# Devi Dayal & Ors v. State of U.P

- **Citation:** (2023) 3 ILRA 659
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-15
- **Case number:** Criminal Appeal No. 476 of 1994
- **Bench:** Mrs. Renu Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/devi-dayal-ors-v-state-of-u-p-49907
- **Pages:** 10

## Headnote

A. Criminal Law- Indian Penal Code, 1860
- Sections 394, 397, 366 & 376 I.P.C -
St.ment of prosecutrix is corroborated by
P.W. 2, 3 and 4, who are brothers and
parents
of
prosecutrix
as
she
was
kidnapped by accused Devi Dayal and
Ambika Pasi in their presence and rest of
accused robbed the houselhold goods,
jewellery and cash, witnesses are illiterate
and the St.ment were recorded after the
lapse of three years from the date of
occurrence and the evidence of the
witness were recorded in piecemeal with
the
gap
of
time,
therefore,
the
discrepancies are bound to happen. (Para
32, 35)
660 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Criminal Law- Indian Penal Code, 1860
- The prosecution has proved the place of
occurrence as the prosecutrix has herself
pointed out the place where she was
raped by all the accused- The place of
occurrence
has
also
shown
by
Inviestigation Officer in the site plan and,
therefore, there is no doubt about the
place of occurrence - P.W.7 Ramdayal
deposed that there was enmity between
the complainant and the father of accused
regarding the land and also that father of
Devi
Dayal
refused
to
accept
the
prosecutrix
as
his
daughter-in-law,
arguments are self contradictory, If there
is strong enmity regarding the land
between them, then there is no possibility
that
complainant
would
marry
his
daughter to accused - D.W.-2 St.d that
there was enmity between complainant
and father of the appellant but no such
document of any litigation regarding the
same is adduced as a defence evidence -
Therefore, the defence of appellant is not
substantiated by any cogent evidence -
Held, order by trial court is found in
consonance with the evidence on record,
upheld - Appeal is dismissed. (Para 36,
38, 43)

The appeal is dismissed. (E-13)

List of Cases cited:

## Text

3 All. Devi Dayal & Ors. Vs. State of U.P.
659

18. Offence under Section 3(2)V
SC/ST Act is not made out against the
accused-appellants
as
there
was
no
evidence for commission of offence under
section 3(2)V of the Scheduled Castes and
the Scheduled Tribes (Prevention of
Atrocities) Act, 1989. Neither the First
Information Report nor the oral testimony
of prosecution witnesses even remotely
suggest that the offence has been
committed only on the ground that the
deceased
belongs
to
a
particular
community. The decision in the case of
Vishnu vs. State of U.P. decided on
28.1.2021 in Criminal Appeal No. 204 of
2021 and in the case of Pintu Gupta vs.
State of U.P. decided on 28.7.2022 in
Criminal Appeal No. 4083 of 2017 will
also come to the aid of accusedappellants.

19. In view of the matter, the
conviction of the accused is altered from
Section 302 I.P.C. to 304 Part-II I.P.C.

20. Considering all these facts, it
would be appropriate and proper that the
accused be sentenced with the period
already undergone in prison by him and the
amount of fine be imposed.

21. In the result the conviction of the
present accused is altered from Section 302
I.P.C. to section 304 Part-II and he is
convicted under Section 304 Part-II with
imprisonment already undergone in prison
with no fine as the appellant is a poor
person and was not able to engage even a
lawyer for himself. The fine as ordered by
trial court is set aside.

22. Sri Brij Raj, learned Amicus
Cuarie has argued this appeal on behalf of
appellant Ram Awatar @ Ganesh and he
shall be paid a sum of Rs. 15,000/- as his
remuneration.

23. Office is directed to transmit the
lower court record along with a copy of this
judgment to the learned court below for
information and necessary compliance as
warranted.
----------
(2023) 3 ILRA 659
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.03.2023

BEFORE

THE HON'BLE MRS. RENU AGARWAL, J.

Criminal Appeal No. 476 of 1994

Devi Dayal & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
J.P. Maurya, Arun Kumar Shukla, Jayant
Singh Tomar, Santosh Kumar Kannaujiya,
Shaquiel Ahmad, Upendra Sharma, Varun

Counsel for the Respondent:
G.A.

