# Bhao Prakash v. State Of U.P

- **Citation:** (2022) 2 ILRA 682
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-07
- **Case number:** Criminal Appeal No. 5949 of 2010
- **Bench:** Arvind Kumar Mishra-I, Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhao-prakash-v-state-of-u-p-48147
- **Pages:** 7

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal Code, 1860-Section 376-challenge
to-conviction- delay in FIR-prosecutrix
(minor) had been raped by her own
father-testimony of PW-4(victim) proved
beyond reasonable doubt according to
injury report and the same has been
corroborated by PW-3(mother) and PW5(grand-mother)-an
application
for
altercation was moved by PW-3, she kept
mum on the rape issue, but in the
compelling circumstances she lodged FIR
against the appellant as she had been
thrown away out of the house-She tried to
hide this occurrence being made public,
there was no ulterior motive behind itThe testimony of PW-3(mother) and PW4(victim)
had
withstood
wrath
of
strenuous
cross-examination
by
the
defence but held its foot firmly to the
ground-non-description of commission of
rape in earlier application would not cause
any adverse impact to the case of
prosecution-Trial court rightly recorded
findings
of
conviction
and
awarded
appropriate sentence.(Para 1 to 32)
The appeal is dismissed. (E-6)

## Text

682 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2022)02ILR A682
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.01.2022

BEFORE

THE HON'BLE ARVIND KUMAR MISHRA-I, J.
THE HON'BLE JAYANT BANERJI, J.

Criminal Appeal No. 5949 of 2010

Bhao Prakash ...Appellant
Versus
State Of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Krishna Gopal, Sri Prabhat Pandey, Sri
Suneel Kumar Tiwari, Sri Gyan Singh

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal Code, 1860-Section 376-challenge
to-conviction- delay in FIR-prosecutrix
(minor) had been raped by her own
father-testimony of PW-4(victim) proved
beyond reasonable doubt according to
injury report and the same has been
corroborated by PW-3(mother) and PW5(grand-mother)-an
application
for
altercation was moved by PW-3, she kept
mum on the rape issue, but in the
compelling circumstances she lodged FIR
against the appellant as she had been
thrown away out of the house-She tried to
hide this occurrence being made public,
there was no ulterior motive behind itThe testimony of PW-3(mother) and PW4(victim)
had
withstood
wrath
of
strenuous
cross-examination
by
the
defence but held its foot firmly to the
ground-non-description of commission of
rape in earlier application would not cause
any adverse impact to the case of
prosecution-Trial court rightly recorded
findings
of
conviction
and
awarded
appropriate sentence.(Para 1 to 32)
The appeal is dismissed. (E-6)

(Delivered by Hon'ble Arvind Kumar
Mishra-I, J.
&
Hon'ble Jayant Banerji, J.)

1. Heard learned counsel for the
appellant, learned A.G.A. for the State and
perused the record of this appeal.

2. By way of instant criminal appeal,
challenge has been made to the judgment
and order of conviction dated 05.08.2010
passed by Additional Sessions Judge, Court
No.5, Bareilly, in Session Trial No.174 of
2008, State Vs. Bhao Prakash, arising out
of Case Crime No.964 of 2007, under
Section
376
I.P.C.,
Police
Station
Nawabganj, District Bareilly whereby the
appellant
has
been
sentenced
to
imprisonment for life coupled with fine
Rs.1,00,000/- with default stipulation to
suffer additional imprisonment for one
year.

3. Facts as incarnated refers to the
context that the first information report was
lodged by one Veerwati (mother of the
victim) and (wife of the accused-appellant),
resident of Bahor Nagla, Police Station
Nawabganj, District Bareilly against the
accused-appellant on 14.09.2007 at 2:25
p.m. regarding the incident of rape having
been committed by the accused-appellant
who is none other than father of the victim
wherein
it
was
described
that
on
03.08.2007 around 11:00 p.m. up to 12:00
in the midnight, the accused-appellant
came to the house in drunken condition and
took away forcibly his daughter in his room
who was sleeping with her grand-mother
Durga Devi, and committed rape upon her.
The incident was witnessed apart from the
informant by the grand-mother Durga Devi.
2 All. Bhao Prakash Vs. State of U.P.
683
It so happened that the accused-appellant
(husband of the informant) did not let her
go to the police station for lodging the first
information
report
instead
beat
the
informant and ousted from his house in the
following morning due to which the
informant along with her children began to
reside at her parental home at Mudiya
Gagroop, Police Station Bhuta, District
Bareilly and she did not whisper about the
incident to anyone on account of public
disrepute but she has been compelled by
circumstances to lodge the first information
report against the accused-appellant at this
stage, which was scribed by Harish Kumar
son of Lal Ram. This written report is Ext.
Ka-1.

