# Etwari v. State of U.P

- **Citation:** (2026) 2 ILRA 950
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-02-26
- **Case number:** Jail Appeal No. 66 of 2021
- **Bench:** Rajnish Kumar, Zafeer Ahmad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/etwari-v-state-of-u-p-54225
- **Pages:** 16

## Text

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950 INDIAN LAW REPORTS ALLAHABAD SERIES

31. Applying these parameters to the present case, while the appellant's involvement is noted
in the trial court's findings, the fact remains that she has already undergone over seven years and
two months of incarceration, having been in jail since 07.04.2017. Therefore, we are of the
considered view that, without disturbing the conviction, the appellant, Kumari Janki (name
changed), should be released as she has already served a period exceeding the maximum threeyears term permissible for a juvenile delinquent under the Act.

32. The judgment and order dated August 1, 2023, passed by the Additional District and
Sessions Judge, Barabanki, in Criminal Trial No. 51 of 2018 (arising out of Case Crime No.
0118/2017), is modified to the extent mentioned above.

33. Accordingly, the present appeal is hereby allowed with the aforementioned modifications.

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(2026) 2 ILRA 950
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 26.02.2026

BEFORE

THE HON'BLE RAJNISH KUMAR, J.
THE HON'BLE ZAFEER AHMAD, J.

Jail Appeal No. 66 of 2021

Etwari ...Appellant
Versus
State of U.P. ...Respondent

Issue for Consideration
Matter pertains to whether the conviction of the appellant under S. 6 of the Protection of Children from Sexual
Offences Act, 2012 on the basis of circumstantial evidence is sustainable in law and whether the chain of
circumstances is complete pointing only towards the guilt of the appellant. (Paras 3,4,35)

Headnotes
Criminal Law - Protection of Children from Sexual Offences Act, 2012 - S. 6 - Conviction based on
circumstantial evidence - Completeness of chain - Chain of circumstances must be complete and
consistent only with hypothesis of guilt - Conviction sustainable where chain is complete. (Paras
3, 4, 35, 36)
Evidence Act, 1872 - S.s 118 and 119 - Competency of witness - Minor victim of "feeble mind" -
Testimony of victim of weak mental condition - Evidence cannot be discarded merely on ground
of mental weakness if understandable through signs/gestures. (Paras 25, 26)
Evidence - Related witness - Father and brother of victim - Testimony cannot be discarded
merely due to relationship - Must be tested on reliability and consistency. (Paras 28, 29, 30)
Criminal Law - POCSO Act - Rape of minor - Medical evidence corroborating prosecution case -
Conviction justified. (Paras 12, 13, 15)
Evidence - Extra judicial confession - Can be relied upon when supported by other evidence.
(Para 21)
2 All. Etwari Vs. State of U.P.
951
Investigation - Sniffer dog evidence - Not substantive evidence of guilt - Can only support
investigation and arrest. (Paras 33, 34)
Defence - Plea of enmity - Not proved - Cannot discredit prosecution case. (Paras 3, 28, 38)
Criminal Appeal - Jail Appeal - No interference warranted where trial court judgment is reasoned
and based on evidence. (Paras 39, 40)
Held: It is a case of circumstantial evidence but all the chain of the circumstances consistently indicates
towards the guilt of the appellant and appellant only - prosecution proved its case beyond reasonable doubt -
The testimony of victim, though of weak mind, is admissible as "a person, who is of weak mind, his testimony
cannot be ignored only on this ground" - related witnesses cannot be termed as interested witnesses merely
due to relationship and their evidence is reliable - medical evidence fully supports the prosecution case and
establishes commission of rape - sniffer dog evidence cannot be the sole basis of conviction but can support
investigation - plea of enmity is rejected as "the plea of enmity taken by the appellant has not been proved" -
Accordingly, "the conviction of the appellant for the offence punishable under S. 6 of the POCSO Act is upheld
and the sentence awarded is confirmed". (Para 12,15,26,28,29,30,33,34,35,38,40) (E-7)

Case Law Cited
State of Rajasthan Vs. Darshan Singh Alias Darshan Lal, (2012) 5 SCC 789; Baban Shankar Daphal and
Others Vs. State of Maharashtra, MANU/SC/0099/2025; Ravasaheb Vs. State of Karnataka,
MANU/SC/0248/2023; State of Maharashtra Vs. Bandu Alias Daulat, (2018) 11 SCC 163; Lalit Kumar
Yadav Alias Kuri Vs. State of Uttar Pradesh, (2014) 11 SCC 129; Sharad Birdhichand Sarda Vs. State of
Maharashtra, AIR 1984 SC 1622 ; Abdul Rajak Murtaja Dafedar Vs. State of Maharashtra, (1969) 2 SCC
234; Gade Lakshmi Mangaraju Vs. State of A.P., (2001) 6 SCC 205; Dinesh Borthakur Vs. State of Assam,
(2008) 5 SCC 697.