A. Criminal Law- Indian Penal Code, 1860
- Sections 394, 397, 366 & 376 I.P.C -
St.ment of prosecutrix is corroborated by
P.W. 2, 3 and 4, who are brothers and
parents
of
prosecutrix
as
she
was
kidnapped by accused Devi Dayal and
Ambika Pasi in their presence and rest of
accused robbed the houselhold goods,
jewellery and cash, witnesses are illiterate
and the St.ment were recorded after the
lapse of three years from the date of
occurrence and the evidence of the
witness were recorded in piecemeal with
the
gap
of
time,
therefore,
the
discrepancies are bound to happen. (Para
32, 35)
660 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Criminal Law- Indian Penal Code, 1860
- The prosecution has proved the place of
occurrence as the prosecutrix has herself
pointed out the place where she was
raped by all the accused- The place of
occurrence
has
also
shown
by
Inviestigation Officer in the site plan and,
therefore, there is no doubt about the
place of occurrence - P.W.7 Ramdayal
deposed that there was enmity between
the complainant and the father of accused
regarding the land and also that father of
Devi
Dayal
refused
to
accept
the
prosecutrix
as
his
daughter-in-law,
arguments are self contradictory, If there
is strong enmity regarding the land
between them, then there is no possibility
that
complainant
would
marry
his
daughter to accused - D.W.-2 St.d that
there was enmity between complainant
and father of the appellant but no such
document of any litigation regarding the
same is adduced as a defence evidence -
Therefore, the defence of appellant is not
substantiated by any cogent evidence -
Held, order by trial court is found in
consonance with the evidence on record,
upheld - Appeal is dismissed. (Para 36,
38, 43)

The appeal is dismissed. (E-13)

List of Cases cited:

1. Balwant Singh & anr. Vs St. of Punj. AIR 1997
Supreme Court page 1080

2. Gurcharan Singh Vs St. of Har. 1973 ACC
page 04

3. St. of Mah. vs Chandraprakash Kewal Chand
Jain G AIR 1990 page 658

(Delivered by Hon'ble Mrs. Renu Agarwal, J.)

1. Present Criminal Appeal under
section 374(2) Cr.P.C. has been filed
against the Judgment and Order dated
22.10.1994 passed by Jagdish Prasad,
Special/Additional
Sessions
Judge,
Lakhimpur Kheri in Sessions Trial No.73
of 1990 (State Vs. Debi Dayal and 3 others)
arising out of Case Crime No.170 of 1989,
under Sections 394, 397, 366 and 376
I.P.C., Police Station Mitauli, District
Lakhimpur Kheri convicting the appellants,
under
Sections
376/366
I.P.C.
and
sentencing them to undergo rigourous
imprionsment of ten years under Section
376 I.P.C. and furher sentencing them to
undergo rigourous imprionsment of five
years under Section 366 I.P.C. Both the
punishment
are
directed
to
run
concurrently.

2. In the guidelines of the Hon'ble
Supreme Court, the name of the victim is
not disclosed. Her name is referred as letter
''X'.

3. Wrapping the facts of the case in
brief, at about 12:00 p.m. i.e. in the
midnight of 10/11.06.1989 the informant
Buddha Chamar alongwith his wife, his
daughters namely; Goda and victim ''X' and
his son Ram Prasad was sleeping in the
courtyard of his old house and wingnut
(dibari) was kept blown, four persons
armed with gun and country made pistol
entered in the house and took away his
daughter victim ''X' aged about 18 years.
On the hue and cry by her daughter i.e.
victim ''X', his wife, his daughter Goda and
son awoke and saw the accused presons
namely Devi Dayal, Arjun Pasi, Ambika
Pasi and Fareed Khan were kidnapping his
daughter Victim ''X' was being taken by
Devi Dayal and Ambika Pasi on the gun
point, and accused Arjun Pasi and Fareed
Khan robbed the nose ring, sutiya and
anklet of his wife and daughter Goda and
other household items containing clothes
and Rs.1,000/-. When they raised alarm and
villagers gathered, accused took to their
heels. He tried to search out his elder
daughter victim ''X', who came after about
3 All. Devi Dayal & Ors. Vs. State of U.P.
661
one an hour from the eastern side of village
by crossing the river in wet clothes. She
narrated the whole story that all the four
persons carried her across the Pirai river
and raped her one by one against her will in
the bushes and after committing rape upon
her all of them fled away.

