# Imran v. State Of U.P

- **Citation:** (2016) 5 ILRA 853
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-31
- **Bench:** Mrs. Ranjana Pandya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/imran-v-state-of-u-p-43975
- **Pages:** 12

## Headnote

Criminal Appeal - Kidnapping and Gang Rape - Sections 363, 366, 376(2)(g) IPC - Delay in lodging FIR
- Unexplained and fatal delay - Contradictory and inconsistent testimony of prosecutrix - Reliability of
prosecutrix - Medical evidence not supporting prosecution case - Age of prosecutrix - School leaving
certificate not proved - Radiological age showing majority - Consent - Recovery of victim doubtful -
Interested and unreliable witnesses - Non-examination of material witnesses - Contradictions between
ocular and documentary evidence - Investigation suffering from serious lapses - Benefit of doubt -
Acquittal - Appeal allowed.

Challenge in these two appeals is the judgment and order dated 14.04.2014 passed by the learned Additional
Sessions Judge, Court No. 1, Muzaffarnagar in Session Trial No. 62 of 2006 (State Vs. Sanjay and another)
and Session Trial No. 1147 of 2007 (State Vs. Imran), both arising out of Case Crime No. 701 of 2005 under
Sections 363, 366, 376 (2) (g) IPC, Police Station Nai Mandi, District Muzaffarnagar whereby each of the
accused appellants were convicted.(Para 1)

As per the prosecution case the victim was recovered at the house of Kala situated at Niyajupura. The
informant Sarfaraj, PW-1, has stated that on 25.06.2008 Mohsin told him that the victim and the accused
were present at Niyajupura at the house of Kala, this witness went to the house of Kala at Niyajupura and
854 INDIAN LAW REPORTS ALLAHABAD SERIES
recovered the girl. He has stated that Mohsin was known to him from before. The room was not locked from
the outside. The accused had fled away from the house. Only the victim was present there. He himself had
not seen the accused fleeing away but his sister (the victim) told him that accused had fled away. Thus,
Mohsin is the witness who told the witness Sarfaraj, brother of the victim whereabout of the girl. Mohsin was
not examined by the prosecution, but he was examined by defence as DW-4. He stated that 8-10 years prior
the sister (the victim) of Sarfaraj had eloped, at which Sarfaraj came to the house of this witness and told his
father that the victim had eloped to Nasik from where he had received a telephonic call. He requested the
father of this witness to accompany him to Nasik, at which his father went with PW-1 to Nasik from where she
was brought back to home. He has further stated that the victim was never recovered from the house of Kala,
nor she requested this witness to inform her family members. Thus, the source of information of
whereabouts of the victim as per PW-1 Sarfaraj was Mohsin who has completely denied about having given
any such information. In fact, he has stated otherwise. Arbaj @ Bhoora, DW-5, who has stated that Sarfaraj
and Babu took him to Nasik, Maharashtra. This witness accompanied them to Maharashtra because his elder
brother was residing at Maharashtra. The sister(victim) of this informant was recovered at Maharashtra from
where she was brought back by the informant to home. Even DW-2, Ayyub, who is a witness named in the
first information report has stated that there was no marriage at the house of Wareesa wife of Islamuddin and
he did not see the victim going with anybody. No doubt, the prosecution discharged this witness but there
was not bar for the defence to produce this witness in support of his defence. As per the recovery memo, the
recovery of victim also becomes doubtful l(Para 25)

Held:(Paras 26,28,29)

## Text

_Characters 0–39,967 of 43,635. This is a partial read: ask again with offset=39967 for what follows._

5 All. Imran Vs State Of U.P.

853
47. The conviction of the appellant under section 498A, 304B IPC and section 4 Dowry
Prohibition Act and sentence awarded thereunder are hereby affirmed. Appeal is dismissed. He is
in jail. The appellant is directed to serve the sentence awarded by the learned trial Judge and
affirmed by this Court. The period already undergone by him in the present case shall be adjusted
in accordance with section 428 Cr.P.C.

48. Office is directed to communicate this order to the court concerned for compliance
forthwith and to send back the lower court record.
----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2016

BEFORE

THE HON'BLE MRS. RANJANA PANDYA, J.

Criminal Appeal No.- 1941 Of 2014
&
Criminal Appeal No.- 1761 Of 2014

Imran ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for the Appellant:
Mohd. Aslam Ansari

Counsel for the Respondent:
Govt. Advocate

Criminal Appeal - Kidnapping and Gang Rape - Sections 363, 366, 376(2)(g) IPC - Delay in lodging FIR
- Unexplained and fatal delay - Contradictory and inconsistent testimony of prosecutrix - Reliability of
prosecutrix - Medical evidence not supporting prosecution case - Age of prosecutrix - School leaving
certificate not proved - Radiological age showing majority - Consent - Recovery of victim doubtful -
Interested and unreliable witnesses - Non-examination of material witnesses - Contradictions between
ocular and documentary evidence - Investigation suffering from serious lapses - Benefit of doubt -
Acquittal - Appeal allowed.