List of Acts
Protection of Children from Sexual Offences Act, 2012; Protection of Children from Sexual Offences Rules;
Indian Penal Code, 1860; Indian Evidence Act, 1872 Code of Criminal Procedure, 1973

List of Keywords
Circumstantial evidence; Chain of circumstances; Minor victim; Rape; POCSO Act; Weak minded witness;
Competency of witness; Related witness; Extra judicial confession; Medical evidence; Sniffer dog; Enmity;
Benefit of doubt; Conviction; Life imprisonment.

Case Arising From
APPELLATE JURISDICTION: Arising from judgment and order dated 21.01.2015 passed by learned Additional
Sessions Judge / Special Judge, POCSO Act, Unnao in Special Session Trial No.01/2023 (State Vs. Etwari and
Another) convicting the appellant under S. 6 POCSO Act.

Appearances for Parties
Advs. for the Appellant:
Sri Diwakar Singh, learned Amicus Curiae.
Advs. for the Respondents:
Sri Pawan Kumar Mishra, learned A.G.A. for the State

(Delivered by Hon'ble Rajnish Kumar, J.)

(1) The instant Jail Appeal has been filed against the judgment and order dated 21.01.2015
passed by learned Additional Sessions Judge, Court No.8 / Special Judge, POCSO Act, Unnao in
Special Session Trial No.01/2023; State Vs. Etwari and Another, arising out of Case Crime
No.249/2013, under Sections 3/4 of the Protection of Children from Sexual Offences Act, 2012
(here-in-after referred as POCSO Act), Police Station Kotwali, District Unnao, by means of which,
952 INDIAN LAW REPORTS ALLAHABAD SERIES
Etwari and Ramzan alias Ramzani have been convicted under Section 6 of the POCSO Act with
punishment of life imprisonment and fine of Rs.10,000/- each and in default of payment of fine, to
undergo one year's rigorous imprisonment. It has further been directed that 50% of the amount of
both the fines would be paid to the victim as compensation. The learned Trial Court has further
recommended for damages to the victim under Rule 7 of the Protection of Children from Sexual
Offences Rules.

(2) Heard Sri Diwakar Singh, learned Amicus Curiae for the appellant and Sri Pawan Kumar
Mishra, learned A.G.A. for the State.

(3) Learned Amicus Curiae for the appellant submitted that the appellant has wrongly and
illegally been convicted and punished by means of the impugned judgment and order without
considering the evidence and material on record appropriately. He further submitted that the
appellant is innocent and he has falsely been implicated in this case. He further submitted that there
is no eye witness to the incident and it is a case of circumstantial evidence and chain of
circumstances is not complete, therefore, it could not have been said that the appellant has
committed the crime and convicted. He further submitted that the appellant has been implicated in
the case only on account of enmity and the investigation is tainted, which has been done only with
a view to implicate the appellant, as looking to the kind of crime, the police was under pressure to
solve the case. Thus, learned Amicus Curiae submitted that the impugned judgment and order is not
sustainable in the eyes of law and the same is liable to be set aside and the appellant is liable to be
acquitted.

(4) Learned A.G.A. vehemently opposed the submissions of learned Amicus Curiae for the
appellant. He submitted that the appellant has rightly and in accordance with law been convicted
and sentenced by means of the impugned judgment and order considering and dealing the same
appropriately. He further submitted that the appellant has committed a heinous crime with a minor
girl, who was not mentally sound completely. He did not dispute that this is a case of circumstantial
evidence but the chain of circumstances is complete, which refers only to the guilt of the appellant.
He further submitted that the appellant has failed to show any reason for false implication and the
plea of enmity could not be proved. Even otherwise he submitted that the ground of enmity shown
by the appellant is highly improbable, on account of which, the parents could have implicated him
at the cost of reputation of their minor daughter. He further submitted that father and mother are the
best persons to understand the things told by such a challenged person i.e. the victim. Thus, the
submission is that the impugned judgment and order has rightly been passed in accordance with
law after considering the evidence and material on record by a reasoned and speaking order, which
does not suffer from any illegality or error, which may call for any interference by this Court. He
further submitted that the instant Jail Appeal filed by the appellant is misconceived and lacks merit,
which is liable to be dismissed.

