# Chanda v. State of U.P

- **Citation:** (2021) 8 ILRA 474
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-06
- **Case number:** Criminal Appeal No 631 of 2001
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chanda-v-state-of-u-p-47234
- **Pages:** 6

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973 - Section 374(2) - Indian
Penal Code, 1860 - Section 376-challenge
to-conviction- The medical report does not
corroborate the prosecution case-There
was no injury on the body of the
prosecutrix-testimony of the prosecutrix
is self contradictory regarding the place of
occurrence and the manner of assault and
commission of the crime- the investigating
officer found stain of sperm on the
peticot, however, he did not send it for
chemical examination- it does not inspire
confidence- It needs some corroboration
or
at
least
something
short
of
corroboration which is not present in the
present case-the prosecution has failed to
prove its case beyond reasonable doubt-
considering the totality of facts and
circumstances as well as the law laid
down by the Apex Court, it will not be safe
to convict the appellant and to uphold the
impugned conviction.(Para 1 to 12)

B. Where evidence of the prosecutrix is
found suffering from serious infirmities
and inconsistencies with other material,
prosecutrix
making
deliberate
improvements on material point with a
view to rule out consent on her part and
there being no injury on her person even
though her version may be otherwise, no
reliance
can
be
placed
upon
her
evidence.ordinarily the evidence of a
prosecutrix should not be suspected and
should be believed, more so as her
statement has to be evaluated on par with
that of an injured witness and if the
evidence is reliable, no corroboration is
necessary. It cannot be lost sight of that
rape causes the greatest distress and
humiliation to the victim but at the same
time a false allegation of rape can cause
equal distress, humiliation and damage to
the accused as well. The accused must
also be protected against the possibility of
false implication.there is no presumption
or any basis for assuming that the
statement of such a witness is always
correct or without any embellishment or
exaggeration.(Para 9)

The appeal is allowed. (E-5)

List of Cases cited:

## Text

474 INDIAN LAW REPORTS ALLAHABAD SERIES
law for the time being in force, regulating
the grant of bail, its liberal approach in the
matter of bail under the N.D.P.S. Act is
indeed uncalled for."

8. The provisions of Section 37 of the
N.D.P.S. Act provide that the legal norms
which have to be applied in determining
whether a case for grant of bail has been
made out. There is specific statutory
presumption in relation to contraband that
comes within the ambit of N.D.P.S. Act. In
view of Section 54 of the N.D.P.S. Act
presumption shall be drawn against the
accused unless and until the contrary is
proved. The expression "unless and until
the contrary is proved", clearly imposes the
burden of proving that possession of
prohibited substance is legal on the accused
himself.

9. Further, no material has been
brought on record by the applicant to show
that there was any prior ill-will or enmity
of the applicant with the police personnel
concerned.

10. Illicit trafficking is an organized
crime and are done adopting different
modus operandi by a group of persons with
their different role. So far as plea of false
implication is concerned, in my view, it is a
stereo typed defence raised in every case,
where accused are found in possession of
contraband. In such a situation, this kind of
plea of false implication without any basis
is not liable to be accepted at this stage.
The devastating effects of narcotic drugs
and psychotropic substance on any person
who comes to its touch are well known.

11. It is also well settled that a proper
administration of the criminal justice
delivery system, requires balancing the
rights of the accused and the prosecution.

12. Undoubtedly rights of the accused
are important, but equally important is the
societal interest for bringing the offender to
book and for the system to send right
message to all in the society. Undue
sympathy for offender would be more harm
to justice system to undermine the public
confidence in the efficacy of law.

13. In the light of the above-mentioned
facts and considering the recovery of 1.5 kg.
Charas, coupled with the fact that the
applicant was apprehended from the spot, and
was having conscious and constructive
possession over the recovered Charas, I do
not find any reasonable ground in terms of
Section 37 of the N.D.P.S. Act to hold at this
stage that applicant is not guilty of an offence
and he is not likely to commit any offence
while on bail.

