# Gurpeet @ Sodi (In Jail) v. State of U.P

- **Citation:** (2020) 9 ILRA 861
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-09-23
- **Case number:** Criminal Appeal No.6966 of 2010
- **Bench:** Ramesh Sinha, Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gurpeet-sodi-in-jail-v-state-of-u-p-46085
- **Pages:** 12

## Headnote

Criminal Law-Appeal Against Conviction
U/S 376,506 IPC

Delay in lodging F.I.R.- -Neither fatal nor
illegal.
But
if
prosecution
fails
to
give
satisfactory explanation, the delay then may
affect the credibility of prosecution version.

Credibility of Sterling witnesses (victim)-
Conviction in rape case could be based on victim
statement without corroboratory witnesses, in
case victim is a sterling witness. (Para 15)
Minor Contradiction and non-explanation of vital
issues witness has failed to pass the test of
Sterling Witness. (Para 17)

In present case, prosecutrix is not a sterling
witness as well as other witnesses are not able
to provide any supporting evidence. (Para 18)

The material contradiction and variation in the
version of victim. Prosecution has failed to fix
the place of occurrence. Prosecution has failed
to prove the case beyond reasonable doubt.

Appeal allowed. (E-2)

List of Cases cited: -

## Text

9 All. Gurpreet @ Sodi Vs. State of U.P.
861
attending circumstances are relevant facts
which would enter into area of consideration.
Further, undue sympathy in sentencing would
do more harm to justice dispensations and
would undermine the public confidence in the
efficacy of law. It is the duty of every court to
award proper sentence having regard to nature
of offence and manner of its commission. The
supreme court further said that courts must not
only keep in view the right of victim of crime
but also society at large. While considering
imposition of appropriate punishment, the
impact of crime on the society as a whole and
rule of law needs to be balanced.

14. The judicial trend in the country
has been towards striking a balance
between reform and punishment. The
protection of society and stamping out
criminal proclivity must be the object of
law which can be achieved by imposing
appropriate sentence on criminals and
wrongdoers. Law, as a tool to maintain
order and peace, should effectively meet
challenges confronting the society, as
society could not long endure and develop
under
serious
threats
of
crime
and
disharmony. It is therefore, necessary to
avoid undue leniency in imposition of
sentence.
Thus,
the
criminal
justice
jurisprudence adopted in the country is not
retributive but reformative and corrective.
At the same time, undue harshness should
also be avoided keeping in view the
reformative approach underlying in our
criminal justice system.

15. In view of the above, the accusedappellant who has been convicted and
sentenced
for
five
years
rigorous
imprisonment, considering the long period
of detention in jail, if the term of
imprisonment is reduced by one year, the
ends of justice would be adequately served.
The learned trial court has also sentenced
the present accused-appellant for Rs.
20,000/- as fine, which appears to be
adequate, therefore, there is no need to
disturb the sentence in lieu of fine.

16. Hence, the conviction and
sentence awarded by the learned trial court
to the present accused-appellant under
Section 2/3 U.P. Gangster and Anti Social
Activities (Prevention), Act, 1986 is
reduced from from five years rigorous
imprisonment to four years years rigorous
imprisonment and in lieu of fine which is
Rs. 20,000/-, there is no need to disturb the
same.

17. With the aforesaid observation,
the appeal is finally disposed of.

18. Office is directed to transmit the
certified copy of this order to the court
concerned for information and necessary
compliance.
----------
(2020)09ILR A861
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.09.2020

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Criminal Appeal No.6966 of 2010
Connected with
Criminal Appeal No.7153 of 2010

Gurpeet @ Sodi ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri
Devendra
Saini,
Sri
Dharmendra
Singhal, Sri Gaurav Kakkar, Sri Govind
Saran Hajela, Sri Nafees Ahmad, Sri Noor
862 INDIAN LAW REPORTS ALLAHABAD SERIES
Mohammad, Sri Rajeev Pandey, Sri Vinay
Kumar Sharma, Suman Pandey

Counsel for the Opposite Party:
A.G.A., Sri P.S. Pundir

Criminal Law-Appeal Against Conviction
U/S 376,506 IPC

Delay in lodging F.I.R.- -Neither fatal nor
illegal.
But
if
prosecution
fails
to
give
satisfactory explanation, the delay then may
affect the credibility of prosecution version.

Credibility of Sterling witnesses (victim)-
Conviction in rape case could be based on victim
statement without corroboratory witnesses, in
case victim is a sterling witness. (Para 15)
Minor Contradiction and non-explanation of vital
issues witness has failed to pass the test of
Sterling Witness. (Para 17)

In present case, prosecutrix is not a sterling
witness as well as other witnesses are not able
to provide any supporting evidence. (Para 18)

The material contradiction and variation in the
version of victim. Prosecution has failed to fix
the place of occurrence. Prosecution has failed
to prove the case beyond reasonable doubt.

