Monu @ Raghvendra Tiwari vs State of U.P.

A.F.R.
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
CRIMINAL APPEAL No. - 247 of 2013
Monu @ Raghvendra Tiwari
.....Appellant(s)
Versus
State of U.P.
.....Respondent(s)
Counsel for Appellant(s) : Dharmendra Kumar Misra
Counsel for Respondent(s) : Govt. Advocate
Court No. - 14
HON'BLE SUBHASH VIDYARTHI, J.
1. Heard Sri Dharmendra Kumar Misra, the learned counsel for the
appellant, Sri Mayank Sinha, the learned A.G.A. appearing on behalf of
the State and perused the records. The appellant-Monu @ Raghvendra
Tiwari is present in person and he states that he has furnished a personal
bond and sureties before the Chief Judicial Magistrate, Unnao in
compliance of this Court’s order dated 03.04.2026.
2. By means of the instant appeal filed under Section 374(2) Cr.P.C. the
appellant has challenged the judgment and order dated 11.01.2013 passed
by Sri. Jagdish Prasad-IV, the learned IV Additional Session Judge, Ex-
Cadre, Unnao in Session Trial No.68 of 2012, arising out of Case Crime
No.1393 of 2011 under Sections 363, 366 and 376 I.P.C., Police Station
Hasanganj, District Unnao, whereby although the appellant has been
acquitted of the charges for the offences under Sections 363 and 376
I.P.C., he has been convicted for the offence under Section 366 IPC and
has been sentenced to undergo rigorous imprisonment for five years and
pay Rs.5,000/- as fine.
3. The brief facts of the case are that the complainant gave a written
complaint on 11.08.2011, stating that while he was in his grove at about
3:00 p.m. on 18.07.2011, his daughter aged 14 years went away with the
appellant Monu, under the pretext of attending the call of nature and she
took away silver anklets weighing about 250 grams, gold earrings worth
about Rs.9,500/-, Rs.15,000/- cash and a mobile phone. The complainant's

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elder daughter Phool Kumari had seen the victim going away with the
appellant. One Kamlesh resident of village Kurauli was also involved in
it. The complainant told about the incident to the appellant's mother and
brother Rohit and they told that the appellant had gone to Surat. The
complainant asked Rohit to accompany him to Surat but Rohit denied and
thereafter the complainant gave the complaint.
4. In the statement of Phool Kumari (the elder married daughter of the
complainant) recorded under Section 161 Cr.P.C., she stated that it was
around 3:00 p.m., her parents were not at home, they were in the grove,
the victim said she had to go to attend the call of nature, she got up from
the cot, at that time the appellant came there on a motor cycle, stopped in
front of her house, called the victim, the victim went to the appellant and
went away with him on his motor cycle.
5. The informant told the investigating officer that he and his wife were
guarding the mango grove. When they returned home in the evening, their
elder daughter told that the appellant came there on a motor cycle,
stopped in front of her house, the victim went to the appellant and went
away with him on his motor cycle.
6. The informant’s wife stated that the appellant came there on a motor
cycle, stopped on the paved road, called the victim by gesture and the
victim went to the appellant and went away with him on his motor cycle.
She further stated that the victim had taken away some jewelry and cash
with her.
7. On the basis of the aforesaid complaint, F.I.R. No.1393/2011 was
registered on 14.08.2011 against the appellant and Kamlesh for offenses
under Sections 363 & 366 IPC.
8. The recovery memo prepared on 22.09.2011 states that while Sub-
Inspector Teji Ram and Constable Manoj Pandey were going towards
Munshiganj trisection in search of the victim and they had reached near
Sarai Mal Kadim turn, they met the informant there. They took him along
with them to Munshiganj trisection. Upon reaching there, the informant
stated that his daughter (the victim) was standing there and the appellant,
who had enticed her away, was also standing with her. Upon seeing them,
the appellant ran away and they recovered the victim and took him in

