Sardha Bux vs State of U.P.

HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
CRIMINAL APPEAL No. - 844 of 2012
Sardha Bux
.....Appellant(s)
Versus
State of U.P.
.....Respondent(s)
Counsel for Appellant(s) : Arvind K. Verma, Upendra Prakash
Pathak
Counsel for Respondent(s) : Govt. Advocate

Court No. - 13
HON'BLE SUBHASH VIDYARTHI, J.
1. Sri Kaushal Kishore Tewari, Advocate has put in appearance on behalf of
the appellant and filed his vakalatnama, which is taken on record. The
appellant is also present in person in furtherance of the order dated
05.10.2026, passed by this Court and he states that he has furnished a
personal bond before the Chief Judicial Magistrate, Barabanki.
2. The learned counsel for the appellant prays for adjournment of the case.
3. The appeal is pending since the year 2012. It was admitted on 15.06.2012
and on 26.11.2012 this Court had passed an order enlarging the appellant on
bail. The appeal was thereafter taken up for hearing on 26.03.2026 but the
hearing was adjourned on the ground of illness of Sri. Upendra Prakash
Pathak, the learned Counsel for the appellant. Thereafter, it was listed on 5
more dates but it could not be taken up. When the appeal was taken up for
hearing on 05.10.2026, Sri. Pathak stated that the appellant was not
contacting him since long. Therefore, the Court directed the Chief Judicial
Magistrate Barabanki to issue a bailable warrant for ensuring the appellant's
presence on 26.10.2026. The appellant is present before this Court in
furtherance of the bailable warrant. In these circumstances, the request for
adjournment of the 14 years old appeal does not appear to be reasonable and
is turned down. I proceed to decide the appeal after perusing the record with
the assistance of Smt. Sudha Sharma, the learned A.G.A.
4. By means of the instant appeal filed under Section 374(2) Cr.P.C., the
appellant has challenged the validity of a judgment and order dated
07.06.2012, passed by Smt. Kumud Pal, the learned Additional Sessions
Judge, Court No. 34, Barabanki in Sessions Trial No.793 of 2010, arising
out of Case Crime No.761 of 2009, under Sections 363, 366, 376, 323, 504

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2
I.P.C. Police Station Mohammadpur Khala, District Barabanki, whereby the
appellant has been convicted for all the aforesaid offences.
5. The appellant has also challenged the validity of the order dated
08.06.2012 passed in the aforesaid trial whereby he has been sentenced to
undergo imprisonment for 3 years and to pay Rs. 500/- fine for the offence
under Section 363 IPC, imprisonment for 5 years and Rs. 1,000/- fine for the
offence under Section 366 IPC, imprisonment for 7 years and Rs 1,000/- fine
for the offence under Section 376 IPC and imprisonment for 6 months and
Rs. 500/- as fine for the offence under Section 323 IPC, along with
stipulations for imprisonment for additional period in case of default in
payment of fine.
6. The aforesaid case was registered on the basis of a written complaint
dated 05.12.2009 (Exhibit A-1) given by the complainant to the police,
stating that his daughter had gone to school at 9:00 a.m. on 20.11.2009. She
did not come back. The complainant kept on looking for her. His daughter
came back on her own at 4:00 p.m. on 30.11.2009 and told that while she
was going to the school on 20.11.2009, the appellant and his companion
Vishnu met her on the way and they forcibly enticed her away in a jeep to an
unknown place where both of them repetitively committed the misdeed
against her. When she requested a lot, they dropped her at the Alambagh bus
stand on 30.11.2009 and the prosecutrix took a bus and reached home.
7. On the basis of the aforesaid written complaint, an F.I.R. (Exhibit A-7)
was lodged on 05.12.2009. The medico-legal examination of the prosecutrix
was conducted on the same date and the medico-legal examination report
(Exhibit A-5) states that there was no mark of injury present on any part of
her body, including her private parts. The hymen was old torn and healed.
The medico-legal report also states that the vagina admitted one finger. The
supplementary medico-legal examination report (Exhibit A-6) mentions that
as per radiological examination, age of the prosecutrix was about 17 years.
The pathological examination report of vaginal smear was negative for
spermatozoa and gonococci and the report concluded by stating that no
opinion could be given regarding commission of rape.
8. In her statement recorded under Section 164 Cr.P.C., the prosecutrix
stated that while she was going to school at Suratganj at 9:00 a.m. on
20.11.2009, the appellant, his companion Vishnu and another person met her
and all three forcibly put her in a jeep. They took her to an unknown place
where the appellant and Vishnu forcibly committed the misdeed against her.
Upon much persuasion by her the accused persons dropped her at Alambagh
bus station at Lucknow on 30.11.2009 from where she went running to her

