# Irfan v. State of U.P

- **Citation:** (2025) 9 ILRA 106
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-19
- **Case number:** Criminal Appeal No. 1594 of 2017
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/irfan-v-state-of-u-p-53855
- **Pages:** 30

## Headnote

Mr. Shashi Shekhar Tiwari, A.G.A., Mr. K.K.
Nishad
9 All. Irfan Vs. State of U.P.
107
Issue for Consideration
The matter pertains to credibility of the gang
rape case and uncorroborated testimony of the
prosecutrix.

Headnotes
A. Criminal matter-Criminal Procedure
Code,1973-Section 374(2)-Indian Penal
Code,1860-Evidentiary
value
of
Prosecutrix testimony-Medical Evidence
subordinate
to
ocular
evidence-The
appellants were acquitted-The primary
reason
was
the
highly
unreliable
identification procedure as they were
identified for the first time in the dock and
were
previously
unknown
to
the
prosecutrix, who was in a semi-conscious
state at the time of crime-the ocular
evidence is paramount and will prevail
over medical evidence if the victims'
statement is consistent and trustworthy.
Held
The court affirmed that the prosecutrix's
statement that she was ravished by multiple
men was not to be disbelieved altogether, even
if she was in a semi-conscious state, and even if
she could not reliably identify the offenders-The
court reiterated that the absence of injury to the
prosecutrix's private parts does not mean her
account of the gruesome crime is to be
disbelieved, confirming the principle that the
ocular evidence will prevail over the medical
evidence when it is clear and trustworthy-Three
Appellants acquitted-One appellant's conviction
upheld. (E-6)

Case law Cited
Lilia
alias
Ram
Swaroop
Vs
State
of
Rajasthan,(2014) 16 SCC 303, Amrik Singh Vs
State of Punjab,(2022) 9 SCC 402 & Allarakha
Habib Memon & Ors Vs State of Gujarat, (2024)
9 SCC 546, Kanan & Ors Vs State of Kerala,
(1979) 3 SCC 319 & Dana Yadav alias Dahu &
Ors Vs State of Bihar,(2002) 7 SCC 295,Lok Mal
alias Loku Vs State of U.P., (2025) 4 SCC 470,
State of Uttar Pradesh Vs Chhotey Lal, (2011) 2
SCC 550.
P.Sasikumar Vs State of T.N., (2024) 8 SCC 600,
Devinder Singh & Ors Vs State of H.P., (2003)
11 SCC 488,Manoj Giri Vs State of Chhattisgarh,
(2013) 5 SCC 798, Kuruva Sreenivasulu Vs SHO,
Ullindakonda
P.S.,
2023
Supreme
(AP)
47,Praveen Vs State of NCT of Delhi 2025 SC
Online Del 5583, Vijay alias Chinee Vs State of
M.P., (2010) 8 SCC 191, J.Lalruatsanga Vs State
of Mizoram & Anr, 2020 SCC OnLine Gau
4897,Raju alias Umakant Vs State of M.P., 2025
SCC OnLine SC 997-referred to.

List of Acts
Indian Penal Code,1860, Criminal Procedure
Code,1973.

List of Keywords
Prosecutrix, semi-conscious state, trustrworthy,
ocular evidence, acquittal, gruesome crime,
rigorous
imprisonment,
assault,
testimony,
external injury, Hindu Yuva Vahini, confounded,
occurrence, dock, impediment, offenders, noncomplicity, ravishment, alcohol, benefit of
doubt.

Case Arising from
CRIMINAL
APPELLATE
JURISDICTION-
CRIMINAL APPEAL No.-1594 of 2017
From
the
Judgment
and
Order
dated
19.09.2025 of the High Court of Judicature at
Allahabad.
Irfan Vs. State Of U.P.

Appearances for Parties
Counsel for Appellant
 Mr.
Kamta
Prasad
in
Criminal
Appeal
No.1594,Mr. Sushil Kumar Dwivedi in Criminal
Appeal No. 1897 of 2017,Mr. M.P. Yadav in
Criminal Appeal No. 1580 of 2017, &, Mr. Indra
Pal Singh Rajpoot in Criminal Appeal No. 1282
of 2017
Counsel for Respondent
Mr.Shashi Shekhar Tiwari, A.G.A. along with Mr.
K.K. Nishad,State Law Officer on behalf of the
State in all the appeals

## Text

_Characters 0–38,812 of 104,262. This is a partial read: ask again with offset=38812 for what follows._

106 INDIAN LAW REPORTS ALLAHABAD SERIES
appreciation of all features of the case, as
well as the quality and credibility of the
evidence brought on record. The Court
must ensure, that miscarriage of justice is
avoided, and if the facts and circumstances
of a case so demand, then the benefit of
doubt must be given to the accused,
keeping in mind that a reasonable doubt is
not an imaginary, trivial, or a merely
probable doubt, but a fair doubt that is
based upon reason and common sense.
(vide Hanumant Govind Nargundkar Vs.
State of M.P. AIR 1952 Supreme Court
343, State Vs. Mahendra Singh Dahiya
(2011) 3 SCC 109; and Ramesh Harijan
Vs. State of UP (2012) 5 SCC 777.

14. In Kali Ram Vs. State of
Himachal Pradesh (1973) 2 SCC 808, this
Court observed as under: ( SCC page 820,
Para 25)

"25. Another golden thread,
which runs through the web of the
administration of justice in criminal cases
is that if two views are possible on the
evidence adduced in the case, one pointing
to the guilt of the accused and the other to
his innocence, the view which is favourable
to the accused should be adopted...."

85. In view of the observations made
here
in
above
with
regard
to
the
acceptability
of
the
evidence,
and
investigation being defective, if primacy is
given to such prosecution story based on
negligent investigation, the faith and
confidence of the people would be shaken,
not only in the law enforcing agency, but
also in the administration of justice.