Appeal allowed. (E-2)

List of Cases cited: -

1. Santosh Prasad @ Santosh Kumar Vs The St.
of Bihar, (2020) 3 SCC 443

2. Himachal Pradesh Vs Gian Chand, (2001) 6
SCC 71

3. Parminder Kaur @ P.P. Kaur @ Soni Vs St. of
Punj. 2020 SCC Online SC 605

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. Appellant-Gurpreet alias Sodi (in
Criminal Appeal No. 6966 of 2010) and
appellant-Balbindra
alias
Bagga
(in
Criminal Appeal No. 7153 of 2010) have
preferred present appeals under Section
374(2)
of
Criminal
Procedure
Code
(hereinafter referred to as "Cr.P.C.")
challenging the judgment and order dated
19.10.2010 passed by Additional Session
Judge, Room No. 7, Saharanpur in Session
Trial No. 87 of 2010 (State vs. Gurpreet
alias Sodi and others), whereby appellants
were convicted under Section 376(2)g IPC
and sentenced for rigorous imprisonment
for life with fine of Rs. 20,000/- each and
in case of default, one year rigorous
imprisonment.
Appellant-Gurpreet
alias
Sodi was also convicted under Section
506(2) IPC and sentenced for three years
rigorous imprisonment with fine of Rs.
3000/- and in case of default, six months
rigorous imprisonment.

2. Prosecution Story

2 01 Ram Kumar (PW-1), father
of victim (PW-2), (name of the victim is
withheld in compliance with the ratio of
Bhupinder Sharma vs. State of Himachal
Pradesh (2003) 8 SCC 551), lodged a
written report (Exhibit Ka 1) at Police
Station Kotwali Nakud, District Saharanpur
on 11.06.2009 at 18.20 hours, stating that
her daughter (victim) went to attend
nature's call on 07.06.2009 at about 8.00
P.M. but she did not came back till late
night. Despite best efforts of family
members she remained untraceable.

2.02 Next day (08.06.2009) in the
morning at about 9.00 A.M. victim
telephoned from a Phone No. 01331322426 to Sanjay Singh (PW-3), resident of
same
village
informing
about
her
wherebout. Thereafter Sanjay Singh (PW3) informed Rajveer (PW-4), resident of
same village, who went to Village
Husainpur and accompanied the victim
back to her home.
9 All. Gurpreet @ Sodi Vs. State of U.P.
863

2.03 Victim, after returning back
to her home, narrated the occurrence to her
father (PW-1) that, when she was going to
attend nature's call, accused Gurpreet alias
Sodi son of Gurmeet Singh alongwith other
two boys having their face covered took her
forcefully to a far away sugarcane field and
one by one committed rape, after that they
ran away leaving her in unconscious state.

2.04 After regaining consciousness,
with great difficulty, she reached to nearby
Village Husainpur and tried to contact her
father but failed, thereafter she called Sanjay
Singh (PW-3) and informed about her
whereabout, who informed Rajveer (PW-4)
who went to Village Husainpur on motorcycle
and took her back to her house.

2.05 At about 4.30 P.M. on
08.06.2009, appellant-Gurpreet alias Sodi
make a threatened call to PW-1 of dire
consequences in case the incident was
reported to police but any how after muster
courage he reported the incident to police
on 11.06.2009 at about 06.20 P.M.

2.06
Consequently,
First
Information
Report (FIR) was lodged against appellantGurpreet alias Sodi and two unknown
persons under Sections 376, 506 IPC at
Police Station on 11.06.2009 at 06.20 P.M.
Victim
was
medically
examined.
In
Pathology report "smear found to be
negative for spermatozoa". Doctor opined
that, "no definite opinion about rape can be
given". Hymen was found old torn. On the
basis of physical and radiological finding,
her age was reported to be about 18 years.
On the person of victim following injuries
of simple nature were found:

(i)
Multiple
hard
scabbed
abrasion measuring 8 cm x 2 cm on left
side front of neck. Partially cracked.

(ii) A hard scabbed abrasion of 4
cm x 2 cm on back of right upper and just
above elbow.

(iii) A hard scabbed abrasion of 3
cm x 2 cm on left side of face. Partially
cracked.

(iv)
Partially
hard
scabbed
abrasion of 4 cm x 3 cm on front of left
upper arm, 7 cm from left rib. Partially
cracked.