(5) We have heard learned counsel for the parties and perused the records.

(6) The prosecution story, in brief, is that the complainant Jaipal Yadav S/o Sri Hiralal Yadav,
resident of 64, Anwar Nagar, Chowki Kila, Police Station Kotwali, District Unnao gave a written
report stating therein that his father has a hotel of tea at Ibrahim Bagh Chauraha, from which, he
2 All. Etwari Vs. State of U.P.
953
and his father earn livelihood. Yesterday i.e. on 11.02.2013 at about 08:30 PM, complainant's
sister, who is aged about 8 years, went to defecate but she did not return for a long, therefore, the
complainant and his father went to search her. They heard the groaning of victim from inside the
boundary wall of Ramesh (Dhobi), Mohalla Pahli Kheda, then, they went there and found that the
blood was oozing out from the private parts of the victim and her mouth was tightened with a cloth
and some unknown persons have committed misdeed with her and went away after leaving her
there. They took the victim to the district hospital for treatment, from where after primary
treatment, she was referred to Kanpur, where her treatment was going on. It has also been stated in
the written report that before the incident, Etwari, who works on the shop of tea of Badakke and
resides at the aadhat of chicken (murga) of Afzal, was seen there and he was also seen there after
the incident. Some people have also seen him taking away the victim and the complainant is sure
that the incident and the misdeed have been committed by Etwari. It has further been stated in the
written report that seeing and hearing about the incident, there is fear and terror among the ladies of
the area.

(7) In pursuance of the aforesaid written report, a case under Section 376 of the Indian Penal
Code, 1860 was registered and after investigation, the charge sheet (Ex. Ka-8) was filed against
Etwari and Ramzan alias Ramzani under Section 3/4 of the POCSO Act, on which cognizance was
taken by the Sessions Judge on 29.05.2013. Thereafter, after providing the prosecution papers to
the accused persons, they were heard on charge and on account of prima facie evidence against the
Etwari and Ramzan alias Ramzani, a charge under Section 6 of the POCSO Act was framed. The
accused persons denied the charge and pleaded for trial.

(8) In order to prove its case, the prosecution produced Jaipal, the complainant as P.W.-1,
Hiralal as P.W.-2, Constable Nazrul Hasan as P.W.-3, Dr. Sanju Agarwal as P.W.-4, Victim as
P.W.-5, Vivek Dubey as P.W.-6, Kripa Shanker Saroj, Investigating Officer as P.W.-7, Kallu Ram
Bharti, Investigating Officer as P.W.-8, Dr. Rakesh Kumar Tripathi as P.W.-9, Mahesh as P.W.-10,
Shivkumar as P.W.-11, Constable 694 Mohammad Afzal as P.W.-12, Saiyed Mohammad Azmeri
as P.W.-13 and Ashok Kumar as P.W.-14. P.W.-13 and P.W.-14 were declared hostile and they
were cross-examined by the prosecution.

(9) The prosecution also placed on record and proved the documentary evidence.

(10) We have considered the submissions of learned counsel for the parties and perused the
records.

(11) The P.W.-1; complainant stated that his father and he have a hotel of tea at Ibrahim Bagh
crossing. On 11.02.2013, his sister, who is aged about 8 years, went from the shop to defecate and
when she did not return for a long, then he and his father went for her search. They heard groaning
of his sister from the plot of Ramesh (Dhobi) and they reached near the victim and found her in
pool of blood and a cloth was also tightened on her mouth. He got shocked with it and, firstly, he
and his father brought the victim to their shop and, thereafter, they took her to the hospital, where
the doctor advised to take the victim to the Hallet Hospital, Kanpur. The P.W.-2, who is father of
the victim as well as of the complainant, has joined the P.W.-1 in stating that he was in his shop of
tea at Ibrahim Bagh Crossing at 08:00 PM - 08:30 PM on 11.02.2013 with his daughter i.e. the
954 INDIAN LAW REPORTS ALLAHABAD SERIES
victim, who is aged about 8 years. The victim went to defecate and when she did not return for a
long time, then he went to search her and found her in the boundary of plot of Ramesh (Dhobi). He
found that the victim was seriously injured and blood was oozing out from the place of urination
and her mouth and neck were tightened. He took the victim to the District Hospital, Unnao but on
account of serious condition, he took her to the G.S.V.M. Medical College, Kanpur.