86. Consequently, the appeals deserve
to be allowed and are allowed. The
judgement and order dated 07.08.2014 is
set aside. The appellants appear to be in
jail, therefore it is directed that the
appellants shall be released from prison
forthwith. However, they shall file personal
bonds
along
with
two
sureties
of
Rs.25,000/- each before the Trial Court
within 30 days from today, as provided
under section 437A of the Code of
Criminal Procedure. (Now, Section 481 of
the BNSS).

87. A Copy of this order along with
the
record
of
the
Trial
Court,
be
immediately sent to the Trial Court for
compliance.

88. Sri Shreesh Kumar Mishra Atal,
learned Amicus has very sincerely assisted
this Court and we appreciate the effort put
in by him. He is directed to be paid
Rs.22,000/-
as
consolidated
honorarium/fees for both the appeals
allowed by us today.
----------
(2025) 9 ILRA 106
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.09.2025

BEFORE

THE HON'BLE J.J. MUNIR, J.

Criminal Appeal No. 1594 of 2017
&
Connected With Other Cases

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

Counsel for the Appellant:
Mr. Kamta Prasad, Mr. Sushil Kumar
Dwivedi, Mr. M.P. Yadav, Mr. Indra Pal
Singh

Counsel for the Respondent:
Mr. Shashi Shekhar Tiwari, A.G.A., Mr. K.K.
Nishad
9 All. Irfan Vs. State of U.P.
107
Issue for Consideration
The matter pertains to credibility of the gang
rape case and uncorroborated testimony of the
prosecutrix.

Headnotes
A. Criminal matter-Criminal Procedure
Code,1973-Section 374(2)-Indian Penal
Code,1860-Evidentiary
value
of
Prosecutrix testimony-Medical Evidence
subordinate
to
ocular
evidence-The
appellants were acquitted-The primary
reason
was
the
highly
unreliable
identification procedure as they were
identified for the first time in the dock and
were
previously
unknown
to
the
prosecutrix, who was in a semi-conscious
state at the time of crime-the ocular
evidence is paramount and will prevail
over medical evidence if the victims'
statement is consistent and trustworthy.
Held
The court affirmed that the prosecutrix's
statement that she was ravished by multiple
men was not to be disbelieved altogether, even
if she was in a semi-conscious state, and even if
she could not reliably identify the offenders-The
court reiterated that the absence of injury to the
prosecutrix's private parts does not mean her
account of the gruesome crime is to be
disbelieved, confirming the principle that the
ocular evidence will prevail over the medical
evidence when it is clear and trustworthy-Three
Appellants acquitted-One appellant's conviction
upheld. (E-6)

Case law Cited
Lilia
alias
Ram
Swaroop
Vs
State
of
Rajasthan,(2014) 16 SCC 303, Amrik Singh Vs
State of Punjab,(2022) 9 SCC 402 & Allarakha
Habib Memon & Ors Vs State of Gujarat, (2024)
9 SCC 546, Kanan & Ors Vs State of Kerala,
(1979) 3 SCC 319 & Dana Yadav alias Dahu &
Ors Vs State of Bihar,(2002) 7 SCC 295,Lok Mal
alias Loku Vs State of U.P., (2025) 4 SCC 470,
State of Uttar Pradesh Vs Chhotey Lal, (2011) 2
SCC 550.
P.Sasikumar Vs State of T.N., (2024) 8 SCC 600,
Devinder Singh & Ors Vs State of H.P., (2003)
11 SCC 488,Manoj Giri Vs State of Chhattisgarh,
(2013) 5 SCC 798, Kuruva Sreenivasulu Vs SHO,
Ullindakonda
P.S.,
2023
Supreme
(AP)
47,Praveen Vs State of NCT of Delhi 2025 SC
Online Del 5583, Vijay alias Chinee Vs State of
M.P., (2010) 8 SCC 191, J.Lalruatsanga Vs State
of Mizoram & Anr, 2020 SCC OnLine Gau
4897,Raju alias Umakant Vs State of M.P., 2025
SCC OnLine SC 997-referred to.

List of Acts
Indian Penal Code,1860, Criminal Procedure
Code,1973.

List of Keywords
Prosecutrix, semi-conscious state, trustrworthy,
ocular evidence, acquittal, gruesome crime,
rigorous
imprisonment,
assault,
testimony,
external injury, Hindu Yuva Vahini, confounded,
occurrence, dock, impediment, offenders, noncomplicity, ravishment, alcohol, benefit of
doubt.

Case Arising from
CRIMINAL
APPELLATE
JURISDICTION-
CRIMINAL APPEAL No.-1594 of 2017
From
the
Judgment
and
Order
dated
19.09.2025 of the High Court of Judicature at
Allahabad.
Irfan Vs. State Of U.P.

Appearances for Parties
Counsel for Appellant
 Mr.
Kamta
Prasad
in
Criminal
Appeal
No.1594,Mr. Sushil Kumar Dwivedi in Criminal
Appeal No. 1897 of 2017,Mr. M.P. Yadav in
Criminal Appeal No. 1580 of 2017, &, Mr. Indra
Pal Singh Rajpoot in Criminal Appeal No. 1282
of 2017
Counsel for Respondent
Mr.Shashi Shekhar Tiwari, A.G.A. along with Mr.
K.K. Nishad,State Law Officer on behalf of the
State in all the appeals

(Delivered by Hon'ble J.J. Munir, J.)

