# Aman Singh v. State

- **Citation:** (2022) 8 ILRA 817
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-03
- **Case number:** Jail Appeal No. 5100 of 2011
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aman-singh-v-state-48943
- **Pages:** 10

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 363,366, 376 & 506 - The
Code of Criminal Procedure, 1973 -
Sections 164 & 313 - Statement of the
prosecutrix alone is sufficient to convict
the
accused
if
the
same
inspires
confidence and is of impeccable character
and quality.(Para - 15)

Rape - appellant enticed away daughter of
complainant - aged about 16-17 years - agreed
her to marry - testimony of prosecutrix varies
from every stage - place of occurrence disputed
- by investigating officer and from testimony of
P.W.2. .(Para - 13,16)

HELD:-Prosecution failed to prove its case
beyond reasonable doubt. Every part of the
testimony of the prosecutrix is infirm, doubtful
and
contradictory
which
does
not
pose
confidence.
No
corroborative
evidence
in
support
of
the
testimony
of
the
prosecutrix.(Para - 18)

Jail appeal allowed. (E-7)

List of Cases cited:-

## Text

8 All. Aman Singh Vs. State
817
available on record, and after marshaling
the factual and legal aspect, the Court finds
its inability to subscribe to the prosecution
case as for the purposes of discarding the
view taken by the learned Trial Court. The
prosecution case, if taken into face does not
cumulatively complete the chain of linking
the accused to have committed the crime,
as neither any motive is attributed nor there
is any ingredient of eye witness testimony,
nor the theory of last seen stands attracted.
Even otherwise, there is no recovery so
made from the accused. This Court further
finds that the prosecution case proceeds on
weak evidence and and in any view of the
matter, this is not a case wherein the
appellant/ complainant can insist the Court
to take a different view from the view taken
by the Trial Court while acquitting the
accused, while reversing the judgment in
question.

37. Hence, in any view of the matter
applying the principles of law so culled out
by the Hon'ble Apex Court in the facts of
the present case, we have no option but to
concur with the view taken by the learned
Sessions Judge.

38. We find that it is not a case worth
granting leave to appeal. The application
for granting leave to appeal is rejected.

39. Since the application for granting
leave to appeal has not been granted,
consequently, present criminal appeal also
stands dismissed.

40. Records of the present case be sent
back to the concerned court below.
----------
(2022) 8 ILRA 817
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.08.2022

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Jail Appeal No. 5100 of 2011

Aman Singh ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
Sri Vijay Bahadur Singh (A.C.)

Counsel for the Opposite Party:
Sri Shrawan Kumar (A.G.A.)

(A) Criminal Law - Indian Penal Code,
1860 - Sections 363,366, 376 & 506 - The
Code of Criminal Procedure, 1973 -
Sections 164 & 313 - Statement of the
prosecutrix alone is sufficient to convict
the
accused
if
the
same
inspires
confidence and is of impeccable character
and quality.(Para - 15)

Rape - appellant enticed away daughter of
complainant - aged about 16-17 years - agreed
her to marry - testimony of prosecutrix varies
from every stage - place of occurrence disputed
- by investigating officer and from testimony of
P.W.2. .(Para - 13,16)

HELD:-Prosecution failed to prove its case
beyond reasonable doubt. Every part of the
testimony of the prosecutrix is infirm, doubtful
and
contradictory
which
does
not
pose
confidence.
No
corroborative
evidence
in
support
of
the
testimony
of
the
prosecutrix.(Para - 18)

Jail appeal allowed. (E-7)

List of Cases cited:-

1. Vijay @ Chinee Vs St. of M.P., 2010(8)SCC
191

2. St. of Kerala Vs Kundumkara Govindan &
anr., 1969 Crl.L.J. 818

3. Mod. Ali @ Guddu Vs St. of U.P., (2015)7 SCC 272
818 INDIAN LAW REPORTS ALLAHABAD SERIES
4.
Takhaji
Hiraji
Vs
Thakore
Kubersing
Chamansing & ors., 2001 Criminal Law Journal
2602

