# Anil Kumar Bind v. State of U.P. & Anr

- **Citation:** (2021) 11 ILRA 97
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-24
- **Case number:** Criminal Appeal No. 6032 of 2018
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-kumar-bind-v-state-of-u-p-anr-46687
- **Pages:** 4

## Headnote

Criminal Law - Indian Penal Code, 1860-
Section 376- Evidence of prosecutrix produced
before learned trial court as PW3 - This
evidence seems to be exaggerated - The
testimony of prosecutrix does not inspire
confidence. Moreover, her testimony is not
corroborated by medical evidence- There were
no injuries. Doctor has clearly opined that at
the time of her internal medical examination,
she
did
not
find
that
intercourse
was
committed with her- Statement of Doctor
falsifies
the
factum
of
rape.
Enmity
of
prosecutrix's father with the appellant is itself
stated by the prosecutrix in her examinationin-chief- From beginning it was projected that
the girl was minor but the learned trial judge
came to the finding that provision of POCSO
Act will not be applicable in this case because
she was not minor.

Where
the
testimony
of
the
prosecutrix
is
exaggerated,
uncorroborated
with
the
medical
evidence, prior enmity is admitted and the claim of
her being minor is found false, then it would not be
safe to rely upon such testimony.

 Scheduled
Castes
and
Scheduled
Tribes
(Prevention of Atrocities) Act, 1989- Section
3(2)(v)-
Just
because
the
accused
was
knowing the prosecutrix belonging to the
vulnerable caste cannot itself take the matter
in that ambit and it is relevant to mention that
when offence of rape is not proved then there
is no question of punishment under Section
3(2)(V) of SC/ST Act.

When the offence of rape is itself not proved then the
accused cannot be convicted only on the basis of
Section 3(2)(v0 of the Sc/St Act.( Para 16,17)

Criminal Appeal allowed.(E-3)

Judgements/ Case relied upon:-

## Text

11 All. Anil Kumar Bind Vs. State of U.P. & Anr.
97
(2021)12ILR A97
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.11.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 6032 of 2018

Anil Kumar Bind ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Sri M.A. Siddiqui, Sri Kalamuddin

Counsel for the Respondents:
A.G.A.

Criminal Law - Indian Penal Code, 1860-
Section 376- Evidence of prosecutrix produced
before learned trial court as PW3 - This
evidence seems to be exaggerated - The
testimony of prosecutrix does not inspire
confidence. Moreover, her testimony is not
corroborated by medical evidence- There were
no injuries. Doctor has clearly opined that at
the time of her internal medical examination,
she
did
not
find
that
intercourse
was
committed with her- Statement of Doctor
falsifies
the
factum
of
rape.
Enmity
of
prosecutrix's father with the appellant is itself
stated by the prosecutrix in her examinationin-chief- From beginning it was projected that
the girl was minor but the learned trial judge
came to the finding that provision of POCSO
Act will not be applicable in this case because
she was not minor.

Where
the
testimony
of
the
prosecutrix
is
exaggerated,
uncorroborated
with
the
medical
evidence, prior enmity is admitted and the claim of
her being minor is found false, then it would not be
safe to rely upon such testimony.

 Scheduled
Castes
and
Scheduled
Tribes
(Prevention of Atrocities) Act, 1989- Section
3(2)(v)-
Just
because
the
accused
was
knowing the prosecutrix belonging to the
vulnerable caste cannot itself take the matter
in that ambit and it is relevant to mention that
when offence of rape is not proved then there
is no question of punishment under Section
3(2)(V) of SC/ST Act.

When the offence of rape is itself not proved then the
accused cannot be convicted only on the basis of
Section 3(2)(v0 of the Sc/St Act.( Para 16,17)

Criminal Appeal allowed.(E-3)

Judgements/ Case relied upon:-

1. Jafar & anr. Vs St. of U.P. 2009 0 Supreme (All)
3417

2. Bibhishan Vs St. of Maha. 2007 0 Supreme (SC)
1219

3. St. of Guj. Vs B. L. Dave ,Criminal appeal No.99 of
2019 (SC)

4. Guru Dutt Pathak Vs St. of U.P ,Criminal Appeal
No.502 of 2015 (SC)

(Delivered by Hon'ble Ajai Tyagi, J.)

1. By way of this appeal, the appellant-
Anil Kumar Bind has challenged the Judgment
and order 30.08.2018 passed by Additional
Sessions Judge (Court No.12), Allahabad, in
Special Session Trial No.56 of 2016 (State Vs.
Anil Kumar Bind) arising out of Case Crime
No.119 of 2016 under Section 376 Indian Penal
Code and Section 3(2)(V) SC/ST Act and
Section 3/4 POCSO Act, Police Station-Handia,
District-Allahabad
whereby
the
accusedappellant was convicted under Section 376 IPC
and sentenced to imprisonment for 10 years with
fine of Rs.10,000/- and in case of default of
payment
of
fine,
to
undergo
further
imprisonment for one year and for life
imprisonment and fine of Rs.10,000/- under
Section 3(2)(V) SC/ST Act and in case of
default of payment of fine, to undergo further
98 INDIAN LAW REPORTS ALLAHABAD SERIES
imprisonment for one year. Appellant was
acquitted under Section 3/4 POCSO Act.