1. These are appeals by four convicts,
who stood their trial before Mr. Ram
Kushal, the Additional Sessions Judge/
F.T.C., Mahoba, in Sessions Trial No.55 of
2015 (arising out of Crime No.7 of 2015),
under Section 376-D of the Indian Penal
Code, 1860 (for short, 'IPC'), Police Station
Charkhari, District Mahoba. All the four
convicts, to wit, Irfan son of Shahzade,
108 INDIAN LAW REPORTS ALLAHABAD SERIES
Irfan @ Golu son of Habeeb, Ritesh @
Shanu and Manvendra @ Kallu, were
sentenced by the learned Trial Judge to
suffer rigorous imprisonment for a term of
20 years along with a fine in the sum of
Rs.20,000/- each; and, in default, to
undergo for a further term of two years.

2. A First Information Report (for
short, 'FIR') was lodged on 13.01.2015 by
the informant Shyam Kumar son of Mani
Lal, a resident of Mohalla, Qasba and
Police Station Charkhari, District Mahoba,
with Police Station Charkhari at 7.30 p.m.,
saying that his daughter 'A', aged 20 years,
had left home on 11.01.2015 at about 7
o'clock in the evening in order to buy some
gutkha for him. It is said that on account of
cold weather and fog, almost all shops in
the vicinity of the informant's home had
closed for the day. 'A', who shall
hereinafter
be
referred
to
as
'the
prosecutrix', found Irfan @ Golu and
Ritesh @ Shanu outside the informant's
home, who muffled her voice and forcibly
took her to a building in ruins, situate
behind a shop, called Gaffar Chacha's.
There, these two men had the company of
another two, whom the prosecutrix does not
know, but can recognize them. The two
men, last mentioned, were already there.
All four of them forced the prosecutrix to
imbibe alcohol and beat her up. Next, all
the four ravished the prosecutrix one by
one and left her there, still inebriated.

3. On the 12th of January, 2015 at
about 7 o'clock in the morning, the
prosecutrix regained consciousness and
raised alarm. It was then that, according to
the informant, one Babu Lal Shankhwar
informed him that his daughter, the
prosecutrix, was lying in the ruins behind
Gaffar Chacha's shop and that she was
groaning. The informant, along with his
wife, then picked up the prosecutrix and
brought her to the police station. His
daughter was in a state of shock and fear.
At that time, according to the informant,
she disclosed so much and no more to the
informant that Irfan @ Golu had beaten her
up. Thereupon, the informant got NCR
No.3 of 2015 registered against Irfan @
Golu under Section 323 IPC, but on the
following day, when the prosecutrix fully
regained her senses, she told the informant
that on 11.01.2015, Irfan @ Golu and
Shanu, besides two of his accomplices, had
ravished her by turns. The informant was,
therefore, reporting the offence to the
Police for action to be taken in accordance
with law.

4. There is indeed on record, though
not included in the paper-book, an
information dated 12.01.2015 lodged by the
informant, giving rise to NCR No.3 of
2015, under Section 323 IPC, relating to
the selfsame incident dated 11.01.2015, as
the one subject matter of the FIR, lodged
on 13.01.2015. Allusion would be made to
this NCR later in this judgment.

5. The written information, on the
basis of which the FIR, giving rise to the
present appeal was registered, was, after
proof, marked as Ex. Ka-1, whereas the
check
FIR
marked
Ex.
Ka-6.
The
prosecutrix's statement under Section 161
of the Code of Criminal Procedure, 1973
(for short, 'Cr.P.C.') was taken down by
Lady
Constable,
Shashi
Prabha,
on
14.01.2015 and signed by the prosecutrix.
Upon proof of the said statement by the
prosecutrix, it was marked Ex. Ka-4. The
prosecutrix's statement under Section 164
Cr.P.C. was recorded before a Judicial
Magistrate
on
16.01.2015,
who
was
functioning as the Civil Judge (Jr. Div.),
Mahoba.
9 All. Irfan Vs. State of U.P.
109

6. After investigation, the Police filed
a charge-sheet on 10.02.2015 against six
accused, to wit, Irfan @ Golu, Shanu son of
Qasim, Irfan son of Shahzade, Chhotu @
Imran, Ritesh son of Bhawani Prasad and
Kallu @ Manvendra Singh.

7. The Magistrate took cognizance on
08.04.2015. In due course, the case was
committed to the Sessions, where all the six
accused were jointly charged by the learned
Additional Sessions Judge/ F.T.C., Mahoba
on 29.04.2015 for an offence punishable
under Section 376-D IPC. All the four
accused pleaded not guilty and claimed
trial.

8. The following witnesses were
examined on behalf of the prosecution:
PW-1, Shyam Kumar, the first informant;
PW-2,
the
prosecutrix;
PW-3,
Lady
Constable Shashi Prabha; PW-4, Dr.
Amrita Singh; PW-5, Abdul Rajjak; and,
PW-6, Dr. Anand Swaroop.

9. The following documents were
produced at the trial: the written first
information report, Ex. Ka-1; memo of
recovery relating to slippers of the
prosecutrix, water and liquor bottles
recovered from the scene of occurrence,
Ex. Ka-2; memo relating to clothes of the
prosecutrix worn at the time of occurrence
that were seized as material evidence, Ex.
Ka-3; the statement of the prosecutrix
under Section 161 Cr.P.C. recorded by the
Lady Constable, Ex. Ka-4; the statement of
the prosecutrix recorded by the Magistrate
under Section 164 Cr.P.C., Ex. Ka-5; check
FIR, Ex. Ka-6; GD Entry evidencing
registration of the crime at the police
station, Ex. Ka-7; the prosecutrix's medical
examination report, Ex. Ka-8; the site-plan
relating to the place of occurrence drawn
up by the Investigating Officer, Ex. Ka-9;
memo of arrest relating to Golu @ Irfan
and Shanu, Ex. Ka-10; memo of arrest
relating to Ritesh, Kallu @ Manvendra,
Irfan son of Shahzade and Chhotu @
Imran, Ex. Ka-11; the charge-sheet, Ex.
Ka-12; memo of the prosecutrix's statement
recorded on a Compact Disk (CD), Ex. Ka13; memo of recovery relating to Golu @
Irfan's underwear, Ex. Ka-14; memo of
recovery relating to underwear of Ritesh,
Manvendra, Chhotu @ Imran and Irfan son
of Shahzade, Ex. Ka-15; report relating to
material exhibit received from the forensic
science laboratory, Ex. Ka-16; and, the
primary or the first medical examination
report relating to the prosecutrix, Ex. Ka17.