4. On the basis of written report, F.I.R.
was lodged on 11.06.1989 and was registered
as Case Crime No.170 of 1989, under
Sections 394, 397, 366 and 376 I.P.C., Police
Station Mitauli, District Lakhimpur Kheri.
The case was entrusted for investigation to
S.I. Devideen Singh, who recorded the
statement of victim ''X' under Section 161
Cr.P.C. and she was medically examined by
P.W.-7 Dr. Indra Chopra on 11.06.1989 at
about 5:15 p.m. Doctor did not find any mark
of injury on her private parts, left abdomen or
thigh. On her internal examination, hymen
was found old torn. Investigating Officer
visited the house of complainant and
interrogated complainant and visited the spot
where the rape was committed and after spot
inspection, prepared site plan as Ext. Ka-2,
recovered wingnut (Dibari) and prepared its
recovery memo and proved it as Ext. Ka-4.
I.O. took the petticoat of the victim ''X', and
prepared its recovery memo proved it as Ext.
Ka-5. Arrested accused Arjun Pasi and
Fareed Khan on 13.06.1989. After collecting
sufficient evidence submitted the chargesheet Ext. Ka-6 dated 23.06.1989 against all
the accused persons under Sections 394 and
376 I.P.C.

5. Accused appeared before trial court
and charges were framed and read over to
the accused appellants under Sections
394/376 I.P.C. Accused appellants denied
all the charges and claimed to be tried.

6. In order to prove the case,
prosecution examined P.W.-1 Victim ''X',
who narrated whole the story. P.W.-2 Ram
Prasad, the brother of the prosecutrix,
P.W.-3 Buddha, complainant, who proved
written report as Ext. Ka-1 and P.W.-4 Smt.
Laxmi
W/o
the
complainant,
who
corroborated the factum of robbery and
abduction of victim ''X' by the accused
persons. P.W.-5 S.I., Devideen Singh, who
investigated the case and proved site plans
as Ext. Ka-2 and Ext. Ka-3, memo of
Dibari as Ext Ka-4, memo for taking
Petticoat as Ext. Ka5 and the charge-sheet
as Ext. Ka-6. P.W.-6 Head Constable Shiv
Mangal Singh, who prepared chik report on
the basis of written report and proved the
same as Ext. Ka-7 and registered the case
vide entry in G.D. No.12 as Ext. Ka-8. He
has further stated that he sent victim ''X' for
medical examination alongwith Constable
Balak Ram. P.W.-7 Dr. Indra Chopra, who
medically examined the victim ''X' proved
the medical report as Ext. Ka-9.

7. After conclusion of the prosecution
evidence, the statements of accusedappellants were recorded under Section 313
Cr.P.C. All the accused denied the
prosecution allegations and stated that they
have been falsely implicated in the present
case due to animosity. Accused Devi Dayal
has stated that there was enmity between
his family and the family of Buddha
regarding the house and tree. It is also
stated that complainant wanted to marry his
daughter victim ''X' with him but he refused
becasue the victim ''X' was not of a good
character, therefore, he has been falsely
implicated in the present case. Accused
Arjun Pasi has stated that on the day of
alleged incident he was busy in the
marriage of his own daughter. Accused
Ambika Pasi has stated that on the day of
incident he was in the marriage of the
daughter of the accused Arjun Pasi. He is
nephew of co-accused Arjun Pasi.
662 INDIAN LAW REPORTS ALLAHABAD SERIES

8. Accused were provided the
opportunity to adduce defence witness and
they produced the defence witnesses, which
are as follows:-

- D.W.-1 Rashid.

- D.W.-2 Ram Dayal.

- D.W.-3 Ram Kishun.

9. D.W.-1 Rashid stated that Fareed
Khan was in his house to attend the
marriage of his niece Parveen in the mid
night of 10/11.06.1989 from 10:00 p.m.
onwards.

10. D.W.-2 Ram Dayal has stated that
his house was adjacent to the house of the
complainant Buddha who wanted to grab
the plot of accused Devi Dayal and he
further stated that the complainant wanted
to marry his daughter victim ''X' with Devi
Dayal and he ( Devi Dayal) refused to
marry her becasue of her bad name,
therefore, Devi Dayal has been falsely
implicated in the present case.