(Delivered by Hon'ble Karunesh Singh
Pawar, J. )

1. Present jail appeal has been
preferred against the judgment and order
dated 7.7.2011 passed by Additional
Sessions Judge, Court No.5, Kanpur Nagar
whereby the accused appellant Amar Singh
has been convicted and sentenced under
section 366 I.P.C. to undergo five years
rigorous
imprisonment
and
fine
of
Rs.2000/- and under section 376 I.P.C. for
seven years R.I. and fine of Rs.3,000/-,
with default provision in each of the
offences. The appellant has been acquitted
of the charge under section 363 I.P.C.

2. Heard Mr. Vikram Bahadur Singh,
learned amicus curiae, appearing for the
appellant and Mr. Shrawan Kumar Ojha,
learned Additional Government Advocate
for the State.

3. The prosecution case is that the
complainant Bablu, P.W. 1 lives in
Swaroop Nagar, Kanpur in a hut and
carries on the business of selling eggs for
livelihood.
Amar
Singh,
the
present
appellant works in Arya Nagar karkhana.
He also lives in Swaroop Nagar. On
22.3.2010, Amar Singh enticed away
daughter of the complainant aged about 1617 years, from her home. He agreed her to
marry. The complainant apprehended both,
the accused Amar Singh and his daughter
from karkhana and gave them in the
custody of police. A written report was
given by him to the police station on the
basis of which case crime No.60 of 2010
under sections 363, 366 I.P.C. was
registered.

4. Investigation was conducted by the
investigating officer. Statement(s) of the
prosecutrix and other prosecution witnesses
were taken. The prosecutrix was medically
examned. Her statement was recorded
under section 164 CrPC. On pointing out of
the prosecutrix, place of occurrence was
inspected and site plan was prepared and
consequenly
charge-sheet
against
the
accused appellant under secctions 363, 366,
376, 506 I.P.C. was filed. Against the
accused appellant, charges under sections
363, 366, 376 I.P.C. were framed. The
accused denied the charges and claimed to
be tried.

5. From the side of the prosecution,
P.W.1 Bablu, P.W.2 prosecutrix, P.W.3 Dr.
Jyotsana Kumari, P.W.4 S.I. Ram Chandra
Pal and P.W.5 Constable Pradeep Kumar
were examined. The written report has been
exhibited as Ext.Ka-1, supurdaginama as
Ext. Ka-2, medical report of the victim as
Ext.Ka-3, supplementary medical report as
Ext.Ka-4, site plan as Ext.Ka-5, chargesheet as Ext.Ka-6, chik FIR as Ext.Ka-7
and G.D. entry as Ext.Ka-8. Statement of
the accused under section 313 CrPC was
recorded where the case of the accused is
of denial.

6. The prosecutrix in her statement
under section 164 CrPC has stated that she
went with the accused to Arya Nagar
Karkhana. She was forcibly raped there and
was threatened. She was subjected to rape
thrice. She became unconscious and in the
morning, she came home and told the
incident to her mother and then her parents
and brother Deepu went to karkhana and
caught the accused from there and gave
him to the police.

7. P.W.1 Bablu has stated that on
22.3.2010, the accused enticed away the
8 All. Aman Singh Vs. State
819
prosecutrix from his home. He also went to
karkhana. Both of them were found there
and he agreed them to marry. From the
karkhana, he apprehended the accused and
the prosecutrix, and handed them over, to
the police.