Challenge in these two appeals is the judgment and order dated 14.04.2014 passed by the learned Additional
Sessions Judge, Court No. 1, Muzaffarnagar in Session Trial No. 62 of 2006 (State Vs. Sanjay and another)
and Session Trial No. 1147 of 2007 (State Vs. Imran), both arising out of Case Crime No. 701 of 2005 under
Sections 363, 366, 376 (2) (g) IPC, Police Station Nai Mandi, District Muzaffarnagar whereby each of the
accused appellants were convicted.(Para 1)

As per the prosecution case the victim was recovered at the house of Kala situated at Niyajupura. The
informant Sarfaraj, PW-1, has stated that on 25.06.2008 Mohsin told him that the victim and the accused
were present at Niyajupura at the house of Kala, this witness went to the house of Kala at Niyajupura and
854 INDIAN LAW REPORTS ALLAHABAD SERIES
recovered the girl. He has stated that Mohsin was known to him from before. The room was not locked from
the outside. The accused had fled away from the house. Only the victim was present there. He himself had
not seen the accused fleeing away but his sister (the victim) told him that accused had fled away. Thus,
Mohsin is the witness who told the witness Sarfaraj, brother of the victim whereabout of the girl. Mohsin was
not examined by the prosecution, but he was examined by defence as DW-4. He stated that 8-10 years prior
the sister (the victim) of Sarfaraj had eloped, at which Sarfaraj came to the house of this witness and told his
father that the victim had eloped to Nasik from where he had received a telephonic call. He requested the
father of this witness to accompany him to Nasik, at which his father went with PW-1 to Nasik from where she
was brought back to home. He has further stated that the victim was never recovered from the house of Kala,
nor she requested this witness to inform her family members. Thus, the source of information of
whereabouts of the victim as per PW-1 Sarfaraj was Mohsin who has completely denied about having given
any such information. In fact, he has stated otherwise. Arbaj @ Bhoora, DW-5, who has stated that Sarfaraj
and Babu took him to Nasik, Maharashtra. This witness accompanied them to Maharashtra because his elder
brother was residing at Maharashtra. The sister(victim) of this informant was recovered at Maharashtra from
where she was brought back by the informant to home. Even DW-2, Ayyub, who is a witness named in the
first information report has stated that there was no marriage at the house of Wareesa wife of Islamuddin and
he did not see the victim going with anybody. No doubt, the prosecution discharged this witness but there
was not bar for the defence to produce this witness in support of his defence. As per the recovery memo, the
recovery of victim also becomes doubtful l(Para 25)

Held:(Paras 26,28,29)

1. Now, coming to the statement of the victim who is the star witness of this case, I would like to observe
that the statement of the victim should be given weightage on the ground that the victim of a rape case
should be placed on higher pedestal than an injured witness. If the evidence of the victim is fully reliable and
has no dent, the accused can be convicted on her testimony. But if the testimony of the victim belies the
story, then the Court would need corroboration from other evidence. The victim, PW-2, has stated that all her
family members had gone to attend the marriage in another village when Sanjay and Munni came to her
house on 18.06.2005. Sanjay and Munni asked her about the whereabout of her family members, on which
she told them that they had gone to attend the ceremony of marriage of her cousin. Thereafter, they came
5-10 minutes after that and enticed her away on the point of country made pistol and said that she
accompanied them. They also forced her to take Rs.50,000/- which were kept for the marriage of her cousin.
It is strange how the accused came to know that Rs.50,000/- were kept in the house for the marriage of
cousin of the victim. She has further stated that she was forced to sit in the car along with Munni. Further,
she has stated that she was kept 5-6 days at different places. She was forcible raped one by one by Imran,
Kala, Sanjay and Saleem. Whereas, Munni was on the guard. It is also stated that Rs.50,000/- was snatched
from the victim by Imran, the accused. The whole story has been shattered as I have discussed above. She
has further stated that on the point of country made pistol the accused Imran forced her to sign some papers.
Imran, the accused did this to save his life. As far as letters are concerned, the Investigating Officer, Anil
Kumar Singh, PW-7 who also conducted the investigation, has stated in crossexamination that he did not
interrogate the victim about her love letters. He has further stated that the girl was recovered by her brother.
No one else was found at the time of alleged recovery. He had received a letter written by the father of the
accused Sanjay that the victim was recovered from Nasik, Maharashtra. But neither this witness went to Nasik
nor he did bother to talk Nasik Police telephonically. He has admitted that the date of the application written
by the father of Sanjay was 18.05.2005 but he did not bother to verify the date. He also did not bother to
verify its contents and did not even record supplementary statement of informant and the victim. When
contradictions were pointed out to this witness, he stated that the victim did not state him that her Rs.
50,000/- were snatched by accused Imran. These contradictions and omissions are relevant which strike out
the root of the case. She has stated that Mohsin came to the house of Kala and on her request, he called the
brother of the victim, but Mohsin has denied of having called the brother of the victim. The victim has
5 All. Imran Vs State Of U.P.