2.07 Statement of the victim
under Section 164 Cr.P.C. was recorded on
30.06.2009 by Judicial Magistrate/ Civil
Judge (Junior Division), Saharanpur, where
she supported the version of FIR and also
named appellant-Balbindra alias Bagga to
be one of the two unknown assailants as
she recognised him when he visited
appellant-Gurpreet alias Sodi's residence,
which was opposite to her house, after 7-8
days of the occurrence. She had seen his
face during the occurrence, when his mask
was removed.

Charge

3. After completion of investigation
charge sheet was submitted and charges
under Sections 376(2)g and 506(2) IPC,
were framed against both appellants on
09.04.2010, to which they denied and
claimed trial.

Prosecution Witnesses

4.01 In support of its case
prosecution
examined,
in
all,
eight
witnesses, namely, Ram Kumar, father of
victim (PW-1); victim (PW-2); Sanjay
(PW-3); Rajveer (PW-4); Constable Vipin
Kumar (PW-5); Dr. Abha, Women Medical
Officer (PW-6); Police Inspector, Syed
864 INDIAN LAW REPORTS ALLAHABAD SERIES
Laik Hasan (PW-7); and, Dr. Keshav
Swami, E.M.O. (PW-8).

4.02
PW-1,
Ram
Kumar,
supported the prosecution case, as narrated
in written complaint and further stated that
victim recognized appellant- Balbindra
alias Bagga after 7-8 days when he visited
the place of appellant-Gurpreet alias Sodi
who lives opposite to their house. In crossexamination he stated that distance of
Village Husainpur from his house was
about 8-1/2 km and in between Villages
Kazibans, Samaspur, Aplana and Kutubpur
fall. He further stated that battery of his
Phone was discharged on the day of
occurrence. Victim was not taken to any
Doctor because she had not suffered any
injury. He denied of any pressure put on the
accused-Gurpreet alias Sodi to sell his land.
This witness has admitted that even before
occurrence accused- Balbindra alias Bagga
was also acquainted to him as he usually
visited the house of accused-Gurpreet alias
Sodi.

4.03 Victim (PW-2) supported
prosecution case, narrated the incident and
manner in which she recognised appellants.
She admitted that she was acquainted with
appellant-Gurpreet alias Sodi for 8-9
months prior to occurrence but she never
talked to him. She denied acquaintance
with accused Balbindra alias Bagga. She
mentioned that place of occurrence was at a
distance of 6-7 field from her house. She
regained consciousness at about 8-9 A.M.
on the next day of occurrence. After
crossing field she found PCO at some
distance. Her statement was recorded on
11.06.2009, after four days of occurrence,
when FIR was lodged and on the same day
she
was
medically
examined.
After
occurrence all the accused took her to
nearby
field
where
she
become
unconscious. She did not remember,
whether she washed the clothes, which she
was wearing at the time of occurrence or
she threw it away, then said she burnt the
clothes. Subsequently she got married in
December, 2009 and staying at her
matrimonial house. She did not remember
the phone number of her father due to
recent change of sim card but she knew the
number of Sanjay (PW-3), therefore, she
called him intimating her whereabout. She
neither remembered the time taken by her
to reach Village Husainpur nor number of
villages crossed till she reach Village
Husainpur. She was raped in a maize field
and regained consciousness at sugarcane
field near Village Husainpur. She denied
any physical relationship with Sanjay (PW3) or with any one else before her marriage.
She even shouted for help during the
occurrence, however, none came forward
for help. She also stated that engine was
working at that time. She was confronted
with her statement recorded under Sections
161 as well as 164 Cr.P.C. on the issue,
whether faces of accused were covered or
not during occurrence and visit of accused,
Balbindra at the place of accused, Gurpreet
after 10-11 days of occurrence. She denied
false implication of accused, Gurpreet due
to land deal and accused, Balbindra as he
was doing pairavi of accused, Gurpreet.

4.04 Sanjay was examined as
PW-3, who supported prosecution case that
on 08.06.2009 at about 8.30 /9.00 am, he
received a call on his mobile number from
the victim, who in stressed voice asked him
to pick her from PCO at Village Husainpur.
He asked Rajveer (PW-4) to accompany
the victim back to her house. He came to
know about the occurrence only from Ram
Kumar, the father of the victim. In crossexamination
he
mentioned
that
his
statement was recorded by police after 20
9 All. Gurpreet @ Sodi Vs. State of U.P.
865
days of occurrence. He admitted his
friendship with Ram Kumar (PW-1). He
denied that PW-1 exerted pressure on
accused-Gurpreet alias Sodi to sell his land.
He also denied any illicit relationship with
the victim. He did not remember the phone
number of PCO from where the victim
called him on the next day of occurrence.
After the occurrence it was a talking issue
amongst the villagers. He also denied false
implication of accused-Balbindra alias
Bagga as he was doing pairavi of coaccused, Gurpreet alias Sodi.