14. It is also made clear that the Trial
Court shall be absolutely free to arrive at its
independent conclusions on the basis of
evidence led unaffected by anything said in
this order.

15. In view of the above, I do not find
any good ground for enlarging the applicant
on bail at this stage. The bail application of
the applicant is accordingly, rejected.
----------
(2021)08ILR A474
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.08.2021

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Appeal No 631 of 2001

Chanda ...Appellant
Versus
State of U.P. ...Opposite Party
8 All. Chanda Vs. State of U.P.
475
Counsel for the Appellant:
Sampurnanand,
D.K.
Singh
Chauhan,
R.B.S. Rathaur

Counsel for the Opposite Party:
Govt. Advocate

A. Criminal Law - Code of Criminal
Procedure,1973 - Section 374(2) - Indian
Penal Code, 1860 - Section 376-challenge
to-conviction- The medical report does not
corroborate the prosecution case-There
was no injury on the body of the
prosecutrix-testimony of the prosecutrix
is self contradictory regarding the place of
occurrence and the manner of assault and
commission of the crime- the investigating
officer found stain of sperm on the
peticot, however, he did not send it for
chemical examination- it does not inspire
confidence- It needs some corroboration
or
at
least
something
short
of
corroboration which is not present in the
present case-the prosecution has failed to
prove its case beyond reasonable doubt-
considering the totality of facts and
circumstances as well as the law laid
down by the Apex Court, it will not be safe
to convict the appellant and to uphold the
impugned conviction.(Para 1 to 12)

B. Where evidence of the prosecutrix is
found suffering from serious infirmities
and inconsistencies with other material,
prosecutrix
making
deliberate
improvements on material point with a
view to rule out consent on her part and
there being no injury on her person even
though her version may be otherwise, no
reliance
can
be
placed
upon
her
evidence.ordinarily the evidence of a
prosecutrix should not be suspected and
should be believed, more so as her
statement has to be evaluated on par with
that of an injured witness and if the
evidence is reliable, no corroboration is
necessary. It cannot be lost sight of that
rape causes the greatest distress and
humiliation to the victim but at the same
time a false allegation of rape can cause
equal distress, humiliation and damage to
the accused as well. The accused must
also be protected against the possibility of
false implication.there is no presumption
or any basis for assuming that the
statement of such a witness is always
correct or without any embellishment or
exaggeration.(Para 9)

The appeal is allowed. (E-5)

List of Cases cited:

1. Narendra Kumar Vs St. (NCT of Delhi)
(2012)7 SCC 171

2. Jai Krishna Mandal Vs St. of Jharkhand
(2010)14 SCC 534

3. Raju Vs St. of M.P (2008) 15 SCC 133

4. Tameezuddin Vs St. (NCT of Delhi (2009)15
SCC 566.

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

1. This appeal is directed against the
judgment and order dated 2.8.2001 passed
by Additional Sessions Judge/FTC Court
No.2, Raebareli, whereby and whereunder
the appellant has been convicted under
section 376 I.P.C. and sentenced to suffer
rigorous imprisonment for seven years and
to pay fine of Rs.2,000/-, with default
stipulation.

2. Heard learned counsel for the
appellant, learned Additional Government
Advocate and perused the record.

3. The prosecution case as per written
report dated 8.3.2000 is that on 6.3.2000,
while the prosecutrix was looking after the
peas sowed in her field, then around
5.00p.m., Chandan of her village came near
her and forcibly caught her hand and
dragged her into her wheat field and
forcibly put her down and committed rape,
and said that if she would raise alarm, he
476 INDIAN LAW REPORTS ALLAHABAD SERIES
will kill her. After committing rape, he
went away. Her father-in-law and husband
were not at home at that point in time.
Yesterday evening, when her father-in-law
came, she told him of the incident. On the
written report, chik first information report
was lodged which, during trial was
exhibited as Ext.Ka-5. Written report is
Ext. Ka-1.