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police custody at 07:45 a.m.
9. In the statement of the victim recorded under Section 161 Cr.P.C., she
stated that she has passed class IX. The appellant lives in her village, he
used to meet her in the mango grove and indulge in sweet loving talks. He
allured to take her to Kanpur for an excursion. The appellant came in
front of her house at about 03:00 p.m. on 18.07.2011, enticed her away on
foot to Sarai Mal Kadim trisection, from there they went to Ajgain via
Munshiganj in a tempo, from there he took her to Surat. The appellant
kept her in a rented house and he used to commit the misdeed during
nights, against her wish. When the victim tried to shout, he used to press
her mouth with a cloth. She was frightened and disturbed. She requested
the appellant to take her to meet her parents once and thereafter she would
come back with him. Upon this request, the appellant brought her by train
and then by tempo from Ajgain to Munshiganj. While they were waiting
for some transport, the police reached there and the appellant ran away.
10. The medico-legal examination of the victim was conducted on
23.09.2011. The report states that: -
“ External appearance – A young girl of average built, breast well developed, pubic
and auxiliary hairs well developed, height 154 cm, weight 55 Kg, teeth 14/14. L.M.P.
7 Sept., no mark of injury is present over body.
Internal appearance – No mark of injury is present. Hymen old torned. On per
vaginum examination two fingers are easily admitted through it. Vaginal smear is
taken and two slides are prepared and sent to pathalogist. For age referred to
radiologist Distt. Hospital, Unnao.”
11. The supplementary medical report states that as per pathological
examination report, there was no evidence of human spermatozoa, alive
or dead, in the vaginal smear. As per X-Ray report, all the major joints
were completely fused. The age of the girl was more than 19 years as per
radiologocial examination. However, the actual age was more than 19
years. The report concluded that “The age of the girl is about more than
19 (nineteen) yrs. No definite opinion about rape can be made.”
12. The statement of the victim under Section 164 Cr.P.C. was recorded
on 24.09.2011. She stated that on 18.07.2011, the appellant had enticed
her away for going for an excursion to Kanpur. She roamed around with
him at Kanpur. Thereafter she went with the appellant to Surat by train.

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The appellant took a room on rent and she stayed with him for three
months. She alleged that the appellant made physical relations with her 3-
4 times against her wishes. She asked him to drop her back home. While
the appellant was bringing her back to her village, he saw the police at
Munshiganj trisection and he ran away and the police caught her. She
stated that she wanted to go with her father.
13. The victim was handed over to the informant on 24.09.2011.
14. The allegations levelled against Kamlesh were not established during
investigation and a charge-sheet was submitted against the appellant only
for offences under Sections 363, 366 and 376 IPC.
15. The Radiologist was examined as PW-1. He stated that all the major
joints of bones were fused and at the time of the medico-legal
examination, the victim’s age was more than 20 years. PW-1 stated that
her age was more than 19 years. There might be a variation of 6 months in
her age. PW-1 was not cross-examined by the defence Counsel.
16. The doctor who had conducted the medico-legal examination of the
victim, was examined as PW-2. She stated that the victim’s breasts were
fully developed. Auxiliary and pubic hair were well developed. There was
no mark of injury on any part of the victim's body. No mark of injury was
found in her internal examination. The hymen was old torn and healed.
The vagina admitted two fingers easily. Two slides of vaginal swab were
sent for pathological examination and the victim was sent for radiological
examination to ascertain her age. PW-2 had prepared her supplementary
medico-legal examination report, as per which, no spermatozoa, dead or
alive, were found in the pathological examination of the vaginal swabs.
PW-2 also stated that at the time of the incident, the victim's age was
more than 19 years.
17. In reply to a question put by the Court, PW-2 stated that she had not
made any remark about the third molar or about the empty space near the
second molar. She admitted that while ascertaining the age of the victim,
she had not taken into consideration the situation of teeth. PW-2 also was
not cross-examined by the defense counsel.
18. PW-3 was a Sub-Inspector who proved the recovery memo dated

