# Ganga Prasad & Anr v. State of U.P

- **Citation:** (2023) 7 ILRA 24
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-14
- **Case number:** Criminal Appeal No. 1041 of 2001
- **Bench:** Manjive Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ganga-prasad-anr-v-state-of-u-p-50413
- **Pages:** 5

## Headnote

Criminal Law - Indian Penal Code,1860-
Section 363 - Appeal against conviction -
Rigorous imprisonment - Complainant St.d
in F.I.R. that his son was married to
daughter of accused but due to some
dispute, his daughter-in-law was residing
at residence of accused and not coming to
reside with his son - One month before
date of incident, appelants extended
threat that they will kidnap complainant's
daughter
-
On
28.05.1994
when
complainant's daughter, was going to
bring articles of breakfast, appellants
enticed his daughter and took her away
with them - Victim's age was 11 years,
complainant searched but could not trace
out - After investigation, charge-sheet
submitted - On basis of evidence, trial
court convicted them. (Para 2, 4, 6)

Held, F.I.R. lodged after 19 days of
incident - P.W. 1, victim's mother in her
testimony deposed she was recovered
after 15-20 days from date of incident
whereas P.W. 2, victim St.d she remained
in house of accused only for 9-10 days,
thereafter appellants took her to Lucknow
and came back to her house - P.W. 4,
victim's sister deposed when she was not
traceable then her father lodged F.I.R. and
after 25 days she came back parent's
house - Contradictions in testimonies
when seen along with entire facts and
circumstances of case, becomes vital -
Probability
of
false
implication
of
appellants as there was dispute between
family of complainant and accused -
Impugned order set aside. (Para 17, 18,
21)

Appeal allowed. (E-13)

## Text

24 INDIAN LAW REPORTS ALLAHABAD SERIES

13. Accordingly, the present appeal is
dismissed.

14. No order as to costs.

15. Copy of this judgment be sent to
the court below for its compliance.

16. Lower court record, if any, be
returned back to the court concerned.
----------
(2023) 7 ILRA 24
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 14.07.2023

BEFORE

THE HON'BLE MANJIVE SHUKLA, J.

Criminal Appeal No. 1041 of 2001

Ganga Prasad & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
M.C. Yadav, Anil Kumar Tiwari

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code,1860-
Section 363 - Appeal against conviction -
Rigorous imprisonment - Complainant St.d
in F.I.R. that his son was married to
daughter of accused but due to some
dispute, his daughter-in-law was residing
at residence of accused and not coming to
reside with his son - One month before
date of incident, appelants extended
threat that they will kidnap complainant's
daughter
-
On
28.05.1994
when
complainant's daughter, was going to
bring articles of breakfast, appellants
enticed his daughter and took her away
with them - Victim's age was 11 years,
complainant searched but could not trace
out - After investigation, charge-sheet
submitted - On basis of evidence, trial
court convicted them. (Para 2, 4, 6)

Held, F.I.R. lodged after 19 days of
incident - P.W. 1, victim's mother in her
testimony deposed she was recovered
after 15-20 days from date of incident
whereas P.W. 2, victim St.d she remained
in house of accused only for 9-10 days,
thereafter appellants took her to Lucknow
and came back to her house - P.W. 4,
victim's sister deposed when she was not
traceable then her father lodged F.I.R. and
after 25 days she came back parent's
house - Contradictions in testimonies
when seen along with entire facts and
circumstances of case, becomes vital -
Probability
of
false
implication
of
appellants as there was dispute between
family of complainant and accused -
Impugned order set aside. (Para 17, 18,
21)

Appeal allowed. (E-13)

(Delivered by Hon'ble Manjive Shukla, J.)

1. Heard learned counsel appearing
for Appellant No. 2, learned Additional
Government Advocate appearing for the
State and perused the record.

2. I find from the record that
Appellant No.1 has already died and the
present appeal in respect of Appellant No.1
has already been dismissed as abated vide
order dated 26.02.2020 passed by this
Court.

3. Appellant No.2 through present
appeal has challenged judgment and order
dated 06.11.2001 passed by 9th Additional
Sessions Judge, Lucknow in Session Trial
No. 744 of 1996 (State Vs. Ganga Prasad
& Anr.) whereby Appellant No. 2 has been
convicted for offence punishable under
Section 363 IPC and has been sentenced for
rigorous imprisonment of five years with
7 All. Ganga Prasad & Anr. Vs. State of U.P.
25
fine of Rs. 5,000/- with rider that in default
of payment of fine, he will have to undergo
simple imprisonment of one year.