4. The investigating officer recorded the
statements of the witnesses, made recovery
memo of wearing apparel, i.e. peticot of the
prosecutrix on which stains of semen were
present. He prepared the site plan, Ext. Ka-7,
made entry in the G.D.. He filed the chargesheet. The case was committed vide order
dated 1.11.2000 to the Court of Sessions.
Charges under Section 376 I.P.C. read with
section 506 I.P.C. were framed against the
accused appellant.

To prove its case, the prosecution
has produced P.W.1 Heera Devi, P.W.2 Dr
Geeta Bhatia, P.W.3 Dr. S.L. Sharma,
Radiologist,
P.W.4
HC
Bramhdeen
Chaudhary, P.W.5 F.S. Zafri, A.S.I. The
prosecution has also exhibited written report
Ext.Ka.1, F.I.R. Ext.Ka.5, recovery memo
Ext. Ka-8, Site plan Ext. Ka-7, G.D. entry
Ext. Ka.6 and charge-sheet. Statement under
section 313 CrPC of the accused was
recorded in which his case was of denial and
he clearly stated that he has been falsely
implicated due to enmity with father in law of
the prosecutrix.

5. The prosecutrix was examined as
P.W.1. In her examination in chief, she
reiterated the prosecution story as mentioned
in the written report and stated that she was
raped by Chandan who caught her hand and
forcibly dragged her in the wheat field and
raped her. While committing rape, he
threatened to kill if she raised alarm. In her
cross examination, she has stated that the
place of occurrence is at one bigha distance
from her home. She is new for the village.
Adjacent to the field, there is a public path on
which the people used to come and go. She
again stated that the incident took place in her
field. In the field of peas, Chandan has
committed rape. Then she says that Chandan
has not held her hand, nor dragged her. She
went to lodge the report on the fifth day of
the incident to the police station. She denied
the suggestion that her father in law and and
Sundarlal of her village have inimical terms
with the accused appellant.

Dr.
Reeta
Bhatia
has
been
produced as P.W.2 who had medically
examined the prosecutrix. She has not
found any injury on private part of the
prosecutrix in the internal examination.
Hymen was torn, old and was changed with
loose tag. Slide of vagina was prepared and
was sent for forensic examination. She
proved the medical examination report,
Ext. Ka.2, Supplementary report was also
prepared. In the laboratory report No.87 of
2000, in the vaginal slide, no sperm was
found. From the report, it was found that all
the joints were fused. The joint of wrist was
also fused. On the basis of this analysis, she
opined that the age of the prosecutrix is
more than 18 years. No clear opinion about
rape has been given by her. She proved
Ext.Ka.3, i.e. the supplementary report.

Dr. S.L. Sharma, Radiologist has
been examined as P.W.3. He proved X-ray
report Ext.Ka.4.

P.W.4
HC
Bramhadeen
Chaudhary has proved chik report Ext.
Ka.5 and also G.D. entry, Ext. Ka.6.

P.W.5
ASI
F.S.
Zafri,
investigating officer has stated that he has
8 All. Chanda Vs. State of U.P.
477
taken the peticot of the prosecutrix on
which the stains of sperm were found. He
has prepared the site plan and has proved it
as Ext. Ka.7. The recovery memo is Ext.
Ka.2 which is also proved by him. He has
also proved the charge-sheet Ex.Ka.9. He
has shown his ignorance regarding the fact
whether semen stained peticot of the
prosecutrix
was
sent
for
chemical
examination to the laboratory or not. He
stated that when the prosecutrix came to the
field of peas, nobody from the village has
come.

6. Learned counsel for the appellant
submits
that
the
testimony
of
the
prosecutrix is self contradictory. The
prosecutrix has changed the place of
occurrence. The peticot has not been sent
for chemical examination. The testimony of
the prosecutrix is not reliable and it is
highly improbable.