2. The brief facts of the case are that
complainant Chote Lal Pasi submitted written
report Ex.Ka-1 to the Police Station- Handia,
District- Allahabad on 24.03.2016 stating that
his daughter prosecutrix, age 15 years, went to
ease herself at about 10:00 pm in the night
near the pond. From there Anil of his village
took her daughter forcible by sequeezing her
mouth to nearby hut and committed rape with
her. On hearing the noise of crying, his son
Hausila Prasad and other people ran towards
the place of occurrence and his son caught
Anil Bind red handed but he fled away from
the spot. On the basis of this report an FIR
was registered on Case Crime No.119 of 2016.

3. Ravi Shankar Prasad C.O. took up the
investigation, I.O. visited the spot and
prepared site-plan, recorded the statements of
witnesses
under
Section
161
Cr.P.C.
Prosecutrix was medically examined. Her
statement under Section 164 Cr.P.C. was
recorded
by
competent
authority.
After
completing the evidence I.O. submitted charge
sheet against the appellant. The case being
exclusively triable by court of sessions was
committed to the sessions court by competent
magistrate for trial.

4. So as to bring home the charge,
prosecution
produced
following
witnesses,
namely :-

1
Chote Lal Pasi
P.W.1
2.
Nanki Devi
P.W.2
3.
Prosecutrix
P.W.3
4.
Hausila Prasad
P.W.4
5.
Jai Hind Yadav
P.W.5
6.
Dr. Neelu Mishra
P.W.6
7.
Ravi Shankar Prasad
P.W.7

5. After completion of prosecution
evidence, the accused was examined under
Section 313 Cr.P.C. The accused did not
examine any witness in defence.

6. Apart from oral evidence, following
documentary evidence was produced by the
prosecution and proved by leading evidence:

1.
Written Report
Ex.ka1
2.
FIR
Ex.ka4
3.
Statement
u/s
164
Cr.P.C.
Ex.ka2
4.
Medico
Legal
Examination Report
Ex.ka5
5.
Supplementary Report
Ex.ka6
6.
Charge-Sheet
Ex.ka9
7.
Pathology Report
Ex.ka-
8.
Report of Radiologist
Ex.ka-

7. Heard Shri M. A. Siddiqui, learned
counsel for the appellant, learned AGA for the
State and also perused the record.

8. Learned counsel for the appellant
submitted that appellant has been fasely
implicated in this case. There is no evidence of
rape. It is further submitted that as per
prosecution case, prosecutrix was of age of 15
years at the time of occurrence, but when she
was medically examined by radiologist, her age
was found between 18 and 22 years. It clearly
shows that at the time of alleged incident
prosecutrix was major.

9. It is next submitted by the learned
counsel for the appellant that as per medical
examination report of prosecutrix, no evidence
of rape was found. Doctor, who medically
examined the prosecutrix, has opined that at the
time of examination it was not found that any
intercourse has been committed with the
prosecutrix. In chemical examination report no
11 All. Anil Kumar Bind Vs. State of U.P. & Anr.
99
spermatozoa was found. There were no injury
marks on her private part.

10. Learned counsel for the appellant also
submitted that prosecutrix is examined as PW3.
She has stated in her statement that her father
was
having
enmity
with
the
appellant.
Moreover, she has not supported the prosecution
version in her cross-examination. Her statement
is having so much contradictions that it cannot
be relied on. Her statement is exaggerated.

11.

Learned
AGA
submitted
that
prosecutrix has supported the prosecution
version in her statement under Section 164
Cr.P.C. as well as deposition made before
learned trial court. It is also submitted that in
medical examination Hymen was found torn.
Learned trial court has rightly convicted and
sentenced the appellant and it was also
submitted by learned AGA that prosecutrix
belongs to Scheduled Caste. Hence, he was
rightly convicted under Section 3(2)(V) SC/ST
Act also.

12. At the very outset, it is pertinent in this
case, to consider the age of prosecutrix at the
time of alleged occurrence. In first information
report, the father of the prosecutrix has
mentioned her age 15 years but to determine the
real age, ossification test was conducted by the
radiologist and as per supplementary report
prepared by him, her age was found above 18
years and below 22 years. As per supplementary
report Ex.Ka6, this fact is established that at the
time of alleged incident, prosecutrix was not
minor but she was major.