4. Prosecution story of the case in
brief is that the complainant, Ram Bharose
lodged an F.I.R. on 16.06.1994 at about
15:20 hours in Police Station, Krishna
Nagar, Lucknow which was registered as
Case Crime No. 384 of 1994 under
Sections 363 and 366 IPC. Complainant in
the F.I.R. stated that he is the resident of 55
Gha/Chha/138(kha), Naya Sardari Kheda,
Police Station, Krishna Nagar, Lucknow
and father-in-law of his son, Ganga Prasad
and brother of Ganga Prasad, Sohan Lal are
residents of village, Paigambar Nagar,
Police Station, Mawai, District, Barabanki.
Complainant has further stated in F.I.R. that
his son, Ranjit Kumar was married to the
daughter of Ganga Prasad but due to some
dispute, his daughter-in-law is residing at the
residence of Ganga Prasad and is not coming
to reside with his son and therefore, Ganga
Prasad is annoyed with the complainant.
Complainant has also stated that almost one
month before the date of incident, Ganga
Prasad and Sohan Lal came to his residence
and extended threat that they will kidnap his
daughter, Brahm Kumari, therefore, entire
family got scared. It has been further stated in
the F.I.R. that on 28.05.1994 at about 7:00 a.m.
when daughter of the complainant, Brahm
Kumari was going to bring some articles of
breakfast in vicinity, aforesaid Ganga Prasad
and Sohan Lal came and enticed his daughter
and took her away with them. Age of the
victim is 11 years and further complainant
stated that he searched out his daughter and
even enquired from the accused but he could
not trace out his daughter, therefore, he is
giving information to the police.

5. It is to be noted here that the
aforesaid
girl,
Brahm
Kumari
after
sometime came back to residence of her
father.

6. Police after investigation submitted
charge-sheet against Ganga Prasad and
Sohan Lal under Sections 363 & 366 I.P.C.
Since offences were triable by Sessions
Court, as such, case was sent to Sessions
Court and the trial started.

7. During trial, testimonies of PW-1,
Smt. Prema Devi, PW-2, Brahm Kumari,
PW-3, Sri Ram Bharose, PW-4, Santosh
Kumari, PW-5, Constable Khushi Ram,
PW-6. Sri Ram Ji Mishra (Investigating
Officer) and PW-7, Sri R.S. Tomar
(Investigating Officer) were recorded.

8. Thereafter two Defense Witnesses
were produced from the side of appellant
i.e. DW-1, Smt. Neelam, DW-2, Sri Sundar
Singh.

9. PW-1, Smt. Prema Devi who is
mother of the victim girl, in her testimony
has deposed that when her daughter Brahm
Kumari went to bring some articles of
breakfast in the vicinity, Ganga Prasad &
Sohan Lal enticed her daughter and took
her to their house in District, Barabanki.
She further stated that at the time of
incident, age of Brahm Kumari was 10-11
years. Smt. Prema Devi in her testimony
stated that the girl, Brahm Kumari was
recovered after 15-20 days from the date of
the incident.

10. P.W. 2, victim, Brahm Kumari in
her testimony has deposed that Ganga
Prasad and Sohan Lal are fathers-in-law of
his brother. She further deposed that on the
date of incident, Ganga Prasad and Sohan
Lal enticed her by saying that they will
give something to her and took her away to
their home. Brahm Kumari further stated
26 INDIAN LAW REPORTS ALLAHABAD SERIES
that when she refused to go with the
aforesaid Ganga Prasad and Sohan Lal then
they said that we will give you something
and then you may go to your house. Brahm
Kumari further categorically stated that she
reamained in the house of Ganga Prasad
and Sohan Lal at Barabanki for about 9-10
days and, thereafter they brought her back
and left at Alambagh Chauraha at Lucknow
and said that now you go to your home and,
thereafter she came to her home. P.W. 2 in
her testimony has also said that both,
Ganga Prasad and Sohan Lal have not done
any indecency with her.