4.05 Rajveer (PW-4) stated in his
testimony that he met Sanjay (PW-3) at
about 9.00-9.15 A.M. on 08.06.2009 on
road, who told that he had received a phone
call from his cousin sister (victim) from a
PCO at Village Husainpur and asked him to
accompanied her back to her house. This
witness reached Husainpur by motorcycle,
where he met the victim, whose clothes
were torn and dirty and was in a distressed
state. They return back to her house. In
cross-examination
he
admitted
about
visiting terms with accused-Gurpreet alias
Sodi. His statement was recorded after 2025 days of the occurrence by police. He
was acquainted with accused- Balbindra
alias Bagga being schoolmates.

4.06 PW-5, Constable 316, Vipin
Kumar proved the written report and FIR.

4.07 PW-6, Dr. Abha, Women
Medical
Officer,
Women
Hospital,
Saharanpur, who examined the victim, has
proved medical examination report and
reiterated that on the basis of report no
definite opinion could be given regarding
rape. She further mentioned that hymen
was old torn, which means it was possible
that occurrence could happened seven days
before or might be earlier.

4.08
SI
Syed
Laik
Hasan,
Investigating Officer (PW-7) supported the
prosecution case. He visited place of
occurrence as told by the victim, prepared
site plan of place of occurrence but not the
place where victim regained consciousness.
He arrested accused-Gurpreet alias Sodi on
12.06.2009.
Accused-Balbindra
alias
Bagga was arrested on 24.08.2009 from
Court premises after he surrendered before
Court. In cross-examination he mentioned
that distance between sugarcane field of
Rajveer (PW-4) and maize field was about
4 kms. Place of occurrence was told to be
sugarcane field of Rajveer (PW-4) and not
the maize field. He could not get the
clothes of victim despite efforts. He did not
prepared map of PCO at Village Husainpur.
He stated that distance between Rajveer's
(PW-4) field and maize field was 450
meters. Sanjay and Rajveer were not found
in
the
village
on
11.06.2009
and
16.06.2009. Informant or victim had not
disclosed identity of any of unknown
accused before 30.06.2009 though they met
him on many occasion prior to it. This
witness has further stated that victim has
not told him about removal of face mask of
unknown persons during the occurrence.
He
further
states
that
victim
has
specifically stated that she could not saw
the faces of unknown accused persons, as
they were covered by mask.

4.09 Dr. Keshav Swamy (PW-8),
who examined injuries of the victim,
proved the injury report and stated that all
the injuries were of simple nature and could
be caused by friction to any rough surface.
He further stated that injuries could be
caused during struggle when rape was
committed.

Statements under Section 313
Cr.P.C.
866 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Both appellants recorded their
statements under Section 313 Cr.P.C.
wherein they denied prosecution case.
Accused-Gurpreet alias Sodi has mentioned
in his statement that he was falsely
implicated in the case as Complainant, Ram
Kumar (PW-1) was pressurizing him and
his father to sell their land, whereas
accused-Balbindra alias Bagga has stated
that he belonged to Sikh community, who
kept beard and wear headgear and victim
knew him very well even before alleged
occurrence.

Defence Witnesses

6. Appellants examined two defence
witnesses, namely, Mahendra Singh (DW-1)
and Om Singh (DW-2) in order to support their
case regarding false implication of accusedGurpreet alias Sodi as Ram Kumar (PW-1) was
pressurizing to sell his land and false
implication of accused-Balbindra alias Bagga as
he was doing pairavi for co-accused, Gurpreet
alias Sodi, respectively.

Impugned Judgment

7. The Trial Court after considering
the evidence and other material on record
convicted and sentenced the accusedappellants as mentioned above.

8. Heard Sri Dharmendra Singhal,
learned Senior Advocate assisted by Sri
Shivendra Raj Singhal, Advocate and Sri Noor
Mohammad, Advocate for appellant-Gurpreet
alias Sodi and Sri Kameshwar Singh, Advocate
for appellant-Balbindra alias Bagga, Sri P.S.
Pundir, learned counsel for Complainant, Sri
Amrit Raj Chaurasia, learned A.G.A. for State
and perused the record.

Submission
on
behalf
of
Appellants

9. Learned Senior counsel appearing
for appellants submitted that:-

(i) Delay of five days in lodging
FIR remained unexplained which indicates
false implication of the appellants.

(ii) Defence has successfully brought
on evidence that family of the victim was
pressurizing accused Gurpreet alias Sodi to
settle issue regarding sale of his land which was
the reason of his false implication and further
co-accused, Balbindra alias Bagga was falsely
implicated as he was doing pairavi of accusedGurpreet alias Sodi and Ram Kumar (PW-1)
has objected him for doing so and threatened to
implicated him in the case.

(iii)
There
are
major
contradictions in the statement of victim
recorded under Sections 161, 164 Cr.P.C.
and statement recorded during trial before
Court on the issue of identification of
accused-Balbindra alias Bagga as she was
not sure whether the faces of unknown
assailants were covered or not. Disclosing
name of appellant-Balbindra alias Bagga
after 19 days of lodging FIR in the
statement under Section 164 Cr.P.C. was
nothing but a case of false implication.
Place of occurrence is also changed as she
mentioned in chief examination it to be
sugarcane field whereas in cross it was
mentioned to be maize field.

(iv) Medical evidence on record
has ruled out possibility of rape, injuries
inflicted on victim were simple in nature
and likely to be caused by friction on a
rough surface, therefore, medical evidence
does not support the prosecution case.

(v) Victim has not able to explain
how she reached Village Husainpur which
was about 8-1/2 kms from the place of
9 All. Gurpreet @ Sodi Vs. State of U.P.
867
occurrence. Even she has not explained
why she did not call (by phone) from the
villages fall in between the place of
incident and Village Husainpur which were
more than 5 or 6 in number. She did not
even remember the phone number of her
father. In these circumstances victim could
not be termed as sterling witness being
untrustworthy and blemished.

(vi) The Trial Court has passed
the impugned judgment on the basis of
conjectures and surmises and erroneously
convicted appellants on the basis of sole
witness
of
victim
ignoring
major
contradictions
in
her
testimony
and
improbability of events as mentioned in the
testimony of other witness.

(vii) Relying on a judgment passed
by Apex Court in Santosh Prasad @ Santosh
Kumar vs. The State of Bihar, (2020) 3
SCC 443 it is contended that in a case where
evidence of prosecutrix does not inspire
confidence and appears to be untrustworthy
and blemished and is not of sterling quality, it
would not safe to convict accused only on
solitary evidence of prosecutrix.

Submission on behalf of State

10. Opposing submissions made on
behalf
of
appellants
learned
A.G.A.
appearing for State and counsel for
informant submitted that:-

(i) In the present case delay of four
days in lodging FIR is duly explained by
complainant PW-1 in the complaint itself that
he was under fear due to threatening call made
by accused-Gurmeet alias Sodi of dire
consequences in case of lodging FIR.

(ii)
Evidence
of
victim
is
trustworthy and she has explained the
manner of occurrence and when she
became conscious she found herself to be
near the Village Husainpur, therefore, in
the natural course she would have called
(by phone) from Village Husainpur only.
Contradictions, if any, are trivial in nature.

(iii) Injuries to the victim as well
as testimony of Dr. Keshav Swami (PW-8)
supports prosecution case that injuries to
victim might be caused due to struggle
during the occurrence.

(iv) Defence has not able to prove
their case and, therefore, Trial Court has
rightly convicted appellants on the basis of
trustworthy and reliable sole evidence of
the prosecutrix.

Analysis : (A) Delay in lodging
FIR

11.

As
per
prosecution
case
occurrence took place in the night of
07.06.2009 and victim reached at her house
at about 8.45 am on 08.06.2009 and
narrated occurrence to her father (PW-1).
However, they remained silent for about
three days and lodged FIR only on
11.06.2009 at about 18.20 hours. The only
explanation was some threat given by
accused-Gurmeet alias Sodi on telephone,
which remained unproved. It has come in
the evidence of PW-3, Sanjay that villagers
had knowledge about the incident soon
after the victim reached her house.
Therefore, there was no reason of fear for
informant from going to Police Station to
lodge FIR promptly.

12. It is well settled that mere delay in
lodging FIR may not prove fatal in all
cases, but in a given circumstance, even a
minor unexplained delay in lodging FIR
could be one of the factors which may
868 INDIAN LAW REPORTS ALLAHABAD SERIES
affect credibility of the prosecution version.
In State of Himachal Pradesh vs Gian
Chand, (2001) 6 SCC 71 Apex Court held:

"12. Delay in lodging
the FIR cannot be used as a ritualistic
formula for doubting the prosecution case
and discarding the same solely on the
ground of delay in lodging the first
information report. Delay has the effect of
putting the Court in its guard to search if
any explanation has been offered for the
delay, and if offered, whether it is
satisfactory or not. If the prosecution fails
to satisfactorily explain the delay and there
is
possibility
of
embellishment
in
prosecution version on account of such
delay, the delay would be fatal to the
prosecution. However, if the delay is
explained to the satisfaction of the court,
the delay cannot by itself be a ground for
disbelieving and discarding the entire
prosecution case."