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3
house.
9. The investigating officer submitted a charge-sheet dated 05.12.2009
against the appellant only, as the allegations against the other accused
persons could not be established during investigation.
10. The complainant was examined as PW-1 and he reiterated the FIR
version.
11. During cross-examination, PW-1 stated that his daughter was studying in
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Class 10 in Saraswati Gyanodaya School, which is a private school. He
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stated that he had studied up to Class 5 and he had failed in Class 5 ; that
he did not know his date of birth; that he would be aged more than 50 years
and he could be aged 60 years; that he has two sons and two daughters and
he did not know the date of birth of any of his children; that his daughter (the
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prosecutrix) had studied up to Class 5 in Primary School Richhla; that he
did not remember the year in which the prosecutrix was admitted in a
school; that the principal had recorded her age by his own assessment; that
he had got the prosecutrix married, but he did not remember the date of
marriage of his daughter and that he did not remember the year of his own
marriage.
12. PW-1 further stated that on the date of the incident, he was working in
his agricultural field. The school is situated at a distance of about 3
kilometers from his house. He used to go to the school to drop his daughter
but on the date of the incident, his younger son had gone to drop the
prosecutrix at the school on a bicycle, but he had come back after dropping
her at a place which was 1 kilometer away from the school because he was
getting late for his school. He further stated that he had not lodged any report
with the police after his daughter had eloped. He stated that he had named
the appellant in the complaint as per the information given by the
prosecutrix. He had not implicated the other named accused Vishnu because
he was not involved in the incident.
13. PW-1 expressed ignorance in response to most of the questions put
during cross-examination regarding the treatment given to the prosecutrix by
the appellant. PW-1 stated that 3 years prior to the incident, he had given his
agricultural land to the appellant Sharda Baksh for cultivation. It was
mortgaged. He had redeemed the mortgage and the relations between PW-1
and the appellant had turned sour for this reason.
14. The prosecutrix was examined as PW-2 and she also reiterated the F.I.R.
version, but she further stated that the appellant and Vishnu had caught hold
of her and had forcibly made her sit in a jeep; that when she objected, they

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4
made her inhale some powder after which she fell unconscious; that she
regained consciousness in a locked room where the appellant and Vishnu
repetitively raped her for 10 days. She stated that when she cried a lot, the
accused persons dropped her at Charbagh station. She was weeping, a
constable saw her and inquired about the reason. She told that the appellant
and Vishnu had taken her away. Thereafter, that Constable made her sit in a
bus going from Charbagh to Suratganj, Barabanki. She reached Suratganj
and from there she walked 3 kilometers to reach home at 4:00 p.m. on
30.11.2009. Thereafter, she told about the incident to her father.
15. During cross-examination, PW-2 stated that at the time of the incident
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she was studying in Class 9 ; that on the date of the incident, she had gone
to the school on foot at 8:30 a.m.; that the appellant and Vishnu met her
about 1 kilometer prior to the school, they did not say anything and forcibly
made her sit in the jeep; that the accused persons had shut her mouth and
made her inhale some powder; that she did not know as to who was carrying
the powder; that she fell unconscious 10–15 minutes after inhaling the
powder and she regained consciousness in a room after it was dark; that
there was no light in the room and the room was double-storied and she was
on the ground floor. She stated that she did not know as to who stayed at the
first floor. The prosecutrix could not give any details about the description of
the room.
16. PW-2 further stated that the appellant had taken her out of the room and
he had taken her to Alambagh bus station by walking for 3 kilometers. The
appellant left her at the bus station and went away. She was crying at the bus
station. A Sub-Inspector came to her and made her sit in a bus which took
her from Alambagh to Suratganj Barabanki, from where she walked for 3
kilometers to reach her home. She stated that she kept on wearing the same
clothes for 10 days. The clothes were stained by blood and semen. She had
not washed the clothes till lodging of the report. She had shown the clothes
to the investigating officer, but he did not take the clothes in possession. She
further stated that she had got married in May 2009.
17. The Investigating Officer was examined as PW-3 and he proved the
prosecution material. During cross-examination, he stated that the
prosecutrix had not given any particulars of the jeep in which she was
allegedly taken away; that she had not told him that the accused persons had
made her inhale some powder due to which she had fallen unconscious; that
she had not shown her clothes stained with blood and semen and had not
given the clothes in his possession; that she had not given any educational
documents and that she could not give any information regarding the place
where she was allegedly kept.

