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

- **Citation:** (2021) 2 ILRA 833
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-10
- **Case number:** Criminal Appeal No. 6511 of 2011
- **Bench:** Dr. Kaushal Jayendra Thaker, Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jaipal-batham-in-jail-v-state-of-u-p-46821
- **Pages:** 11

## Headnote

Law-Code
of
Criminal
Procedure,1973-Section 374(2) & Indian
Penal Code,1860-Sections 363, 366, 376
& Scheduled Castes and Scheduled Tribes
(Prevention
of
Atrocities)
Act,1989-
Section 3 (2) (v)-challenge to-conviction-
the medical evidence shows that doctor
did not find any sperm-no signs of forcible
sexual intercourse were found-no internal
injuries on the prosecutrix-statements of
PWs-1, 2 and 3, no commission of offence
was there-testimony of the prosecutrix
cannot be said to be that of a sterling
witness-statement u/s164 Cr.P.C. shows
that she has taken U-turn in her oral
testimony-For maintaining the conviction
under
Section
376
Cr.P.C.,
medical
evidence has to be in conformity with the
oral testimony- In this case. the girl was
kidnapped-the medical evidence does not
prove that the girl was below the age of
18 years-no certificate showing the age of
the girl was ever produced before the
Investigating Authority- finding of the
learned Judge is not in consonance with
the
medical
evidence
produced-The
panchayat certificate showed her age to
be 21 years, therefore, there is a doubt
between this fact and the oral testimonyThe oral testimony cannot be said to be so
sterling that conviction could be based on
the same.(Para 1 to 38)

The Appeal is allowed. (E-5)

List of Cases cited: -

## Text

2 All. Jaipal Batham Vs. State of U.P.
833
punishment is concerned, we are of the
view that the present case is not a case
where the maximum punishment of life
imprisonment ought to have been awarded
to the accused i.e. 16 years of R.I. as the
appellant is already in jail for the last 17
years, further the appellant shall deposit the
fine of Rs. 15,000/ under section 376 IPC
as per decision of trial court.

24. Let a copy of this judgment along
with the trial court record be sent to the
Court concerned and Jail Authorities
concerned and District Magistrate for
compliance.

25. We are thankful to the Advocates
of both the sides namely Ambrish Kumar
Kashyap, learned counsel for the appellant
and Sri Roopak Choubey for the State for
assisting the Court.

26. Accordingly, the appeal is partly
allowed.

27. Record and proceeding be sent
back to trial court.
----------
(2021)02ILR A833
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.02.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER , J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 6511 of 2011

Jaipal Batham. ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Shailendra Singh Rathore, Sri Ambrish
Kumar Kashyap, Sri Janmed Kumar, Sri S.K.
Tripathi

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

A.
Criminal
Law-Code
of
Criminal
Procedure,1973-Section 374(2) & Indian
Penal Code,1860-Sections 363, 366, 376
& Scheduled Castes and Scheduled Tribes
(Prevention
of
Atrocities)
Act,1989-
Section 3 (2) (v)-challenge to-conviction-
the medical evidence shows that doctor
did not find any sperm-no signs of forcible
sexual intercourse were found-no internal
injuries on the prosecutrix-statements of
PWs-1, 2 and 3, no commission of offence
was there-testimony of the prosecutrix
cannot be said to be that of a sterling
witness-statement u/s164 Cr.P.C. shows
that she has taken U-turn in her oral
testimony-For maintaining the conviction
under
Section
376
Cr.P.C.,
medical
evidence has to be in conformity with the
oral testimony- In this case. the girl was
kidnapped-the medical evidence does not
prove that the girl was below the age of
18 years-no certificate showing the age of
the girl was ever produced before the
Investigating Authority- finding of the
learned Judge is not in consonance with
the
medical
evidence
produced-The
panchayat certificate showed her age to
be 21 years, therefore, there is a doubt
between this fact and the oral testimonyThe oral testimony cannot be said to be so
sterling that conviction could be based on
the same.(Para 1 to 38)

The Appeal is allowed. (E-5)

List of Cases cited: -

1. Mataruwa @ Amar Vs St. of U.P. CRLA
No.4909 of 2009
2. Arvind Kumar Vs St. of U.P. CRLA No.1880 of
2013

3. Raj Kumar Kahar Vs St. of U.P. CRLA No.4200
of 2013
834 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Sadashiv Ramrao Hadbe Vs St. of Mah.(2006)
10 SCC 92

