RITESH MAURYA @ JITESH MAURYAversusState of U.P.

         HIGH COURT OF JUDICATURE AT ALLAHABAD

                 CRIMINAL APPEAL No. - 7320 of 2024

Ritesh Maurya @ Jitesh Maurya
                                                              .....Appellant(s)
                                   Versus
State of U.P.
                                                            .....Respondent(s)

Counsel for Appellant(s)                    :   Shyam Narayan Verma
Counsel for Respondent(s)                   :   G.A.

Court No. - 90
                     HON'BLE ABDUL SHAHID, J.

1. Heard learned counsel for the appellant and learned A.G.A. for the State.

2. The present appeal has been filed against the judgment and order dated
08.07.2024 passed by learned Additional District and Sessions Judge/Special
Judge, POCSO Act, Court No. 03, Varanasi, in Special Sessions Trial No.
892 of 2022 (State Versus Ritesh Maurya @ Jitesh Maurya), arising out of
Case Crime No. 141 of 2022, under sections 366, 376 I.P.C., Police Station
Cholapur, District Varanasi.

3. The F.I.R. has been registered on 05.05.2022, at 19.15 hours, under
sections 363 and 366 I.P.C. as Case Crime No. 141 of 2022, at Police Station
Cholapur, District Varanasi (Rural). The F.I.R. has been lodge with the
delay. The alleged incident took place on 28.04.2022 at 21:00 hours. The
complainant (Jokhan Yadav) who is the father of the victim has lodged the
said F.I.R. against the appellant Ritesh Maurya. He has submitted that his
minor daughter has been taken away with the allurement by Ritesh Maurya.
Any untoward incident accident may be happened with her daughter.

4. After investigation, charge sheet has been filed against the appellant under
sections 363, 366, 376 I.P.C. and ¾ POCSO Act. The trial has been
concluded and the appellant has been acquitted under section 363 I.P.C. and
3/4 POCSO Act and it has been established in the said case that on the date
of incident on 28.04.2022 the victim was absolute major. The appellant has
been convicted and sentenced only under section 366 and 376 I.P.C.

5. The statement of the victim was recorded under Section 161 Cr.P.C. on
15.05.2022 by a lady constable. She specifically stated that her age was 18
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years and she had studied up to High School. She stated that she had left her
house at 09:00 P.M. on 28.04.2022 along with Ritesh Maurya of her own
free will. Thereafter, both solemnized their marriage and resided as husband
and wife. She expressed her desire to reside with him. She further stated:
"We were returning home on 14.05.2022 when the police personnel brought
us to the police station." The lady constable specifically recorded that the
said statement was made by the victim voluntarily.

6. The statement of the victim was subsequently recorded under Section 164
Cr.P.C. by the concerned Civil Judge (Junior Division)/FTC-02 on
16.05.2022. Her photograph was duly pasted on the said statement, which
was verified by the victim as well as the Sub-Inspector. In her statement
recorded under Section 164 Cr.P.C., exhibited as Ext. Ka-1, the victim
stated: "I went to Bengaluru with Jitesh on 28.04.2022. I have been well
acquainted with Jitesh for the last two years. He is a friend of my brother-in-
law (Jija). We stayed in Bengaluru for one day. We solemnized our marriage
at Raja Talab on 14.05.2022. This case has been registered by my father. I
want to live with Jitesh."

7. The learned Magistrate also issued a certificate stating that the statement
was given by the victim of her own free will and was recorded in toto as
narrated by her.

8. The F.I.R. was delayed. The victim specifically admitted in her statements
under Sections 161 and 164 Cr.P.C. that she went along with Jitesh Maurya,
solemnized marriage with him, and thereafter resided as his wife.

9. The victim was examined as P.W.-1 before the court on 11.10.2023. In
her testimony before the court, she resiled from her earlier statements
recorded under Sections 161 and 164 Cr.P.C. She stated that her date of birth
was 11.05.2004 and she had appeared in the High School examination. She
stated that the incident took place approximately one year ago, the accused
forcefully took her away and committed a bad act with her. However, she
did not state that he committed the bad act without her will or consent. She
specifically stated that she was fully conversant with such acts. She verified
her statement under Section 164 Cr.P.C. as Ext. Ka-1. She stated that she left
her house on the 28th, though she did not remember the month or year. She
was recovered by the police ten days after the incident, on 14.05.2022. She
deposed: "I do not remember where I lived during those 14 days. I do not
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know whether I went to Bengaluru or not." However, she admitted in her
statement under Section 164 Cr.P.C. that the accused, Jitesh, took her to
Bengaluru. She stated that she did not possess a mobile phone when she left
home, whereas Jitesh had one. She did not make any call to her home from
Jitesh's mobile phone, but called her home four days after the incident using
another person's phone from Bengaluru. She stated that she did not know the
person whose phone she used to call her father.

