members of family had also raised alarm, but none of co-villager came to save myself or go on the spot. The incident was appeared to be at 2.00 am in the night, whereas said incident has happened, the entire family members of the victim as well as accused were present. There is also a matador was present. The victim raised alarm and voice and screaming. Neither any villagers came nor family members had made any attempt to save herself. In view of facts and circumstances, the story is neither appeared to be convincing nor cogent.

She further stated that I had not eaten anything, hence I had not gone for latrine for next three days, whereas previously, she had stated that the accused brought food from outside and they were eaten the food, but she did not went to urination or latrine. She has stated that on the next date of incident, firstly, Raju has committed rape. Thereafter, Mahesh has committed rape. Raju and Mahesh, both are real brothers. I had objected then they had beaten me. No other accused has committed any bad act with myself. Whereas, no injury of any beating has been found on the body of the victim at the time of her medical examination. It is belied to state that there was relationship in between myself and Raju for one and half years. It is belied to state that none of them had forcefully taken to myself, and I had went with my own will and consent.

PW-2, Rajveer, who is uncle of the victim and complainant in said case. He has stated that the victim is my niece. Her father is working in PAC, whose name is Ranveer Singh. He stated that on 26/27.12.2000, in the night around 2.00 am I had wake up on the noise of the victim and went outside the house, then I saw Mahendra, Raju, Mahesh, Jaipal, Rishipal, Guddi and Gulkandi. He knows all of them. He has stated that any of them was having spear (bhala) and country made pistol in their hands. They shifted the victim in a matador and taken her. Myself, Ramveer, Bhag Singh, Rajbala and Omwati had saw when they took the victim. Thereafter, I had sent information of kidnapping of the victim by the accused to my brother on the next on 27th. He came in the night at 10.00 pm. Thereafter, I had registered the complaint on 28.12.2000. I had dictated to my brother/father of the victim and he had scribed it. The story is not appeared to be very probable. He has further stated that the victim was recovered on third day of the incident and delivered to us. He has also admitted this fact that there is enmity with the family of Mahendra Singh with me. I had woke up after hearing the noise of the victim and saw the accused persons that they were taking to the victim. They had threatened us, hence we had not tried to make any attempt to save her. The story is neither appeared to be reasonable or plausible.

No other witness as mentioned in the FIR has been produced before the learned trial court. Only victim and her uncle have been produced as witness in the case. Even, father of the victim has not been produced as witness to support the prosecution case.

PW-3 is the Investigating Officer of the case. He has verified the papers of prosecution and verified that on 30.12.2000, he had recovered the victim around 11.30 hours on the day from Daurau crossing alongwith accused Raju and Rishipal. He has verified that he has obtained date of birth of the victim from the college on 15.1.2001. As per certificate, date of birth of the victim is 25.8.1982, whereas incident is of 26/27.12.2000, hence, she was major at the time of incident. He has further submitted that he has filed charge sheet.

In the cross-examination, he has specifically stated that the victim did not told about her unconsciousness, hence there is contradiction in the statement of victim, which she has recorded before the learned trial court and that has not been stated during investigation. He has stated that he did not went with Rajveer for recovery of the victim. Rajveer has not told about recovery of victim from Ghaziabad. I do not having any knowledge about relationship in between victim and Raju. I have recovered the victim from the crossing of Daurau, where they were standing and they were waiting for vehicle to go anywhere outside. At the time of recovery, which is a public place, she was comfortably standing and waiting for vehicle with the accused Raju. Her conduct shows that she is well aware of her act and is consenting party, she was doing all the act with her own consent and knowledge along with her will and consent.

PW-4 is Dr. P. Sharma. She has medically examined the victim on the date of recovery on 30.12.2000. It is verified by the doctor that the body of the victim was normal. There was no injury either on her face, neck, abdomen, hands and legs or on entire body. Hymen was torned. It was old torn. She has specifically opined that age of the victim as per her opinion she was above 19 years of age.

In the cross-examination, she has specifically stated that there was no injury outside. It is not possible to saw whether rape has been committed with the victim or not.

PW-5 Dr. B.B. Sharma. He has verified the X-ray report of the victim and stated that all the joints were found fused. The opportunity of cross-examination has been provided to the accused, but they have not availed that opportunity, hence it goes that the victim is major which is verified by the doctor. The victim was not minor.

PW-6, Vidya Ram has verified the FIR and G.D. entry. He is pairokar of concerned police station Gabhana, District Aligarh.

The statement of the accused/appellants had been recorded under Section 313 Cr.P.C. They all have denied the charges levelled against them and stated that they have been implicated in the said case falsely due to enmity.