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22.09.1011 regarding recovery of the victim from a place near
Munshiganj trisection. He stated that Section 376 IPC was added as per
the victim's statement.
19. The informant was examined as PW-4. He reiterated the F.I.R.
version. He stated that he has four daughters and four sons. The victim
was at the fifth position amongst his eight children. She has studied up to
Class-V in a private school in the village. He stated that he had mentioned
her date of birth by estimation. He could not tell when did she passed
Class-V. PW-4 further stated that he had gone to Surat along with his son,
Satwant and the appellant's brother Rohit, to recover the victim. He had
met the appellant and the victim at Surat. He was bringing both of them,
but the appellant got down from the train at Surat and ran away. He came
back to Unnao along with his son and the victim as well as the appellant's
brother, Rohit. The victim was handed over to him on the third day after
lodging of the FIR. He stated that the victim had got married on the date
of recording his statement.
20. PW-5 was a Constable of police, who stated about the recovery of the
victim from a place near Munshiganj trisection.
21. The victim was examined as PW-6. She stated that she had gone to
attend the call of nature in a grove at about 3:00 p.m. on 18.07.2011. The
appellant came there and took her with him for an excursion by use force
and threat. He kept her at Surat for 1½ months and he raped her
repetitively against her wishes. When the appellant was coming with her
to drop her back home, the police caught her at Munshiganj crossing and
the appellant escaped.
22. During cross-examination, the victim stated that she had studied up to
Class-VIII. She stated that on the date of the incident she had gone to
attend the call of nature in a mango grove of one Pandit ji of Amoliya.
This grove is situated at a distance of about 100 steps from her home. She
also stated that she has her own grove which is adjacent to her house. The
victim stated that she had gone in that particular grove (of the Pandit ji of
Amoliya) on the date of the incident only and prior to that she had never
gone to that grove. The appellant had come to that grove on foot and he
took her with him after one minute. His motorcycle was parked on the

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roadside at a secluded place.
23. The victim stated that the appellant made her sit on the motorcycle
and took her to Munshiganj, where he parked the motorcycle and took her
to Ajgain in a taxi. It was crowded at the Munshiganj taxi stand. One or
two other persons were also sitting in the taxi in which they had traveled
up to Ajgain. From there, she went to Kanpur on a thela, in which another
person was also sitting. They took the 5:00 p.m. train to Surat. She stayed
in a room at Surat for 1½ months. The appellant used to cook and wash
the utensils. She had taken a pair of clothes with her and therefore she did
not require new clothes. After about 1½ months the appellant's brother
Rohit and the victim's father had gone to Surat, but she did not return with
them as the appellant had forbidden her. After staying there for about 1½
months the appellant brought her back to Munshiganj. When police came
there, the appellant ran away. She stated that the appellant had brought
her back on her asking.
24. The victim's elder sister Phool Kumari was examined as PW-8. She
stated that the victim had gone to attend the call of nature. After she came
back and was sitting on a cot inside the home, the appellant came there on
a motorcycle, he called the victim and took her on his motorcycle. PW-2
had raised her voice against the appellant taking her sister. During cross-
examination, PW-8 stated that two or three days prior to the incident, her
parents had gone to village Araura Mau. She made a phone call and
thereafter they returned on the following day. Her youngest sister Sonam
had gone with her parents. Only PW-8 and the victim were there in the
house. She further stated that on the date of the incident the appellant had
gone to attend the call of nature and thereafter she had returned home.
After about ½ hour, the appellant came at the door of her house and called
the victim. The victim went out of the house and went with the appellant.
She had already kept some cash, jewelry and a mobile phone with her.
25. In the statement of the appellant recorded under Section 313 Cr.P.C.
he denied the allegations.
26. The appellant filed a declaration of marriage verified by a Notary,
which was witnessed by one Swami Singh. Swami Singh was examined
as D.W.-1. He stated that the marriage declaration was prepared and was