In cross-examination, he changed
the time of the incident and stated that the
incident took place in the month of
November, then stated that the incident
occurred on December 28 evening. He
further stated in his cross examination that
his daughter has not told him that she was
enticed away. He knew the accused. He is a
resident of the same mohalla. He caught the
accused from karkhana and stated that he
will get them married. It is further stated that
he has shown the place of incident to the
investigating officer. He stated that he got
the written report written by Rajvansh of
mohalla. He told the investigating officer
that his daughter has agreed for the
marriage. He did not agree for the marriage.
However, he stated that if the daughter is
ready, he can marry her. The accused was
caught from Karkhana by P.W.1 and his
wife. He also stated that his nephew Deepu
was also with him. He denied the suggestion
that he did not tell the investigating officer
that his daughter has given consent for
marriage. He did not agree for that, nor tried
to get them married.

P.W.2
has
stated
that
on
22.3.2010, the accused took her to his
karkhana at Arya Nagar by enticing her
away. He pressed her mouth from her
clothes and subjected her to rape thrice.
She got unconsious. Someone opened the
door of the karkhana. Then, she went to her
parents and told them about the incident.
Thereafter, her parents and her brother
Deepu took the accused from karkhana to
the police station. She was also taken along
with the accused.

In her cross-examination, she
stated that she did not remember the date
and time of the incident. Then she says that
it was Monday. The accused used to come
to her house when P.W.1 was away and
talked her and her mother. She further
stated that the accused used to come to her
house for the past one year and they used to
crack jokes in the house and her family
members did not mind accused coming to
her house. Then he says that she went alone
on foot from the house towards mandir in
the evening. Along with her, her younger
sister Pinki also went.

She further stated that she told the
investigating officer that she is 18 years
old. She was enticed away by the accused.
She told her parents that she is going to
temple. They did not stop her. On the
pretext of taking her mandir, the accused
took her, his home and thereafter to
karkhana. She stated that she on her own
accord went away with the accused to
temple. The accused has not forced her to
go to temple. However, when instead of
taking her to temple, he was taking her to
karkhana, she objected. On the way, she
has not opposed while she was taken by the
accused. She had full faith on the accused.
Chowkidar was present at the karkhana. He
was under influence of liquor. Both had
taken
liquor.
In
the
karkhana,
the
prosecutrix P.W.2, Chowkidar and the
appellant were present. No one else was
there. The door of the karkhana was locked
from inside. She then stated that she went
in karkhana on her own accord. She denied
the suggestion that she has not given
statement to the investigating officer that
from karkhana, his parents and uncle
apprehended her and Amar Singh, present
appellant. She further denied the suggestion
that she has told the investigating officer
that she has stayed with Amar Singh at his
820 INDIAN LAW REPORTS ALLAHABAD SERIES
house for the entire night. Her clothes were
not seized by the investigating officer.

P.W.3 Dr. Jyotsana Kumari has
examined the prosecutrix, P.W.2. No injury
was
found
on
the
person
of
the
proseccutrix, including her private part.

According to pathological report,
no spermatozoon was seen. P.W.3 Dr.
Jyotsana Kumari has stated that no definite
opinion regarding rape with P.W.2 can be
given and in the medical examination,
redness and swelling was found on the
vagina. However, no blood was found.
There was no injury on any part of the
prosecutrix body. P.W.3 further stated that
she has not seized any cloth of the
prosecutrix. As per report of the Chief
Medical Officer, the prosecutrix was 19
years old.

P.W.4 S.I. Ram Chandra Pal,
investigating officer in his statement has said
that on the pointing out of P.W.2, he
inspected the place of occurrence and has
prepared the site plan in his writing. He
further stated that P.W.1 has told him that the
accused has agreed for marriage. He further
stated that P.W.1 told him that he went at the
place of occurrnece with his wife and brother
Pappu. P.W.4 further stated that P.W.1 has
told him that the accused enticed away his
daughter and had taken to his home. The
investigating officer has stated that P.W.1 has
not told him that the accused took his
daughter to karkhana. P.W.4 further stated
that the prosecutrix told him that on the
pretext of taking her to temple and after
visiting the temple, the accused took her to
his home and kept her entire night at his
house. She further stated that the accused
raped her at his house, however, she did not
tell him that how many times she was raped.
P.W.4 further stated that the prosecutrix has
not told him regarding any threat or marpeet
done by the accused. She had not told him
regarding taking the accused to karkhana.
P.W.4 has further stated that he has not
inspected karkhana. He further stated that the
prosecutrix in her statement told him that the
accused enticed away the prosecutrix to his
home and he made her agreed for marriage.