5. Manne Siddaiah @ Siddiramulu Vs St. of
A.P.(2000) 2 All(Cri)

6. Jaysukh @ Karo Ramji Dharaviya-Satvara Vs
St. of Guj. CRLA No.145 of 2010

7. Somabhai Bhedarbhai Bhagora & 2 Vs St. of
Guj. CRLA No.151 of 2006

8. Tulsibhai Somabhai Parmar Vs St. of Guj.
CRLA No.160 of 1997

9. St. of Guj. Vs Rafiq Dhanvarbhai Memon
CRLA No.238 of 1992

10. Maheshwar Tigga Vs St. of Jharkhand CRLA
No.635 of 2020

11. Hitesh Verma Vs St. of U.K. & Anr.(2020) 10
SCC 710

12. Pudav Bhai Anjana Patel Vs St. of Guj. CRLA
No.74 of 2006

13. Justice Kaushal Jayendra Tha Vishnu Vs St.
of U.P. CRLA No.204 of 2021 (Defective Appeal
No.386 of 2005)

14. Alamelu Vs St. (2011) 2 SCC 385

15. Mohd. Imran Khan Vs St. (Govt. of NCT of
Delhi) (2011) 10 SCC 192

16. S. Varadarajan Vs St. of Madras (1965) AIR SC 942

17. Shyam and Another Vs St. of Mah. (1995)
AIR SC 2169

18.
Bhartiben
w/o
Sureshbhai
Bhikhabhai
Chauhan Vs Sushilaben Kanubhai Tevar & anr.
(2009) 3 GLH 664

19. Mussauddin Ahmedabad Vs St. of Assam
(2009) 14 SCC 541

20. Bhupatbhai Somabhai Sardiya Vs St. of Guj.
(2012) 31 GHJ 140

21. Vinod Kumar Vs St. of Ker. (2014) 5 SCC 678
22. K.P. Thimmappa Gowda Vs St. of Karnataka
(2011) AIR SCW 2281

23. Satish Kumar Jayanti Lal Dabgar Vs St. of
Guj. CRLA NO.230 of 2013

24. Ganesan Vs St. Reptd by Inspr of Police,
CRLA No. 680 of 2020 (Arising from S.L.P.
(Criminal) No.4976 of 2020)

25. Bhaiyamiyan @ Jardar Khan & anr. Vs St. of
M.P. (2011) SCW 3104
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. By way of this appeal, the appellant
has challenged the Judgment and order
dated 19.10.2011 passed by Special Judge
(SC/ST Act), Kannauj in Special Sessions
Trial No.48 of 2006 titled (State vs. Ram
Rataan Batham and another) arising out of
Case
Crime
No.1133
of
2005
for
commission of offences under Sections
363, 366, 376 Indian Penal Code & 3 (2)
(v) of Scheduled Castes and Scheduled
Tribes (Prevention of Attrocities) Act,
1989, (herein after to be referred as 'SC/ST
Act') Police Station-Kannauj, DistrictKannauj, whereby the accused-appellant
was convicted and sentenced for three
years
rigorous
imprisonment
for
the
offence committed under Section 363 IPC
read with Section 3(2) (v); for five years
rigorous
imprisonment
and
fine
of
Rs.1,000/- for the offence under Section
366 IPC read with Section 3 (2) (v) in
default of payment of fine, one month
additional rigorous imprisonment; for life
imprisonment and fine of Rs.5,000/- for the
offence under Section 376 IPC read with
Section 3 (2) (v) of SC/ST Act and in
default of payment of fine, one year
additional rigorous imprisonment. Except
the sentence of defaulted fine, all the
sentences were to run concurrently as per
direction of the Trial Court.
2 All. Jaipal Batham Vs. State of U.P.
835