(12) Dr. Sanju Agrawal appeared as P.W.-4. She proved medical examination report of the
victim as Ex. Ka-4, which was conducted by her on 11.02.2023 at 10:00 PM at District Hospital,
Unnao. She stated that condition of the girl was very critical. There was injury and swelling on the
right eye of the victim. General condition was very critical. Blood stains were on both the legs.
There was extensive bleeding. Vagina was torn, which was going upto rectum. Anal in sphincter
was torn. First aid was given to the girl and swab was collected from vagina and sent for testing to
lab. For better treatment, she was sent to G.S.V.M. Medical Colllege, Kanpur. It has also been
stated that blue lungi, bed sheet of coca cola colour and piece of blood soaked cloth were sealed
and handed over to the police. Thus, it has been proved that the victim was found in very critical
condition in a plot and the medical examination report supports the condition told by the brother,
who is complainant and the father of the victim.

(13) Dr. Rakesh Kumar Tripathi, Assistant Professor, Surgery Department, G.S.V.M. Medical
College, Kanpur appeared as P.W.-9 and stated that the victim, who was aged about 7 years, D/o
Hiralal, 64 Anwar Nagar, Police Station Kotwali Unnao was admitted in the maternity hospital at
11:50 PM on 11.02.2023 and a team of Dr. Anshu Mishra had seen the victim and after admission,
she was referred for operation to the Surgery Department. Thereafter, Dr. Rakesh Kumar Tripathi
and his team had seen the victim and found that there was extensive injuries in the lower part of her
body and there was huge blood loss. The girl was not allowing the examination, therefore, after
transfusion of blood, a plan was made for examination and surgery after comatising her.
Accordingly, in the next morning, the victim was examined in the operation theater after
comatising her, wherein, Dr. Rakesh Kumar Tripathi and Dr. Anshu Mishra found five following
injuries:-

"(1) पेशाब के रास्ते के आस पास के नहस्से पर चोट था लेनकन पेशाब की नली ठीक थी।

(2) बच्चे की बेबी XXXX की बच्चेदानी की नीचे की दीबार दोनो तरफ दाई और बाई तरफ 4 से 5 से०मी० की गहराई तक पूरे तौर पर
फटी हुई थी।

(3) बच्चेदानी और लेटरीन के बीच की जगह पूरे तौर पर फटी हुई थी।

(4) बेबी XXXX के लेटरीन का रास्ता (मल द्वार) के ऊपरी नहस्से में 4 से 5 से०मी० गहरा घाव था। मल द्वार की ऊपरी दीवार
कैंटीररयर कॉन्टराइर वॉल) लगभग 4 से 5 से० मी० तक पूरे तौर पर फटी हुई थी।

(5) इसे 4th नडग्री पेररनेल. नटयर माना गया।"

(14) It has further been stated by him that all the torn parts were stitched, passage for latrine
was made from the stomach, therefore, the same may be stopped from going downside and in
2 All. Etwari Vs. State of U.P.
955
future, there may not be any damage to the injury. It was done after informing and with the consent
of father of the victim. It has further been stated by him that the victim was kept for 10 days in the
Gynae Department, thereafter, transferred to Surgery Department. He has also stated that he was
referred on 11.02.2013 from District Hospital Unnao to L.L.R. Hospital after primary treatment at
10:00 PM. He proved medical examination report. In the cross examination, he supported his
evidence given in the examination-in-chief and nothing can be extracted from him, which may
create any doubt about the medical condition of the victim and the treatment given to her.

(15) The learned Trial Court has recorded that the medical examination report of the victim
has been proved by the P.W.-4 and no cross-examination has been made by anybody from her,
therefore, her statement is completely believable. The subsequent treatment of the victim has been
proved by the Dr. Rakesh Kumar Tripathi, Assistant Professor, Surgery Department, G.S.V.M.
Medical College, Kanpur, who appeared as P.W.-9. After considering the medical evidence of the
victim, the learned Trial Court has categorically found that at the time of incident, a serious offence
of rape has been committed upon the victim. This Court does not find any illegality or error in the
finding so recorded by the learned Trial Court.