7. Learned A.G.A., on the other hand,
submits that the conviction of the appellant
accused can be made on the basis of sole
testimony
of
the
prosecutrix.
No
corroborative material is required nor any
other witness of fact is required.

8. On due consideration of the
arguments advanced by appellant's counsel
and learned A.G.A., it appears that the
place of occurrence has been mentioned as
wheat field in the written report as also in
the first information report. The prosecutrix
in her examination in chief has also stated
the place of incident as wheat field.
However, in the cross-examination, the
place of occurrence has been changed by
the prosecutrix and now she has stated that
the place of incident is field of peas. The
investigating officer in the site plan has
also shown place of occurrence in the
wheat field. Thus, this part of the statement
of the prosecutrix has become doubtful in
view of the change of place of the
occurrence. In the examination in chief, the
prosecutrix says that she was dragged by
the accused by pulling her hands, however,
in the cross-examination, she says that he
had not caught hold of her hand, nor he
dragged her. She further says that on the
fifth day of the incident, she went to lodge
a report wherein in the written report, the
date of incident is of 6.3.2000 and the
written report is dated 8.3.2000 and the first
information report is dated 8.3.2000.

According to the statement of the
prosecutrix,
the
first
information
report/written report was given on the fifth
day of the incident. Thus, the incident must
have taken place five days before the
written report, i.e. on 3.3.2000 and not on
6.3.2000 as has been mentioned by the
prosecutrix in her written report. The
prosecutrix has stated that the appellant
threatened her to kill. It is not disputed that
no weapon was used by the appellant for
threatening the prosecutrix. The place of
occurrence is only one bigha away from
home which is quite a short distance and is
clearly visible from her home. Still no one
saw the incident. The place of occurrence is
adjacent to a public path on which
according to the prosecutrix, people used to
pass till 5/6.00 p.m. The incident took place
at 5.00p.m.. Still no one saw the incident. It
was day time at 5.00p.m. She further stated
that she was new to the village. She had not
met Chandan prior to the date of incident. It
has not been clarified by her that when she
did not know Chandan as she was new for
the village, then how she recognised
Chandan at the time of alleged commission
of crime. It was the second marriage of the
prosecutrix. She denied the suggestion that
her father in law and Sunderlal have enmity
with the accused.
478 INDIAN LAW REPORTS ALLAHABAD SERIES

P.W. 5 F.S. Zafri has not sent
peticot of the prosecutrix for chemical
examination which he should have given to
prove the case of the prosecution. The
medical report does not corroborate the
prosecution case. There was no injury on
the body of the prosecutrix. On overall
evaluation
of
the
evidence
of
the
prosecution witnesses, it appears that the
testimony of the prosecutrix is self
contradictory
regarding
the
place
of
occurrence and the manner of assault and
commission of the crime. The testimony of
the prosecutrix being self contradictory as
the place of occurrence has been changed
coupled with the fact that in the statement
of the accused under Section 313 CrPC, it
is the case of the accused that he has been
falsely implicated due to enmity with the
father in law of the prosecutrix, does not
inspire
confidence.
It
needs
some
corroboration or at least something short of
corroboration which is not present in the
present case. The medical examination
does not corroborate the prosecution case.
On this kind of improbable, shaky
testimony of the prosecutrix, it can be
safely said that the prosecution has failed to
prove its case beyond reasonable doubt.

9. Hon'ble Supreme Court in (2012)7
SCC 171 Narendra Kumar versus State
(NCT of Delhi) held that where the
evidence of the prosecutrix is found
suffering
from
inconsistencies
and
infirmities with other material, no reliance
can be placed thereon. The relevant para 22
is reproduced as under :

"Where
evidence
of
the
prosecutrix is found suffering from serious
infirmities and inconsistencies with other
material, prosecutrix making deliberate
improvements on material point with a
view to rule out consent on her part and
there being no injury on her person even
though her version may be otherwise, no
reliance can be placed upon her evidence.
(Vide Suresh N. Bhusare v. State of
Maharashtra (1999) 1 SCC 220)"

In
(2010)14
SCC
534
Jai
Krishna
Mandal
versus
State
of
Jharkhand, Supreme Court reiterated that
the improbable statement of the prosecutrix
cannot be believed. Relevant portion of
para 4 is reproduced as under :

"4............The only evidence of
rape was the statement of the prosecutrix
herself and when this evidence was read in
its totality, the story projected by the
prosecutrix was so improbable that it could
not be believed."