(emphasis supplied)

13. In the present case, prosecution is
not able to satisfactorily explain the delay
of three days in lodging FIR though it
would not, on its own, discredit the
prosecution case in its entirety and we have
to now consider, whether the intervening
period was utilized for concocting a story
to falsely implicate appellants.

14. It has come in evidence from
prosecution side as well as from defence
side that both the accused were acquainted
to victim and their family. Therefore, the
prosecution story that victim was unable to
recognize any one of the unknown accused,
even after their faces masks were removed
during occurrence, cannot be believed.
Implication of accused-Balbindra alias
Bagga after 19 days of lodging FIR, further
discredit the prosecution story. Defence has
come up with their case that false
implication was due to land deal. Thus, in
the present case, FIR comes under grave
suspect and it is possible that time taken in
lodging FIR was utilized to falsely
implicate accused-Gurpreet alias Sodi.
Disclosing
name
of
other
accused-
Balbindra alias Bagga after 19 days of
lodging FIR though he was acquaintance to
family of the victim even before the
occurrence also comes under scanner.

(B) Whether victim is a sterling
witness?

15. It is well settled that conviction in
rape case could be based on sole testimony
of victim without corroboration if witness
is a sterling witness. In the judgment relied
by appellants in Santosh Prasad @
Santosh Kumar vs. The State of Bihar
(supra) Apex Court held that:

"5.4
Before
considering
the
evidence of the prosecutrix, the decisions of
this Court in the cases of Raju (supra) and
Rai Sandeep @ Deepu, relied upon by he
learned Advocate appearing on behalf of
the appellant-accused, are required to be
referred to and considered.

5.4.2 In the case of Rai Sandeep
alias Deepu (supra), this Court had an
occasion to consider who can be said to be
a "sterling witness". In paragraph 22, it is
observed and held as under:

"22 In our considered opinion,
the "sterling witness" should be of a very
high quality and calibre whose version
should, therefore, be unassailable. The
court considering the version of such
witness should be in a position to accept it
9 All. Gurpreet @ Sodi Vs. State of U.P.
869
for its face value without any hesitation. To
test the quality of such a witness, the status
of the witness would be immaterial and
what would be relevant is the truthfulness
of the statement made by such a witness.
What would be more relevant would be the
consistency of the statement right from the
starting point till the end, namely, at the
time when the witness makes the initial
statement and ultimately before the court. It
should be natural and consistent with the
case of the prosecution qua the accused.
There should not be any prevarication in
the version of such a witness. The witness
should be in a position to withstand the
cross-examination of any length and
howsoever strenuous it may be and under
no circumstance should give room for any
doubt as to the factum of the occurrence,
the persons involved, as well as the
sequence of it. Such a version should have
co-relation with each and every one of
other supporting material such as the
recoveries made, the weapons used, the
manner of offence committed, the scientific
evidence and the expert opinion. The said
version should consistently match with the
version of every other witness. It can even
be stated that it should be akin to the test
applied in the case of circumstantial
evidence where there should not be any
missing link in the chain of circumstances
to hold the accused guilty of the offence
alleged against him. Only if the version of
such a witness qualifies the above test as
well as all other such similar tests to be
applied, can it be held that such a witness
can be called as a "sterling witness" whose
version can be accepted by the court
without any corroboration and based on
which the guilty can be punished. To be
more precise, the version of the said
witness on the core spectrum of the crime
should remain intact while all other
attendant
materials,
namely,
oral,
documentary and material objects should
match the said version in material
particulars in order to enable the court
trying the offence to rely on the core
version to sieve the other supporting
materials for holding the offender guilty of
the charge alleged."

5.4.3 In the case of Krishna
Kumar Malik v. State of Haryana (2011) 7
SCC 130, it is observed and held by this
Court that no doubt, it is true that to hold
an accused guilty for commission of an
offence of rape, the solitary evidence of the
prosecutrix is sufficient provided the same
inspires confidence and appears to be
absolutely trustworthy, unblemished and
should be of sterling quality."

(emphasis supplied)

16. Keeping in mind the above
mentioned observations of Apex Court we
have scanned the testimony of victim (PW2) in order to ascertain, whether her
evidence inspire confidence and appears to
be absolutely trustworthy, unblemished and
is of sterling quality. Having gone through
the deposition of prosecutrix we find that
there are material contradictions on various
issues which are as follows:

(i) Victim in her chief has mentioned
the place of occurrence to be field of sugarcane.
However, in cross examination she changed the
place of occurrence to be maize field. Even
evidence of IO (PW-7) is not corroborated with
her statement regarding place of occurrence. IO
(PW-7) in his cross examination has mentioned
place of occurrence to be sugarcane field and
not maize field.