4. Record reflects that contents of this
written report (Ext. Ka-1) were taken down
in the concerned Check FIR at Case Crime
No.964 of 2007 under Section 376 I.P.C.,
Police
Station
Nawabganj,
District
Bareilly, on 14.09.2007 at 2:25 p.m. Check
FIR is Ext. Ka-4. Consequently, relevant
entries were made in the concerned general
diary at Serial No.30 at 2:25 p.m. on
14.09.2007 and case was registered on
14.09.2007 under the aforesaid section of
I.P.C. at aforesaid case crime number
against the accused-appellant. G.D. entry is
Ext. Ka-5.

5. Record further reveals that the
investigation ensued and during course of
the investigation, the victim was produced
for medical examination before Dr. P.L.
Sharma, Medical Officer, on 15.09.2007
wherein
upon
internal
medical
examination, no mark of injury was seen on
the private part of the victim. Vagina
admitted one finger, rarely admitted two
fingers, apart from other symptomatic
analysis, no definite opinion could be given
regarding commission of rape upon the
victim. The age of the victim was assessed
to be around 15 years. The medical
examination
report
is
Ext.
Ka-2.
Supplementary medical report which has
been proved by Dr. P.L. Sharma PW-2 is
Ext. Ka-3.

6. As the investigation proceeded it
was taken over by Ram Prakash Singh
Rathore PW-9, who took note of the
relevant entry made in the Check FIR,
concerned general diary and recorded
statement of Constable Vijay Pathak, the
informant Veerwati, prosecution witnesses
and visited the place of occurrence at
village
Vahornagala,
Police
Station
Nawabganj, District Bareilly.

7. Besides, Ram Prakash Singh
Rathore PW-9 recorded statement of
various other persons and prepared site
plan Ext. Ka-8 at the pointing out of the
victim. He perused and noted contents of
the medical examination report pertaining
to the victim. After completing the
investigation, he filed charge sheet Ext. Ka9 against the accused-appellant under
Section 376 I.P.C.

8. Thereafter, the case of the accusedappellant was committed to the court of
Sessions from where it was madeover for
trial and disposal to the court of the
aforesaid Additional Sessions Judge, who
after hearing the prosecution and accusedappellant on the point of charge, was prima
facie satisfied with the case and framed
charge under Section 376 I.P.C. Charge
was readover and explained to the accusedappellant who abjured charge and claimed
to be tried.

9. The prosecution was asked to
adduce
its
testimony
whereupon
the
prosecution produced in all ten witnesses.
684 INDIAN LAW REPORTS ALLAHABAD SERIES
A brief sketch of the same requires mention
at this stage as ut infra:-

10. PW-1 is Harish Kumar, scribe of
the written report. PW-2 is Dr. P.L. Sharma
who has medically examined the victim on
15.09.2007 and also proved the medical
examination
report
as
well
as
supplementary medical examination report.
PW-3 is Veerwati, informant (mother of the
victim and wife of the accused-appellant).
PW-4 is the victim. PW-5 is Durga Devi,
grand-mother of the victim who is witness
of fact. PW-6 is Constable Vijay Pal Singh
who prepared check F.I.R. and noted
contents thereof in the concerned general
diary of date 14.09.2007. PW-7 is Dr.
Virendra
Kumar,
Pathologist
who
examined vaginal slide pertaining to this
offence and proved the pathological report
as Ext. Ka-6. PW-8 is Dr. Ram Manohar,
Radiologist who conducted radiological
test on the person of the victim and has
proved the radiological report as Ext. Ka-7
and x-ray plate as material Exts. 1 and 2.
PW-9 is Ram Prakash Singh Rathore,
Investigating Officer. He investigated the
case and filed charge sheet Ext. Ka-9
against the accused-appellant. PW-10 is
M.M. Khan, S.H.O. who, in fact, arrested
the accused-appellant on 15.09.2007 at
8:30 p.m. and prepared arrest memo Ext.
Ka-11 and has proved the general diary
entry Ext. Ka-12 numbered as 55 at 21:15
hours of the aforesaid date at Police Station
Nawabgaj, District Bareilly.