The mother of the prosecutrix also
told him that the accused took the prosecutrix
from his home to karkhana in the morning.
Mother of the prosecutrix further told that
when they reached to karkhana, then the
accused and the prosecutrix were found
standing there. During investigation, he has
not received the blood stained clothes of the
prosecutrix. He has not recovered the sample
and soil from the place where the prosecutrix
was allegedly raped. He has not taken any
mark from the place of occurrence. He
further stated that the place of occurrence is
room of the accused appellant. He has not
shown the place where the accused and the
prosecutrix were apprehended, in the site
plan. He has denied the suggestion that he has
prepared a baseless site plan. He has further
denied the suggestion that he has not shown
place of occurrnece in the site plan. He has
not shown karkhana in the site plan. The
suggestion that the place which he has shown
in the site plan is not the place of occurrence
has been denied by the witness and further he
denied the suggestion that on the saying of
the family members of the prosecutrix and
under pressure by senior police officers, he
completed the formality and filed false
charge sheet against the accused.

P.W.5 Constable Pradeep Kumar
is a formal witness, who has proved the
first information report, Ext. Ka.7.

8. It is submitted on behalf of the
appellant that the room of the accused from
8 All. Aman Singh Vs. State
821
the hut of P.W.1 is a few paces away. The
prosecutrix has not raised any alarm while
going to the room of the accused. He
submits that the prosecution has failed to
prove its case beyond reasonable doubt.
The testimony of the prosecutrix is not
worthy of credence.

9. Learned Additional Government
Advocate has opposed the appeal and has
submitted that the testimony of the
prosecutrix is intact. She has levelled clear
allegation against the appellant. The same
statement has been given by her in her
statement under section 164 CrPC. It is
lastly submitted that minor irregularity in
the prosecution case will not come in the
aid of the accused. In support of his
contention, learned A.G.A. has relied on
judgment of Supreme Court in Vijay alias
Chinee versus State of Madhya Pradesh
2010(8)SCC 191 and State of Kerala
versus
Kundumkara
Govindan
and
another 1969 Crl.L.J. 818.

10. Having heard learned amicus
curiae, appearing for the appellant and
learned A.G.A. as well as perusal of the
record, I find that as regards the date of
occurrence, in the written report, there is no
mention of the date of occurrence. In the
chick F.I.R. also, date of occurrence is not
mentioned. P.W.1 in his statement has
stated that the date of occurrnece is
22.3.2010, i.e. the date his daughter was
enticed away by the accused. In the crossexamination, he has changed the time of
occurrnece and has stated that the incident
is of November month. Then he says that
the incident is of December.

P.W.2 in her examination-inchief has not stated the exact date of
incident; rather she has stated that it was
Monday. In her cross-examination, she has
stated that the incident occurred on
22.3.2010.

P.W. 4 S.I. Ram Chandra Pal has
stated in his chief that on 23.3.2010 when
he was posted at police Swaroop Nagar, the
accused was given in his custody which
shows that according to testimony of
P.W.1, the date of occurrnece comes to
22nd March. As regards the place of
occurrence, P.W.1 in his statement has
stated that the place of occurrnece is
karkhana where the appellant was an
employee. P.W.2 in her examination-inchief has stated that she was subjected to
rape at karkhana. However, in her crossexamination, she has changed it. She has
denied the suggestion that she stayed with
the accused at his home for the entire night.
She further stated in her cross that she told
the investigating officer that she was first
taken to the house of the accused, then to
karkhana.