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5
18. The doctor who had conducted the medico-legal examination of the
prosecutrix was examined as PW-4 and she proved the medico-legal
examination report and the supplementary report. During cross-examination,
PW-4 stated that the prosecutrix was aged about 17 years, but there could be
an error margin of two years on either side. She further stated that the
prosecutrix was not habitual of sexual intercourse and as per her opinion, she
had not had sexual intercourse. This statement was apparently made in view
of the finding recorded in the medico legal examination reported that the
vagina admitted one finger.
19. In the statement recorded under Section 313 Cr.P.C., the accused
appellant denied all the allegations and he stated that he had been falsely
implicated because of a property dispute with the complainant.
20. One Rudra Pratap Singh was examined as DW-1. He stated that he was
running Saraswati Gyanodaya Mandir School in Suratganj, Barabanki which
was a private school imparting education from Class 1 to Class 8 and he
categorically stated that education for Classes 9 and 10 was not imparted in
the school. He further stated that the prosecutrix had not studied in his
school. Nothing significant came out in his cross-examination.
21. One Rajendra Kumar Verma, the Assistant Regional Manager, U.P. State
Road Transport Corporation was examined as DW-2. He proved an
information given to the appellant under the Right to Information Act
(Exhibit B-2) wherein it was informed that no bus used to ply from
Alambagh or Charbagh Bus station to Suratganj.
22. The trial court held that the prosecutrix has proved the prosecution case
and she is entirely reliable. The trial court discarded the testimony of DW-1
on the ground that he did not produce any document to establish that he was
the Operator, Manager or Principal of Saraswati Gyanoday Mandir School.
The trial court also discarded the testimony of DW-2 to the effect that no bus
plied from Alambagh to Suratganj on 30.11.2009 as it was not proved
whether the prosecutrix had traveled through a bus attached to U. P. State
Road Transport Corporation or by a private bus.
23. As per the FIR version, the prosecutrix had gone missing on 20.11.2009
and she came back home on her own on 30.11.2009 and the complainant
gave a complaint to the police on 05.12.2009. Thereafter, the FIR was
lodged and the prosecutrix was examined medically promptly, on the same
day. It is highly unnatural and improbable that daughter of the complainant
had gone missing on 20.11.2009, she was not found for 10 days, she
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returned on the 11 day on her own and the complainant did not approach
the police during this period. Even after return of his daughter on

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6
30.11.2009, the complainant did not lodge a report for 5 days. This
unexplained delay of 16 days in lodging the FIR gives rise to a serious doubt
against the genuineness of the prosecution case.
24. The written complaint alleged that the appellant and Vishnu had forcibly
enticed away the prosecutrix in a jeep to an unknown place where both of
them repetitively committed the misdeed against her and when she requested
a lot, both of them dropped her at the Alambagh bus stand on 30.11.2009
and the prosecutrix took a bus and reached home. In the statement recorded
under Section 164 Cr.P.C., the prosecutrix stated that besides the appellant
and Vishnu, another person was involved in her kidnapping but she levelled
the allegation of commission of rape against the appellant and Vishnu only
and she stated that both of them had dropped her at Alambagh bus station at
Lucknow on 30.11.2009 from where she went running to her house. During
her examination in chief, the prosecutrix stated that the appellant and Vishnu
had caught hold of her and had forcibly made her sit in a jeep and she did
not state about the involvement of the third person. She added a new story
that the appellant and Vishnu had made her inhale some powder after which
she fell unconscious and later, she regained consciousness in a locked room
where the appellant and Vishnu repetitively raped her for 10 days. The
complainant (PW-1) stated that Vishnu was not involved in the incident.
25. She had initially stated that the accused persons had dropped her back at
Charbagh station, but thereafter she said that they had dropped her back at
Alambagh station from where she went by bus to Suratganj Barabanki. This
oral statement of the prosecutrix was not corroborated by any other material
and it was controverted by the statement of DW-2, the Assistant Regional
Manager UPSRTC, who stated that no bus plied from Alambagh bus station
or from Charbagh bus station to Suratganj Barabanki. The statement of DW-
2 casts a doubt upon the statement of the prosecutrix that she had gone by
bus from Alam Bagh bus station to Suratganj Barabanki.
26. The prosecutrix could not give any particulars of the place where she
was allegedly kept for 10 days. She stated that the appellant brought her to
Alambagh bus station by walking on foot for about 3 kilometers during
which she met several persons but she did not complain about it to any
person. Initially, the prosecutrix stated that the appellant and Vishnu had
taken her away and thereafter, she alleged the involvement of another
unknown person in the commission of the offence and stated that three
persons were involved in the incident. This improvisation made by the
prosecutrix regarding the number of persons involved is also a major
discrepancy which casts a doubt upon the credibility of the her testimony.

