Jhinkoo vs State Of U.P.

Reserved on 19.05.2026
Delivered on 16.07.2026
AFR
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 974 of 1984
Jhinkoo
…..Appellant(s)
Versus
State of U.P.
…..Respondent(s)
Counsel for Appellant(s) : G.p.mathur, R.c.shukla, Sunil
Kumar Singh, Vivek Prasad Mathur
Counsel for Respondent(s) : A.G.A., Tripathi B.g.bhai
Court No. - 93
HON'BLE SANTOSH RAI, J.
1. Heard Shri Sunil Kumar Singh, learned counsel for the
appellant and Shri Purshottam Maurya, learned AGA for the State.
2. The present appeal is preferred under Section 374 of Cr.P.C.
by the accused-appellants Jhinkoo (died) and Jhabboo to set aside
th
the judgment and order dated 28.03.1984 passed by 6 Additional
Sessions Judge, Basti in Sessions Trial No.239 of 1981 under
Section 366 IPC, Police Station- Walterganj, District- Basti,
whereby the appellant was convicted under Section 366 IPC and
sentenced to undergo rigorous imprisonment for a period of five
years.

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CRLA No. - 974 of 1984
3. The prosecution case, in brief, is that the appellants Jhabboo,
his brother Jhinkoo (since deceased), and a woman named Smt.
Kadora were frequent visitors to the house of the complainant
Munni ("the prosecutrix"). On Saturday preceding the lodging of
the First Information Report on 28.11.1975, Smt. Kadora is said to
have called upon the prosecutrix to accompany her to a sugarcane
field, where the appellants Jhabboo and Jhinkoo joined them. The
three thereafter took the prosecutrix to the Purana Padav bus stand,
where certain persons including a woman of Mustafabad and PW-1
Babu Ram and PW-2 Ram Narayan of the prosecutrix's own village
are alleged to have seen them. Smt. Kadora did not board the bus.
The appellants Jhabboo and Jhinkoo are alleged to have taken the
prosecutrix by bus to Basti and thence to Gorakhpur, where they
had rented a room. It is alleged that the prosecutrix was confined
there overnight, that both accused committed rape upon her by turns
under threat of a knife, and that cash of Rs1,500/- and various
ornaments and sarees were forcibly taken from her. Jhinkoo,
thereafter left Gorakhpur. On the third day, the appellant Jhabboo
brought the prosecutrix back towards Basti, where, upon being
recognised by one Ramujagir (the prosecutrix's cousin), the
appellant fled. The prosecutrix was taken to her cousin's house, her
parents were informed, and the report was lodged after her father
returned from Kanpur.

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CRLA No. - 974 of 1984
4. On these allegations, a case was registered under Sections
363, 366 and 376 IPC against all three named persons, namely the
appellants Jhinkoo, Jhabboo and Smt. Kadora. The charge-sheet,
however, was submitted only under Sections 363 and 366 IPC, and
the Trial Court proceeded to frame charge only under Section 366
IPC on 15.12.1981. Smt. Kadora was never arrested or put to trial.
Upon conclusion of trial, the appellants Jhinkoo and Jhabboo were
convicted under Section 366 IPC. Hence this appeal.
5. The prosecution has examined Babu Ram as P.W.-1, Ram
Narayan as P.W.-2, complainant Munni as P.W.-3, Rajdei as P.W.-4,
S.I. Gajnafar Ali as P.W.-5, Dr. Pushpa Srivastava as P.W-6, Head
Constable Surendra Pratap Singh as P.W.-7 and Dr. R.U. Pandey as
P.W-8.
6. The Investigating officer has collected documentary and oral
evidences during the course of investigation. Ex. Ka.-1 is the FIR,
which has been proved by P.W.-3, Ex. Ka.-2 is the chargesheet. Ex.
Ka.-3 is the injury report of Munni Devi, which has been proved by
P.W.-6. Ex. Ka.-4 is the x-ray report of Munni Devi, which has been
proved by P.W.-6 and Ex. Ka.-5 is the copy of G.D. no.17, which as
been proved by P.W.-7.
7. P.W.-1 Babu Ram stated in his examination-in-chief that he
had only heard that Smt. Munni had eloped about 6 years earlier. He
denied seeing Karoda, Jhinkoo, or Jhabboo.