(16) The complainant further stated that the tea shop of Badakke is near his shop and near
chicken's commission agency (आढ़ि) of Afzal. The accused, Etwari resides in these shops and one or
two persons have seen his sister going with the accused, Etwari and it has been mentioned in the
F.I.R. also and on account of it, an apprehension was expressed that the complainant is confident
that the incident and the misdeed have been committed by Etwari.

(17) The P.W.-2, Hiralal has stated that after one month of the incident when his daughter was
better then she told that Kakwar (Etwari) and Ramzani have done misdeed with her. Ramzani used
to bring thelia of chickens at the chicken's commission agency of Afzal and he used to sell the
chicken after cutting in the neighbour of his shop. Both of them used to come to take tea at his
shop. The information of incident was given by his son Jaipal at the police station and when his
daughter told the names of accused persons to him, then he gave a written information of the
incident at the police station, which is paper No. 8क / 2, which was written and signed by him, and
the same has been marked as Ex. Ka-2. Thus, the names of the accused persons told by the father of
the victim are same as told by the victim to her father and the complainant.

(18) The consistent case of the complainant and his father is that the victim had gone from
their shop for defecation, when some persons of area had seen the accused going towards that side
and with the victim. Mahesh, P.W.-10 stated that he works in superhouse and lives in Anwar Nagar
and knows Hiralal, who is of his family. Hiralal has a hotel of tea on highway. The incident is of 14
months back. He had come back on the date of incident by 06:00 in the evening at his home,
thereafter, he went at the hotel of Hiralal for having tea. Daughter of Hiralal, who is aged about 7
years, was at hotel at that time. At about 08:30 in the night, she went to defecate towards the field
of Ibrahim Bagh. When he was sitting on the shop, Etwari and Ramzani, who have shops of
chicken in front of the hotel of the Hiralal, came at the hotel, when the victim had gone to defecate,
they also went behind her. After some time, he came back to his home. At about 09:30 - 10:00 in
the night, he came to know that misdeed has been done with the victim and her condition is very
bad. On hearing the news, he came running and found that Hiralal and Kali Prasad are
956 INDIAN LAW REPORTS ALLAHABAD SERIES
accompanying the victim, who was in pool of blood. Seeing the same, he was confident that the
misdeed has been committed by Ramzani and Etwari, who had gone behind her. In the crossexamination, he denied the suggestion that he has any enmity with the Etwari. He also stated that
the Inspector had enquired from him near the hotel of Hiralal on the date of incident. He, in his
further examination, stated that the victim had gone alone to defecate and he had not seen anybody
taking away the victim. In the cross-examination, he also stated that Etwari had come at the shop of
Hiralal and from the shop, Etwari and Ramzani had gone behind the victim. He further stated that
he had told all this to the Investigating Officer in his statement under Section 161 Cr.P.C. but he
does not know as to why the name of Ramzani has not been written by the Investigating Officer.
He also stated that it is wrong to say that he is first time taking the name of Ramzani. Thus, he has
supported the prosecution case.

(19) P.W.-11, Shiv Kumar stated that the incident is of 13 - 14 months back. He had gone to
the market of Unnao and was going back to his home after purchasing through Anwar Nagar at
09:00 in the night. When he reached ahead the hotel of Hiralal, Etwari and Ramzani were in very
hurry and perturbation. He asked the Etwari as to where he is going, then he spoke nothing and
both of them went with speedy steps. He knew Etwari and Ramzani since earlier and their shop of
chicken is in front of the hotel of tea of Hiralal and he used to go to take tea at the hotel of Hiralal,
therefore, knows them. On that night, there was a screaming and the police had reached there. He
came to know that the 7 years' daughter of Hiralal has been raped. He had not gone at the place of
incident in the night. He further stated that Etwari and Ramzani were going from the site where the
rape of the girl was committed. In cross-examination, he stated that his statement was recorded
after 2 - 3 days of the incident, he had told the name of Etwari and Ramzani in his statement but he
does not know as to why it has not been written. Thus, this witness has also supported the
prosecution case to the extent of presence of the accused persons and their coming back from the
place of incident. He has also denied the suggestion that he had any hot talk or any abusive
language with Etwari.

(20) The written complaint for lodging the F.I.R. was written by Ashok S/o Ghunni Prasad.
The P.W.-1, complainant has stated in his evidence that he had given the report at Kotwali after
getting it written from Ashok, which was written by him and read over to him and the complainant
had signed the said report and, thereafter, handed over at the Kotwali. His report was written and
the Inspector had made enquiries from him. He proved the paper No. क-4/2, which was read over to
him and stated that it is the same report, which was got written by Ashok and signed by him. It was
marked as Ex. Ka-1.