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27. The written complaint stated that the appellant and his companion
Vishnu met her on the way and they forcibly enticed her away in a jeep to an
unknown place where both of them repetitively committed the misdeed upon
her. The said version is contradictory in itself since 'enticing' and 'forcibly
taking away' cannot be said to have been true simultaneously.
28. The allegation regarding involvement of two more persons could not be
established during investigation and a charge-sheet was submitted against
the appellant only. During testimony, again the allegations were leveled
against the appellant and Vishnu but no application was filed for summoning
Vishnu to face trial and the trial court has apparently accepted the testimony
of the prosecutrix and convicted and sentenced the appellant only on the
basis of the said statement, whereas the statement implicated the appellant
and Vishnu in a similar manner. The approach of the trial court in believing
the statement of the prosecutrix regarding the appellant and disbelieving the
same allegations leveled by her in her statement against the other person
Vishnu, cannot be appreciated in law.
29. Although the prosecutrix alleged that the appellant and Vishnu kept on
repetitively raping her for 10 days, this allegation is not supported by the
findings of the medico-legal examination report as per which she was not
habitual of having sexual intercourse.
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30. The prosecutrix stated that she was studying in Class 9 in Saraswati
Gyanoday Mandir School whereas she could not produce any other evidence
to corroborate her statements. DW-1, Principal of the school, categorically
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stated that the school was up to Class 8 only and education for Class 9
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and 10 was not imparted in his school and he further stated that the
prosecutrix had never studied in his school. T he trial court has committed a
manifest error in disbelieving the statement of DW-1 on the ground that he
could not produce any evidence to corroborate his statement that he was
working as principal of the school.
31. It is settled that the prosecution is required to establish its case beyond
reasonable doubt and the accused is merely required to create a doubt in the
prosecution case. The standard of proof required for the prosecution is that
of proof beyond reasonable doubt, whereas the standard of proof for the
accused required in his defence is that of preponderance of probabilities.
32. In Reena Hazarika v. State of Assam , (2019) 13 SCC 289, the Hon'ble
Supreme Court has held that: -
" 20. Unfortunately neither the trial court nor the High Court considered it
necessary to take notice of, much less discuss or observe with regard to the
aforesaid defence by the appellant under Section 313 CrPC to either

CRLA No. 844 of 2012
8
accept or reject it. The defence taken cannot be said to be irrelevant,
illogical or fanciful in the entirety of the facts and the nature of other
evidence available as discussed hereinbefore. The complete
nonconsideration thereof has clearly caused prejudice to the appellant.
Unlike the prosecution, the accused is not required to establish the defence
beyond all reasonable doubt. The accused has only to raise doubts on a
preponderance of probability as observed in Hate Singh Bhagat Singh v.
State of Madhya Bharat 1951 SCC 1060 observing as follows:
" 26. We have examined the evidence at length in this case, not because it is
our desire to depart from our usual practice of declining to reassess the
evidence in an appeal here, but because there has been in this case a
departure from the rule that when an accused person puts forward a
reasonable defence which is likely to be true…. then the burden on the
other side becomes all the heavier because a reasonable and probable
story likely to be true when pitted against a weak and vacillating case is
bound to raise reasonable doubts of which the accused must get the
benefit. …"
A similar view was expressed in M. Abbas v. State of Kerala (2001) 10
SCC 103 as follows: -
10. … On the other hand, the Explanation given by the appellant both
"
during the cross-examination of prosecution witnesses and in his own
statement recorded under Section 313 CrPC is quite plausible. Where an
accused sets up a defence or offers an Explanation, it is well settled that he
is not required to prove his defence beyond a reasonable doubt but only by
preponderance of probabilities.…"
33. The prosecutrix alleged that she kept on wearing the same set of blood
and semen stained clothes for the entire period of 10 days and she had not
washed the clothes till lodging of the FIR. She stated that she had shown the
clothes to the Investigating officer but the Investigating Officer has denied
this fact and he stated that the clothes were not shown to him. The non-
recovery of the clothes of the victim also raises a doubt against the
prosecution's case.
34. The trial court has committed a manifest error in discarding the
testimonies of DW-1 and DW-2 merely for the reason that their statements
could not be proved by any other corroborative material on the record
because likewise, the testimony of the prosecutrix has also not been shown
to be proved or supported by any other corroborative evidence.
35. As far as the age of the prosecutrix is concerned, in the case of Jaya
: (1982) 2 SCC 538, the Hon'ble Supreme Court held
Mala v. Govt. of J&K
that one can take judicial notice that the margin of error in age ascertained
by radiological examination is two years on either side.
36. In Rajak Mohammad v. State of H.P. : (2018) 9 SCC 248, it was held
that the benefit of the aforesaid doubt, naturally, must go in favour of the