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executed by the appellant and the victim in his presence and it was
verified by a Notary on 30.08.2011.
27. The trial court noted that the incident took place on 18.07.2011, the
complainant gave a written complaint on 11.08.2011 and the F.I,R, was
lodged on 13.08.2011. The victim was recovered on 22.09.2011 at 07:45
a.m. and she was sent for medico-legal examination on 23.09.2011.
28. The trial court noted that although the transfer certificate of Class V
issued by R.A.S. Shanti Shiksha Mandir, Sarai Mal Kadim, Hasanganj,
Unnao, mentions the date of birth of the victim as 12.05.1996, this date of
birth was recorded on 01.07.2002 on the basis of information given by her
father (PW-4), who has stated in his cross-examination that he does not
know the date of birth of the victim and he had got it recorded by
estimation. The trial Court recorded that due to lack of resources in rural
areas, children start going to school at higher ages and keeping in view
their future, the guardians get their date of birth recorded by reducing
their age by 2-3 years. Therefore, the medical evidence regarding age
appears to be more trust worthy.
29. Although the doctor who had conducted the medico-legal examination
and the pathologist had opined that the age of the victim was more than
19 years, the trial Court noted that the doctor had not mentioned the stage
of third molar and had assessed the age of the victim on the basis of
radiological examination report. The trial Court held that 14/14 teeth
situation is attained during the age of 12 to 14 years and the third molar
th
starts appearing in the 17 year of age, but the third molar was absent.
30. Although the trial Court had put a question to the Doctor (PW-2) that
she had not made any remark about the third molar or about the empty
space near the second molar, it did not ask the Doctor whether the third
molars necessarily appear in all persons and it appear at a particular age.
It is not at all necessary that the third molar appear appear in all persons
th
and those appear during the 17 year of age. The absence of third molar
does not establish that the person has not attained 18 years of age. The
trial Court's assessment of age of the victim based on the absence of the
third molar, is absolutely without any basis and is perverse.
31. The trial Court further held that the symptoms of the secondary sexual

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characteristics get fully developed during 16 to 18 years. The trial Court
noted that the doctor has stated that the breasts were fully developed, but
the auxiliary and pubic hair were merely well developed and not fully
developed. The trial Court has erred in holding that the doctor has
recorded that the auxiliary and pubic hairs were well developed and not
fully developed as the phrases ‘well developed’ and ‘fully developed’ are
often used to mean one and the same thing. There can be no measure to
differentiate between ‘well developed’ and ‘fully developed’, which
denote practically one and the same thing.
31. The trial court itself assessed the age of the victim to be 14 to 15 years
on the basis of her teeth, 16 to 17 years on the basis of the secondary
sexual characteristics and 19 years as per the assessment on the basis of
radiological examination. The trial Court calculated the average of the
aforesaid three ages, i.e. (19+17+15)/3=17. The reasoning assigned by the
trial court was that the girls living in the rural areas have to perform
household chores since early ages, and due to this laborious work, their
bone joints get fused at earlier ages and the trial court assessed the age of
the victim to be 17 years.
32. This finding of the trial court is perverse because the trial court has
ignored the specific opinion of two experts based on scientific
examination and acted itself as an expert in the field by assessing the age
of the victim on the basis of her secondary sexual characteristics and
absence of the third molar. The trial Court has discarded the medical
expert’s opinion and has acted as an expert in the field so as to hold that
th
the third molar start appearing in 17 year of age and the secondary
sexual characteristics like auxiliary and pubic hairs get fully developed in
16-17, years even without referring to any authentic text.
33. It is true that in certain circumstances, when there is other direct
evidence of sterling quality to prove a point, the Court can give
precedence to that evidence over the opinion of an expert. However, the
Court cannot replace the opinion of an expert by its own opinion. By
doing so, the trial Court has acted with material illegality.
34. The trial Court has referred to Modi's Medical Jurisprudence as per
which there can be a variation of 3 years on either side in the medical age