10. The following material evidence
was produced by the prosecution: CD
carrying
the
prosecutrix's
recorded
statement, Material Exhibit (ME) 1; water
bottle, wooden planks, slippers, liquor
bottle, cigarettes and matchbox recovered
from the place of occurrence, ME-2 to ME13; and, pant, jacket and other clothes worn
by
the
prosecutrix
at
the
time
of
occurrence, ME-14 to ME-20.

11. After the prosecution evidence was
over, the statement of the appellants as well
as the co-accused acquitted were recorded
under Section 313 Cr.P.C.

12. We propose to refer to the material
part of the statements under Section 313
Cr.P.C. relating to the appellants alone. All
the appellants, to wit, Irfan son of
Shahzade, Irfan @ Golu son of Habeeb,
Ritesh @ Shanu and Manvendra @ Kallu,
after generally denying the evidence shown
to be appearing against them, said that they
had been falsely implicated and wish to
lead evidence in defence. Head Constable,
110 INDIAN LAW REPORTS ALLAHABAD SERIES
Virendra Kumar Shukla was examined by
the appellants as DW-1.

13. The learned Sessions Judge, vide
judgment and order dated 02.03.2017,
convicted Irfan son of Shahzade, Irfan @
Golu son of Habeeb, Ritesh @ Shanu and
Manvendra @ Kallu under Section 376-D
IPC and sentenced each of them in the
manner already indicated.

14. Aggrieved, these appeals have
been filed.

15. Since all the appeals arise out of
the same crime, where all the appellants
were jointly tried and convicted by the
same judgment, all the appeals have been
heard together and are decided by this
common judgment.

16. Heard Mr. Kamta Prasad, learned
Counsel for the appellant in support of
Criminal Appeal No. 1594 of 2017, Mr.
Sushil Kumar Dwivedi, learned Counsel
for the appellant in Criminal Appeal No.
1897 of 2017, Mr. M. P. Yadav, learned
Counsel for the appellant in Criminal
Appeal No. 1580 of 2017, and, Mr. Indra
Pal Singh Rajpoot, learned Counsel for the
appellant in Criminal Appeal No. 1282 of
2017. Mr. Shashi Shekhar Tiwari, learned
Additional Government Advocate along
with Mr. K. K. Nishad, learned State Law
Officer has been heard on behalf of the
State.

17. The learned Counsel for the
appellants, appearing in all the appeals,
have advanced some common submissions
to discredit the prosecution case against
them. They have much emphasized the fact
that there is a solitary occurrence, that
happened on 11.01.2015 at 7.00 p.m., but
two different
versions
of
the
same
occurrence have been put forward by the
informant before the Police - the first being
reported as an NCR on 12.01.2015, and, the
other, as an FIR on 13.01.2015. They
submit that relating to the same occurrence
dated 11.01.2015, in N.C.R. No.3 of 2015,
which was registered at 7.30 a.m. at the
instance of the prosecutrix, the allegation is
one of assault. The prosecutrix was,
therefore, sent to the Community Health
Centre,
Charkhari,
along
with
Lady
Constable Shashi Prabha, PW-3, on the
strength of a Chitthi Majrubi for medical
examination.
On
12.01.2015
at
five
minutes past twelve in the afternoon, the
prosecutrix was medically examined by Dr.
Anand Swaroop, PW-6, who noticed six
external
injuries
and
referred
the
prosecutrix to the Women District Hospital,
Mahoba for her internal examination. On
13.01.2015 at 5.30 p.m., the prosecutrix
was subjected to an internal examination by
PW-4, Dr. Amrita Singh. She did not notice
any telltale injury on the prosecutrix's
private part, suggestive of sexual assault.
Learned
Counsel
for
the
appellants
emphasized
that
until
this
time
on
12.01.2015, there was nothing said about
the case of gang-rape i.e. until 5.30 p.m. on
13.01.2015.

18. On 13.01.2015, the FIR, giving
rise to Crime No.7 of 2015, under Section
376-D IPC, was got registered at Police
Station Charkhari by the informant at 7.30
p.m. against two nominated accused, Irfan
@ Golu and Shanu son of unknown,
together with two unnamed offenders. The
case in the FIR is entirely different, which
speaks about abduction by two of the
nominated accused, who carried her off to a
building in ruins, behind Gaffar's shop,
made her forcibly drink alcohol upon pain
of assault and then ravished her by turns
throughout the night.
9 All. Irfan Vs. State of U.P.
111

19. It is next submitted that the
allegation against Irfan @ Golu was that
when the proecutrix was proceeding to buy
gutkha for her father leaving home, Irfan @
Golu met her on way, caught hold of her
along with co-accused Shanu, who has
been acquitted. Both of them forced her to
a remote place, where she was ravished. It
is also emphasized by the learned Counsel
for the appellants that in her statement
under Section 161 Cr.P.C., the prosecutrix
came up with allegations against Irfan @
Golu and the acquitted co-accused Shanu,
who caught hold of her, when she was
proceeding to buy gutkha for her father. It
is said that she raised alarm, but in vain.
What is emphasized is that in this statement
too, there is no reference to the appellants,
Ritesh, Kallu @ Manvendra Singh and
Chhotu @ Imran.