DW-1, Prem Pal Singh has been examined in support of the defence. He has stated that I had heard about kidnapping or enticing of the victim from the house of Rajveer Singh. I had got this information on 27.12.2000 in the morning by Rajveer that my niece has went away. Father of the victim were in police at District Ghaziabad. Father of the victim, Ranveer came to the village in the evening on 27th. He has been called by the complainant/Rajveer Singh. I have got information about report when on 28.12.2000 in the evening police has arrested Guddi and Gulkandi. I do not know against whom the report was lodged. Mahesh was in village on 27.12.2000 and Mahendra and Raju were also in the village. On 28.12.2000, they were also at their home in the village. At the time when Gulkandi and Guddi were arrested by the police, Mahesh and Raju were in their agricultural field. Mahendra Singh is madman and he was roaming in the village. On 29.12.2000, Mahesh had came to his relative Advocate at Aligarh. Rishipal and Raju were in the village. Both of them had been arrested by Ranveer Singh and his brother-in-law and both of them had confined in a room and was beaten by them and after in the evening at about 5.00 pm, they had delivered them to the police, then in the evening on 30.12.2000, father of the victim came to the village and told that the victim and Raju have been recovered. There is enmity in between family of Mahendra Singh and Rajveer Singh prior to said incident. The cases are also pending between them.

DW-2 is Tej Veer Singh. He has stated that father of the victim is doing job in police at Ghaziabad. Mahesh, Raju, Mahendra Singh were in village on 27.12.2000. They were also in the village on 29.12.2000. On 28.12.2000, Raju and Mahesh were doing their agricultural work in the field. Mahendra was in village. He is madman. On 29.12.2000, Raju and Rishipal were arrested by father of the victim and his brother-in-law and they have been beaten by them and thereafter had been delivered to the police at 5.00 pm in the evening. Thereafter, father of the victim had told that the victim and Raju have been recovered on 30.12.2000.

There was no injury has been found either externally or internally on the body of the victim. There has been no recovery of country made pistol from the accused persons. The age of the victim is major at the time of incident. As per radiological examination, the victim was found above 19 years. The alleged incident is occurred in the night around 2.00 am. She went outside alone at the same time when the accused persons were also present over there and they took her with them. Prior consultation and meeting of mind prior to the incident could not be ruled out. There appears to be some conversant with the main accused Raju, who had died. She is very well known the nature of her act and conduct. In this view of the matter, her own will and consent could not be ruled out.

It is held by the Hon'ble Supreme Court in Kaini Rajan Vs. State of Kerala; 2013 (3) SCC (Crl.) 858, in paragraph no. 12 as follows:

In the present case, looking into the entire facts and circumstances, the role of the victim is appeared to be well consented. She is major and appeared to be well aware of her act.

It is held by Hon'ble Supreme Court in Paramjit Singh Bedi. Vs. State of Punjab; 2026 INSC 1054 that while it is true that on the basis of the sole testimony of the prosectutrix, an accused can be convicted of rape, but for such a conviction, it would also require that such statement of the prosecutrix must inspire the confidence of court.

In the present case, where the victim is a major. She left her house at 2.00 am in the night alone and at the same time, all the accused persons were also present there. Hence, it could not be ruled out that she was a consenting party. Further, the victim resided with the accused for the next three days and she did not raise any alarm, or voice and further she was recovered at a public place of crossing where she was waiting for vehicle for going to another place. The distance between that place where she had been stayed and where she has been recovered is stated to be about 5-6 km . It is also stated that she travelled that distance alongwith accused on foot steps. Hence, her consent could not be ruled out in view of the facts and circumstances of the case. There is no opinion of forceful act by the accused persons.

It is held by the Hon'ble Supreme Court in Rajak Mohammad Vs. State of Himachal Pradesh; 2018 (9) SCC 248 held that where prosecutrix had remained with the appellant for 12 days moving free and met several people at different points of time, but she did not complain of any criminal act on the part of the accused-appellant, hence the Supreme Court held that the possibility of the prosecutrix being a consenting party cannot be ruled out.

In the present case, the victim is major. Timing and going her from the house is around 2.00 am in the night and she find the accused present over there outside of her house. She did not inform any member of her family, who were sleeping there and she went outside alone and she did not seek company of any of her family members while she was going to urinate. She resides with the accused for next three days and thereafter, she recovered from a public place. All these facts and circumstances and evidences are categorically verified that she is having full knowledge and well understanding nature of her act, hence her well consent could not be ruled out.

There were several persons had been mentioned as eye witnesses of the incident, but they have not been produced by the prosecution before the learned trial court.

In view of facts and circumstances and appreciation of evidence, the finding recorded by the learned trial court is appeared to be illegal and perverse. Accordingly, the judgment and order dated 15.1.2004, passed by learned Special Judge/Additional Sessions Judge, Aligarh in Sessions Trial No. 65 of 2002 (State Vs. Mahendra Singh and others), under Section 366, and 376 IPC, Police Station Gabhana, district Aligarh, is hereby set aside. The surviving appellants in both the aforesaid criminal appeal are hereby acquitted of all the charges levelled against them. They are on bail. Their bail bonds stand cancelled and sureties are discharged subject to compliance of Section 437A of Cr.P.C. as applicable.

Let the trial court record be transmitted to the court concerned alongwith a copy of this judgment for necessary compliance.

Both the aforesaid criminal appeals stand allowed.