11. D.W.-3 Ram Kishun has stated
that about five years back in the month of
Jeth, Saptami on Saturday he went to attend
the marriage of the daughter of accused
Arjun Pasi and Arjun Pasi and Ambika Pasi
remained there whole the night.

12. On the basis of evidence adduced in
the court, learned trial court reached to the
conclusion that nothing has been recovered
from the possession of the accusedappellants,
therefore,
the
theory
of
commission of robbery is not reliable. While
appreciating the defence evidence, learned
trial court held that Fareed Khan had failed to
establish the plea of alibi as stated under
Section 313 Cr.P.C. Learned trial court
further held that the theory of Devi Dayal that
he was falsely implicated because the
complainant wanted to marry his daughter
victim ''X' with Devi Dayal and he refused to
marry with her daughter victim ''X' is not
reliable, hence the statement of D.W.-2 Ram
Dayal is not helpful to save the accused Devi
Dayal. Evidence of D.W.-3 Ram Kishun is
also not relied upon by the trial court and it is
found that prosecution has successfully
established the guilt of the accused-appellants
for charges levelled against them under
Sections 366 and 376 I.P.C. Thus, learned
trial court passed the order of conviction
under Sections 366 and 376 I.P.C. and
acquitted of the accused-appellants from the
charges under Sections 394 and 397 I.P.C.

13. Being aggrieved with the judgment
and order dated 22.10.1994, convicted
appellants has approached this Court by way
of filing the present appeal.

14. Heard Shri Santosh Kumar
Kannaujia, learned counsel for the appellants,
Shri Manish Kumar Pandey, learned A.G.A.-
I for the State-respondent and perused the
material available on record.

15. It is submitted by learned counsel
for the appellants that the judgment and order
passed by the learned court below is against
the evidence on record. The prosecution
version is not corroborated by the medical
evidence. The entire prosecution story is
appeared to be highly improbable and
unnatural, as the victim ''X' has stated that
after the gang rape by four persons, she
returned herself again by crossing the river. It
is also submitted that the punishment is too
severe, therefore, the judgment and order of
learned trial court is liable to be set aside.

16. On the contrary, learned A.G.A.-I
for the State has vehemently opposed the
above mentioned averments by submitting
that prosecution has proved its case beyond
3 All. Devi Dayal & Ors. Vs. State of U.P.
663
reasonable doubt with cogent evidence. All
the accused-appellants were identified by
witnesses in the light of wingnut (dibari),
which was putting up at the time of
occurrence. Medical evidence corroborated
the offence under Section 376 I.P.C.,
therefore, the judgment and order of
learned trial court is liable to upheld.

17. At the very outset, it is pertinent
to mention here that the appeal against
accused-appellant no.4 Fareed Khan, who
is said to have been died on 06.09.2018 is
dismissed as abated vide order dated
24.11.2022.

18.

Before
reaching
to
any
conclusion, the evidence of witness is to be
looked into.

19. P.W.-1 Victim ''X' has stated that
accused Devi Dayal resides in her village.
Accused Arjun Pasi and Ambika Pasi were
residing in the village Manhan. Accused
Fareed Mistri resides in Miatauli. In the
night of incident, when she was sleeping on
the cot alongwith her sister Goda in
courtyard and her mother was sleeping on
the another cot in the courtyard and other
family members were sleeping on the mat
and her father was sleeping outside the gate
of house, accused-appellants Devi Dayal,
Arjun Pasi, Ambika Pasi and Fareed Mistri
entered in their house and kidnapped her
forcefully. Devi Dayal and Ambika Pasi
was armed with gun, Arjun Pasi was armed
with half-bore gun and Fareed Mistri armed
with country made pistol. Devi Dayal and
Ambika Pasi took her across the Pirai river
and throw her under the tree of Dhak
(Palash) and Khajuriya and committed
rape upon her one by one by all the four
accused-appellants. When they went away,
she came back to her house on her own by
crossing the river. Accused-appellants have
robbed the batua, jewellery, sutiya, nose
ring, Rs.1000/- and other household items.