The investigating officer in his
statement has stated that it was P.W.1 who
told him that the appellant took his
daughter to his house. P.W.4 has stated that
the prosecutrix has also told him that she
was kept for the entire night at the house of
the appellant. She further stated to P.W.4
that she was raped at the house of the
appellant. She has not told P.W.4 regarding
the incident at karkhana. The mother and
the younger sister of P.W.2 and P.W.2
herself - all have stated in their statement to
P.W.4 that the accused took the prosecutrix
to his home because the appellant had got
the consent of the prosecutrix for marriage.
P.W.4 further stated that he inspected the
place of occurrence at the pointing out of
the prosecutrix and prepared the site plan.
He pointed out the room where the incident
took place in the site plan, i.e. the room of
the accused appellant. He further stated that
822 INDIAN LAW REPORTS ALLAHABAD SERIES
in the site plan, he has not shown karkhana.
The site plan prepared by the investigating
officer is Ext. Ka-5 wherein the place of
occurrnece is shown at the room of the
accused.

11.
 Collective
reading
of
the
statements of P.W.1, P.W.2 and the
statement of P.W.4 as also the site plan
does not show as to whether the place of
occurrence is karkhana or the house of the
accused appellant and thus, exact place of
occurrence is doubtful.

12. Now. coming to the testimony of
the prosecutrix who in her statement has
stated that on the date of incident, she went
alone from her house to J.K. Mandir.
Thereafter, she stated that on 22.3.2010 in
the evening, she went to J.K. Mandir with
her younger sister Pinki. Thereafter, again
she says that she on her own accord and
free will went away with the appellant to
Mandir and no force was applied by the
appellant to take her to temple. While she
was going with the accused to Mandir,
when she found that instead of taking her to
Mandir, the appellant was taking her to
karkhana, she objected and raised alarm.

Then she says that on the way,
she has not made any resistance while she
was taken by the accused as she had full
faith on the accused. She further says that
she went to karkhana on her free accord.
She denied the suggestion that she has told
the investigating officer that she remained
with the appellant at his house for theentire
night.

13. A perusal of the statement of the
prosecutrix shows that the same is self
contradictory and inconsistent and does not
inspire confidence. At one place, she says
that she was enticed away by the appellant
and was subjected to rape at karkhana and
also was threatened by the accused
appellant. Then, in her cross-examination,
she says that she went to karkhana at her
own accord. She was aware that the
accused was taking her on the opposite
route which does not go to temple. She did
not make any resistance as she had full
faith on the appellant. She has stated that
the accused has never persuaded for going
out from the house. The appellant used to
come to her house for the last one year with
the consent of family members and they did
not mind that. P.W.2 further says that they
never went to the house of the accused. She
further says that on the pretext of taking to
Mandir, the accused took her to his home
and then to karkhana. She denied the
sugestion that she has told the investigating
officer that she remained with the accused
appellant for the entire night at his home;
rather she stated that she told the
investigating officer that she was in
karkhana with the accused appellant. She
further stated that she went alone from her
house to J.K. Mandir. Then she says that
she was going along with her younger
sister. She further stated that no first
information report was written in front of
her at the police station. Thus, the
testimony of the prosecutrix varies from
every
stage
and
does
not
inspire
confidence, hence, to convict the appellant
on testimony of P.W.2, some corroboration
is required as held by Supreme Court in
Mod. Ali alias Guddu versus State of
U.P. (2015)7 SCC 272 (Emphasis is on
paras 29 and 30).