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assessed by the pathological examination and has also noted the principle
of law laid down by the Hon'ble Supreme Court in some cases to the
effect that where two conclusions are possible, the one favoring the
accused should be accepted. As per this principle, when the pathological
examination opined the age of the victim to be 19 years, by adding three
years variation towards the higher side, her age could be assessed at 22
years if one view favoring the victim was taken. The trial court has
wrongly assessed the age of the victim to be 17 years without any basis.
Therefore, this court sets aside this finding of the trial Court regarding age
of the victim and accepts the opinion of the medical experts that the
victim was major on the date of the incident.
35. The trial court scrutinized the statement of the victim, wherein she
stated that she had taken Rs.15,000/- from her home, the appellant came
in the grove on her own and after one minute, he took her with him. She
stayed at Surat with the appellant for one and a half months. The appellant
used to cook the food and clean the utensils. The trial court also referred
to the statement of the elder sister of the victim (PW-2), who stated that
after attending the call of nature, the victim returned home and the
appellant came there. He called the victim, and she went with him. From
this statement, the trial court concluded that the appellant did not use
force or abduct the victim. The trial court further noted that the victim had
her own orchard near her home yet she did not go to that place for
attending the call of nature and instead she went to an orchard situated far
away. She took money and a mobile phone with her and thereafter went
on a motorcycle with the appellant, which establishes that the victim had
gone with the appellant under a plan prepared earlier. There can be no
other cause except for the mutual love and affection between the appellant
and the victim. The trial court acquitted the appellant of the charges under
Section 376 IPC, but held him guilty of the offence under Section 366
IPC.
36. As the trial court has acquitted the appellant for the offences under
Sections 363 and 376 IPC, this court has only to examine whether
offence under Section 366 of IPC is made out. Section 366 of IPC reads
as follows: -
“ 366. Kidnapping, abducting or inducing woman to compel her

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marriage, etc.—
Whoever kidnaps or abducts any woman 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 in order that she may be forced
or seduced to illicit intercourse, or knowing it to be likely that she
will be forced or seduced to illicit intercourse, shall be punished with
imprisonment of either description for a term which may extend to
ten years, and shall also be liable to fine; and whoever, by means of
criminal intimidation as defined in this Code or of abuse of authority
or any other method of compulsion, induces any woman to go from
any place with intent that she may be, or knowing that it is likely that
she will be, forced or seduced to illicit intercourse with another
person shall be punishable as aforesaid.”
37. The word ‘abduction’ is defined in Section 362 of the IPC, which
reads as follows: -
—Whoever by force compels, or by any deceitful means
“ 362. Abduction.
induces, any person to go from any place, is said to abduct that person. ”
38. It is strange that the trial court itself has concluded that the appellant
did not use force or abduct the victim and that the victim had gone with
the appellant under a plan prepared earlier due to mutual love and
affection between the appellant and the victim. After having recorded a
finding that the appellant did not abduct the victim, the trial court held the
appellant guilty of the offence of abducting a woman to compel her
marriage. There can be no worse example of perversity in a judgment.
39. Keeping in view of foregoing discussions, I am of the view that the
prosecution has failed to establish that the applicant had abducted or
induced the victim to go with him by use of force or by deceitful means
and therefore the offence of abduction is not made out. When the offence
of abduction is not made out, the offence of abduction to compel marriage
of the victim is also not made out.
40. In view of the foregoing discussion, the criminal appeal is .
allowed
The impugned order dated11.01.2013, passed by Sri. Jagdish Prasad-IV,
the learned IV Additional Sessions Judge, Ex-Cadre, Unnao in Sessions
Trial No.68 of 2012, arising out of Case Crime No.1393 of 2011, under
Sections 363, 366 and 376 I.P.C. Police Station Hasanganj, District
Unnao, whereby the appellant has been acquitted of the charges for the

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offences under Sections 363 and 376 I.P.C. but has been convicted for the
offence under section 366 IPC and has been sentenced to undergo
rigorous imprisonment for five years and pay Rs.5,000/- as fine is hereby
set aside and the appellant is acquitted of the charges levelled against him.
41. The personal bond and sureties furnished by the appellant before the
Chief Judicial Magistrate, Unnao, on 06.05.2026 in compliance of the
order dated 03.04.2026 passed by this Court, shall hold good 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
notice of the appeal , as per the provision contained in Section 437-A
Cr.P.C.
(Subhash Vidyarthi,J.)
May 8, 2026
Ram.
Digitally signed by :-
RAM SINGH
High Court of Judicature at Allahabad,
Lucknow Bench