(21) Ashok Kumar appeared as P.W.-14. He stated that about quarter to 2 years back between
08:00 PM to 08:30 PM on the date of incident, he came to know that misdeed has been committed
with the victim. The brother of the victim, Jaipal had come to him. He was at the shop. Jaipal asked
for help, and then he, alongwith Jaipal, took the victim to the hospital, where her brother got her
admitted. Next day, the report of this incident was got written by Jaipal and gave at the Police
Station Kotwali, District Unnao. He proved the written report as Ex. Ka-1. Though he has been
declared hostile but he proved that the written report was written by him as told by the
complainant, Jaipal and thereafter it was given at the Police Station Kotwali. The victim was
referred by the District Hospital, Unnao for G.S.V.M. Medical College, Kanpur. The learned Trial
2 All. Etwari Vs. State of U.P.
957
Court has recorded that though he has been declared hostile, however, he has proved in his
examination-in-chief that he had written the report (Ex. Ka-1) as told by the complainant, Jaipal.
He also accepted that he knows Hiralal and his daughter, who are of his Mohalla and that Etwari
had done the wrong work, which was told by him before many persons, when he was caught by the
police. He also clarified that when the wrong work was done with the victim, then brother of the
victim, Jaipal had come to him for help, then he went to the hospital alongwith him taking the
victim. As such, this witness has also proved the extra judicial confession made by the accused.

(22) The second Investigating Officer, Sri Kripa Shankar Saroj, Incharge Inspector appeared
as P.W.-7. He stated that he was posted as Station House Officer at Police Station Kotwali, District
Unnao on 16.02.2013 and he himself entrusted the investigation to him and perused the paper
Nos.1, 2, 3 and 4 of the earlier Investigating Officer. He stated that on 22.03.2013, the father of the
victim, Hiralal gave an application to him mentioning therein that after returning from Kanpur, his
daughter told her that two persons have committed rape with her and their names are Kakua and
Ramzani. After recording the same in C.D. and annexing the application with the C.D., he recorded
the statement of father of the victim, Hiralal on the same date and reached his house with him. He
made enquiries from the victim but things were not being cleared and she was not able to speak
clearly, therefore, her statement was recorded on the basis of question answers through her father.
She told some things by mouth and some things by gestures. The videography of her statement was
also got done and the same were recorded in the C.D., which is paper 6 क/4 and the same is signed
by him and signed by the father of the victim and two witnesses and it was marked as Ex. Ka-6.
Thus, the statement of victim under Section 161 Cr.P.C. was recorded, wherein she had supported
the prosecution case. He further stated that the statements of two witnesses, namely, Shiv Kumar
and Shahid were also recorded. Thus, on the basis of the statements of the victim and the
complainant, the names of Ramzani @ Ramzan also came to light and on 24.03.2013, he arrested
Ramzani @ Ramzan. The Sections 3/4 of the POCSO Act were added on 25.03.2013 and, on
09.04.2013, statement of the victim under Section 164 Cr.P.C. was got recorded. In the crossexamination, he explained as to how the statement of victim was recorded and the videography was
got done and the name of Ramzani surfaced on the statement of the victim and nothing could be
extracted, which may create any doubt about recording of the statement in the manner stated.

(23) Vivek Dubey appeared as P.W.-6. He proved that the video recording was made by him.
He also told the name of the victim and told that she was so much frightened that she was not able
to speak properly and she was making replies slowly after understanding the things told by her
father. The questions, which were being asked by the Inspector, were put to her by her father and
she was replying them slowly. He also stated that he had given C.D. Cassette to the Inspector of
Kotwali, which was prepared by him. The sealed C.D. was opened. He, after looking to it, admitted
that it was prepared by him, which was marked as Material Ex.-1. No cross-examination was made
from him. Thus, his statement remains unrebutted.