20. P.W.-2 Ramprasad has stated on
oath that on the night of incident both of his
sisters Goda and victim ''X' were sleeping
on the cot in the courtyard. He was also
sleeping on the another cot nearby. His
father was sleeping in the room of colony
and the dibari was lightening on the door
step, when the accused-appellants entered
the house and accused Devi Dayal and
Ambika Pasi abducted his sister victim ''X'
and accused Fareed and Arjun Pasi carried
the household goods and jewellery and
cash, and the accused Devi Dayal and
Ambika Pasi armed with gun, Arjun Pasi
armed with half-bore gun and Fareed was
armed with country made pistol went
towards the east of the village. Her sister
victim ''X' returned after an hour and
narrated the whole story to him.

21.

P.W.-3
Buddha,
who
is
complainant of the case has corroborated
the statements of P.W.-1 and P.W.-2.

22. P.W.-4 Laxmi, who is mother of
victim ''X' corroborated the prosecution
version and the statements of P.W.-1, P.W.-
2 and P.W.-3. She has also stated that she
recognized all the accused in the light of
dibari and on the hue and cry, villagers
Suraj, Badlu, Jaylal and others reached at
the place of occurrence. It is also stated that
witness Jaylal is in hand and glove with
accused and witness Suraj has died.

23. P.W.-5 S.I. Devideen Singh, who
is Investigating Officer of the case has
stated on oath that after lodging the F.I.R.,
he started investigation of case. He
recorded the statement of Head Moharrir,
Shiv Mangal Singh and visited the house of
complainant,
searched
the
house
of
664 INDIAN LAW REPORTS ALLAHABAD SERIES
accused-appellants Devi Dayal, Arjun Pasi,
Ambika Pasi and Fareed but neither any of
the accused was arrested nor any of the
stolen property was recovered from their
houses. Thereafter, he visited the place
where the accused have committed rape
upon the victim and prepared the site plan.
He recovered dibari and petticoat of victim
''X' and prepared recovery memo thereof
separately and proved the same in court as
Ext. Ka-4 and Ext. Ka-5 and after
collecting
all
the
relevant
evidence
submitted charge-sheet, which he proved in
court as Ext. Ka-6.

24. P.W.-6 Head Constable, Shiv
Mangal Singh, who proved F.I.R. as Ext.
Ka-7 and G.D. No.12 as Ext. Ka-8 and
written letter to C.M.O. and sent the victim
''X' for medical examination alongwith
constable 298 Balak Ram and her parents.

25. P.W.-7 Dr. Indra Chopra, who
stated that she medically examined the
vicitm ''X' on 11.06.1989, proved the
medical report, in which the hymen was
found old torn. Uterus was normal in size.
Vaginal smear was taken and sent for
histopathological examination. She could
not give opinion regarding the commission
of rape that stated that victim 'X' was used
to intercourse or act like this and proved
the medical report as Ext. Ka-9.

26. D.W.-1 Rashid, who has stated
that Fareed Khan was in his house to attend
the marriage of his niece Parveen in the
night in between 10/11.06.1989 from 10:00
p.m. onwards.

27. D.W.-2 Ram Dayal has stated that
his house was adjacent to the house of the
complainant Buddha and who wanted to
grab the plot of accused Devi Dayal and
further stated that the complainant wanted
to marry his daughter victim ''X' with Devi
Dayal and father of Devi Dayal refused
then has been falsely implicated in the
present case.

28. D.W.-3 Ram Kishun has stated
that about five years back in the month of
Jeth, Saptami on Saturday he went to attend
the marriage of the daughter of accused
Arjun Pasi and Arjun Pasi and Ambika Pasi
remained there whole the night.