20. It is next submitted that according
to the testimony of PW-5, the Investigating
Officer, he recorded Irfan @ Golu's
confession as well as that of Shanu, the
acquitted co-accused, in police custody. It
is urged that without any lawful evidence
appearing against the other four, to wit,
Ritesh, Kallu, Irfan and Chhotu @ Imran,
PW-5 implicated them on the basis of coaccused's confession, which the learned
Counsel
for
the
appellants
say,
is
inadmissible in evidence. At this stage,
learned Counsel for the appellants point out
that on 14.01.2015, according to the
testimony of PW-5, Inspector Abdul
Rajjak, the appellant Irfan @ Golu and the
acquitted co-accused Shanu, were arrested.

21. Learned Counsel for the appellants
say that on 15.01.2015, the remainder of
the unnamed accused, to wit, Ritesh, Kallu
@ Manvendra Singh, Irfan son of Shahzade
and Chhotu @ Imran, were arrested by
PW-5, Inspector Rajjak, on account of
heavy pressure from the Bharatiya Janata
Party Leaders, which came in consequence
of the confessions of Irfan @ Golu and the
acquitted co-accused Shanu.

22. It is argued by the learned Counsel
for the appellants that on 16.01.2015, the
prosecutrix was produced before the
learned Magistrate for recording her
statement under Section 164 Cr.P.C. In that
statement, the prosecutrix disclosed the
name of Irfan @ Golu, Shanu and another
Irfan, besides one unknown offender,
whose face had been covered by a scarf, all
through moments of the crime. Learned
Counsel for the appellants emphasize that
in the statement under Section 164 Cr.P.C.,
the names of appellants, Ritesh, Kallu @
Manvendra Singh, were not disclosed by
the prosecutrix. Learned Counsel say in one
voice that the statement under Section 164
Cr.P.C. was a third opportunity, where the
prosecutrix could disclose these two
appellants, to wit, Ritesh and Kallu @
Manvendra Singh's name, but she did not.
At this stage, there was no fear, if what she
had to say were correct. It is next
submitted, adding force to the attack, that
the prosecution story carried in the FIR
dated
13.01.2015,
the
prosecutrix's
testimony recorded under Section 161
Cr.P.C. as well as that recorded under
Section 164 Cr.P.C. on 16.01.2015, carry
no allegation against Ritesh, Kallu @
Manvendra, not to speak of the acquitted
co-accused, Chhotu @ Imran. The learned
Counsel for the appellants say that these
men
were
nevertheless
arrested
on
15.01.2015
and
charge-sheeted
on
10.02.2015 by PW-5 to assuage public
feelings.

23. It is argued by the learned Counsel
that these arrests were made under political
pressure from leaders of the Bharatiya
112 INDIAN LAW REPORTS ALLAHABAD SERIES
Janata Party and the Vishwa Hindu Vahini.
It is next said by the learned Counsel for
the appellants that PW-5, in his testimony,
has said that no doubt he had arrested Irfan
@ Golu and Shanu and the rest of the men
on 15.01.2015, on the basis of confessions
made by Irfan @ Golu and Shanu, but to
assure himself of the veracity of the
prosecution,
he
had
interrogated
the
prosecutrix
again
on
01.02.2015.
According to PW-5, learned Counsel for
the appellants emphasize, the prosecutrix
disclosed the names of Ritesh, Irfan son of
Shahzade, Kallu @ Manvendra and Chhotu
@ Imran. Learned Counsel submit, with
reference to these facts, that the entire
prosecution story is based on falsehood,
that was conjectured much after the
occurrence with a good deal of deliberation
and delay in shady settings, highly redolent
of doubt and suspicion.

24.
Mr.
Kamta
Prasad,
learned
Counsel appearing for the appellant, Irfan
son of Shahzade and Ritesh in Criminal
Appeal No.1594 of 2017 and 1580 of 2017
respectively, has made some submissions
specific to the case of these two appellants,
which we must note. It is argued that on
12.01.2015 at 7.30 p.m., the prosecutrix
arrived at the police station, accompanied
by her father Shyam Kumar and his wife,
that is to say, the prosecutrix's mother. It is
argued that during this visit to the police
station, the prosecutrix was fully conscious
and there was no impediment, physical or
mental, that would keep her back from
reporting the offence of rape, if there was
one. It is argued that on 12.01.2015, the
prosecutrix was sent for her medical
examination, but at the time of her medical
examination, she did not disclose the fact that
she had suffered rape. On 13.01.2015, the
prosecutrix was internally examined at the
Women District Hospital, Mahoba, but she
did not say anything, about being ravished, to
PW-4 Dr. Amrita Singh. On the same day i.e.
13.01.2015, the prosecutrix did a U-turn and
transmuted a case of assault into one of rape.

25. It is next submitted by Mr. Kamta
Prasad that while the FIR lodged on
13.01.2015 mentions NCR No.3 of 2015 in
connection with the allegations that figure
against Irfan @ Golu, the origin and genesis
of the case of assault, earlier set up, was
completely suppressed by the prosecution,
that was launched on the foot of the FIR, later
lodged regarding commission of offence of
gang-rape. It is also urged that falsehood of
the prosecution can be fathomed by the fact
that the appellants, Irfan son of Shahzade and
Ritesh, were not named in the FIR, where the
nominated accused were Irfan @ Golu and
the acquitted co-accused, Shanu son of
Qasim. Learned Counsel for the appellants
here emphasizes that Irfan @ Golu and
Shanu son of Qasim were arrested by
Inspector Abdul Rajjak on 14.01.2015 and
without any corroborating evidence, the
appellants, Irfan son of Shahzade and Ritesh,
together with Kallu @ Manvendra and
Chhotu
@
Imran,
were
arrested
on
15.01.2015 on the basis of a confession
attributed to Irfan @ Golu and Shanu son of
Qasim. It is emphasized that so far as the
appellant Ritesh is concerned, his name has
not been disclosed by the prosecutrix, either
in her statement under Section 161 Cr.P.C. or
Section 164. It is then urged that while the
medical
examination
dated
12.01.2015
certainly supports a case of physical
altercation, but the internal examination done
later, on 13.01.2015, falsifies the prosecution
story of gang-rape, involving six offenders.