(ii) In her chief victim has stated
that she become unconscious and regained
870 INDIAN LAW REPORTS ALLAHABAD SERIES
consciousness only in the next morning in a
sugarcane field near to Village Husainpur
which was about 8-9 kms from the place of
occurrence. Though she mentioned that
after committing rape accused took her to
nearby
field,
where
she
became
unconscious, but it remained unexplained
how she reached to a field which was far
away. IO (PW-7) has not even inspected
the said place as well as site of PCO. Thus,
prosecution has failed to fix place of
occurrence and also place where victim
regained consciousness.

(iii) It has come in the evidence
that both accused were acquainted to victim
and her family, therefore, it is highly
improbable that she was not able to
recognize accused-Balbindra alias Bagga
when as per her statement his face mask
was removed during the occurrence. There
is no explanation afforded by the victim,
why she did not disclose name of accusedBalbindra alias Bagga to police before her
statement was recorded under Section 164
Cr.P.C. on 30.06.2009 disclosing his name,
though as per her version she came to know
about identity of appellant-Balbindra alias
Bagga after 7 days of occurrence according
to her statement recorded under Section
164 Cr.P.C. or after 10-11 days, as
mentioned in her testimony. Unexplained
delay of at least 10 days in disclosing name
of the accused, Balbindra alias Bagga to
police
by
the
prosecutrix
after
she
identified him during his visit to the house
of co-accused, Gurmeet alias Sodi casts
grave suspicion on the prosecution version.

(iv) Even otherwise the medical
evidence does not support the prosecution
case as it has come in medical evidence
that no definite opinion could be made
regarding rape and injuries might be caused
due to friction on a rough surface.

17. Considering above referred major
contradictions and non explanation of vital
issues, we are of the opinion that this
witness has failed to pass any of the test of
being sterling witness.

(C) Other supporting evidence:

18. Testimony of PW-1, PW-3 and
PW-4, who are not eye witnesses are not
helpful for prosecution case. PW-1, father
of the victim has stated what her daughter
(victim)
has
told
him.
His
prior
acquaintance with both the accused also
goes contrary to the testimony of the
victim. PW-3, Sanjay, who was the first
person with whom victim contacted after
the occurrence, recorded his statement
before the police after 20 days of
occurrence.
There
are
material
contradiction
on
his
availability
for
recording to statement in his testimony and
in the testimony of IO (PW-7). PW-3 has
stated that he visited police station after the
occurrence, whereas IO has stated PW-3
and PW-4 were not available in the village
for recording their statements. Therefore
prosecution would not get any help from
the statements of PW-1, PW-3 and PW-4.
In the present case prosecutrix is not a
sterling witness as well as other witnesses
are not able to provide any supporting
evidence.

Conclusion

19. The off shoot of above discussion
is that there are material contradictions and
variation in the version of the victim.
Prosecution has failed to fix the place of
occurrence as well as place where victim
regained consciousness. Prosecution has
failed to come up with any plausible
explanation how the victim reached at a
place which was 8-9 Kms. from place of
9 All. Gurpreet @ Sodi Vs. State of U.P.
871
occurrence. IO has failed to explain delay
of about 20 days in recording statements of
PW-3 and PW-4. Even statement of the
victim under Section 164 Cr.P.C. was
recorded after 19 days of lodging FIR.
There is unexplained delay in lodging FIR
and also in disclosing the name of
appellant-Balbindra alias Bagga. Medical
report does not support case of the
prosecution. Clothes of the victim were not
recovered. In absence of any supporting
evidence, the manner in which occurrence
is stated to have occurred is not believable.
There is likelihood of false implication of
accused appellants. The evidence of victim
cannot be taken as gospel truth at its face
value and in absence of any other
supporting ocular or medical evidence,
there is no scope to sustain the conviction
and sentence of the appellants.

20. It is also apt to mention a recent
judgment of Supreme Court in Parminder
Kaur @ P.P. Kaur @ Soni versus State
of Punjab: 2020 SCC Online SC 605
which has dealt the issue of "failure to
refute Section 313 Cr.P.C. statement" and
held as follows:-

"21. Under the Code of Criminal
Procedure, 1973 after the prosecution
closes its evidence and examines all its
witnesses,
the
accused
is
given
an
opportunity of explanation through Section
313(1)(b). Any alternate version of events
or interpretation proffered by the accused
must be carefully analysed and considered
by the Trial Court in compliance with the
mandate
of
Section
313(4).
Such
opportunity is a valuable right of the
accused to seek justice and defend oneself.
Failure of the Trial Court to fairly apply its
mind and consider the defence, could
endanger the conviction itself. Unlike the
prosecution, which needs to prove its case
beyond reasonable doubt, the accused
merely needs to create reasonable doubt or
prove their alternate version by mere
preponderance of probabilities. Thus, once
a plausible version has been put forth in
defence
at
the
Section
313
CrPC
examination stage, then it is for the
prosecution to negate such defense plea."
(emphasis supplied)