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CRLA No. - 974 of 1984
8. P.W.-2 Ram Narayan stated in his examination-in-chief that
about 7 years earlier, he did not see Smt. Munni leaving towards
Puraina Padav with Karoda, Jhinkoo, or Jhabboo.
9. P.W.-3 Munni stated in her examination-in-chief, in brief, that
Karoda lured her from home on the pretext that Jhinkoo and
Jhabboo would provide her food and clothes. She was taken to a
sugarcane field and then via Puraina Bus Stand to Gorakhpur,
where she was wrongfully confined for three days. During this
period, Jhinkoo and Jhabboo repeatedly raped her, threatened her
with a knife, and forcibly took her jewellery, 5–6 sarees, clothes,
and Rs.1,500/- cash. On the third day, Jhabboo brought her to Basti
Bus Station, where she met her cousin Ramujagir, narrated the
incident, lodged the FIR, and was medically examined the same
day.
10. P.W.-4 Durga Prasad (father of the prosecutrix) stated in his
examination-in-chief, in brief, that on returning home from the
fields, he found Munni missing, the box lock broken, and Rs.1,500/-
cash along with jewellery (necklace, earrings, tika, silver anklets,
etc.) missing. Babu Ram and Ram Narayan informed him that
Karoda, Jhinkoo, and Jhabboo had taken Munni towards Puraina
Bus Stand carrying a bag. He searched for her but could not find her
and informed her husband in Kanpur. Later, Ramujagir brought

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CRLA No. - 974 of 1984
Munni from Basti Bus Station. Munni narrated the entire incident,
after which the FIR was lodged at the police station.
11. P.W.-5 Gajnafar Ali stated in his examination in chief, in
brief, that on 28.11.1975, while posted as Head
Moharrir/Officiating A.S.I. at PS- Walterganj, the case was
entrusted to him. On 05.12.1975, he inspected the place of
occurrence, prepared the site plan (Ext. Ka-2), recorded the
statements of Munni, Babu Ram, Ram Narayan, Shyam Raji, Durga
Prasad, and the accused Karoda, Jhinkoo and Jhabboo, and on
24.12.1975 recorded Ramujagir’s statement and submitted the
charge sheet.
12. P.W.-6 Dr. Pushpa Srivastava stated in her examination-in-
chief, in brief, that she examined Munni on 28.11.1975. She found
no external or genital injuries; the hymen admitted two fingers, with
old healed tears and no bleeding, congestion, or swelling. The
smear report was negative, and the X-ray showed fused elbow
epiphyses and unfused wrist epiphyses, assessing her age at 17–18
years. She opined that the prosecutrix was habituated to sexual
intercourse and proved the medical report (Ext. Ka-3) and
supplementary report (Ext. Ka-4).
13. P.W.-7 Surendra Pratap Singh stated in his examination-in-
chief, in brief, that while posted as Head Moharrir at PS Walterganj
on 28.11.1975, he registered the FIR (Case No. 198) under Sections

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CRLA No. - 974 of 1984
363, 366 & 376 IPC on the basis of the prosecutrix’s complaint and
proved the Chik FIR (Ext. Ka-1). He also proved the corresponding
G.D. entry (Ext. Ka-5) made on the same day.
14. P.W.-8 Dr. R.U. Pandey stated in his examination-in-chief that
on 29.11.1975, while posted as Medical Officer at Sadar Hospital,
Basti and also functioning as a Radiologist, he conducted the X-ray
examination of the injured Munni. The X-ray plates bearing Plate
Nos. 28/6 and 28/7 were prepared under his supervision and were
duly identified by his signatures and thumb impression. He proved
the X-ray plates, which were marked as Material Ext. I and Material
Ext. II.
15. The grounds of the appeal in brief are that the judgement of
the court below is against the weight of the evidence on record and
conviction of the appellant is illegal and liable to be set aside. The
sentence awarded by the trial court is too severe.
16. Learned counsel for the appellant has assailed the conviction
on the broad grounds, which this Court has considered
cumulatively. The FIR does not disclose a specific date of the
alleged occurrence, and there is inordinate and unexplained delay in
its lodging. Although the FIR named three accused and invoked
Sections 363, 366 and 376 IPC, the charge-sheet omitted Section
376 IPC altogether, and even the charge under Section 363 IPC was
not pressed at the stage of framing of charge. Charge having been