26. Learned Counsel for the appellants
has drawn our attention to the medico-legal
report, that was authored by Dr. Amrita
Singh, PW-4, where he emphasizes that she
9 All. Irfan Vs. State of U.P.
113
did not find any injury upon an internal
examination of the prosecutrix. The doctor
found no marks of violence suffered by the
prosecutrix to her private parts, that would
surely be there, if she was indeed ravished
by six men or four. In support of this
contention,
learned
Counsel
for
the
appellants has reposed faith in Lilia alias
Ram Swaroop v. State of Rajasthan,
(2014) 16 SCC 303.

27. It is submitted by Mr. Kamta
Prasad that both the appellants, to wit, Irfan
son of Shahzade and Ritesh, are apparently
victims of a patently false prosecution. He
emphasizes that in contemporary society,
laying of false charges of rape is not an
uncommon phenomenon. There have been
instances, where a parent has persuaded a
gullible or obedient daughter to come up
with a false charge of rape, either to take
revenge or extort money or get rid of
financial liability. The case here falls under
a cloud of doubt also because Shanu,
whose name figured in the FIR as also the
statements under Sections 161 and 164
Cr.P.C., has been acquitted by the Trial
Court.

28. Learned Counsel points out that
the prosecutrix, in her dock evidence,
resiled from the allegations against Shanu
son of Qasim and Chhotu @ Imran. It was
on this account that the Trial Court
acquitted them on the same evidence as that
appearing against the two appellants. It is
emphasized that the Trial Court convicted
the appellant, Ritesh, treating him as
Shanu, without any cogent or corroborating
evidence appearing against him.

29. It is next submitted that the false
implication of the appellants is evident
from the fact that the prosecutrix did not
disclose the name, features or age of the
appellants, Irfan son of Shahzade and
Ritesh, in any of her statements recorded at
the stage of investigation, but identified
both Irfan son of Shahzade and Ritesh in
the dock for the first time in her testimony
recorded about 7-8 months after the
occurrence. Ritesh's conviction, according
to the learned Counsel, is one absolutely
based
on
flimsy
and
undependable
evidence, which cannot be countenanced.
In
support
of
his
submission
last
mentioned,
learned
Counsel
for
the
appellants has placed reliance upon Amrik
Singh v. State of Punjab, (2022) 9 SCC
402 and Allarakha Habib Memon and
others v. State of Gujarat, (2024) 9 SCC
546.

30. Elaborating on this submission of
his, learned Counsel submits that the dock
identification of the two appellants by the
prosecutrix, PW-2, done after 7-8 months
of the occurrence, is absolutely unreliable.
The said witness had not given out either
the name or the description of the two
appellants, Irfan son of Shahzade and
Ritesh in her statement to the Police or that
recorded by the learned Magistrate under
Section 164 Cr.P.C. Therefore, according
to learned Counsel, if at all the prosecution
was desirous of establishing the appellants'
complicity, the prosecutrix should have
been required to identify the two of them in
a test identification parade, organized
during investigation. Their identification in
the dock for the first time is unacceptable.
In support of this contention, learned
Counsel for the appellants has placed
reliance upon Kanan and others v. State
of Kerala, (1979) 3 SCC 319 and Dana
Yadav alias Dahu and others v. State of
Bihar, (2002) 7 SCC 295.

31. Mr. Sushil Kumar Dwivedi,
learned Counsel for the appellant, Irfan @
114 INDIAN LAW REPORTS ALLAHABAD SERIES
Golu,
appearing
in
Criminal
Appeal
No.1897 of 2017, has advanced his own
arguments, amongst which what is worth
mention is that according to the learned
Counsel,
the
first
informant
in
his
examination-in-chief has said that on
12.01.2015 at about 7 o'clock in the
morning, behind Javed Photographer's
shop, he found the prosecutrix lying
unconscious in the ruins there. The
prosecutrix said that Irfan @ Golu had
assaulted her. Therefore, she was medically
examined and an N.C.R. registered under
Section 323 IPC against Irfan @ Golu
alone. On 13.01.2015, according to the
informant, when the prosecutrix regained
consciousness, she told her mother, Maya
Devi, the informant's wife, that Irfan @
Golu, Shanu, Irfan son of Shahzade and
Chhotu had ravished her in the ruins.
Learned Counsel emphasizes that the FIR,
that was lodged on 13.01.2015, nominated
two accused and carried the name of two
unnamed offenders. It is emphasized that
when the prosecutrix had told the entire
incident and confided the names of all the
four accused with her mother, it is not
understandable why the FIR was lodged
against two nominated men alone, leaving
the identity of two others to uncertainty.