(24) The victim appeared as P.W.-5. She was aged about 9 years and of feeble mind. The
learned Trial Court has recorded that she was unable to understand the nature of questions and
giving answers of them on repeated efforts and with the help of father. The Court tried to
understand the facts through her language and appearance and no oath was administered to her. It
has been recorded that she told her name and name of her father as Babu Papa. She further stated
958 INDIAN LAW REPORTS ALLAHABAD SERIES
that Tiwari (Etwari) and Razana (Ramzani) both had pressed her mouth and neck and took her
away in lap and inserted her in bush of berry (बेर). They tied the cloth on her mouth and neck and
opened her underwear. The learned Trial Court has recorded that all the injuries are still present on
her private parts, which are covered with cotton bandages. On account of weak mind, she was
unable to tell anything further, therefore, the examination-in-chief was closed. In the crossexamination, she stated that the Investigating Officer had made queries from her. She recognized
the Etwari, who was present in the Court and stated that this is Tiwari (Etwari). A question was
asked as to whether there is any enmity with the family of Etwari but the learned Trial Court has
recorded that she was unable to understand the question. She further stated that she had gone to
defecate. On a query as to whether it was day or night, she could not reply. Thus, with the help of
father, she supported the prosecution case. In her further cross-examination on behalf of the
accused, Ramzani, the Court has recorded that on being asked about the name of her brother, she
only stated the name of Babu, by which name, she used to call her father, who had come with her.
She told that she goes to school and studies in class-3. On being asked about the name of school,
she denied by shaking her head. On being asked about the name of her mother, she stated Amma.
She further stated that she has come from village today and she could not tell the name of village
and number of members of the family. She also showed ignorance about the numbers. When she
was asked 1, 2, 3, 4 and 5 then she told numbers 1, 2 and 3. About her sister, she stated that Didi
has gone up. She also made replies to certain queries. On being asked as to how many persons had
taken her away, she clearly stated that two persons had took away. In this regard she not only spoke
from mouth but also told by sign by raising her hand and showing two fingers but the names could
not be spelt out clearly. Thus, the victim has also supported the prosecution.

(25) Sections 118 and 119 of the Indian Evidence Act, 1872 provides as to who may testify,
which are extracted here-in-below:-

118. Who may testify. --- All persons shall be competent to testify unless the Court
considers that they are prevented from understanding the questions put to them, or from giving
rational answers to those questions, by tender years, extreme old age, disease, whether of body or
mind, or any other cause of the same kind.

Explanation. --- A lunatic is not incompetent to testify, unless he is prevented by his
lunacy from understanding the questions put to him and giving rational answers to them.

119. Witness unable to communicate verbally. --- A witness who is unable to speak may
give his evidence in any other manner in which he can make it intelligible, as by writing or by
signs; but such writing must be written and the signs made in open Court, evidence so given shall
be deemed to be oral evidence:

Provided that if the witness is unable to communicate verbally, the Court shall take the
assistance of an interpreter or a special educator in recording the statement, and such statement
shall be video graphed.

(26) In view of above, unless the Court considers that any person is prevented from
understanding the questions put to him or from giving rational answers to those questions whether
2 All. Etwari Vs. State of U.P.
959
due to weakness of body or mind, or any other cause of the same kind. etc, all persons shall be
competent to testify. The explanation to the aforesaid Section 118 of the Indian Evidence Act
clarifies that a lunatic is not incompetent to testify, unless he is prevented by his lunacy from
understanding the questions put to him and giving rational answers to them. According to the
aforesaid Section 119 of the Indian Evidence Act, 1872, if a person is unable to speak, may give his
evidence in any other manner in which he can make it intelligible, as by writing or by signs; but
such writing must be written and the signs made in open Court, evidence so given shall be deemed
to be oral evidence. Thus, a person, who is of weak mind, his testimony cannot be ignored only on
this ground, if he/she is able to give his/her evidence by any method and same can be understood
by the Court.

(27) The Hon'ble Supreme Court, in the case of State of Rajasthan Vs. Darshan Singh Alias
Darshan Lal; (2012) 5 SCC 789, has held that language is much more than word and like all other
languages, communication by way of signs has some inherent limitations, since it may be difficult
to comprehend what the user is attempting to convey, but a dumb person need not be prevented
from being a credible and reliable witness merely due to his/her physical disability. Such a person
though unable to speak may convey himself through writing if literate or through signs and gestures
if he is unable to read and write. The relevant paragraph Nos.28 and 29 are extracted here-inbelow:-

28. Language is much more than words. Like all other languages, communication by way
of signs has some inherent limitations, since it may be difficult to comprehend what the user is
attempting to convey. But a dumb person need not be prevented from being a credible and reliable
witness merely due to his/her physical disability. Such a person though unable to speak may convey
himself through writing if literate or through signs and gestures if he is unable to read and write. A
case in point is the silent movies which were understood widely because they were able to
communicate ideas to people through novel signs and gestures. Emphasised body language and
facial expression enabled the audience to comprehend the intended message.

29. To sum up, a deaf and dumb person is a competent witness. If in the opinion of the
Court, oath can be administered to him/her, it should be so done. Such a witness, if able to read
and write, it is desirable to record his statement giving him questions in writing and seeking
answers in writing. In case the witness is not able to read and write, his statement can be recorded
in sign language with the aid of interpreter, if found necessary. In case the interpreter is provided,
he should be a person of the same surrounding but should not have any interest in the case and he
should be administered oath.

(28) In the aforesaid case, the statement was recorded with the help of father and an interpreter
and the Court had found that he was interested witness and, therefore, assisted during trial and
investigation, and acquitted the accused giving benefit of doubt. In the present case, the statement
of the victim has been recorded with the help of father but in the presence of two witnesses under
Section 161 Cr.P.C. and the videography of same was also done, which has been proved by
videographer, who stated that she had answered slowly and no cross-examination was done from
him. The victim has been examined before the learned Trial Court and before the learned Trial
Court also, she has supported the prosecution case. Though a plea of enmity with the father has
960 INDIAN LAW REPORTS ALLAHABAD SERIES
been taken but the same has not been proved, therefore, merely because the father is father of the
victim, it cannot be said that he was an interested witness and the innocent persons would be roped
in the case. It has also been noticed that the father had given the application naming the appellant
and co-accused only after the victim told him after relieved from the hospital, i.e. after about a
month, and came back to home and told him about the accused persons. If his intention would have
been to implicate the appellant and co-accused only on account of some enmity, he could have
done it immediately after the incident. Even otherwise, the enmity pleaded by the appellant could
not be proved and this Court failed to comprehend as to how a father would implicate innocent
persons at the cost of reputation of daughter and social stigma, which may have been caused to her.

(29) The Hon'ble Supreme Court, in the case of Baban Shankar Daphal and Others Vs. The
State of Maharashtra; MANU/SC/0099/2025, has held that credibility of witnesses, particularly
those who are close relatives of the victim, is often scrutinized. However, being a relative does not
automatically render a witness "interested" or biased. The term "interested" refers to witnesses who
have a personal stake in the outcome, such as a desire for revenge or to falsely implicate the
accused due to enmity or personal gain. A "related" witness, on the other hand, is someone who
may be naturally present at the scene of the crime, and their testimony should not be dismissed
simply because of their relationship to the victim. Courts must assess the reliability, consistency,
and coherence of their statements rather than labelling them as untrustworthy. The relevant
paragraph Nos.28 and 29 are extracted here-in-below:-

"28. In criminal cases, the credibility of witnesses, particularly those who are close
relatives of the victim, is often scrutinized. However, being a relative does not automatically render
a witness "interested" or biased. The term "interested" refers to witnesses who have a personal
stake in the outcome, such as a desire for revenge or to falsely implicate the accused due to enmity
or personal gain. A "related" witness, on the other hand, is someone who may be naturally present
at the scene of the crime, and their testimony should not be dismissed simply because of their
relationship to the victim. Courts must assess the reliability, consistency, and coherence of their
statements rather than labelling them as untrustworthy.

29. The distinction between "interested" and "related" witnesses has been clarified in
Dalip Singh v. State of Punjab, where this Court emphasized that a close relative is usually the last
person to falsely implicate an innocent person. Therefore, in evaluating the evidence of a related
witness, the court should focus on the consistency and credibility of their testimony. This approach
ensures that the evidence is not discarded merely due to familial ties, but is instead assessed based
on its inherent reliability and consistency with other evidence in the case. This position has been
reiterated by this Court in:

i. Md. Rojali Ali and Ors v. The State of Assam Ministry of Home Affairs through
secretary;

ii. Ganapathi v. State of T.N.;

iii. Jayabalan v. Union Territory of Pondicherry."
2 All. Etwari Vs. State of U.P.
961

(30) The Hon'ble Supreme Court, in the case of Ravasaheb Vs. State of Karnataka;
MANU/SC/0248/2023, has narrated some of the principles essential for the consideration in regard
to testimony of close relatives. The Hon'ble Supreme Court observed that the witness being a close
relative is not a ground enough to reject his testimony and mechanical rejection of an even
"partisan" or "interested" witness may lead to failure of justice. The relevant paragraph No.17.4 is
extrated here-in-below:-