855
admitted that Imran, the accused was her real maternal brother. She has stated that when her brother came,
Munni and Imran were present in the house. Munni fled away but her brother caught Imran, the accused.
This is against the statement of Sarfaraj, PW-1 who has stated that he found his sister (the victim) alone in
the room. She has admitted the love-letters written by her but she has tried to clarify that they were written
under threat. A perusal of these letters though not accepted by the learned Trial Court, which have been
exhibited, make it clear that they have been written leisurely taking one's own time and do not appear to
have been written under any threat. The letters are in volume, hence this explanation of the victim that the
love-letters were written under threat does not carry any weight. The victim has further stated that Imran,
the accused pointed out the country made pistol at her and compelled her to sit in car with the jewellery and
the cash. Taking away of the jewellery has been introduced by this witness for the first time in her statement
before the Court. She has admitted that in the letters it was mentioned that some jewellery was in her
possession. It is very strange how the accused could have known this victim and could have forcibly made the
victim write all these things in the letter under threat. As regards the paper No. 10/1 to 10/4, she admitted
that those papers were in her handwriting and she has stated that she was forced to write those papers.
Another story has been introduced by the victim by stating that she was blindfolded when she was being
taken in the car. There was absolutely no reason to blindfold this girl specially when she was being taken in
car just from near her house as blindfolding her mouth from her house would cause suspicion, hence this
witness being the victim is also totally unreliable. Contradicting herself she has stated that when her brother
came, nobody was present and all had fled away. Now, another new story has been introduced by this
witness by saying that all along she was kept unconscious. They used to make her smell something to keep
her unconscious. When her brother reached, she was unconscious. What was the necessity to make the girl
unconscious, specially when the accused were armed with country made pistol, they were large in number
and the victim being alone was not at all in a position to resist or raise any alarm. Thus, the statement of this
victim is just a bundle of lies. She has tried to mislead the Court also by stating absolutely an impossible and
logic belying story.

2. The complete statement of the victim is wholly unreliable. Even medical evidence does not support the
prosecution version in this case of alleged gang rape. Thus, the above discussions lead to an irresistible
conclusion that the prosecution has miserably failed to prove the charges framed against the accused
appellants beyond all the reasonable doubt. Accordingly, both the appeals are allowed

Case Law discussed

Mohd. Ali alias Guddu v. State of U.P., (2015) 7 SCC 272 (Paras 15-16)

Ravindra Singh Gorkhi v. State of U.P., 2006 (2) SCC (Crl.) 632 (Para 18)

Alamelu and another v. State represented by Inspector of Police,(2011) 1 SCC (Crl.)688(Para 19)

(Delivered by Hon'ble Mrs. Ranjana Pandya, J.)

1. Challenge in these two appeals is the judgment and order dated 14.04.2014 passed by the
learned Additional Sessions Judge, Court No. 1, Muzaffarnagar in Session Trial No. 62 of 2006
(State Vs. Sanjay and another) and Session Trial No. 1147 of 2007 (State Vs. Imran), both arising
out of Case Crime No. 701 of 2005 under Sections 363, 366, 376 (2) (g) IPC, Police Station Nai
Mandi, District Muzaffarnagar whereby each of the accused appellants were convicted and
sentenced to four years' rigorous imprisonment and a fine of Rs.2,000/- each under Section 363
IPC; five years' rigorous imprisonment and a fine of Rs.3,000/- each under Section 366 IPC and ten
856 INDIAN LAW REPORTS ALLAHABAD SERIES
years' rigorous imprisonment and a fine of Rs.6,000/- each under Section 376(2)(g) IPC with
default stipulation. By the impugned judgment and order it has also been directed that
Rs.20,000/will be paid to the victim as compensation out of the amount of fine so deposited from
the accused appellants.