29. As per prosecution story, victim
''X' and her younger sister Goda were
sleeping on the same cot in the courtyard
and his brother was sleeping in courtyard
on the separate cot. Mother of the victim
''X', other children were also sleeping
nearby on the mat when the accused are
said to have entered the house and
kidnapped the victim ''X' across the river
Pirai. So far as the robbery is concerned,
learned trial court found that nothing
recovered from the possession of the
accused, hence, none of the accused were
convicted under Sections 394 and 397
I.P.C. So far as the incident of rape is
concerned, rape is said to have committed
by four persons, therefore, there is no much
probability of struggle on the part of the
victim ''X'. It is argued on behalf of learned
counsel for appellants that four appellants
are said to have committed rape upon the
prosecutrix ''X' but no sign of injury is
found on the body of prosecutrix. As per
prosecution version, she was throne under
the tree of Palash and was committed rape.
If she would have put any resistance, some
injuries were bound to happen on the back
of prosecutrix. P.W.:- 7 Dr. Indra Chopra
found no external or internal injuries on the
body of prosecutrix. This argument is
devoid of merit. It cannot be said that
whenever resistance is offered, there must
be
some
injuries
on
the
body
of
3 All. Devi Dayal & Ors. Vs. State of U.P.
665
prosecutrix. The appellants were four in
number and the prosecutrix being a girl of
eighteen years, she was not expected to
offer such resistance as it would cause
injuries to her body. It is not correct to say
that there was no injury at all. As it has
been mentioned by P.W.-7 Dr. Indra
Chopra that hymen was old torn present. In
this regard Hon. Apex Court held in
Balwant Singh and Another Vs. State of
Punjab AIR 1997 Supreme Court page
1080 that injuries are not always necessary
to be found on the body of prosecutrix
during rape if she fails to offer resistance.
Apex Court has also held in Gurcharan
Singh Vs. State of Haryana 1973 ACC
page 04 that absence of violent and stiff
resistance on the part of the prosecutrix in
the present case may as well suggest
helpless surrender to the inevitable due to
sheer timidity. Therefore, mere absence of
injuries on the body of prosecutrix do not
brush aside the whole prosecution case.

30. It is also pertinent to mention here
that the prosecutrix ''X' fully corroborated
the prosecution version. Its also clear that
under the threat of life prosecutrix was
raped. As per prosecution version, all the
four armed with half bore gun and country
made pistol. Therefore, the prosecutrix
cannot be expected to offer resistance or
any type of struggle.

31. It is also submitted on behalf of
appellants that there is no independent
witness of the occurence. It is also pertinent
to mention here that the victim was taken
away by the four accused across the river
Perai. There cannot be any independent
witness of the incident, however, the
prosecutrix appeared in witness box and
fully corroborated version of F.I.R. The
statement
of
prosecutrix
cannot
be
disbelieved merely because there is no
coroborative evidence. In this regard, Hon.
Apex Court in State Of Maharashtra vs
Chandraprakash Kewal Chand Jain G
AIR 1990 page 658, wherein it is held that
"ordinarily an indian women would be
most reluctant to level false accusation of
rape involving her reputation unless she has
a very strong bias or reason to do so.
Therefore, the statement of victim ''X'
which fully corrobroates the prosecution
version
cannot
be
suspected
and
disbelieved
as
solitary
statement
of
prosecutrix can be believed for proving the
charges under Section 366 IPC." Hon.
Supreme Court has given guidelines in
State
Of
Maharashtra
vs
Chandraprakash Kewal Chand Jain in
the paragraph 16 of the above case it is
observed that"..... But if a prosecutrix is an
adult and of full understanding the Court is
entitled to base a conviction on her
evidence unless the same is shown to be
infirm and not trustworthy. If the totality of
the circum-stances appearing on the record
of the case disclose that the prosecutrix
does not have a strong motive to falsely
involve the person charged, the Court
should ordinarily have no hesitation in
accepting her evidence...." In paragraph 17
, it was further observed that " To insist on
corroboration except in the rarest of rare
cases is to equate a woman who is a victim
of the lust of another with an accomplice to
a crime and thereby insult womanhood. It
would be adding insult to injury to tell a
woman that her story of woe will not be
believed unless it is corroborated in
material particulars as in the case of an
accomplice to a crime.......The standard of
proof to be expected by the Court in such
cases must take into account the fact that
such crimes are generally committed on the
sly and very rarely direct evidence of a
person other than the prosecutrix is
available. Courts must also realise that
666 INDIAN LAW REPORTS ALLAHABAD SERIES
ordinarily a woman, more so a young girl,
will not stake her reputation by levelling a
false charge concerning her chastity."

32. In the impugned case, the
statement of prosecutrix is corroborated by
P.W. 2, 3 and 4, who are brothers and
parents
of
prosecutrix
as
she
was
kidnapped by accused Devi Dayal and
Ambika Pasi in their presence and rest of
accused robbed the houselhold goods,
jewellery and cash.