P.W.3 Dr. Jyotsana Kumari has
stated that according to report of the Chief
Medical Officer, the prosecutrix was 19
years old. She has not given any clear
opinion on rape. No external or internal
injury has been found on the person of the
8 All. Aman Singh Vs. State
823
prosecutrix. No spermatozoon has been
found in the pathological report. There was
no bleeding. Redness or swelling on the
private part/vagina could have come from
some stimulant substance like red pepper,
petrol and therefore, has not given any
definite opinion about rape. P.W.4 has
disputed the place of occurrence as told by
P.W.1. Statement of P.W.2 regarding place
of occurrence is also doubtful. P.W.4 has
stated that he has not collected any soil or
mark from the place of occurrnece. He has
not visited even karkhana which according
to
the prosecutrix
is
the
place
of
occurrence. He has stated that he has not
shown karkhana in the site plan.

14. On overall consideration of the
prosecution evidence, statement of the
prosecution witnesses and the material
collected by the investigating officer, it is
clear that in the written report and the first
information report, no date of incident has
been mentioned. Scribe of the first
information report Rajvansh has not been
produced. The prosecutrix in her statement
has stated that she went to temple along
with the appellant at her free will and
accord, however, she told the investigating
officer that Amar had taken her to his home
and she was kept there whole night. This
shows contradictory statement of the
prosecutrix.
Whether
the
place
of
occurrence is karkhana or the house of
accused becomes doubtful as per the site
plan itself. In the site plan, karkhana has
not been shown. P.W.4 has not visited the
place of occurrence, i.e. karkhana. Neither
the soil nor the clothes of the prosecutrix
has been collected by the investigating
officer. Chowkidar of karkhana has not
been produced by the prosecution. The
younger sister of the prosecutrix who could
have been the eye-witness has also not been
produced by the prosecution; rather has
been withheld. Hence for not examining
Chowkidar and Pinki, younger sister of
P.W.2, adverse inference is to be taken
against the prosecution as held by Supreme
Court in 2001 Criminal Law Journal 2602
Takhaji
Hiraji
versus
Thakore
Kubersing
Chamansing
and
others.
Relevant paragraph 19 is reproduced as
under :

"19. So is the case with the
criticism levelled by the High Court on the
prosecution case finding fault therewith for
non-examination of independent witnesses.
It is true that if a material witness, which
would unfold the genesis of the incident or
an essential part of the prosecution case,
not
convincingly
brought
to
fore
otherwise, or where there is gap or
infirmity in the prosecution case which
could have been supplied or made good by
examining
a
witness
which
though
available is not examined, the prosecution
case can be termed as suffering from a
deficiency and withholding of such a
material witness would oblige the Court to
draw an adverse inference against the
prosecution by holding that if the witness
would have been examined it would not
have supported the prosecution case. On
the other hand if already overwhelming
evidence is available and examination of
other witnesses would only be a repetition
or duplication of the evidence already
adduced, non-examination of such other
witnesses may not be material. In such a
case the Court ought to scrutinise the
worth of the evidence adduced. The court
of facts must ask itself - whether in the
facts and circumstances of the case, it was
necessary to examine such other witness,
and if so, whether such witness was
available to be examined and yet was
being withheld from the court. If the
answer be positive then only a question of
824 INDIAN LAW REPORTS ALLAHABAD SERIES
drawing an adverse inference may arise.
If the witnesses already examined are
reliable and the testimony coning from
their mouth is unimpeachable the Court
can safely act upon it uninfluenced by the
factum of non-examination of other
witnesses. In the present case we find that
there are at least 5 witnesses whose
presence at the place of the incident and
whose having seen the incident cannot be
doubted at all. It is not even suggested by
the defence that they were not present at
the place of the incident and did not
participate therein. The injuries sustained
by these witnesses are not just minor and
certainly not self-inflicted. None of the
witnesses had a previous enmity with any of
the
accused
persons
and
there
is
apparently no reason why they would tell a
lie. The genesis of the incident is brought
out by these witnesses. In fact, the presence
of the prosecution party and the accused
persons in the chowk of the village is not
disputed. How the vanity of Thakores was
hurt leading into a heated verbal exchange
is also not in dispute. Then followed the
assault. If the place of the incident was the
chowk then it was a sudden and not premeditated fight between the two parties. If
the accused persons had reached their
houses and the members of the prosecution
party had followed them and opened the
assault near the house of the accused
persons then it could probably be held to
be a case of self-defence of the accused
persons in which case non-explanation of
the injuries sustained by the accused
persons would have assumed significance.
The learned Sessions Judge has on
appreciation of oral and the circumstantial
evidence inferred that the place of the
incident was the chowk and not a place
near the houses of the accused persons.
Nothing more could have been revealed by
other village people or the party of tight
rope dance performers. The evidence
available on record shows and that
appears to be very natural, that as soon as
the melee ensued all the village people and
tight-rope dance performers took to their
heels. They could not have seen the entire
incident. The learned Sessions Judge has
minutely scrutinised the statements of all
the
eye-witnesses
and
found
them
consistent and reliable. The High Court
made
no
effort
at
scrutinising
and
analysing the ocular findings arrived at by
the Sessions Court. With the assistance of
the learned counsel for the parties we have
gone through the evidence adduced and on
our independent appreciation we find the
eye-witnesses consistent and reliable in
their narration of the incident. In our
opinion non-examination of other witnesses
does not cast any infirmity in the
prosecution case. "