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CRLA No. - 974 of 1984
framed only under Section 366 IPC, without any judicial
application of mind reflected on record as to why the graver and
cognate offences stood excluded. The FIR itself names Smt. Kadora
as the person who instigated the prosecutrix to leave her house and
proceed to the sugarcane field, yet she was never arraigned for trial,
raising a serious doubt as to the true genesis of the occurrence. The
prosecutrix travelled with the appellants Jhabboo and Jhinkoo by
bus on more than one occasion, stayed with them for several days,
and admittedly raised no alarm at any stage, at the bus stand, during
the two bus journeys, or at Gorakhpur, despite the presence of
numerous opportunities to do so. Her explanation for this silence
was not found satisfactory. There is no reliable documentary
evidence of her age. The finding of minority rests on oral testimony
alone. The prosecutrix herself deposed to the commission of rape
(PW-3), yet no charge under Section 376 IPC was ever framed or
tried. She admitted breaking open her mother's box and removing
the cash and ornaments herself, and admitted a five-to-ten-year-old
enmity between the two families. She further stated that she left her
house on the advice of Smt. Kadora. P.W.-1 Babu Ram and P.W.-2
Ram Narayan, cited as "last seen" witnesses, were declared hostile
and did not support the prosecution case. The Investigating Officer
did not prepare a proper site plan and committed other material
omissions and irregularities in investigation. In sum, the essential

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CRLA No. - 974 of 1984
ingredients of Section 366 IPC were not established by cogent,
reliable and consistent evidence.
17. Learned AGA submits that the prosecution has proved the
charge under Section 366 IPC beyond reasonable doubt through the
cogent and reliable testimony of the prosecutrix, duly supported by
the FIR, medical evidence and other material on record. It is argued
that the trial court has rightly appreciated the evidence and recorded
the conviction, and that the alleged discrepancies, delay in lodging
the FIR and defects in investigation are not sufficient to discredit
the prosecution case.
18. The following points arise for determination in this appeal:
(a) Whether the delay and infirmities in the lodging of the FIR
affect the credibility of the prosecution case,
(b) Whether the age of the prosecutrix, and consequently the
question of her consent, stands established,
(c) Whether the essential ingredients of Section 366 IPC namely,
kidnapping or abduction of a woman with intent that she may be
compelled to marry any person, or in order that she may be forced
or seduced to illicit intercourse ,stand proved,
(d) Whether the omission to frame charge under Section 376 IPC,
despite the prosecutrix's own testimony of rape, and the non-

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CRLA No. - 974 of 1984
prosecution of Smt. Kadora, cast a reasonable doubt on the
prosecution case as a whole,
(e) Whether the hostility of the "last seen" witnesses and the defects
in investigation are fatal to the prosecution case.
19. It is well settled that delay in lodging an FIR is not, by itself,
fatal to the prosecution case if it is satisfactorily explained. Equally,
unexplained and inordinate delay, particularly where it affords
scope for deliberation, embellishment and consultation, is a factor
going to the root of the credibility of the prosecution version. Delay
in lodging the FIR often results in embellishment, and prompt filing
is a valuable guarantee of the truthfulness of the prosecution
version. It is also true that mere delay in lodging the FIR cannot be
a ground by itself for throwing out the prosecution case, provided
the delay is properly explained on facts. Though, prompt and early
reporting of an occurrence gives an assurance regarding the truth of
the prosecution version.
20. In the present case, the FIR itself does not specify a clear date
of occurrence, and there is a gap between the incident, the return of
the prosecutrix, and the eventual lodging of the report. The
explanation offered that the mother was illiterate and the father was
away at Kanpur explains part of the delay, but does not account for
the complete absence of a definite date in the FIR, or for the interval
consumed in "consultation" before the report was reduced to

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CRLA No. - 974 of 1984
writing, which itself opens the door to the possibility of deliberation
and embellishment of the narrative, particularly regarding the roles
attributed to each accused.
21. The finding that the prosecutrix was a minor of about 16 years
rests solely on oral assertion. No birth certificate, school admission
register, or medical (ossification) evidence was produced or relied
upon by the prosecution. The law requires that age be established
through the best available documentary or medical evidence, and
oral estimation, standing alone, is a weak and often unreliable basis
for such a finding. In Babloo Pasi v. State of Jharkhand, (2008) 13
SCC 133, Hon’ble Apex Court held that in the absence of reliable
documentary proof, ossification test evidence assumes importance
in determining the age of a person.
22. This infirmity assumes importance because the ingredient of
"kidnapping from lawful guardianship" under Section 361 IPC,
which underlies the aggravated offence under Section 366 IPC
applies, in the case of a female, only where she is under eighteen
years of age, or, if she is of or above that age, where she has been
taken or enticed away without her free and voluntary consent.
Where a young woman, on the verge of majority or of an age where
she is capable of understanding the nature of her acts, leaves her
guardian's protection of her own volition, without inducement
amounting to "taking" or "enticement" by the accused, the offence