10. She further deposed that her medical examination was conducted
forcefully and she did not wish to undergo it. She stated that she did not
know how many days after the incident her medical examination was
conducted. She stated that the accused, Jitesh, took her to Bengaluru by train
on the date of the incident. She alleged that while purchasing tickets, the
accused held her hand, pressed her mouth, and gave her a tablet, due to
which she could not scream. The train journey to Bengaluru took a few days.
She claimed that the accused consistently beat and intimidated her, which
prevented her from raising an alarm at Bengaluru railway station. She stated
that he hit her on her back, mouth, and leg, but nowhere else, and that she
showed all the hit marks.

11. She stated that she told the Inspector that she solemnized marriage with
the accused and resided with him as husband and wife under his pressure.
However, when shown Paper No. 8-Ka (her Medico-Legal Examination
report), which noted: "I do not want my external or internal examination. I
am under no pressure from anyone," she admitted that it was in her own
handwriting. She stated that she told the doctor she was married on the
instructions of the accused, Jitesh. She further stated that she informed the
doctor about her injuries, and if they were not recorded, she could offer no
explanation for the omission. She admitted that she recently solemnized her
marriage after attaining 18 years of age and that her father had recorded her
date of birth at the time of her initial school admission. She was above 17
years of age. She travelled from Varanasi to Bengaluru, resided with the
accused, and married him. She did not raise any alarm while travelling by
train or at either Varanasi or Bengaluru railway stations. She left her house
at 09:00 P.M. at night. The conduct of the victim demonstrates that she fully
understood the nature and consequences of her acts.

12. P.W.-2/Jokhan Yadav (the father of the victim), was examined on
25.10.2023. He deposed that he did not know Ritesh Maurya and the
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incident occurred approximately 1 and half years prior at around 09:00 P.M.
He stated that at the time of the incident, his daughter was under 18 years of
age and that the accused allured and took her away. However, he did not
mention the exact date of birth of the victim in his examination-in-chief,
despite being her father is the best person to know her correct age.

13. Further in his cross-examination, P.W.-2 admitted that on the very date
of the incident at 11:00 P.M., the accused called him and allowed him to
speak with his daughter, whereupon he learned that the accused had taken
her through allurement. Thus, the complainant's statement confirms that he
gained knowledge of the incident on the same day, just two hours after it
occurred. Despite this, he lodged the F.I.R. after an inordinate delay without
providing a satisfactory explanation. He further stated that upon returning
from Bengaluru, his daughter informed him that the accused, Ritesh, had
taken her there.

14. Dr. Smita Srivastava was examined as P.W.-3. She deposed that on
15.05.2022, she was posted as Emergency Medical Officer (E.M.O.) at the
Government District (Women) Hospital. On that day, at around 02:00 P.M.,
she conducted the medical examination of the victim, who was brought by
Lady Constable Sunita Kumari (C.P. No. 4065). She stated that the victim
reported her date of birth as 11.05.2004 and stated that she had solemnized
her marriage on 29.04.2022 at a temple. Regarding the incident, the victim
stated that she had eloped with her lover. At the time of examination, she
was fully conscious, with a pulse rate of 102 beats per minute and blood
pressure of 120/70. Axillary and pubic hair were present, and her breasts
were developed. No external injuries were found on her body. The victim
refused internal examination as well as the examination of her private parts,
which Dr. Srivastava recorded in her own handwriting in the medical report.
Lady Constable Sunita Kumari corroborated this refusal. The report was
verified as Ext. Ka-3.

15. In her cross-examination, P.W.-3 affirmed that the victim refused both
external and internal examinations, stating that she was under no pressure.
P.W.-3 denied that the victim made these statements under coercion. She
stated that the victim produced her birth certificate and refused medical
examination for age estimation. P.W.-3 noted the presence of axillary and
pubic hair based on her physical observation and confirmed that the victim
disclosed having eloped with her lover and married him at a temple. No
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external body injuries were observed.

16. In view of this evidence, it is clear that the victim was of mature mind,
who fully understood the nature of her acts. She accompanied her lover,
Ritesh, of her own free will and consent, fully aware of her actions.

17. Head Constable Ashok Kumar Yadav was examined as P.W.-4. He
verified the Check F.I.R. as Ext. Ka-4 and the General Diary (G.D.) entry as
Ext. Ka-5. He is a formal witness.

18. Santosh Kumar Yadav (Head Master) was examined as P.W.-5. He
verified that the victim's date of birth was recorded as 03.07.2003 when she
was admitted to his school in Class VI on 01.04.2015. She had completed
Class V at her previous school and submitted a Transfer Certificate (T.C.),
which recorded her date of birth as 03.07.2003. On that basis, her date of
birth was recorded as 03.07.2003 in the scholar register. He verified these
documents as Ext. Ka-6 and Ext. Ka-7. He specifically stated that there was
no mention of 11.05.2004 as her date of birth in the scholar register or Ext.
Ka-7.

