In rape and kidnapping cases, delays in lodging FIR due to familial considerations are acceptable; the victim's credible testimony can establish the offence of attempted rape even without penetration.

JUDGMENT :

RAJNISH KUMAR, J.

1. Heard Sri Ashutosh Singh, learned counsel for the appellant and Shri Badrul Hasan, learned Additional Government Advocate (here-in-after referred as AGA).

2. This Criminal Appeal under Section 374(2) of Code of CRIMINAL PROCEDURE CODE (here-in-after referred as CrPC) has been filed for setting aside the conviction and sentence awarded by Additional Sessions Judge/Fast Track Court No. 2, Lucknow by means of the judgment and order dated 06.02.2009 passed in Session Trial No. 391/2008: State Vs. Pradeep Kumar @ Pappu @ Bhuriya arising out of Case Crime No. 266/04 under Section 363 /366/376/511/354 of INDIAN PENAL CODE (here-in-after referred as IPC), Police Station Aliganj, District Lucknow, by which the appellant has been convicted and awarded sentence of 10 years rigorous imprisonment and Rs. 5000 fine under Section 376 /511 IPC and in default of payment of fine one year additional imprisonment and sentence of 7 years simple imprisonment and Rs. 3000 fine under Section 366 IPC and in default of payment of fine, six months additional imprisonment and sentence of 5 years simple imprisonment and Rs. 2000 fine under Section 363 IPC and in default of payment of fine, four months additional imprisonment and sentence of 1 year simple imprisonment and Rs. 1000 fine under Section 354 IPC and in default of payment of fine, two months additional imprisonment. It has further been provided that, from the fine deposited by the appellant, Rs. 5000/- shall be paid to the victim as compensation and all the sentences shall run concurrently.

3. Learned counsel for the appellant submitted that there is a delay of 21 days in lodging FIR because it was a case of consent by the victim, on account of an affair between the appellant and the victim, therefore FIR was not lodged for a period of twenty days. On coming to know that the appellant and the victim were going out, the FIR was lodged and the victim was recovered from the crossing, whereas no alarm was raised by the victim. Even otherwise the submission was that the charge of Section 376 has not been proved on account of fact that the victim, who appeared as P.W. 2 has not made any such allegation and in fact denied the same. He further submitted that the medical age of the victim has come as 18 years. He next submitted that the learned trial court, without considering the above and the evidence and material on record, passed the impugned judgment and order convicting and punishing the appellant, which is not sustainable in the eyes of law and is liable to be set aside. He relied on judgment and order dated 04.01.2024 passed in Darshan Singh vs. State of Punjab in Criminal Appeal No. 163 of 2010; 2024 INSC 19 by the Hon'ble Supreme Court of India, judgment and order dated 07.01.2025 passed in State (GNCT of Delhi) vs. Vipin @ Lalla; Criminal Appeal No. 94 of 2025 by the Hon'ble Supreme Court of India, judgment and order dated 29.09.2006 passed in the case of Tarkeshwar Sahu vs. State of Bihar (Now Jharkhand); AIRONLINE 2006 SC 383 .

4. Per contra, learned AGA submitted that the victim was kidnapped forcefully and in custody of the appellant for a period of twenty days and there is no denial of the recovery of the victim from the custody of accused i.e. the appellant. He next submitted that the expla