11. Thereafter, evidence for the
prosecution was closed and statement of
the accused-appellant was recorded under
Section 313 Cr.P.C. wherein he denied his
implication in this incident and claimed to
have been falsely implicated in this case on
account of jealously and enmity nurtured
by the informant and also questioned the
investigation of this case. In reply, he has
submitted in writing that his wife and his
mother on the basis of false case were
trying to grab his property. In fact, Durga
Devi PW-5 is his mother and has associated
herself with his father-in-law Lala Ram and
is residing with him and at the instance of
Lala Ram, she has sold 11 'bighas' land to
his
wife
Veerwati
(informant).
The
mutation
proceedings
mooted
at
the
instance of Veerwati were subsequently
rejected after it was objected by other
family members.

12. An application regarding the
present incident was moved before the
Senior Superintendent of Police, Bareilly,
dated 08.08.2007 wherein the fact of the
informant being ousted from his house on
03.08.2007 was alleged, whereas, the
application does not point out about
commission of the rape by the accusedappellant upon the victim. In fact, the entire
exercise has been done to grab the property
of the appellant and false case of rape has
been set up against him. He is innocent and
cannot think of committing rape upon his
daughter and the victim was cleverly
cajoled and influenced by the informant
(wife of the accused-appellant) and Durga
Devi (mother of the accused-appellant),
due to which she is not telling the truth
before the trial court.

13. Noticeable that during course of
the cross-examination, typed application
addressed to the Senior Superintendent of
Police,
Bareilly,
dated
08.08.2007
containing description of the incident on
03.08.2007 is available on record and is
marked as Ext. Kha-1.

14. As a sequel to it, the case was
posted for extending arguments pros and
cons by the parties and after vetting the
2 All. Bhao Prakash Vs. State of U.P.
685
case on merits, the learned trial court
returned finding of conviction against the
accused-appellant under Section 376 I.P.C.
and sentenced him with imprisonment for
life coupled with fine Rs.1,00,000/- with
default stipulation, ut supra.

15. Consequently, this appeal.

16. Learned counsel for the accusedappellant has contended that it is a false
case. The first information report is highly
belated and manipulated and is outcome of
deliberation and consultation. There is no
explanation as to how and why the first
information report was lodged by the
informant on 14.09.2007, whereas, the fact
is that some altercation hassling between
both the sides took place and the accusedappellant being on the one side and the
informant, his daughter and his mother
being on the other side conspired with Lala
Ram, father-in-law of the accused-appellant
for grabbing the land of the accusedappellant and sending him behind the bars
by levelling false allegation of commission
of rape being committed upon his own
daughter by the accused-appellant.

17. Further contended that in case any
offence of rape was committed by the
accused-appellant
then
the
informant
should have communicated the same fact to
the Senior Superintendent of Police,
Bareilly, while she moved an application
dated
08.08.2007
before
the
Senior
Superintendent of Police, Bareilly but this
application which is Ext. Kha-1 reflects
that not a single word has been spelt about
commission of offence being committed by
the
accused-appellant
upon
his
own
daughter.

18. Next contended that the first
information report is highly motivated and
the victim was under influence of her
grand-mother and mother due to which she
has not been telling truth and the trial court
has not taken serious view of the matter
and has ignored the application of the
informant
addressed
to
the
Senior
Superintendent of Police, Bareilly and has
wrongly recorded the finding of conviction
and thus passed the sentence, which is not
justified.

19. While retorting to the aforesaid
facts, learned A.G.A. has submitted that
there is no point in claiming false
accusation, for the reason that the victim in
all genuineness has come with a case of
rape being committed upon her by her
father. It is the case of the prosecution that
out of public disrepute, the matter was tried
to be suppressed by the informant herself.
It so happened that the informant being
ousted from the house by the accusedappellant was pressurized to disclose real
cause that she had to come with actual
incident which in fact occurred on
03.08.2007 and offence was committed by
the accused-appellant.

20. The statement of the victim on the
point
of
commission
of
rape
is
conspicuous, clinching, consistent and the
same inspires confidence. Moreso, on point
of rape being committed upon the victim by
the
accused-appellant,
two
witnesses
namely wife and mother of the accusedappellant have also corroborated testimony
of the victim and have narrated the very
beginning of the incident and behaviour of
the accused-appellant during course of the
occurrence. Learned trial Judge after
considering the entire gamut of testimony
on record vis-a-vis facts has justifiably
returned the finding of conviction and has
passed appropriate sentence against the
accused-appellant.
686 INDIAN LAW REPORTS ALLAHABAD SERIES

21. We have also considered rival
submissions - ut supra - of the parties.

22. After considering the rival
submissions and perusing record of this
case, the moot point that arises for
adjudication of this appeal relates to the
fact whether the prosecution has been able
to prove the charge under Section 376
I.P.C. against the accused appellant beyond
reasonable doubt and the incident was, in
fact, witnessed by Durga Devi PW-5 ?