2. Brief facts of the prosecution case are that an application was moved by informant
Sarfaraj before the Senior Superintendent of Police, Muzaffarnagar alleging that accused Imran,
son of informant's maternal uncle was living with him for last 5-6 years and two months before
family members of informant saw accused Imran in an objectionable position with victim, the
minor sister of informant. Then, on being driven out from the house of informant, accused Imran
started living with one Kala at village Nyajupura where accused Saleem also lived. They used to
come near the house of informant along with accused Sanjay. Sister of Kala, who told her name as
Munni, also used to come to the victim. On 18.06.2005, preparations were being conducted in the
village for the marriage of daughter of informant's uncle. Family members of informant had gone to
the house of his uncle Islamuddin and informant's sister (victim) aged about 14 years was alone at
the house. At that time, sister of Kala and accused Sanjay went to the informant's house and they
had talk with victim and after some time went away. Thereafter, in the night at about 8:30 PM
accused Imran, Saleem, Kala and Sanjay came at the informant's house and they enticed away and
kidnapped the minor sister(victim) of informant in a car along with Rs.50,000/which were kept in
the house for the purpose of marriage of the daughter of informant's uncle. The incident was seen
by Naushad, Ayyub and others. When family members returned, on not seeing the victim as well as
the money, they searched enough, but could not trace out her. On 25.06.2005, one Mohsin resident
of village Nyajupura told the informant that his sister is at the house of accused Kala resident of
village Niyajupura along with other accused. Informant went there and found the victim in a fearstricken state. She told that accused with the help of Kala's sister kept her at many places, they
raped her and also took the money. The informant requested the SSP, Muzaffarnagar to lodge FIR
against the accused persons and to get the victim medically examined. On the basis of the aforesaid
allegations, the chik report/FIR was scribed by Constable 987 Rajesh Kumar, which was marked as
Ext. Ka-1 and Ka-3.

3. Investigation of the case was entrusted on the same day to SI Anil Kumar Singh. He
proceeded to record the statement of informant. Thereafter, he also recorded the statement of
victim. Chik report was copied by him in case diary. He also recorded the statements of scriber of
chik FIR. Next day, on 08.07.2005, he inspected the spot of incident, site plan was prepared, he
also prepared the site plan of the place from where the victim was recovered. The site plans were
marked as Ext. Ka-9 and Ext. Ka-10. The victim was sent for medical examination to Women
Hospital, Muzaffarnagar. As per the medical examination report Ext. Ka-4, secondary sex character
of the victim was found developed, axillary hair were present and there was no mark of injury on
external surface of body. As per the said medical report, pubic hair were present, labia majora were
found developed, hymen was old torn and healed and vagina was admitting two fingers easily.
Vaginal smear was taken in two slides which were sent for pathological examination to detect the
presence of spermatozoa. No mark of injury was present on private part of the victim. X-ray of
right elbow joint, right wrist joint, right knee joint was advised for determination of her age.
5 All. Imran Vs State Of U.P.

857
According to the supplementary report of medical examination dated 12.07.2005 marked as Ext.
Ka-5, the age of victim was about 18 years and no definite opinion about rape was given. Statement
of the victim was recorded under Section 164 Cr.P.C. which is exhibited as Ext. Ka-2. In her
statement under Section 164 Cr.P.C. she has stated that initially Munni and Sanjay came to her
house and when they came to know that there was nobody in the house they came in a car and
pulled her into car. They further locked her in a room and Sanjay, Kala, Imran and Saleem raped
her and compelled her to sign some papers. In the statement under Section 164 Cr.P.C. there is no
mention about the victim took away Rs.50,000/- from her house. If at all she as abruptly called out
of her house and taken away, there was no occasion for her to carry away Rs.50,000/- with her.
The statement under Section 164 Cr.P.C is a previous statement with which the victim could have
been confronted and she was confronted. As per her statement under Section 164 Cr.P.C when the
victim was recovered with the accused, he was handed over to the police. This statement does not
find support from the prosecution evidence. The victim has resiled from certain averments of her
statement given under Section 164 Cr.P.C and changing of statement by the victim again and again
causes a deep dent in the prosecution case.

4. Thereafter, the investigation ended into charge sheet against the accused Kala, Sanjay
and Saleem in Crime No. 701 of 2005, charge sheet No. 195 was marked as Ext. Ka-11 and against
the accused Imran, charge sheet No.195/1 was marked as Ext. Ka-12, were filed under Sections
363, 366, 376 IPC. On the basis of the aforesaid charge sheets, charges were framed by the learned
Additional Sessions Judge vide order dated 20.02.2006 against the accused persons for the offences
punishable under aforesaid Sections.

5. The Prosecution in support of its case has examined as many as seven witnesses namely
Sarafraj(informant) as PW-1, the victim as PW-2, Naushad as PW-3, Rajesh Kumar as PW-4, Dr.
Manorma Gupta as PW-5 and Smt. Geeta Devi as PW-6 as well as SI Anil Kumar Singh as PW-7.

6. After close of evidence by the prosecution, statements of accused persons were recorded
under Section 313 Cr.P.C. in which they denied the incident and claimed trial. Accused appellant
Imran in his statement recorded under Section 313 Cr.P.C. pleaded that he gave Rs.2.5 lakhs, which
he obtained from selling the land after partition of his house, to the parents of victim and he also
gave Rs.2.5 Lakhs to them, which he earned by doing labour work. On demanding the aforesaid
money, he has been falsely implicated in this case. Accused Saleem has pleaded that he stayed with
co-accused Kala, for this reason he has been falsely implicated in this case. He also stated that he
did not know the victim as well as Imran, the accused. He never went to her house and he has
nothing to do with her family. Similarly, accused appellant Sanjay in his statement recorded under
Section 313 Cr.P.C. stated that his father did not support the election of village Pradhan to the
aunty of the informant and due to which he has been falsely implicated. Co-accused Kala had died
during the trial proceedings, hence the criminal proceedings against him have been abated.

7. In support of their case, they examined as many as five defence witnesses namely
Wareesa as DW-1, Ayub as DW-2, Furkan as DW-3, Mohsin as DW-4 and Arbaz @ Bhura as DW7.
858 INDIAN LAW REPORTS ALLAHABAD SERIES
8. After hearing the arguments advanced by the learnedcounsel for the parties, the Trial
Court proceeded to convict and sentence the accused appellants as narrated in para-1 of the
judgment.

9. Feeling aggrieved, the accused appellants have preferred the present appeals.

10. Heard the learned counsel for appellants, learned AGA appearing for the State and
perused the record of the case.

11. The learned counsel for the accused appellants have contended that the judgment and
order of the learned Trial Court is based on surmises and conjectures, hence it is bad in the eyes of
law and both the appeals deserve to be allowed.

12. Per contra, the learned AGA has supported the impugned judgment and order of
learned Trial Court and submitted that the accused appellants have been found guilty of committing
gang rape and the appeals filed by them are liable to be dismissed.

13. At the outset counsel for the appellants has submitted that there is an inordinate delay
in lodging the FIR which is fatal for the prosecution case. He has further submitted that as per Ext.
Ka-2 i.e. chik report the occurrence took place on 18.06.2005 whereas the report regarding the
same was lodged on 07.07.2005 at 11:00 AM, the police station being six kilometers away from the
place of occurrence. There is an inordinate delay in lodging the FIR which is fatal for the
prosecution case.

14. Although, the written typed application by the informant is dated 06.07.2005, but it was
actually presented before the authorities on 07.07.2005 as is evident from the endorsement of the
police station. This report was lodged after the victim was recovered. Since nothing has been
mentioned in the FIR, hence the statement of informant has to be taken recourse to whether he has
given any explanation for lodging the FIR after such a long delay or not. I am aware of the fact that
delay in lodging the FIR in all cases of rape is not fatal for the prosecution case because in cases of
rape generally the victims and family members are hesitant in lodging the report at the police
station in fear of defame and bringing ill-repute to the family. However, if delay is explained, then,
it would not be fatal for the prosecution. In his statement the informant Sarfaraj, PW-1, has stated
that on 25.06.2005 Mohisin told him that he had seen Imran, the accused and sister of this witness
at the house of Kala at Niyajupura. He went to the house of Kala and saw the victim siting in a
fearful state and she was weeping. The recovery and other part of the statement shall be looked into
later but from his statement as appeared it is clear that on 26.06.2005 the informant had come to
know that the victim was at the house of Kala. This was even eight days after the incident. There is
no reason why the informant or his parents hesitated to lodge the missing report about the girl since
18.06.2005 when he had come to know that the girl was missing.

15. In (2015) 7 SCC 272: Mohd. Ali alias Guddu vs State of U.P., it has been held as
under:
5 All. Imran Vs State Of U.P.

859
20. "For the aforesaid purpose, first we shall advert to the issue of lodging of the
First Information Report. As is demonstrated, the victim missed from the house on 22.11.1996 but
the mother lodged the FIR on 3.12.1996 almost after expiry of eleven days alleging the factum of
kidnapping by the accused persons, namely, Ali Waris and Md. Ali @ Guddu. It is interesting to
note that the mother, had alleged that Ali Waris had left the girl at her door steps. In such a
circumstance, if nothing else, the PW-2, the mother, who is expected to have necessitous concern,
could have gone to the police station to lodge a missing report which could have prompted the
investigation officer to act. It baffles the commonsense that the mother after searching in the
neighbourhood as well as amongst the relatives still, for some unfathomable reason that defeats the
basic human prudence approached the police station quite belatedly.

21. It is apt to mention here that in rapes cases the delay in filing the FIR by the
prosecutrix or by the parents in all circumstance is not of significance. The authorities of this
Court have granted adequate protection/allowance in that aspect regard being had to the trauma
suffered, the agony and anguish that creates the turbulence in the mind of the victim, to muster the
courage to expose oneself in a conservative social milieu. Sometimes the fear of social stigma and
on occasions the availability of medical treatment to gain normalcy and above all the
psychological inner strength to undertake such a legal battle."

16. PW-1 was confronted with the version of the first information report since the maker of
FIR can be confronted with its contents. The informant stated that if one goes from Bilaspur first of
all he would have to cross the police station, Nai Mandi. After that he would have to cross police
station Kotwali Nagar. Abkari outpost would also fall in the way. After that Niyajupura would fall.
But since they were in hurry the did not go the police station. The statement given by this witness
before the Court was correct and he has tried to justify by saying that FIR was written in hot-haste
but this explanation offered by the informant does not appeal because the first information report is
typed and is not hand-written. In fact, annexures with the application were written by hand which
show that there was absolutely no hurry in scribing the first information report. Every thing was
thought-well and written in the first information report. The informant has not at all said that he did
not lodge the report due to fear of ill-repute to his family or the obstructions in the marriage of
victim. Thus, there is an inordinate delay in lodging the first information report which has not been
explained by the prosecution and the same is fatal for the prosecution.

17. Coming to the age of the victim, the learned AGA has submitted that the victim was
minor on the date of occurrence. Hence, even if there was any consent from the side of the victim,
it would be of no consequence. PW-6 is Geeta Devi, Incharge Principal who submitted the original
school leaving certificate in the Court and stated that the date of birth of victim was 15.07.1991.
This school leaving certificate was exhibited as Ext. Ka-7 before the learned Trial Court. The
counsel for appellants has submitted that reliance cannot be placed on this document. This witness
Geeta Devi was subjected to the crossexamination in which she stated that she could not tell as to
who admitted the victim in the school because it is not written in the record. The record does not
indicate as to by whom the victim was admitted in the school. She has further stated that the
Transfer Certificate was not issued by her. She being the Incharge Principal brought the Transfer
860 INDIAN LAW REPORTS ALLAHABAD SERIES
Certificate when the Court summoned it and at the relevant point of time, she was not working in
the School. It is trite law that the evidentiary value of the school leaving certificate would only be
relevant if the person who admitted the child in the School and made entries in that regard in the
School register, was produced before the Court.

18. The counsel for the appellants has relied on 2006 (2) SCC (Crl.) 632: Ravindra
Singh Gorkhi Vs. State of U.P., in which it has been held that however, in this case it has been
observed that entries made in school leaving certificate, evidently had been prepared for the
purposes of this case.

19. In 2011 (1) SCC (Crl.) 688: Alamelu and another Vs. State represented by
Inspector of Police, it has been laid down that date of birth mentioned in the Transfer Certificate
would have no evidentiary value unless the person who made the entry in school register is
examined. The prosecution failed to examine the person who made the entry. Besides, even the
Investigating Officer Anil Kumar Singh, PW-7, has specifically stated that during the investigation,
he did not verify the genuineness of the school leaving certificate. He also did not inquire as to who
admitted the victim in the School and on what basis her date of birth was entered. Thus, the school
leaving certificate i.e. Ext. Ka-7 is not reliable.

20. Now coming to the age of the victim, the learned AGA hassubmitted that victim was
minor on the date of occurrence. Hence, even if there was any consent from the side of the victim it
would be of no consequence.

21. As per the supplementary report of the victim which was marked as Ext. Ka-5, the age
of the victim was opined about 18 years on 12.07.2005. The age of consent on the relevant date
being 16 years. As per the provisions of Rule-12 of Juvenile Justice (Care and Protection of
Children) Rules, 2007, the academic record of the victim would be looked into for determination of
her age. But in absence of academic record the medical evidence has to be relied upon. In the
present case, there is no academic record to prove the age of the victim, hence as per the Rules
specified aforesaid, the radiological age has to be given weightage. As per the radiological report,
the age of the victim at the time of occurrence was much above the age of consent.

22. Reverting back to the statement of PW-1 Sarfaraj, he did not see the accused taking
away the victim. He is said to be a witness of recovery. But he has stated that when he recovered
the victim, she told him that Saleem, Imran, Sanjay and Kala with aid of Munni took her away, her
money was also snatched and she was raped by Saleem, Imran, Sanjay and Kala.

23. First of all, I would like to consider the manner in which the victim was said to have
been kidnapped. The victim was not kidnapped in the presence of her brother. Her brother
Sarfaraj, PW-1, has stated that Naushad and Ayyub had seen the accused persons kidnapping away
the girl. Thus, the evidence either of Naushad or Ayyub would be very relevant in the case.
However, Ayyub was not examined before the Court but Naushad was produced before the Court
as PW-3. He is the witness, who saw the accused persons taking away the girl. He has stated that
5 All. Imran Vs State Of U.P.

861
on 18.06.2005 he was working in Bilaspur in the house of Islamuddin. There was a marriage in the
house of Islamuddin and he was doing work of painting and at the relevant point of time, he was
painting the gate of house of Islamuddin. When between 8-9 PM, an ambassador car came in which
Saleem, Sanjay, Imran, Kala and Munni were sitting. He also saw the victim sitting in the car. He
thought the victim was going along with the accused to market to do some purchasing because
Imran was the real maternal brother of the victim. This witness Naushad appears to be very well
conversant of the relations of villagers. Thus, he could also state that accused Imran was the
maternal brother of the victim. He has also stated that when girl returned late, her brother and other
family members were trying to trace her. This witness was subjected to the test of crossexamination but he could not face the cross-examination and projected a very bad picture of the
case. He has stated that the actual time must be about 8:00 PM. He was painting gate in the light of
pole. He has stated that he could identify all the passengers in the car because it was not dark at that
time and there was sufficient light. No doubt, the occurrence took place in June, but to say that at 8
PM in June, it would be sufficient daylight, cannot be pleaded and there could not have been any
source of light in moving car to this witness to identify the passengers in the car. But this witness
had already told the brother of victim about her going away with accused on the next day but
nothing was done in the matter and no missing report was lodged. Further, this witness has stated
that initially Imran, the accused used to reside in the house of victim. Once, he left the house, he
came to know but how this witness came to know this fact, is not clear in as much as Sarfaraj, PW1, has stated that initially the accused Imran used to live in the house of the victim and once he was
caught misbehaving with the victim when he was turned out of the house. This witness also knew
the relationship of Imran, the accused with the victim. I have thoroughly gone through
crossexamination of this witness. He has narrated surname, caste of practically all the people asked
by him although he does not belong to that village. DW-1 is Wareesa wife of Islamuddin. There is
no doubt the evidence of defence witness has to be evaluated on the same footing as the evidence
of prosecution witness is evaluated. DW-1 Wareesa has stated that she belongs to the same family
of the victim. The victim eloped with Imran, the accused. She was recovered from Nasik after a
week. The telephonic call was received from some police station at Nasik at which Sarfaraj and
others went to fetch her back. They returned seven days after along with the victim. This witness
also stated that she was contesting Pradhani election and during that period neither there was any
marriage in her house nor any work of painting was done in her house. In cross-examination
although she has stated that whatever accused persons told her she narrated in the Court but she
denied that she stated before the Court on the instigation of accused. Here, I would like to refer the
statement of Investigating Officer also. Investigating Officer Anil Kumar Singh, PW-7, has stated
as follows:-

^^ये बात सही है फक इस पूरे रास्ते में कोई विजली का खम्भा भी नही है। रास्ते की चैडाई ए बबन्द से
सामने करीब 15 फिट होगी।^^

24. Thus, according to the statement of this witness who inspected the spot there was no
pole near the house of Islamuddin. Thus, the statement of this witness read with the statement of
DW-1, Wareesa, completely falsified the version of Naushad and places him in the category of a
862 INDIAN LAW REPORTS ALLAHABAD SERIES
totally unreliable witness. Hence, the statement of Naushad, PW-1, cannot be relied upon and it
also falsifies the version of Naushad that he had seen the accused persons taking away the girl.

25. As far as recovery is concerned, as per the prosecution case the victim was recovered at
the house of Kala situated at Niyajupura. The informant Sarfaraj, PW-1, has stated that on
25.06.2008 Mohsin told him that the victim and the accused were present at Niyajupura at the
house of Kala, this witness went to the house of Kala at Niyajupura and recovered the girl. He has
stated that Mohsin was known to him from before. The room was not locked from the outside.
The accused had fled away from the house. Only the victim was present there. He himself had not
seen the accused fleeing away but his sister(the victim) told him that accused had fled away. Thus,
Mohsin is the witness who told the witness Sarfaraj, brother of the victim whereabout of the girl.
Mohsin was not examined by the prosecution, but he was examined by defence as DW-4. He
stated that 8-10 years prior the sister(the victim) of Sarfaraj had eloped, at which Sarfaraj came to
the house of this witness and told his father that the victim had eloped to Nasik from where he had
received a telephonic call. He requested the father of this witness to accompany him to Nasik, at
which his father went with PW-1 to Nasik from where she was brought back to home. He has
further stated that the victim was never recovered from the house of Kala, nor she requested this
witness to inform her family members. Thus, the source of information of whereabouts of the
victim as per PW-1 Sarfaraj was Mohsin who has completely denied about having given any such
information. In fact, he has stated otherwise. Arbaj @ Bhoora, DW-5, who has stated that Sarfaraj
and Babu took him to Nasik, Maharashtra. This witness accompanied them to Maharashtra
because his elder brother was residing at Maharashtra. The sister(victim) of this informant was
recovered at Maharashtra from where she was brought back by the informant to home. Even DW-2,
Ayyub, who is a witness named in the first information report has stated that there was no marriage
at the house of Wareesa wife of Islamuddin and he did not see the victim going with anybody. No
doubt, the prosecution discharged this witness but there was not bar for the defence to produce this
witness in support of his defence. As per the recovery memo, the recovery of victim also becomes
doubtful.

26. Now, coming to the statement of the victim who is the starwitness of this case, I would
like to observe that the statement of the victim should be given weightage on the ground that the
victim of a rape case should be placed on higher pedestal than an injured witness. If the evidence
of the victim is fully reliable and has no dent, the accused can be convicted on her testimony. But
if the testimony of the victim belies the story, then the Court would need corroboration from other
evidence. The victim, PW-2, has stated that all her family members had gone to attend the marriage
in another village when Sanjay and Munni came to her house on 18.06.2005. Sanjay and Munni
asked her about the whereabout of her family members, on which she told them that they had gone
to attend the ceremony of marriage of her cousin. Thereafter, they came 5-10 minutes after that
and enticed her away on the point of country made pistol and said that she accompanied them.
They also forced her to take Rs.50,000/- which were kept for the marriage of her cousin. It is
strange how the accused came to know that Rs.50,000/- were kept in the house for the marriage of
cousin of the victim. She has further stated that she was forced to sit in the car along with Munni.
Further, she has stated that she was kept 5-6 days at different places. She was forcible raped one by
5 All. Imran Vs State Of U.P.

863
one by Imran, Kala, Sanjay and Saleem. Whereas, Munni was on the guard. It is also stated that
Rs.50,000/- was snatched from the victim by Imran, the accused. The whole story has been
shattered as I have discussed above. She has further stated that on the point of country made pistol
the accused Imran forced her to sign some papers. Imran, the accused did this to save his life. As
far as letters are concerned, the Investigating Officer, Anil Kumar Singh, PW-7 who also conducted
the investigation, has stated in crossexamination that he did not interrogate the victim about her
love letters. He has further stated that the girl was recovered by her brother. No one else was found
at the time of alleged recovery. He had received a letter written by the father of the accused Sanjay
that the victim was recovered from Nasik, Maharashtra. But neither this witness went to Nasik nor
he did bother to talk Nasik Police telephonically. He has admitted that the date of the application
written by the father of Sanjay was 18.05.2005 but he did not bother to verify the date. He also did
not bother to verify its contents and did not even record supplementary statement of informant and
the victim. When contradictions were pointed out to this witness, he stated that the victim did not
state him that her Rs. 50,000/- were snatched by accused Imran. These contradictions and
omissions are relevant which strike out the root of the case. She has stated that Mohsin came to the
house of Kala and on her request, he called the brother of the victim, but Mohsin has denied of
having called the brother of the victim. The victim has admitted that Imran, the accused was her
real maternal brother. She has stated that when her brother came, Munni and Imran were present in
the house. Munni fled away but her brother caught Imran, the accused. This is against the statement
of Sarfaraj, PW-1 who has stated that he found his sister (the victim) alone in the room. She has
admitted the love-letters written by her but she has tried to clarify that they were written under
threat. A perusal of these letters though not accepted by the learned Trial Court, which have been
exhibited, make it clear that they have been written leisurely taking one's own time and do not
appear to have been written under any threat. The letters are in volume, hence this explanation of
the victim that the love-letters were written under threat does not carry any weight. The victim has
further stated that Imran, the accused pointed out the country made pistol at her and compelled her
to sit in car with the jewellery and the cash. Taking away of the jewellery has been introduced by
this witness for the first time in her statement before the Court.