11. P.W. 4, Santosh Kumari who is
sister of Brahm Kumari in her statement
has said that Brahm Kumari came back to
her house after 25 days.

12. Learned trial court on the basis of
the aforesaid testimonies of prosecution
witnesses and other evidence available on
record, came to the conclusion that Ganga
Prasad and Sohan Lal have committed
offence punishable under Section 363 I.P.C.
and thereby vide judgement and order
dated 6.11.2001 has sentenced them for
rigorous imprisonment of five years with a
fine of Rs. 5,000/- each.

13. Learned counsel appearing for the
Appellant No. 2 has vehemently argued
that the F.I.R. was lodged by the
complainant in the Police Station on
16.06.1994 at 15:20 hours and all the
prosecution witnesses have said that the
incident took place on 28.05.1994 meaning
thereby that the F.I.R. was lodged 19 days
after the date of incident whereas P.W. 2,
Brahm Kumari (victim) in her statement
has categorically said that she remained in
the house of Ganga Prasad and Sohan Lal
only for 9-10 days and, thereafter she came
back to house of her father, therefore, it is
patently manifest that the entire prosecution
story is false, fabricated and is an afterthought. Learned counsel for the appellant
has further argued that since complainant
and accused are relatives and girl on her
own free will went along with Ganga
Prasad and Sohan Lal to their house in
District Barabanki and when she came back
after 9-10 days then the complainant has
lodged the F.I.R. on 16.06.1994.

14. Learned counsel appearing for the
appellant has also vehemently argued that
there is serious contradiction in the
testimony of the prosecution witnesses in
respect of the fact that after how many
days, girl came back to the residence of her
parents. P.W. 1, mother in her statement has
stated that the girl was recovered after 1520 days whereas the girl, Brahm Kumari in
her statement has stated that she herself
came back to her house after 9-10 days.
Since there is delay of 19 days in lodging
of
F.I.R.,
therefore,
the
aforesaid
contradiction between the testimonies of
prosecution
witnesses
is
of
prime
importance
and
makes
the
entire
prosecution
story
suspicious.
Learned
counsel for the appellant has also invited
attention of this Court that there is one
more contradiction in the version of mother
and the victim i.e. mother has said that the
victim has been recovered whereas the girl
has said that she herself came back to the
house of her parents.

15. Learned counsel for the appellant
has also put emphasis on the fact that there
is motive for the complainant to falsely
implicate Ram Prasad and Sohan Lal in the
present case as the prosecution witnesses in
their
testimonies
have
categorically
admitted that there was some dispute in the
matrimonial relationship of the son of the
complainant and daughter of Ram Prasad.
7 All. Ganga Prasad & Anr. Vs. State of U.P.
27
Learned counsel for the appellant has
concluded his arguments by saying that in
totality of the circumstances, it is patently
manifest that the Appellant No. 2 has been
falsely implicated in the present case and
further prosecution has not been able to
prove its case beyond reasonable doubt
and, therefore, judgement and order dated
6.11.2001 passed by learned trial court in
Sessions Trial No. 744 of 1996 is liable to
be set-aside.

16. On the other hand, learned
Additional
Government Advocate
has
argued that there are no contradictions in
the testimonies of the prosecution witnesses
and prosecution has proved its case beyond
reasonable doubt and therefore, judgement
and order dated 6.11.2001 passed by the
learned trial court is liable to be upheld by
this Court.

17. I have considered the rival
submissions advanced by learned counsels
appearing for the parties. I find that the
complainant i.e. father of the victim lodged
F.I.R. in Police Station Krishna Nagar on
16.06.1994 at about 15:20 hours and the
date and time of incident is 28.05.1994 at
7:00 a.m., therefore, F.I.R. has been lodged
after clear 19 days of the incident. I find
that P.W. 1, Smt. Prema Devi, who is
mother of the victim in her testimony has
deposed that the girl was recovered after
about 15-20 days from the date of incident
whereas P.W. 2, Brahm Kumari (victim) in
her testimony has stated that she remained
in the house of Ganga Prasad and Sohan
Lal only for 9-10 days and, thereafter they
took her to Lucknow and she came back to
her house.

