# (In Jail) v. State of U.P

- **Citation:** (2007) 2 ILRA 567
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-04-23
- **Case number:** Criminal Appeal No. 3456 of 1999
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/in-jail-v-state-of-u-p-40940
- **Pages:** 5

## Headnote

Indian Penal Code-Section-Sentence of
Life Imprisonment reduced to 10 years
Rigorous Imprisonment -considering two
daughters of marrigble age victim aged
about 10-11 years girl-accused the real
uncle-improbable for a mother to make
false allegation of Sexual assault on her
minor daughter against her own dewar.

Held: Para 16 and 17

Thus, we are of the opinion that the
judgement, holding the appellant guilty,
recorded by the Sessions Court, is based
on evidence and sound reasoning. The
conviction of the appellant is therefore,
maintained.

However, keeping in view the law laid
down by Hon'ble the Supreme Court in
the case of T.K. Gopal alias Gopi (Supra)
and the fact that the appellant has two
daughters of marriageable age, we are
inclined to consider the submission of
the learned counsel for the appellant
regarding reduction in the sentence. The
appeal is hereby dismissed. The sentence
of life imprisonment is reduced to a
sentence
of
ten
years'
rigorous
imprisonment.
Case law discussed:
2000 CAR 366 (S.C.) relied on.

## Text

2 All] Sanjai V. State of U.P.
567
10. In the result, this writ petition
succeeds and is allowed. A writ of
mandamus is issued to the Public Service
Commission,
U.P.
Allahabad
to
recommend the name of the petitioner
under
the
physically
handicapped
category for appointment on the post of
Child Development Project Officer within
a period of one month from the date a
certified copy of this order is produced
before
the
Commission.
State
Government is also directed to issue
appointment letter to the petitioner in the
vacancy
on
the
post
of
Child
Development Project Officer if it is
available within a further period of two
months
after
getting
the
necessary
formalities completed within the aforesaid
period. However, if there is no post
available then the State Government is
directed to create a supernumerary post
and appoint the petitioner as Child
Development Project Officer within the
aforesaid period.

Parties shall bear their own costs.
Petition allowed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.04.2007

BEFORE
THE HON'BLE K.N. SINHA, J.
THE HON'BLE S.K. JAIN, J.

Criminal Appeal No. 3456 of 1999

Sanjay

...Appellant (In Jail)
Versus
State of U.P.

...Opposite Party

Counsel for the Appellant:
Sri R.P. Singh
Sri Sunil Singh

Counsel for the Opposite Party:
A.G.A.

Indian Penal Code-Section-Sentence of
Life Imprisonment reduced to 10 years
Rigorous Imprisonment -considering two
daughters of marrigble age victim aged
about 10-11 years girl-accused the real
uncle-improbable for a mother to make
false allegation of Sexual assault on her
minor daughter against her own dewar.

Held: Para 16 and 17

Thus, we are of the opinion that the
judgement, holding the appellant guilty,
recorded by the Sessions Court, is based
on evidence and sound reasoning. The
conviction of the appellant is therefore,
maintained.

However, keeping in view the law laid
down by Hon'ble the Supreme Court in
the case of T.K. Gopal alias Gopi (Supra)
and the fact that the appellant has two
daughters of marriageable age, we are
inclined to consider the submission of
the learned counsel for the appellant
regarding reduction in the sentence. The
appeal is hereby dismissed. The sentence
of life imprisonment is reduced to a
sentence
of
ten
years'
rigorous
imprisonment.
Case law discussed:
2000 CAR 366 (S.C.) relied on.

(Delivered by Hon'ble K.N. Sinha, J.)

1. This criminal appeal has been
filed by the sole appellant Sanjay against
the judgement and order dated 14.12.1999
passed by learned Additional Sessions
Judge, XIII, Ghaziabad in sessions trial
no. 70 of 1999 State Vs. Sanjay, where by
the learned Sessions Judge found the
appellant guilty of charges against him
under section 376 Indian Penal Code and
sentenced him to undergo imprisonment
for life along with fine of Rs.5000/- and
in default of payment of fine, to undergo
568 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
six months' rigorous imprisonment. It was
further ordered by the learned Sessions
Judge that out of the fine deposited by the
appellant Rs.4000/- would be paid to the
victim.

2. According to the prosecution
story, Smt. Rajbala wife of Khilari Singh,
resident of 519 Kirtan Wali Gali, Bazaria,
Ghaziabad, on 11.11.1998 at 6.35 P.M.,
went to the police Station Kotwali,
Ghaziabad and lodged an oral report (Ex.
Ka-1). As per this report, Smt. Rajbala, as
usual, on that date had gone in the
Mohalla for doing menial job. Her
younger daughter, the victim, aged about
nine years, came back home at about 2.30
P.M. from school. Her elder daughter Km.
Seema, aged about twelve years, was also
present in her house. Her 'Devar' Sanjay,
who used to live in the adjacent house,
came to the house and with an evil
intention, he took the victim inside the
room. Sanjay made the victim lie on
Nivar cot. He took out underwear of the
victim and after lifting her skirt raped her.
The victim started crying. At that time
Smt. Rajbala reached home and she along
with elder daughter Km. Seema ran into
the room and saw Sanjay committing rape
upon the victim. This occurrence took
place at 2.00 P.M. Smt. Rajbala and her
daughter tried to catch the appellant but
appellant
Sanjay
pushed
them
and
succeeded in running. The clothes of the
victim were soaked in blood. The blood
was also found on the bed sheet. It was
further stated by Smt. Rajbala in her
report that her husband kept Thela of
Chhole chawal on railway road. She went
in search of him but in vain. She had also
taken the victim to the police station.

3. P.W. 5, C.C. 999 Rajpal Tyagi
wrote chik FIR (Ex. Ka-1) on the
dictation of Smt. Rajbala and entered the
details in G.D. as per the Ex. Ka-8.

4. S.I. Ajai Kumar Gautam (P.W. 4),
after registration of the case took up the
investigation, recorded the statement of
the complainant and on 12.11.1998,
arrested the appellant. He also recorded
the statement of the victim and other
witnesses. He also got the statement of the
victim recorded under section 164 Cr.P.C.
and after preparing the site plan (Ex. Ka5),
had
taken
into
possession
the
underwear of the victim and prepared its
memo (Ex. Ka-6). After investigation, he
submitted the charge sheet (Ex. Ka-7)
against the appellant.

5. Third Additional Chief Judicial
Magistrate, Ghaziabad, vide order dated
12.1.1999, committed the case to the
sessions and the charge against the
appellant under section 376 Indian Panel
Code was framed by XIII Additional
Sessions Judge, Ghaziabad, on 26.3.1999.
The appellant pleaded not guilty to the
charge and claimed trial.

6. The prosecution, to bring home
guilt of the appellant, examined victim
Km. Priti as P.W. 1, Smt. Rajbala (P.W.
2), informant of the case and mother of
the victim, Doctor Pushp Lata (P.W.3),
who medically examined the victim on
11.11.1998, P.W. 4 investigating officer
of the case Ajay Kumar Gautam and
constable Rajpal Tyagi, who wrote the
chik FIR on dictation of Smt. Rajbala as
P.W. 5.

7. Victim P.W. 1 deposed before the
court as under:
That she came back home after her school
in the noon. She along with her elder
sister and younger brother were at home.
2 All] Sanjai V. State of U.P.
569
Her parents were not at home. She was
taking meal when her uncle Sanjay came
to her house. Her uncle Sanjay is present
in the court. Sanjay did not permit her to
take meals. He made her to lie on the cot.
At that time she was wearing school dress
and her brother and sister had gone out of
house to buy something. Her uncle took
out her underwear, then opened his
Tahmad and did Badtamizi with her
urinary organ. When Badtamizi was done
with her, she suffered pain. Her urinary
organ started bleeding. The bed sheet was
also spoiled. She raised alarm, hearing
which, her mother and elder sister came.
Her mother tried to catch her uncle but he
pushed them and ran away. Thereafter she
along with her mother went to the police
station to make the report. She was
medically examined in the hospital. The
clothes, which she was wearing, were
soaked in the blood. The clothes were
given to the police. The police had
enquired from her about the occurrence.
She had earlier also made a statement
before the court. Her leg was also soaked
in the blood. When Badtamizi was done
with her urinary organ, her mouth was
gagged.

P.W. 2 Smt. Rajbala has supported
the prosecution story.

8. P.W. 3 Dr. Pushp Lata, medical
officer examined the victim at 7.45 P.M.
On her external examination, she found
no external mark of injury on her body
but on internal examination of the victim,
she found redness over vulva perineum
torn and forchette torn at 6 O' clock
position. Hymen was also torn at 6 O'
clock position. Vaginal mucosa torn
margins
irregular
bleeds
on
touch.
Vaginal admits one finger with difficulty.
She prepared the medical examination
report (Ex. Ka-3). She referred advised
for X-ray for ascertaining age of the
victim. She also prepared slides of vaginal
smear for confirmation of spermatozoa
and gonococcal. After the report of X-ray
and
pathology,
she
prepared
supplementary report (Ex. Ka-4). As per
this report, age of the victim was found
approx. 10 to 11 years and possibility of
rape could not be ruled out though
spermatozoa not seen.

9. P.W. 4, investigating officer has
stated
that
he
had
conducted
the
investigation and submitted the charge
sheet against the accused-appellant.

P.W. 5 Constable Rajpal Tyagi has
proved the chik FIR.

The appellant, in his statement under
section
313
Cr.P.C.,
denied
the
occurrence and stated that he had dispute
with Smt. Rajbala over the house. Her
daughter fell down from the roof resulting
in vaginal injury and he has been falsely
implicated in this case.

In his defence, the appellant has
examined Natthu Ram as D.W. 1, who is
real grand father of the victim and father
of the appellant. D.W. 1 deposed before
the court that on 11.11.1998 at 12.00 hrs.
in the day when he came home to take his
meals, he found that the victim was
injured. He made an inquiry and the
people present there, told him that the
victim had fallen from roof. In the
evening, when he came back home at 8.30
P.M., he found that the police had arrested
Sanjay. He further stated that he had
dispute with Smt. Rajbala over the house.
Smt. Rajbala wanted to take alone his
house due to which she had enmity with
Sanjay. It has come in his cross
570 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
examination
that
at
the
time
of
occurrence, Sanjay was married.

The learned Sessions Judge, after
perusal of the evidence, found that there
was no reason to disbelieve the statement
of the prosecutrix which was supported by
the medical evidence on record. The
appellant is real uncle of the prosecutrix
and there is no reason to falsely implicate
him in this case and relying upon the
statement of the victim, her mother and
doctor and the formal witnesses convicted
the appellant as aforesaid.

We have heard learned counsel for
the appellant Sri R.P. Singh and learned
A.G.A.

Learned counsel for the appellant has
submitted that the appellant has been
falsely implicated in this case due to
family dispute between the mother of the
victim Smt. Rajbala and grand father of
the appellant over the house. He has
further submitted that the victim had
fallen down from roof and suffered
injuries and the appellant had been falsely
implicated in this case due to enmity. It
has also been submitted by the learned
counsel for the appellant that the victim,
in her cross examination, has specifically
stated that her mother and sister arrived at
the place of occurrence after the appellant
had runaway. Therefore the statement of
Smt. Rajbala, mother of the victim is
untrustworthy. He has also argued that the
sentence of life imprisonment given by
the
learned
Sessions Judge is the
maximum
sentence
prescribed
under
section 376 of Indian Panel Code. It has
also been argued by the learned counsel
for the appellant that the appellant has
two daughters who have come of age and
are to be married. The accused is in jail
right from the time when the learned
Sessions Judge passed the impugned
judgement and order dated 14.12.1999
and has already undergone imprisonment
of about seven and half years.

10. Learned counsel for the
appellant has drawn our attention to the
law laid down by Hon'ble the Supreme
Court in T.K. Gopal alias Gopi Vs. State
of Karnataka (2000 CAR 366), where
Hon'ble the Supreme Court had issued a
notice to the accused-appellant to show
cause why his ten years' sentence should
not be enhanced to life imprisonment
where the appellant had committed rape
on a girl of one and a half year. Hon'ble
the Supreme Court having regard to the
fact that the appellant had two daughters
of marriageable age, discharged the
notice.

11. Learned A.G.A. has submitted
that the appellant, who is real uncle of the
victim, has committed rape upon the
victim, who is of a tender age of about
eleven years and the fact that rape
committed on the victim by the appellant
is fully proved from the evidence and
statement on record and in view of this,
no lenient view in the matter can be taken.

We
have
given
thoughtful
consideration to the submissions made by
the learned counsel for the parties.

12. We do not find any force in first
submission of the learned counsel for the
appellant that the victim suffered injury
due to fall from roof. There is no such
evidence on the record that the victim had
fallen from roof. It is also improbable that
if the victim had fallen from roof she
suffered injury only in her vagina and on
no other part of her body. The statement
2 All] Smt. Kiran Rai V. State of U.P. and others
571
of D.W. 1 Natthu Ram cannot be believed
for the reason that he is father of the
appellant and he himself did not see that
the victim suffered injury due to fall from
roof. He only stated that he was informed
by the people that victim had fallen from
the roof.

13. We also do not find any force in
the argument of the learned counsel for
the appellant that he has been falsely
implicated by the mother of the victim
over the dispute of the house. It is
improbable for mother to make false
allegation of sexual assault on her minor
daughter
against
her
own
Dewar.
Normally a girl or woman, in tradition
bound non-permissive society, would be
extremely reluctant to admit any such
incident. No mother would take risk to
make
false
allegation
against
the
appellant, who is the real uncle of the
victim, for sexual assault on her daughter
for fear of social stigma.

14. From the perusal of the evidence
on record and statement of the prosecutrix
in particular, in our view, the statement of
the prosecutrix inspires confidence. No
girl would depose falsely against her own
uncle. The mother of the victim, P.W.2
Smt. Rajbala, would also not do so for the
future prospects of the victim getting
married. From the statement of the victim
it is revealed that the appellant, while the
victim was all alone in her house and was
taking meals, made her lie on a cot and
committed rape upon her. The statement
of the victim and her mother Smt. Rajbala
is fully corroborated by the medical
evidence on the record.

15. The doctor also opined that there
was possibility that rape was committed
on her. Even if mother and sister of victim
arrived after the occurrence, as stated by
the victim, still there is no ground to
disbelieve the statement of the victim,
which
is
corroborated
by
medical
evidence on record.

16. Thus, we are of the opinion that
the judgement, holding the appellant
guilty, recorded by the Sessions Court, is
based on evidence and sound reasoning.
The conviction of the appellant is
therefore, maintained.

17. However, keeping in view the
law laid down by Hon'ble the Supreme
Court in the case of T.K. Gopal alias Gopi
(Supra) and the fact that the appellant has
two daughters of marriageable age, we are
inclined to consider the submission of the
learned
counsel
for
the
appellant
regarding reduction in the sentence. The
appeal is hereby dismissed. The sentence
of life imprisonment is reduced to a
sentence
of
ten
years'
rigorous
imprisonment.

18. The copy of this judgement be
immediately sent to the court concerned
for
necessary
compliance.
Appeal
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.03.2007

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 12189 of 2007

Smt. Kiran Rai

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri. B.N. Rai