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CRLA No. - 974 of 1984
is not made out. In S. Varadarajan v. State of Madras, AIR 1965 SC
942, Honble Apex Court held where a girl, capable of knowing
what she is doing, voluntarily leaves her father's protection knowing
and having capacity to know the full import of what she is doing,
and the accused has done nothing to "take" her out of her guardian's
keeping, no offence of kidnapping is made out. In Thakorlal D.
Vadgama v. State of Gujarat, (1973) 2 SCC 413, it was held that the
words "takes" and "entices" mean that the accused must, in some
manner, be an active participant in bringing about the minor's
leaving the guardian's protection, mere passive receipt is not
enough, but where the girl leaves entirely on her own initiative the
offence is not attracted. Thus, the requirement of "taking" under
Section 361 IPC connotes some active or direct part played by the
accused which is the proximate cause of the minor leaving parental
protection.
23. On the prosecutrix's own admission, she proceeded to the
sugarcane field on the persuasion of Smt. Kadora, a co-accused
never put to trial, and thereafter travelled by two buses and stayed
for a few days without raising any alarm despite repeated
opportunities before fellow villagers at the bus stand, before co-
passengers on two bus journeys, and at Gorakhpur. Read with the
absence of reliable proof of minority, this evidence raises a real and
substantial doubt whether the prosecutrix's leaving her home was

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CRLA No. - 974 of 1984
the result of "taking" or "enticement" by the appellants within the
meaning of Section 361 IPC, or was substantially an act of her own
volition, at the instance of Smt. Kadora, in which the appellants’
role, if any, was not shown to be the proximate and active cause
contemplated by law.
24. Section 366 IPC requires proof that the accused kidnapped or
abducted a woman (i) with intent that she may be compelled, or
knowing it to be likely that she will be compelled, to marry any
person against her will, or (ii) in order that she may be forced or
seduced to illicit intercourse, or knowing it to be likely that she will
be so forced or seduced. Both the act of kidnapping/abduction and
the specific culpable intent or knowledge are essential ingredients,
each of which must be established by the prosecution beyond
reasonable doubt. The burden does not shift to the accused merely
because the woman was, in fact, found in the company of the
accused. In a prosecution under Section 366 IPC, the specific intent
set out in the section must be proved as an essential ingredient of
the offence, and cannot be presumed merely from the fact of the
woman having been in the company of the accused
25. As noted above, the evidence relating to the very act of
"taking" is doubtful. Even assuming some role of the appellant in
the prosecutrix leaving her village, the further ingredient that this
was done with intent that she be forced or seduced to illicit

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CRLA No. - 974 of 1984
intercourse is sought to be inferred principally from the
prosecutrix's own testimony that she was raped at Gorakhpur. Yet,
tellingly, no charge under Section 376 IPC was ever framed against
either accused, despite this being precisely the testimony (P.W.-3)
on which the prosecution now seeks to found the requisite intent
under Section 366 IPC. The Trial Court cannot be permitted, in
effect, to import the ingredient of an uncharged and untried offence
to sustain a conviction for an offence that depends on proof of intent
connected to that very uncharged offence, without the appellants
having the opportunity to meet that specific charge at trial.
26. The FIR named three persons and invoked Sections 363, 366
and 376 IPC. The charge-sheet dropped Section 376 IPC, and even
Section 363 IPC was not pressed into charge, leaving only Section
366 IPC for trial. Smt. Kadora described in the FIR itself as the
person who first called upon the prosecutrix to go to the sugarcane
field, and who, on the prosecutrix's own cross-examination, advised
her to leave was never arrested, charge-sheeted or tried. No
explanation for this appears on the record.
27. Selective and unexplained dilution of the offences charge-
sheeted, coupled with non-prosecution of a person assigned a
central and initiating role in the FIR, is a matter this Court cannot
ignore, since it bears directly on the reliability and completeness of
the investigation and the case as presented at trial.

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CRLA No. - 974 of 1984
28. Taken together with the unexplained omission of Section 376
IPC despite P.W.-3's own testimony of rape, and the complete non-
prosecution of Smt. Kadora, a reasonable doubt arises as to whether
the prosecution placed the true and complete picture of events
before the Trial Court, or whether the case, as prosecuted, was
curtailed and selectively presented.
29. P.W.-1 Babu Ram and P.W.-2 Ram Narayan, cited in the FIR
as persons who saw the prosecutrix in the company of the accused
en route to the bus stand, were declared hostile and did not support
the prosecution version. While the evidence of a hostile witness is
not to be rejected in toto and may be relied upon to the extent it
supports the prosecution, in the present case these were the only
independent "last seen" witnesses cited, and their hostility leaves
the prosecution without independent corroboration on the crucial
link of the prosecutrix having left the village in the company of the
named accused. In Khujji v. State of M.P., (1991) 3 SCC 627 and in
catena of judgements, Hon’ble Apex Court held that the evidence of
a hostile witness is not to be rejected altogether. That part of the
evidence which is consistent with the case of the prosecution or the
defence may be relied upon. Thus, merely because a witness is
declared hostile, his entire evidence does not stand effaced, but the
residue must still be tested with care where it is the sole link on a
material aspect

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CRLA No. - 974 of 1984
30. In the present case, however, with both cited independent
witnesses turning hostile, and with no other independent witness
examined to establish the initial taking away of the prosecutrix, the
prosecution is left to rest almost entirely on the testimony of the
prosecutrix herself, which, for the reasons discussed above, suffers
from ‘material contradictions’ and admissions damaging to its
reliability. The Investigating Officer's failure to prepare a proper site
plan, and other material omissions in investigation, further weaken
the corroborative structure of the prosecution case.
31. It is true that the conviction can, in an appropriate case, rest
on the sole testimony of the prosecutrix if it is found to be truthful,
natural and inspires confidence, without insistence on corroboration
as a matter of rule. The evidence of a prosecutrix, if found truthful
and natural, does not require corroboration as a matter of rule, and
courts must not adopt an approach that treats her as an accomplice.
These principles, however, presuppose a testimony that is otherwise
consistent, natural, and free of material as opposed to minor or
peripheral contradictions. Where the contradictions and admissions
go to the very root of the prosecution case, they cannot be brushed
aside as trivial.
32. In the present case, P.W.-3's admissions that she removed the
cash and ornaments from her mother's box herself, that there existed
a five-to-ten-year-old enmity between the two families, that she left

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CRLA No. - 974 of 1984
home on the advice of Smt. Kadora, and that she raised no alarm
through two bus journeys and several days of residence at
Gorakhpur are not peripheral. They go directly to the core question
of whether she was "taken" or "enticed" by the appellants, or
whether she left of her own volition in circumstances coloured by
long-standing family discord. Read with the hostility of the sole
independent witnesses and the absence of any charge under Section
376 IPC corresponding to her own testimony of rape, these
admissions create a reasonable doubt that this Court cannot ignore.
33. On a cumulative appreciation of (i) the delay and infirmity in
the FIR; (ii) the absence of reliable proof of the prosecutrix's
minority; (iii) the doubt surrounding the essential ingredient of
"taking" or "enticement" under Section 361 IPC, given her own
conduct and admissions; (iv) the absence of independent evidence
of the requisite intent under Section 366 IPC, compounded by the
unexplained omission of a charge under Section 376 IPC despite the
prosecutrix's own testimony of rape; (v) the non-prosecution of
Smt. Kadora, who finds a central and initiating role in the FIR; (vi)
the hostility of both independent "last seen" witnesses; and (vii) the
omissions in investigation including the failure to prepare a site
plan, this Court is of the considered view that the prosecution has
failed to prove the essential ingredients of the offence under Section
366 IPC against the appellant beyond reasonable doubt. It is well

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CRLA No. - 974 of 1984
settled that where two views are reasonably possible on the
evidence on record, the view favourable to the accused must be
adopted, and the benefit of doubt arising from the infirmities
discussed above must enure to the appellant.
34. In the result, this appeal is allowed.
35. The judgment and order of conviction dated 28.03.1984
th
passed by the learned 6 Additional Sessions Judge, Basti in
Sessions Trial No.239 of 1981 convicting the appellant Jhabboo
under Section 366 IPC, is set aside.
36. The appellant is acquitted of the charge under Section 366
IPC and shall be released forthwith. The bail bonds, if any, are
canelled and the sureties, if furnished earlier, stand discharged.
37. Let a copy of this judgment be transmitted forthwith to the
trial court concerned along with trial court record for compliance.
38. The Registrar (Compliance) is also directed to send a copy of
this order by FAX/e-mail to the concerned court through District &
Sessions Judge, Gorakhpur within 48 hours for compliance.
(Santosh Rai,J.)
July 16, 2026
Ankit.
Digitally signed by :-
ANKIT VISHWAKARMA
High Court of Judicature at Allahabad