23. Now insofar as the merit of the
case is concerned, we upon careful perusal
of the written report Ext. Ka-1 gather that
in this case, clear cut allegation regarding
rape being committed by the accusedappellant upon her own daughter, aged 13
years has been made in innocuous term and
as per description contained in the first
information report, it so happened that it
was around 11:00 p.m. up to 12:00 in the
midnight of 3/4.9.2007, the accusedappellant is stated to have come to his
house in drunken condition and took away
forcibly the victim (his daughter) to his
room who was sleeping with her grandmother, Durga Devi.

24. Now the argument has been
extended by learned counsel for the
appellant to the extent that this accusation
has been done just to grab the property of
the accused-appellant but it is not so,
insofar as the property that has been sold
out to the informant by the mother of the
accused-appellant, is concerned that being
subject matter of the dispute on the civil
side cannot have any relevance as the
motive for false implication in this case,
particularly, for the reason that the property
belonged to family members itself and
Durga Devi has sold out her share of the
property to her daughter-in-law (informant
Veerwati). To raise claim that mother of
the accused was being guided by his fatherin-law has been categorically denied both
by PW-3 Veerwati and PW-5 Durga Devi.

25. Testimony of the victim PW-4 is
innocuous on the point of rape and she is
minor and she has given every detail of the
occurrence. She has corroborated fact that
she sustained some injury although blood
did not ooze out. She has testified to the
ambit that the accused-appellant is her
father and committed rape upon her in the
sense that he acted like husband with his
wife. She has been parried question as to
how she can say so whereupon she
explained that after her marriage, she came
to know about cohabitation between
husband and wife. Noticeable that the
victim was examined before the trial court
as PW-4 when she had been married with
someone after the occurrence.

26.

Now
the
point
worth
consideration is that not only the wife of
the accused-appellant is claimed by the
accused to be hostile to him but also the
mother and daughter of the accusedappellant have not supported him who
stand in closest relationship with him. Each
and every aspect of the occurrence has been
consistently supported by the prosecution.
At some stray point, the victim has
deviated and perhaps improved while she
testified to the ambit that some firing was
also
done
by
the
accused-appellant,
whereas,
that
aspect
does
not
find
corroboration from testimony of the other
two witnesses of fact - say Veerwati PW-3
and
Durga
Devi
PW-5
but
that
improvement or embellishment appearing
in the testimony of the victim would not
adversely effect the point of commission of
the offence because on the point of
commission of rape upon the victim by the
2 All. Bhao Prakash Vs. State of U.P.
687
accused-appellant who is none other than
the father of the victim, is clinching and
consistent and version of the victim is
fraught with truthfulness.

27. Coming back to the meritorial
aspect of this case, as disclosed above we
may obverse that in catena of cases, this
Court (High Court) as well as Hon'ble
Apex Court have elaborately laid down law
that in cases involving accusation of rape
where testimony of the prosecutrix appears
to be clinching, inspiring confidence and
consistent
with
the
version
of
the
prosecution
case
then
testimony
so
forthcoming is to be relied and acted upon
by the Courts and finding of guilt based on
such testimony can be recorded.

28. So far as the testimony on point of
commission of rape is concerned the same
has been proved beyond reasonable doubt
by testimony of the victim (PW-4), and
corroborated by Veerwati PW-3 and Durga
Devi PW-5. The defence could not make
any dent in it. The testimony of the victim
and the two witnesses of fact regarding the
occurrence of rape when read as a whole
proves beyond shadow of doubt the charge
brought against the accused.

29. Contention raised to the extent
that prior to the lodging of the report the
informant had moved an application before
the Senior Superintendent of Police,
Bareilly, on 08.08.2007 wherein altercation
described was relating to 3rd August, 2007
- the very day on which rape was allegedly
committed by the accused, but this
application does not whisper about any
rape being committed upon victim by the
accused-appellant. The contention sounds
well to reason but falls short of, to invoking
our favourable response for the reason that
the informant Veerwati PW-3 has stated in
categorical terms that she tried to hide this
occurrence
being
made
public
but
compelling circumstances forced her to
lodge the report. This testimony of
Veerwati (PW-3) has withstood wrath of
strenuous cross examination by the defence
but held its foot firmly to the ground.
Therefore, non-description of commission
of rape in the application dated 08.08.2007
by the informant would not cause any
adverse impact to the case of the
prosecution.