(Emphasised by me)

15. In Kundumkara Govindan's case
(supra), relied on by learned Additional
Government Advocate, Assistant Sessions
Judge acquitted the accused giving benefit
of doubt, holding that the evidence of the
prosecutrix in a rape case cannot be
believed unless it is corroborated in
material particulars. It is not the case here.
Law in this regard is settled. Statement of
the prosecutrix alone is sufficient to convict
the accused if the same inspires confidence
and is of impeccable character and quality.
In case the statement is infirm, then some
corroboration is needed.

The facts of the present case are
different from the above case law. Hence,
in the facts of the present case, rule of
prudence cannot be dispensed with as in
view of the self contradictory and shaky
testimony of the prosecutrix, corroborative
8 All. Aman Singh Vs. State
825
material is required which is absent in this
case.

16. So far as the judgment in Vijay
alias Chinee versus State of M.P. (supra) is
concerned, relied on by learned A.G.A.,
place of incident was not disputed and
admittedly, the prosecutrix at the place of
incident was subjected to rape and
therefore, there are concurrent finding of
facts by the two courts. Here, in the present
case, place of occurrence is itself disputed
by the investigating officer and from the
testimony of P.W.2. In that regard also, it
does not inspire confidence. Therefore, this
judgment also is not applicable in the facts
of the present case.

17. Since the place of occurrence in
this case is not clear, coupled with the fact
that the testimony of P.W.2 is quite shaky
and does not inspire confidence as also the
fact that younger sister Pinki of P.W.2 who
was an eye-witness has not been produced
by the prosecution, Chowkidar of karkhana
at Arya Nagar has also not been made
accused along with the appellant and has
not been produced by the prosecution,
scribe of the first information report has
also not been made witness in this case, I
am of the opinion that such kind of
testimony of P.W.2 does not inspire
confidence.

18. Thus, in view of the aforesaid
discussion, the prosecution has failed to prove
its case beyond reasonable doubt. Every part
of the testimony of the prosecutrix is infirm,
doubtful and contradictory which does not
pose confidence. There is no corroborative
evidence in support of the testimony of the
prosecutrix. The prosecution has not been able
to prove the place of occurrence, the time of
occurrence and manner of occurrence. The
exact place of occurrence has not been
established and there is variation in the
evidence about place of occurrence as per the
evidence of the investigating officer and the
witnesses. The court below has not taken note
of this contradiction which was a material
contradiction and therefore there has been a
total wrong appreciation of evidence on record
which has resulted in miscarriage of justice.
There appears to be suppression of material
facts relating to occurrence because of the
contradiction as indicated. Unusual manner of
shifting the place of occurrence and the fact of
the prosecutrix having a company of the
accused appellant at her free will and accord
while going to temple and then to karkhana as
also they having been acquainted with each
other leaves doubt on the veracity of the
incident. The investigating officer has not
collected any evidence from the place of
occurrence. Two important and available
witnesses have been withheld by the
prosecution from the Court, therefore, it is
hard to convict the appellant on this quality of
evidence and it is a fit case to draw adverse
inference
against
the
prosecution
for
withholding two important witnesses from the
Court.