19. Sub-Inspector Vipin Kumar Pandey, the Investigating Officer (I.O.), was
examined as P.W.-6. He inspected the place of occurrence, verified Ext. Ka-
5, recovered the accused Ritesh and the victim, and prepared G.D. Entry No.
4 on 15.05.2022. The recovery and arrest took place at 21:00 hours on
14.05.2022. Thereafter, Section 376 I.P.C. and Section 3/4 of the POCSO
Act were added via G.D. Entry No. 30, verified as Ext. Ka-9. He
subsequently submitted the charge sheet, verified as Ext. Ka-10.

20. P.W.-6 stated that a computerized High School mark sheet of the victim
was provided to him by the complainant. He did not inquire how the
complainant obtained it because it was an online copy downloaded from an
official website. He neither verify this online copy nor request the victim's
Class V or Class VIII educational certificates. He simply signed the mark
sheet provided by the complainant. He admitted that on the date of the
incident, the victim was 11 days short of attaining 18 years of age, but by the
time she was recovered, she had completed 18 years. He stated that the
victim informed him that she had married the accused. He further stated that
the victim's mother and brother-in-law alleged that the accused committed a
bad act with her, prompting the addition of Section 376 I.P.C. and Section
3/4 of the POCSO Act. Notably, the victim herself did not state to the I.O.
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that the accused committed rape. The I.O. contradicted his own testimony
regarding the addition of charges and the age of the victim. Although he
admitted she had completed 18 years at the time of recovery/medical
examination on 15.05.2022, his deposition contained notable variations and
inconsistencies.

21. Prahlad Singh Yadav, the Principal, was examined as P.W.-7 on
18.05.2024. He deposed that the victim took admission in Class IX on
05.07.2018 as a regular student and appeared for the High School
examination. As per the scholar register, her date of birth was 03.07.2003,
recorded on the basis of previous school documents. He stated that while
submitting the Board examination form, information was provided by either
the student or the guardian, and the school merely forwarded it. He admitted
that an error occurred in the office during this process. In the school register,
her date of birth was 03.07.2003.

22. The alleged incident occurred on 28.04.2022, making the victim an
absolute major on the date of occurrence. This was correctly concluded by
the learned trial court, which acquitted the appellant under Section 363
I.P.C. and Section 3/4 of the POCSO Act. The victim is an educated girl who
left her house at 09:00 P.M. Her father admitted speaking to her at 11:00
P.M. that same night via a call arranged by the appellant. Despite this
immediate contact, there was an inordinate delay in lodging the F.I.R.

23. It cannot be ruled out that the victim possessed full understanding and
knowledge of the nature of her acts. She was of mature mind at the time of
the incident, and her date of birth was subsequently manipulated during the
submission of her High School Board examination form (recording
11.05.2004 instead of 03.07.2003 as entered in the scholar register). She
travelled from Varanasi to Bengaluru, a long journey taking over a day and a
night by train without raising any alarm. In her statements under Sections
161 and 164 Cr.P.C., she specifically admitted that she left with her own
consent, solemnized marriage with the appellant, and consensual relations
took place.

24. The findings and observations of the learned trial court regarding the
conviction and sentencing of the appellant under Sections 366 and 376 I.P.C.
are perverse and contrary to law.

25. Accordingly, the judgment and order dated 08.07.2024 passed by the
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                                    learned Additional District and Sessions Judge / Special Judge, POCSO Act,
                                    Court No. 03, Varanasi, in Special Sessions Trial No. 892 of 2022 (State v.
                                    Ritesh Maurya @ Jitesh Maurya), arising out of Case Crime No. 141 of
                                    2022, under Sections 366 and 376 I.P.C., Police Station Cholapur, District
                                    Varanasi, is hereby set aside.

                                    26. The appellant is hereby acquitted of the charges under Sections 366 and
                                    376 I.P.C.

                                    27. The criminal appeal is allowed.

                                    28. If the appellant is not incarcerated in connection with any other case, the
                                    appellant shall be released forthwith.

                                    29. A copy of this judgment shall be sent immediately by the Registrar
                                    (Compliance) to the learned District and Sessions Judge, Varanasi, via e-
                                    mail. A copy of this order along with the original trial court record shall also
                                    be transmitted to the learned trial court for necessary compliance forthwith.

                                    September 23, 2026
                                    K.K. Maurya
                                                                                                (Abdul Shahid,J.)




Digitally signed by :-
KAMLESH KUMAR MAURYA
High Court of Judicature at Allahabad