30. Moreso, there is no plausible
reason or circumstance either apparent or
implicit which may give credence to any
theory of false implication with ulterior
motive. In this way, we also notice that
learned trial Judge has taken just and
consistent view of testimony on record and
has
justifiably
recorded
finding
of
conviction
and
awarded
appropriate
sentence against the accused-appellant
which
judgment
of
conviction
and
imposition of sentence need not be
interfered with by us in this appeal.

31. Accordingly, we uphold the
judgment and order of conviction dated
05.08.2010 passed by Additional Sessions
Judge, Court No.5, Bareilly, in Session
Trial No.174 of 2008, State Vs. Bhao
Prakash, arising out of Case Crime No.964
of 2007, under Section 376 I.P.C., Police
Station Nawabganj, District Bareilly.

32. In the result, the instant appeal
being devoid of merit is dismissed.

33. In this case, appellant Bhao
Prakash is in jail. He shall serve out the
remaining sentence imposed upon him by
the trial court.

34. Let a copy of this judgment/order
be certified to the court concerned for
688 INDIAN LAW REPORTS ALLAHABAD SERIES
necessary information and follow up
action.
----------
(2022)02ILR A688
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.02.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Criminal Appeal No. 6969 of 2008

Satya Prakash ...Appellant
Versus
State Of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Ashok Kumar Singh, Sri Chandra
Narayan Mishra, Sri Imran Mabood Khan,
Sri J.S. Sengar, Sri Prashant Kumar
Srivastava,
Jag
Narayan,
Sri
Ramesh
Chandra Agrahari, Sri Rishav Paney, Sri
Kmal Krishna (Senior Counsel)

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal Code, 1860 - Section 302-challenge
to-conviction-solitary
eye
witnessstatement of PW-1 remained insconsistent
and
unreliable-PW-4(eye-witness)
examined who stated he saw the accused
running away but this deposition is at
variance with his statement u/s 161 CrPc,
PW-4 testimony is also not reliable-no
evidence, either documentary or oral, of
any kind in respect of treatment or
admission of the deceased in an injured
condition in the hospital-no evidence to
demonstrate that the murder weapon was
recovered and connected with empty
cartridge found on the spot-PW-5 stated
that the nature of the injuries were such
that the deceased would have died
instantaneously- PW-8 (I.O.) arrived
without any delay and he saw the spot
where deceased was shot, including site
plan, is proved to be public road whereas
statement
of
the
PW-1
stated
the
deceased was shot inside the house where
they were sitting on the cot-Hence,
prosecution has failed to prove its case
beyond the pale doubt and therefore, the
appellant is entitled to the benefit of
doubt.(Para 1 to 26)

The appeal is allowed. (E-6)

(Delivered by Hon'ble Manoj Misra, J.)

1. This appeal is against the judgment
and order dated 18.09.2008 passed by the
First Additional Sessions Judge, Kannauj in
S.T. No.57 of 1998 convicting the appellant
(Satya Prakash) under Section 302 IPC and
sentencing him to imprisonment for life
with fine of Rs.5,000/- and a default
sentence of additional one month.

Introductory Facts

2. In a nutshell, the prosecution story
as narrated in the first information report
(FIR) is that, on 28.06.1998, at about 9 pm,
the informant Harish Chandra (PW-1) and
his brother Phool Chandra (the deceased)
were sitting at the door of their house when
Satya Prakash (the appellant), Kanhaiya
(who died during trial), both sons of Shiv
Balak Tripathi, Bahadur son of Jaijram
Yadav and Ramu Tripathi son of Kailash
Nath Tripathi came armed with country
made pistols and, on exhortation of
Kanhaiya, the appellant (Satya Prakash)
fired from his country made pistol at the
deceased, with a view to take his life,
which hit the deceased. On raising alarm,
Mool Chand Raidas (PW-2), Ram Kumar
Tripathi (not examined), and Shiv Sharan
Tripathi (not examined) and various other
persons came and witnessed the incident.
The accused ran away by extending threats.
The written report (Ex. Ka-1) of the