21. In the present case the accused
have
given
their
version
of
false
implication
and
prior
acquaintance,
supported by defence witnesses, which is a
plausible
version
but
neither
the
prosecution has negate such evidence nor
the Trial Court has analyzed it properly.
This is also a reason to allow these appeals.

22. In view of above discussion, we
are of the considered view that the
impugned judgment cannot be sustained
and is liable to be set aside.

23. Both the appeals are allowed.
Judgment and order dated 19.10.2010 passed by
Additional Session Judge, Room No. 7,
Saharanpur in Session Trial No. 87 of 2010, is
hereby set aside. The appellants are acquitted of
the charges under Sections 376(2)g and 506(2)
IPC. Appellant-Gurpreet alias Sodi (Criminal
Appeal No. 6966 of 2010) is in jail and shall be
released forthwith, if not detained in any other
case. Appellant-Balbindra alias Bagga (Criminal
Appeal No. 7153 of 2010) is on bail and need
not to surrender. His bail bonds are cancelled and
sureties are discharged.

24. Lower Court record alongwith a
copy of this judgment be sent back
immediately to Trial Court concerned for
compliance and further necessary action.

25. Keeping in view provisions of
Section 437-A Cr.P.C., accused-appellants
872 INDIAN LAW REPORTS ALLAHABAD SERIES
Gurpreet alias Sodi and Balbindra alias
Bagga are directed to forthwith furnish a
personal bond in terms of Form No. 45
prescribed in Cr.P.C. of the sum of Rupees
twenty-five thousand each and two reliable
sureties each in the like amount before
concerned Court, which shall be effective for a
period of six months, alongwith an undertaking
that in the event of filing of Special Leave
Petition against the instant judgment or for grant
of leave, the aforesaid appellants on receipt of
notice thereof shall appear before Hon'ble
Supreme Court.
----------
(2020)09ILR A872
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.09.2020

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE RAJEEV MISRA, J.

Criminal Appeal No. 7957 of 2006
and
Criminal Appeal No.7044 of 2006
and
Criminal Appeal No.7672 of 2006
and
Criminal Appeal No.106 of 2007

Vaibhav Jain ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Gaurav Kakkar,Sri Abhikesh Mishra, Sri
K.K.Mishra, Sri Sushil Jain, Sri Sushil
Shukla.

Counsel for the Opposite Party:
A.G.A., Sri K.M. Tripathi

Circumstantial Evidence - Parameters for
deciding a case
based on circumstantial
evidence - necessary to establish motive against
accused appellants to commit the crime, the
complete chain of circumstances in proximity to
time and situation leading to occurrence, if
proved, point at the guilt of the accused and no
other hypothesis.

Circumstantial Evidence proved point at guilty of
only one accused. The test of circumstantial
evidence to prove guilt not satisfied regarding
other three accused.

No direct evidence on record of motive on part
of co-accused to commit the crime. Finding of
trial court of motive of co-accused to commit
crime, set aside.

Section 106 of Evidence Act - Fact especially
within
knowledge
of
accused-
Accused/applicant failed to discharge the burden in
terms of Section 106 of Evidence Act- No
explanation of facts given by him which were in his
special knowledge - Adverse interference drawn -
offence punishable U/S 364 I.P.C. fully proved

No Evidence of meeting of mind to commit the
crime in question - Conviction U/S 120-B & 149
I.P.C. set aside.

No evidence to prove the guilt for offence
punishable under U/S 427 I.P.C.

List of Cases cited:-

1. Sharad Birdhichand Sarda, Vs St. of Maha.
AIR 1984 Supreme Court 1622.

2. Rohtash Kumar Vs St. of Hary., reported in
(2013)14 SCC 434.

3. H. P. Vs Raj Kumar reported in (2018) 2 SCC
69

4. Dhananjay Chatterjee Vs St. of W.B.(1994) 2SCC 220.

5. Padlaveera Reddy Vs St. of A.P. AIR 1990 SC
79,

6. C. Chinna Reddy Vs St. of A.P., (1996) 10
SCC 193,

7. St. of U.P. Vs Satish, (2005) 3 SCC 114,

8. Ramreddy Rajeshkhanna Reddy & ors. Vs St.
of
And.P.,
2006
(10)
SCC
172