In Raju versus State of M.P
(2008) 15 SCC 133, Hon'ble Supreme
Court held that no doubt, a false allegation
of
rape
can
cause
equal
distress,
humiliation and damage to the accused as
well and interest of the accused must also
be protected. Relevant portion of paras 10
and 11 are reproduced as under :

"10........... that ordinarily the
evidence of a prosecutrix should not be
suspected and should be believed, more so
as her statement has to be evaluated on par
with that of an injured witness and if the
evidence is reliable, no corroboration is
necessary.

"11.......It cannot be lost sight of
that rape causes the greatest distress and
humiliation to the victim but at the same
time a false allegation of rape can cause
equal distress, humiliation and damage to
the accused as well. The accused must also
be protected against the possibility of false
implication..... there is no presumption or
8 All. Guddu @ Gokaran Vs. State of U.P.
479
any basis for assuming that the statement of
such a witness is always correct or without
any embellishment or exaggeration."

Similar view has been taken by
Hon'ble Supreme Court in Tameezuddin
versus State (NCT of Delhi (2009)15
SCC 566.

10. There is of course circumstance
like
recovery
of
clothing
apparel
belonging to the victim. However, such
recovery of peticot by itself, in the
absence of any other material evidence on
record pointing towards the guilt of the
accused, cannot be termed sufficient to
hold that the case was proved beyond
reasonable doubt, more so in view of the
fact that albeit the investigating officer
found stain of sperm on the peticot,
however, he did not send it for chemical
examination. The medical report does not
corroborate the prosecution case. The
prosecutrix has changed the place of
occurrence and the statement of the
prosecutrux is not corroborative by any
evidence. Thus in view of the above,
since the testimony of the prosecutrix is
self contradictory, it does not inspire
confidence. Some corroborative material
is needed which is absent in this case.

11. In view of the aforesaid
discussion, considering the totality of
facts and circumstances as well as the law
laid down by the Apex Court, it will not
be safe to convict the appellant and to
uphold the impugned conviction and
sentence of the accused on this kind of
evidence.

12. I, therefore, allow this appeal
and set aside the order of conviction and
sentence recorded against the appellant.
The appellant be set at liberty forthwith,
unless
his
custody
is
required
in
connection with any other crime. The
appellant is on bail, his bail bonds stand
discharged.

Let lower court's record be sent
back.
----------
(2021)08ILR A479
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.08.2021

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Appeal No 650 of 2003

Guddu @ Gokaran ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Farhan Alam Osmany, Rama Pati Shukla

Counsel for the Opposite Party:
Govt. Advocate

A. Criminal Law - Code of Criminal
Procedure,1973
-
Section
374(2)
-
Indian
Penal
Code,
1860
-
Dowry
Prohibition Act,1961 - Sections 498A,
304B, 201 & Section 3/4 - challenge toconviction-set
aside-

From
the
statement of PW3, it appears that the
deceased died due to cholera. According
to the statement of PW2 and DW1, the
deceased was cremated in the presence
of informant and other family members
of the deceased. The informant in filing
application under Section 156(3) Cr.P.C
has not come with clean hand. He has
suppressed this fact also. There is no
evidence
that
the
deceased
was
subjected to cruelty or harassment soon
before her death although PW2, in her
examination-in-chief, has stated that
the informant has given Rs.10,000/-
cash and goods worth Rs.2000 at the