CRLA No. 844 of 2012
9
accused.
37. As per radiological examination, the age of the prosecutrix has been
assessed to be 17 years. Computing her age in view of the legal principles
laid down in the aforementioned cases, after extending the benefit of the
error of two years in favour of the accused appellant her age comes to be
around 19 years and therefore the possibility of the prosecutrix being major
on the date of the incident cannot be ruled out to establish the ingredients of
the offences under Section 363 and 366 IPC.
38. Further, the testimony of the prosecutrix is full of material discrepancies
as regards the alleged incident and in
Rai Sandeep v. State (NCT of Delhi)
(2012) 8 SCC 21, the Hon'ble Supreme Court held that:
" 22. In our considered opinion, the "sterling witness" should be of a very
high quality and calibre whose version should, therefore, be unassailable.
The court considering the version of such witness should be in a position to
accept it for its face value without any hesitation. To test the quality of
such a witness, the status of the witness would be immaterial and what
would be relevant is the truthfulness of the statement made by such a
witness.
What would be more relevant would be the consistency of the
statement right from the starting point till the end, namely, at the time
when the witness makes the initial statement and ultimately before the
court. It should be natural and consistent with the case of the
prosecution qua the accused. There should not be any prevarication in
the version of such a witness. The witness should be in a position to
withstand the cross-examination of any length and howsoever strenuous
it may be and under no circumstance should give room for any doubt as
to the factum of the occurrence, the persons involved, as well as the
sequence of it. Such a version should have co-relation with each and every
one of other supporting material such as the recoveries made, the weapons
used, the manner of offence committed, the scientific evidence and the
expert opinion.
The said version should consistently match with the
version of every other witness. It can even be stated that it should be akin
to the test applied in the case of circumstantial evidence where there
should not be any missing link in the chain of circumstances to hold the
accused guilty of the offence alleged against him. Only if the version of
such a witness qualifies the above test as well as all other such similar
tests to be applied, can it be held that such a witness can be called as a
"sterling witness" whose version can be accepted by the court without
To be
any corroboration and based on which the guilty can be punished.
more precise, the version of the said witness on the core spectrum of the
crime should remain intact while all other attendant materials, namely,
oral, documentary and material objects should match the said version in
material particulars in order to enable the court trying the offence to rely
on the core version to sieve the other supporting materials for holding the
offender guilty of the charge alleged."
(emphasis added)
39. Keeping in view the serious inconsistencies in the testimony of the
prosecutrix as mentioned above and the fact that there is no material to

CRLA No. 844 of 2012
10
corroborate her statement, coupled with the fact that her statements are
belied by the statements of DW-1 and DW-2, I am of the considered view
that the prosecution has miserably failed to prove the allegations against the
appellant beyond reasonable doubt.
40. In view of the foregoing discussion, I am of the considered view that the
prosecution had miserably failed to prove the charges against the appellant.
The trial Court has convicted and sentenced the appellant without
considering the aforesaid aspects of the matter. The trial Court has
committed a grave error in convicting and sentencing the appellant for the
aforesaid offences. The impugned judgment and order passed by the trial
Court convicting and sentencing the appellant is unsustainable in law.
41. Accordingly, the criminal appeal is allowed . The impugned judgment
and orders dated 07.06.2012 and 08.06.2012 respectively, passed by learned
Additional Sessions Judge, Court No.34, District Barabanki in Sessions Trial
No.793 of 2010, arising out of Case Crime No.761 of 2009, under Sections
363, 366, 376, 323, 504 I.P.C. Police Station Mohammadpur Khala, District
Barabanki, whereby the appellant has been convicted and sentenced for
aforesaid offences and sentenced as aforesaid are set aside . The appellant is
acquitted of all the charges.
42. The appellant has furnished a personal bond before the Chief Judicial
Magistrate in pursuance of order dated 05.10.2026. The bond shall remain in
force for a period of six months from today for appearance of the appellant
before the Hon'ble Supreme Court in case any appeal is filed against this
order and the Hon'ble Supreme Court issues notices to the appellant, as per
the provision contained in Section 437A CrPC.
.
October 26, 2026
Ram.
(Subhash Vidyarthi,J.)
Whether the judgment is speaking: Yes
Whether the judgment is reportable: No
.
(Subhash Vidyarthi,J.)
Digitally signed by :-
RAM SINGH
High Court of Judicature at Allahabad,
Lucknow Bench