18. P.W. 2, Brahm Kumari in her
testimony has also deposed that when her
father lodged F.I.R. with the police only
then aforesaid Ganga Prasad and Sohan Lal
have brought her to Lucknow and she could
reach the house of her parents. I also find
that the P.W. 4, sister of the vicitm in her
testimony has deposed that when Brahm
Kumari was not traceable then her father
lodged F.I.R. with the police and then after
about 25 days from the date of incident,
Brahm Kumari came back to the house of
her parents.

19. It appears from the testimonies of
the prosecution witnesses that the victim,
Brahm Kumari stayed in the house of
Ganga Prasad and Sohan Lal for 9-10 days
and, thereafter she came back to house of
her parents and only thereafter complainant
lodged the F.I.R. as there is gap of 19 days
in the date of incident and the date of
lodging of F.I.R. It also appears that there
are serious contradictions in the testimonies
of prosecution witnesses regarding the
prosecution story as mother has said that
the girl was recovered after 15-20 days,
sister (P.W. 4) Santosh Kumari has said that
victim came back to her house after 25
days whereas the victim herself has said
that she came back to her house after 9-10
days.

20. The aforesaid contradictions in the
testimonies become very vital when there is
delay of 19 days in lodging the F.I.R. and
further all the prosecuction witnesses have
said that the girl has come to parents' house
only after lodging of F.I.R.

21. I find that the mother of the victim
i.e. P.W. 1 has deposed that the girl was
recovered whereas all other prosecution
witnesses have said that the girl herself
came back to her house. This contradiction
when seen along with entire facts and
circumstances of the case, becomes vital. I
also find that there is probability of false
28 INDIAN LAW REPORTS ALLAHABAD SERIES
implication of Ganga Prasad and Sohan Lal
in the present case as admittedly there was
some dispute in between complainant
family and the family of Ganga Prasad and
Sohan Lal. Learned trial court has simply
ignored the aforesaid serious contradictions
in the testimonies of the prosecution
witnesses and probability of the false
implication of Ganga Prasad and Sohan Lal
in the present case and has convicted and
sentenced Ganga Prasad and Sohan Lal.

22. I am of the view that the
prosecution story is under the cloud of
suspicion and prosecution has not been able
to prove its case against Ganga Prasad and
Sohan Lal beyond reasonable doubt,
therefore, Appellant No. 2 is liable to get
benefit of doubt.

23. In view of the aforesaid reasons,
this Criminal Appeal is allowed.

24. Judgement and order dated
6.11.2001
passed
by
9th
Additional
Sessions Judge, Lucknow in Session Trial
No. 744 of 1996 thereby convicting and
sentencing Sohan Lal under Section 363
I.P.C., is set-aside.

25. Appellant No. 2 is already on bail.
Sureties of Appellant No. 2 are, hereby,
discharged.

26. Let the copy of this judgement
and lower court record be sent back to the
court concerned for necessary information
and compliance.
----------
(2023) 7 ILRA 28
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.07.2023

BEFORE
THE HON'BLE MANJIVE SHUKLA, J.

Criminal Appeal No. 1119 of 2001

Devanand Pandey ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Avinash Srivastava

Counsel for the Respondent:
Govt. Advocate

Criminal Law - Indian Penal Code,1860 -
Section 376 - Appeal against conviction -
Rigorous imprisonment with fine - Code of
Criminal Procedure, 1973 - Sections 164,
200 & 313 - Complainant (brother of
victim) St.d in FIR that appellant and coaccused enticed his sister and took her
away - Victim's age was 14 years and
minor - She had taken away cash and
jewellery with her - During investigation,
in presence of witnesses, police found
victim was going on road, jewellery was in
her bag - After completing investigation
police submitted charge sheet - Trail court
framed charges and convicted him. (Para
3, 4, 6)

Held, initial version of victim that she was
put to threat and enticed by appellant to
run
away
has
been
found
to
be
unbelievable
by
trial
court
as
circumstances narrated make it absolutely
improbable that if a girl was being taken
away by extending threat by only one man
and she was passing through roads having
heavy traffic and persons, then she will
not make any hue and cry and will not
make
complaint
to
any
person
and
accordingly, trial court acquitted appellant
and co-accused for offence punishable u/s
366 IPC. (Para 26)

Testimony of PW-1 and PW-2 regarding
age of victim on date of incident was false,
in medical examination she was found to
be 18 years and as per version of her
brother given in cross-examination she