19. In view of what has been stated
hereinabove, the jail appeal is allowed and the
judgment and order of conviction and sentence
dated 7.7.2011 passed by Additional Sessions
Judge, Court No.5, Kanpur Nagar in S.T.
No.759 of 2010, is set aside.

20. As per report dated 12.6.2017, sent
by Superintendent, District Jail, Kanpur
Nagar, the appellant has already been released
after serving full sentence and giving benefit
of remission period.

21. Let a copy of this judgment be
transmitted to the learned trial Court. The
lower court records be also sent back to the
lower court.
826 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2022) 8 ILRA 826
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.08.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Appeal No. 5369 of 2009

Aniraka Prasad Yadav ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Ramesh Sinha, Sri Ravindra Balkrishna
Kanhere

Counsel for the Opposite Party:
Govt. Advocate

(A) Criminal Law - Indian Penal Code,
1860 - Section 302 - The Code of Criminal
Procedure, 1973 - Section 313 - appeal
against conviction -murder - proof of
motive immaterial - when the facts are
clear and the absence of motive does not
break
the
links
in
the
chain
of
circumstances connecting the accused
with the crime - Proof of motive or ill will
is
unnecessary
to
sustain
conviction
where there is clear evidence. (Para - 25)
accused ( husband of deceased) - living under
same roof - present at his house on day of
incident - homicidal death - established from
medical evidence & inquest report- accused
tried to show his presence elsewhere - accused
gave false explanation that deceased committed
suicide - established - homicide of deceased
portrayed - suicide by hanging - rules out
possibility of involvement of an outsider in crime
- behavior of accused not good with deceased
- torture and beat - motive of crime. (Para -
23)

(B) Evidence Law - Indian Evidence Act,
1872 - Section 106 - last seen theory -
burden of proving fact especially within
knowledge - last seen theory comes into
play - where the time gap between the
point of time when the accused and the
deceased were last seen alive -when the
deceased is found dead is so small that
possibility of any person other than the
accused being the author of the crime
becomes impossible - accused-appellant to
explain the circumstances leading to the death
of the deceased - held - failed to discharge the
burden cast upon him by section 106 of
Evidence Act. (Para - 18,19)

(C) Evidence Law
- case based on
circumstantial evidence - circumstances
from which conclusion of the guilt is to be
drawn is fully established - consistent only
with the hypothesis of the guilt of the
accused
-
circumstances
are
of
a
conclusive nature and point towards the
guilt of the accused - exclude every other
possible hypothesis - chain of evidence is
so
complete
as
not
to
leave
any
reasonable ground for the conclusion
consistent with the innocence of the
accused - shows that in all human
probability the act must have been done
by the accused.(Para - 26)

HELD:-Prosecution case stands proved beyond
reasonable
doubt.
Trial
court
properly
appreciated evidence. Conclusion drawn by trial
court is just and proper. No illegality or
perversity in the findings of trial court. No
ground to interfere in the findings and
conclusion recorded by trial court. (Para -27 )

Criminal Appeal dismissed. (E-7)

List of Cases cited:-

1. S.K. Yusuf Vs St. of W.B., (2011) 11 SCC 754

2. Sharad Birdhichand Sarda, AIR 1984 SC 1622

3. Haresh Mohandas Rajput Vs St. of Maha.,
2011 (12) SCC 56

4. Sadddik Vs St. of Guj., 2016 (10) SCC 663

(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)