13. We have examined the evidence of
prosecutrix produced before learned trial court
as PW3. This evidence seems to be exaggerated.
In her examination-in-chief she has included two
more persons with appellant which were not in
the picture before her statement. It is also stated
in her cross-examination that she went to ease
herself with her mother. But mother was left
behind and she reached to the pond by running
and when she did not return to the house then
her mother raised the alarm. It is further
submitted by the prosecutrix that she was
forcibly taken away from the pond to the hut by
three persons out of which two were hiding their
face by cloth. She has also stated that when she
was being taken away, she did not raise alarm
because she fainted. After that she became
conscious and when rape was committed she
again fainted. The testimony of prosecutrix does
not inspire confidence. Moreover, her testimony
is not corroborated by medical evidence. Dr.
Neelu
Mishra
conducted
her
medical
examination and she was produced as PW6.
Doctor has stated in her report that no
spermatozoa was found. There were no injuries.
Doctor has clearly opined that at the time of her
internal medical examination, she did not find
that intercourse was committed with her. Hence,
this statement of Doctor falsifies the factum of
rape. Enmity of prosecutrix's father with the
appellant is itself stated by the prosecutrix in her
examination-in-chief. Learned counsel for the
appellant has relied on Jafar and another Vs.
State of U.P. 2009 0 Supreme (All) 3417 and
Bibhishan Vs. State of Maharashtra 2007 0
Supreme (SC) 1219.

14. We have gone through the above case
laws, which are fully applicable on the facts of
this case.

15. We have also considered the
judgements of Apex Court in State of Gujarat
Vs. B. L. Dave passed in criminal appeal No.99
of 2019 and Guru Dutt Pathak Vs. State of
Uttar Pradesh passed in Criminal Appeal
No.502 of 2015, in which parameters of
reversing the judgments of court below are
guided.

16. We have convinced that the doctor has
positively opined that she could not find any
100 INDIAN LAW REPORTS ALLAHABAD SERIES
trace of spermatozoa and, therefore, no injury
marks. She further testified that the prosecutrix
had not been subjected to any forcible sexual
harassment or intercourse. From beginning it
was projected that the girl was minor but the
learned trial judge came to the finding that
provision of POCSO Act will not be applicable
in this case because she was not minor.

17. Offence of rape is not proved, hence,
the accused could not have been punished under
Section 3(2)(V) of SC/ST Act. We are unable to
accept the submission of learned counsel for the
State that just because the accused was knowing
the prosecutrix belonging to the vulnerable caste
cannot itself take the matter in that ambit and it
is relevant to mention that when offence of rape
is not proved then there is no question of
punishment under Section 3(2)(V) of SC/ST
Act.

18. Hence, after meticulous appreciation of
evidence on record and in the facts and
circumstances of this case, we are of the
considered view that prosecution has failed to
prove the charges against the appellant. Learned
trial court did not appreciate the evidence in
right perspective as far as the rape is concerned
and
the
accused-appellant
was
wrongly
convicted on the basis of perverse finding.

19. Accordingly, the appeal is likely to be
allowed.

20. The appeal is allowed. Conviction and
sentence of appellant awarded in this case is
hereby set aside. Appellant be set free forthwith
if he is not wanted in any case. Fine, if
deposited, be refunded to the appellant. Bail
bond is cancelled and sureties are discharged, if
any. Record of court below be sent back
forthwith.
----------
(2021)12ILR A100
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.11.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 6194 of 2008

Braj Kishore ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri D.S. Singh, Sri Anand Saurabh, Sri Kashif
Zaidi, Sri Noor Mohd. Sri Raghuvansh Misra, Sri
Rahul Misra, Sri Shiv Kumar Singh, Sri Sudama Ji
Shandlya

Counsel for the Respondent:
A.G.A.

Criminal Law - Indian Penal Code, 1860 -
Section 376- Rape of minor- Imprisonment for
life- Quantum of Punishment- Reformative
Theory and Doctrine of Proportionality- No
accused person is incapable of being reformed
and therefore, all measures should be applied
to give them an opportunity of reformation in
order to bring them in the social stream-
'reformative theory of punishment' is to be
adopted and for that reason, it is necessary to
impose punishment keeping in view the
'doctrine of proportionality'. Keeping in view of
theory
of
'doctrine
of
proportionality',the
sentence awarded to the appellant seems
harsh. Since, the appellant has already served
14 years of sentence and ends of justice would
be met if sentence is reduced from life
imprisonment to the period of ten years. There
were no external injury or there were no
external injury were found. The accusedappellant was a young man at the time when
he committed the offence. Hence, the sentence
awarded to the appellant by the learned trialcourt is modified and is reduced to fourteen
years
rigorous
imprisonment
with
all
remissions
and
fine
default
sentence
mentioned.