33. It is submitted by learned counsel
for accused-appellants that prosecutrix as is
said to have kidnapped and carried across
the Perai river but there is no sign of the
fact that she was throne on grass or leaves
and raped. No contents of grass or leaves
were found on the clothes of prosecutrix.
The court find this argument very week as
prosecutrix ''X' hereself stated in her
statement that after the commission of
crime of rape, all the accused fled away.
Then, she herself came by crossing river
and when she reached to the village, she
was in wet clothes. Therefore, the presence
of grass or leaves on the clothes of the
prosecutrix could not be found out.

34. It is also argued by learned
counsel for accused- appellants that no
blood stained or spermatozoa were found
on the clothes of prosecutrix. In the given
set of circumstances, the prosecutrix came
across the river and she was in wet clothes.
Therefore, the presence of leaves, grass and
blood stains or spermatozoa is not possible
to be found on the body or clothes of
prosecutrix.

35. Learned counsel for the accused
appellants advanced the argument that there
are major contradictions in the statement of
witnesses of fact and learned trial court did
not address those contradicions. On the
persual of statement of witnesses, there is
no major contradicions in the statement of
witnesses as all of them corroborated the
testimony of prosecutrix herself. However,
minor contradictions are there. It is to be
kept in mind that the witnesses are illiterate
and the statement were recorded after the
lapse of three years from the date of
occurrence and the evidence of the witness
were recorded in piecemeal with the gap of
time. Therefore, the discrepancies are
bound to happen. On the basis of minor
discrepancies, the statement of witnesses
cannot be discarded, if they are otherwise
truthful.

36. The prosecution has proved the
place of occurrence as the prosecutrix has
herself pointed out the place where she was
raped by all the accused-appellants . The
place of occurrence has also been shown by
Inviestigation Officer in the site plan and,
therefore, the place of occurrence is
ascertained and there is no doubt about the
place of occurrence.

37. The accused-appellants placed the
plea of alibi in the defence but they could
not prove the plea in trial court as well as in
appellate court. The accused appellant did
not file the invitation card of marriage to
prove that the accused Arjun Pasi was in
the
marriage
of
his
own
daughter.
However, if there was marriage on the
fretful date, the appellant must have
possessed an invitation card of the marriage
of his daughter. Accused Ambika Pasi also
claimed alibi on the ground that he had
gone in the marriage of the daughter of the
co-appellant Arjun Pasi but he could also
not proved the defence that there was the
marriage of daughter of Arjun Pasi and he
attended the marriage. So far as accused
Farid Khan is concerned, he stated in his
3 All. Devi Dayal & Ors. Vs. State of U.P.
667
statement recorded under Section 313 that
he had gone to attend the marriage of his
niece Parveen but Fareed Khan also could
not proved the marriage of his niece. He
could not even told to the court that where
the marriage of his niece was performed. It
is further pertinent to mention that accused
Fareed khan, who is said to have been died
on 06.09.2018 is dismissed as abated vide
order dated 24.11.2022. Hence, none of the
accused could prove their plea of alibi.

38. P.W.7 Ramdayal deposed in court
that
there
was
enmity
between
the
complainant and the father of accused Devi
Dayal regarding the land and also that father
of Devi Dayal refused to accept the
prosecutrix as his daughter-in-law. Therefore,
accused Devi Dayal has been falsely
implicated. These two arguments are selfcontradictory and cannot run parallel. If there
is strong enmity regarding the land between
complainant and father of accused Devi
Dayal, then there is no possibility that
complainant would marry his daughter to
Devi Dayal. D.W.-2 stated that there was
enmity between complainant and father of the
appellant Devi Dayal but no such document
of any litigation regarding the land is adduced
as a defence evidence. Therefore, the defence
of appellant is not substantiated by any
cogent evidence.

39. Learned counsel for the appellants
stated that accused Devi Dayal has served
out four years of incarceration, accused
Ambika Pasi has served out three years and
two months of incarceration and accused
Arjun has served out incarceration of two
years, therefore, it is prayed to commute
the sentence of appellants to the period
already undergone by them. It is also
submitted that accused have no criminal
antecedent apart from this case. Therefore,
a lenient view may be taken in the case.

40. Section 376 (2)(g) I.P.C. that in case
of gang rape, the rigorous imprisonment shall
not be less than ten years. As the accused
persons are charged with Section 376(2)(g)
I.P.C., it is not a fit case to commute the
sentence from ten years to the period already
undergone by them.