32. It is next pointed out by the
learned Counsel for the appellant that the
informant, Shyam Kumar, PW-1, along
with his wife, Maya Devi, and the
prosecutrix went to the police station on
12.01.2015 and lodged an N.C.R. relating
to a case of assault, the previous evening at
7.00. The prosecutrix was sent for her
medical examination in reference to N.C.R.
No.3 of 2015, under Section 323 IPC.
Learned Counsel for the appellant is quick
to add that in the testimony of PW-2, the
prosecutrix, it is clearly said that on
11.01.2015 at about 9.00 p.m., she was
conscious and had shared the entire
occurrence with her mother, that is to say,
whatever had befallen her in the night of
11.01.2015. She was also fully conscious
on 12.01.2015, while in the safety of her
parents' home and talked to her parents. It
is argued that the distance of the place of
incident from the police station is one
kilometer, but the informant and his wife as
also the prosecutrix did not go to the police
station until 12.01.2015. They went to the
police station and lodged an N.C.R. Neither
the informant nor his wife nor the
prosecutrix ever came up with a case of
rape, when they lodged the N.C.R. on
12.01.2015. The incident had taken place
on 7.00 p.m. on 11.01.2015 and the place
of occurrence is in the centre of a densely
populated area. There are several shops,
selling all kinds of wares. Men and women
from the locality frequent the place and
most of them know the prosecutrix.
Learned Counsel submits that it is hard to
believe that none of them would have seen
or heard the prosecutrix suffer.

33. According to the learned Counsel,
this is a case, which, on the evidence
forthcoming and the circumstances, is not
one which can be accepted by a man of
ordinary prudence. It is said that after
inquiry into the N.C.R., the prosecutrix was
sent for her medical examination by the
Police to the Community Health Centre.
The informant, with the help of Jagdish
Parihar, a local politician, and another
Arvind Singh, besides 14-15 persons
belonging to the Hindu Vahini, collectively
reached Police Station Charkhari, District
Mahoba, and successfully pressurized the
Police into registering a case under Section
376-D IPC.

34. On behalf of Kallu @ Manvendra
Singh, the appellant in Criminal Appeal
9 All. Irfan Vs. State of U.P.
115
No.1282 of 2017, Mr. Indra Pal Singh
Rajpoot, learned Counsel for the appellant,
has advanced elaborate submissions, but in
most of those he is ad idem with the learned
Counsel
in
other
appeals,
whose
submissions have already been noticed.

35. Mr. Shashi Shekhar Tiwari,
learned Additional Government Advocate,
has supported the impugned judgment and
urged that on the evidence on record, the
prosecution have established their case
beyond reasonable doubt. The learned Trial
Judge has rightly convicted all the
appellants. He has particularly submitted
that PW-1 and PW-2, who are witnesses of
fact, have supported the prosecution
flawlessly in their dock evidence and
successfully withstood a searching crossexamination. The prosecutrix, in particular,
has remained consistent in her testimony
about the crime and the manner in which it
was committed. Her testimony is unshaken,
free from blemish or exaggeration. The
prosecutrix's evidence is corroborated by
the forensic report, Ex. Ka-16 and the
injury reports, Ex. Ka-17 and Ka-8. It is
emphasized by Mr. Tiwari that the
prosecutrix had named four accused and
the case was registered against them. Mr.
Tiwari has, particularly, urged that the
prosecutrix is the sole witness of the crime
and her testimony, being consistent and
corroborated by forensic evidence, cannot
be disbelieved. It is also pointed out by the
learned A.G.A. that the appellants have not
offered
any
explanation
why
the
prosecutrix would implicate them falsely or
testify against them in Court on a false
charge. There is no prior enmity between
the prosecutrix, her family and the
appellants. The appellants have not been
able to lead any evidence to show the
motive for a false implication. It is urged
very emphatically that the appellants have
sexually assaulted the prosecutrix, tortured
her, beat her up, and in consequence of all
these travails, she has sustained injuries,
which the doctor has noticed upon her
person.

1.
If
a
case
of
change
or
improvement of the prosecutrix's case
from one of simple assault to rape:

36. The learned Counsel for the
appellants have scathingly criticized the
prosecution for coming up with a case that
was changed from one of simple assault
into rape. They have much harped upon the
fact that an N.C.R., bearing No.3 of 2015,
was registered on 12.01.2015 at 7.30 a.m.,
but after the prosecutrix was examined at
the Community Health Centre and then at
the
District
Women
Hospital
on
12.01.2015,
the
following
day,
i.e.
13.01.2015 at 7.30 p.m., she came up with
allegations of rape regarding the selfsame
incident, which was earlier reported as a
non-cognizable case to the Police. Learned
Counsel for the appellants would say that
this is not just an improvement, but a
transmutation of one case into another,
which initially never was.

37. Upon a perusal of the record, we
find that it is true that regarding the
occurrence
dated
11.01.2015,
that
happened
at
7.00
p.m.,
when
the
prosecutrix left home to buy gutkha for her
father, an N.C.R. was lodged by the
prosecutrix's father, after she was rescued
by her parents in the morning of
12.01.2015. It does seem odd at the first
blush that the prosecutrix, who went to the
police station and thence to the two doctors
for her medical examination on 12.01.2015,
one at the Community Health Centre and
the other at the District Women Hospital,
where one of the doctors was a woman, she
116 INDIAN LAW REPORTS ALLAHABAD SERIES
did not speak anything about being
ravished. She came up with the allegation
on 13.01.2015, confiding in the first
informant what had befallen her during the
night,
intervening
11/12.01.2015.
The
explanation furnished in the FIR for not
reporting the outrageous crime of gangrape, was shock and fear that she had
suffered. It has elsewhere figured in
evidence, particularly, the testimony of
PW-1,
the
first
informant,
that
the
prosecutrix was not in the complete
possession of her senses due to stupor,
resulting from alcohol, and for that reason,
revealed a case of assault by Irfan @ Golu on
the 12th of January, 2015, when she was
recovered. That case was promptly reported
to the Police. On the following day, i.e.
13.01.2015, when she fully regained her
senses, she disclosed the entire occurrence to
her mother, that is to say, the fact that she
was gang-raped by the four appellants. It was
then that the first informant lodged the
present FIR, narrating what had befallen the
prosecutrix. The relevant part of the first
informant's (PW-1's) testimony reads:

"12 जनवरी को सुबह 7.00बजे जावेद फोटो वाले
के पीछे खण्डहर मे बेहोशी की हालत मे ममली। इसके बाद मै उसे
थाने लेकर गया। बच्ची ने मुझे मारपीट वाली बात बतायी थी। उसने
बताया मक गोलू @ इरफान ने मारा पीटा है। ररपोटट मलखवाकर व
डाक्टरी कराकर हम वापस आ गये। 13 तारीख को जब वह होश मे
आयी तो उसने अपनी मााँ को बताया और मेरी पत्नी मायादेवी ने
मुझे बताया। उसने बताया था मक गोलू @ इरफान,शानू, इरफान व
छोटू ने उसके साथ खण्डहर मे गलत काम मकया था। 13 तारीख
को जब ररपोटट मलखायी तब बच्ची ने अपने हाथ से एक तहरीरी
प्राथटना पत्र मलखा था। उस प्राथटना पत्र को थाने मे देकर मुकदमा
कायम कराया था।"

38. In the FIR lodged by this witness,
it is said:

"तब मै तथा मेरी पत्नी xxxx को उठाकर थाने
लाये थे मेरी पुत्री उसे समय सदमें तथा भय मे थी उस समय उसने
मुझे मसफट इतना बताया था मक इरफान उफट गोलू ने मुझे मारा-पीटा है
तब मैने इरफान उफट गोलू के मखलाफ NCR No.3/15 धारा
323 IPC पंजीकृत कराया था मकन्तु आज जब मेरी पुत्री xxxx
को पूरी तरह से होश आया तो उसने मुझे बताया मक मदनांक-111-15 को इरफान उफट गोलू व शानू एवं उसके दो अन्य सामथयों ने
उसके साथ बारी-बारी से दुष्कमट मकया है।"

39.
In
her
testimony
(crossexamination
dated
24.09.2015),
the
prosecutrix has explained the sequence of
events and the reason for not reporting on
the first day the crime of gang-rape, in the
following words:

"घटना के बाद मे सुबह छैैः बजे अपने घर मपता जी
के पास आ गई थी। खण्डर से मुझे मेरे मपता जी व मम्मी लेकर आये
थे। मैने खण्डर मे आये अपने मम्मी पापा को देख मलया था व
पहचान मलया था उस समय मै होश हवाश मे थी लेमकन ममदरा का
नशा था। जब मेरे माता मपता मुझे खण्डर मे लेने आये थे तो मेरे
आस पास देशी शराब के क्वाटर पानी की प्लामटटक की खाली
शीशी क्वाटर शराब की खाली शीशी मसगरेट की मडब्बी व कुछ
जली अधजली मसगरेट के टुकडे व मामचस आमद पडी थी। ये सभी
चीजे मेरी घटना से जुडी हुई थी। मेरी चप्पल व पानी की दो भरी हुई
बोतल पडी थी। मेरे मम्मी पापा जब मुझे लेने पहुाँचे तब उन्होने व
मैने यह सभी सामान पडा हुआ देख मलया था। मैने घर पर आकर
मुाँह हाथ नही धोया न फ्रेश हुई। मै करीब दस ममनट घर पर रूकी
थी। मैने पापा को थोडी सी घटना रात वाली बतायी थी। मैने अपने
पापा को यह बता मदया था मक गोलू उफट इरफान मुझे पकडकर ले
गया पकडने वालो मे दूसरा इरफान भी था दो लोग और थे। मपताजी
को मैने इस दस ममनट के दौरान यह बताया था मक इरफान उफट गोलू
और दूसरा इरफान ने मुझे पकडकर खण्डर ले गये और खण्डर मे
चार लोग हो गये वहां मुझे शराब जबरदटती मपलाई व चार लोगो ने
मेरे साथ दुष्कमट मकया। मफर मेरे मम्मी पापा मुझे लेकर ररपोटट करने
थाने गये। कोई प्राथटना पत्र घटना का मलखके थाने मेरे मपताजी नही
गये थे। बमकक ऐसे ही गये थे। थाने पर जब हम पहुाँचे तब वहां पर
इन्सपेक्टर रज्जाक व दरोगा मसपाही मौजूद थे। दरोगा जी से मेरे
मपताजी ने घटना बतायी थी मुझसे दरोगा जी ने घटना के बारे मे कुछ
नही पूछा था। हम थाने पर 7.30 बजे सुबह पहुंच गये थे। और मदन
मे 2 बजे तक रहे थे। मै बातचीत करने मे उस समय सक्षम थी। मेरी
शरीर पर चोटे थी मेरे मपताजी के बताने पर थाने मे घटना की ररपोटट
मलखली गई और मेरी डाक्टरी कराने सरकारी अटपताल चरखारी
भेजा गया। जब मेरे मपताजी थाने मे ररपोटट दजट करा रहे थे तब मै
अपने मपता के पास मौजूद थी। मपताजी ने इरफान उफट गोलू के
9 All. Irfan Vs. State of U.P.
117
मखलाफ केवल मारपीट की ररपोटट दजट कराई थी। मैने पापा को
मलखाते समय नही रोका था मक मारपीट के अलावा बलात्कार की
भी ररपोटट क्यो नही कर रहे हो। जब मेरा डाक्टरी परीक्षण कराने
मसपाही ले गयी थी तब मैने वहां भी डाक्टरो व मसपामहयो को
बलात्कार की घटना की बात नही बताई। मैने थाने पर अटपताल मे
दरोगा पुमलस व डाक्टर को दुष्कमट की बात भय के कारण नही बताई
थी।"

40. Later on, in her cross-examination
dated 28.10.2015, the prosecutrix has
stated: