The Allahabad High Court has set aside the conviction of a man accused of kidnapping and rape, observing that the victim was a major at the time of the incident and had left her home of her own volition. The Court criticized the trial court for misreading evidence and ignoring the victim’s statement recorded under Section 164 of the Cr.P.C., wherein she admitted to being in a relationship with the appellant.
Justice Achal Sachdev allowed the criminal appeal filed by Bhagwat Kushwaha, overturning the judgment of the Special Judge (POCSO), Jhansi, which had sentenced Kushwaha to ten years of rigorous imprisonment.
Background of the Case
The case dates back to May 28, 2015, when the informant, Ramswaroop, lodged a report at Police Station Sakrar, District Jhansi, stating that his daughter had gone missing from their home around 3:00 AM. He alleged that Bhagwat Kushwaha had kidnapped her.
The police recovered the victim on May 29, 2015. Following the investigation, a charge-sheet was filed against the appellant under Sections 363, 366, 376 I.P.C., Section 4 of the POCSO Act, and Section 3(2)(v) of the SC/ST Act.
On September 5, 2019, the trial court acquitted the appellant of charges under the POCSO Act and the SC/ST Act, holding that the victim was a major (above 18 years of age). However, the trial court convicted him under Section 366 I.P.C. (kidnapping, abducting or inducing woman to compel her marriage, etc.) and Section 376 I.P.C. (rape), sentencing him to ten years of imprisonment.
Arguments
The counsel for the appellant argued that despite the trial court finding the victim to be a major, it ignored medical evidence that did not support the prosecution’s case. It was submitted that the victim had a consensual relationship with the appellant and had admitted in her statement under Section 164 Cr.P.C. that she went with him of her own free will because she loved him.
The State and the counsel for the informant opposed the appeal, submitting that the trial court’s judgment was correct and based on a proper appreciation of evidence.
Court’s Analysis
The High Court meticulously examined the evidence, particularly the testimony of the victim (PW-3), her statement under Section 164 Cr.P.C., and the medical reports.
On Age and Consent: The Court noted that the trial court’s finding that the victim was above 18 years of age had not been challenged. Since the victim was a major, the Court examined whether she was abducted and raped.
The Court observed significant contradictions in the victim’s testimony. While she alleged forcible abduction and rape in her court testimony, her statement under Section 164 Cr.P.C. presented a different version.
“The victim, in her statement before the Magistrate under Section 164 Cr.P.C., has stated that she was in love with the appellant and went along with him on her own volition.”
The Court further noted that in her cross-examination, the victim admitted she did not tell the Magistrate about the rape or that she was forcibly taken.
On Medical Evidence: The Court highlighted that the medical examination conducted on May 30, 2015, found no external injuries, and the hymen had an “old tear that had healed.” The doctor found no evidence of recent sexual activity.
The High Court severely criticized the trial court for justifying the lack of medical evidence by misreading the date of the incident. The trial court had stated the incident occurred on May 25, 2015, while the FIR and evidence established it was May 28, 2015.
“The finding of court while disbelieving the argument put forward by counsel that the medical examination report and vaginal smear report do not support the prosecution case against appellant, is perverse and condemnable and seems to be a deliberate attempt to conceal evidence favouring appellant…”
On Burden of Proof: Citing the Supreme Court’s decision in State (GNCT of Delhi) Vs. Vipin @ Lalla (2025), the Court reiterated that while a conviction can be based on the sole testimony of a prosecutrix, such testimony must inspire absolute confidence.
The Court observed:
“On the basis of evidence of victim before the court, her statement before the Magistrate under Section 164 Cr.P.C. and medical examination report, it can safely be concluded that the victim and the appellant were in relationship and the victim had left her father’s house on 28.05.2015 on her own volition and there is no evidence on record from which it can be concluded that the victim had been enticed to go away from her father’s house against her will or without her consent.”
Decision
The High Court held that the prosecution failed to prove the charges beyond reasonable doubt. The Court stated that the trial court failed to appreciate the “totality of evidence on record” and committed a serious error by disregarding the medical evidence and the victim’s prior statements.
Consequently, the Court allowed the appeal and set aside the conviction and sentence dated September 5, 2019, and September 6, 2019. The appellant, Bhagwat Kushwaha, was directed to be released forthwith.
Case Details:
Case Title: Bhagwat Kushwaha vs. State of U.P.
Case No.: Criminal Appeal No. 452 of 2021
Coram: Justice Achal Sachdev
Counsel for Appellant: Abhishek Mayank, Abhishek Srivastava, Arbaz Danish, Vipin Kumar, Zia Naz Zaidi
Counsel for Respondent: G.A., Rajesh Kumar Singh, Vinay Kumar Singh