41. No plausible reason is offered by
appellants why they are falsely implicated
in the case. No explanation is given by the
appellants during the statement recorded
under Section 313 Cr.P.C. as to why they
are falsely implicated in the case. On the
contrary, the prosecutrix in so many words
proved the prosecution version as to the
fact that she was taken away by accused
Devi Dayal and all of the appellants
committed rape against her will.

42.

Hence,
the
prosecution
successfully proved the charges under
Section 366 and 376 IPC against all the
accused beyond reasonable doubt by the
cogent evidence of prosecutrix as well as
by the evidence of P.W.-2 and P.W.-4, who
are brother and parents of prosecutrix. It is
also pertinent to mention here that P.W.-7
Dr. Indra Chopra prepared the medical
report, in which the hymen was found old
torn.
In
these
circumstances
where
prosecutrix unequivocally proved the case
of rape against all the appellants and
appellants could not offer any explanation
to the false implication of appellants in
such a heinous crime.

43. The judgment of trial court is
based on cogent evidence and is found in
consonance with the evidence on record.
The complicity of all the four accused is
found in the crime and the judgment and
order passed by learned trial court is liable
to be upheld and the appeal is liable to be
dismissed.
668 INDIAN LAW REPORTS ALLAHABAD SERIES

44. The Appeal is dismissed. The
judgment of trial court is upheld. The appeal
against appellant No. 4 Fareed Khan, who is
said to have been died on 06.09.2018 is
dismissed as abated vide order dated
24.11.2022. The appellant Nos. 1, 2 and 3,
namely, Devi Dayal, Arjun and Ambika are
on bail. They shall surrender before the court
concerned within one month from the date of
judgment and shall be sent to jail to serve out
the remaining sentence. Learned trial court
shall prepare the conviction warrant and sent
them to jail.

45. Personal Bond and bail bonds of
the accused are cancelled.

46. Certified copy of this judgment
along with the lower court record be sent to
the trial court concerned for necessary
information and compliance.
----------
(2023) 3 ILRA 668
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 19.12.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Criminal Appeal No. 564 of 2021

Shubhansh Chand Srivastava ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Nandit K. Srivastava, Anil Kumar Tripathi,
Anurag Shukla, H.B. Singh, Pritma Shastri,
Purnendu Chakravarti

Counsel for the Respondent:
Birshwr Nath, S.B. Pandey, Shiv P. Shukla

Criminal
Law-The
Prevention
of
Corruption Act, 1988-Sections 7, 13(1)(d)
&
13(2)-Accused-appellant
demanded
bribe from the complainant for ensuring
preparation
of
outstanding
pay
bill/payments-Conviction U/s 7 and 13(2)
r/w 13(1) (d) of The P.C Act- Minor
discrepancy would not destroy the entire
case
of
the
prosecution
regarding
demand, acceptance and recovery of
bribe-Demand and acceptance proved-
Amount was recovered from the drawer of
the office table of the accused- To record
a conviction under Section 7 and 13,
proper proof of demand and acceptance of
illegal gratification by the accused public
servant is necessary-Mere possession and
recovery of money without proof of
demand
by
the
accused
does
not
constitute an offence- In absence of
evidence of the complainant (direct/
primary/ oral/ documentary evidence), it
would
be
permissible
to
draw
an
inferential deduction of culpability/ guilt
of a public servant under Section 7,
13(2)/13(1)(d) of the Act based on other
evidence adduced by the prosecution.

Appeal dismissed. (E-15)

List of Cases cited:

1. P. Satyanarayana Murthy Vs District Inspector
of Police, St. of Andhra Pradesh & anr., (2015)
10 SCC 152

2. Neeraj Dutta Vs St.: 2022 SCC OnLine SC
1724

(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

1. The present appeal under Section
374(2) of the Code of Criminal Procedure,
1973 (hereinafter referred to as ''CrPC')
read with Section 27 of the Prevention of
Corruption Act, 1988 (hereinafter referred
to as ''PC Act, 1988') has been filed by the
appellant against the judgment and order
dated 30.03.2012 passed by the Special
Judge, Anti Corruption (West), CBI,
Lucknow in Case No.14 of 1999 (State Vs.
Subhash Chand Srivastava) under Section 7