2. The brief facts as per prosecution case
are that on the evening of 23rd October, 2005,
prosecutrix aged about 13 years of age and
Neetu (her sister) aged about 9-10 years went
for the natural call and at that time, Ram Ratan
s/o Guljari, Brijesh s/o Ramswaroop, Jaipal s/o
Chunnulal and one unknown person, namely
four persons in number, having countrymade
pistol reached the daughters of the complainant
and gauged both the girls and kidnapped them.
Ram Kishore saw the two girls going with the
four persons named in the FIR and at about 8-9
p.m., Neetu was sent back. The prosecutrix was
taken to an unknown place, the accused had
threatened the girl with dire consequences.
When they started searching, they found the
daughter-Neetu, Ram Ratan on seeing Neetu
recognized her to be along with four persons of
the village. The complainant went to the police
station on the same night at Kannauj but the
police did not ascribe his report and, therefore,
he sent what can be said to be registered post
AD as the accused were head strong people.
This report was given on 31.10.2005, which is
at Ex.ka-6 and has been described as FIR. The
Written Report (Ex.ka-2) dated 24.10.2005 is
also on similar terms. The prosecutrix was
found after a period about two months. The
evidence of the witnesses would have to be
considered. On 1.12.2005, her statement before
the Chief Judicial Magistrate, Kannauj, was
recorded. The prosecutrix was medically
examined and, thereafter, as she gave version
against the accused, he was arrested.

3. C.O. City, Kannauj, R.D. Yadav,
tookup the investigation visited the spot,
prepared site plan, recorded statements of the
prosecutrix and witnesses and after completing
investigation submitted charge sheet against the
accused.

4. As the case was triable by court of
session, the Magistrate committed the case
to court of session.

5. The prosecution so as to bring
home the charges examined ten witnesses
as under:-

1.
Prosecutrix
P.W.1
2.
Nitu
P.W.2
3.
Diwari Lal
P.W.3
4.
Ram Kishore
P.W.4
5.
Vishram Singh
Katheriya
P.W.5
6.
Dr.Manjula
Sharma
P.W.6
7.
R.D.Yadav
P.W.7
8.
Raj
Kumar
Srivastava
P.W.8
9.
Dr.Jyotsna
Kumari
P.W.9
10.
Dr.
Krishna
Gopal
P.W.10

6. In support of the ocular version of the
witnesses, following documents were produced
and contents were proved by leading evidence:

1.
Statement of
Prosecutrix
Ex.ka-1
2.
Written
Report
Ex.ka-2
3.
Recovery
Memo
of
Kidnapped
Girl
&
Supurdginam
a
Ex.ka-3
4.
Injury Report Ex.ka-4
5.
Supplementar
y Report
Ex.ka-5
6.
F.I.R.
Ex.ka-6
836 INDIAN LAW REPORTS ALLAHABAD SERIES
7.
Injury Report Ex.ka-7
8.
Supplementar
y Report
Ex.ka-8
9.
Site Plan with
Index
Ex.ka-9

7. On 15.02.2006, the learned
Sessions Judge framed the charge for the
commission of offence under Sections, 363,
366, 376 Indian Penal Code (herein after
referred to as 'IPC') read with Section 3 (2)
(5) of the Scheduled Castes and Scheduled
Tribes (Prevention of Attrocities) Act, 1989
(herein after referred to as SC/ST Act).

8. Heard Shri Ambrish Kumar
Kashyap, learned counsel for the appellant,
Shri
N.K.Srivastava,
learned
AGA
appearing for the State and also perused the
record.

9. It is submitted by the counsel for
the appellant that as far as commission of
offence under Section 3(2)(v) of S.C./S.T.
Act, 1989 is concerned, the learned
Sessions Judge convicted the accused
because of the fact that the victim was a
person belonging to Scheduled Caste
Community,
though
there
were
no
allegations as regard the offence being
committed due to the caste of the
prosecutrix and there were no allegations of
commission of offence which would attract
the provision of Section 3(2)(v) of SC/ST
Act.

10. Learned counsel for appellant has
relied on the following decisions of this Court
in the case of (a) Mataruwa @ Amar vs.
State of UP, in Cr.Appeal No.4909 of 2009
dated 15.12.2015, (b) Arvind Kumar vs.
State of UP in Criminal Appeal No.1880 of
2013 dated 26.07.2019 and (c) Raj Kumar
Kahar vs. State of UP, in Crl. Appeal
No.4200 of 2013 dated 10.04.2018. He also
also relied on the following decisions of the
Apex Court rendered in the case of Sadashiv
Ramrao Hadbe Vs. State of Maharashtra,
2006(10)SCC 92 and the judgment of High
Court of Andhra Pradesh in the case of
Manne Siddaiah @ Siddiramulu Vs. State
of Andhra Pradesh, 2000(2) Alld(Cri) so as
to contend and submit that in fact no case is
made out so as to convict the accused under
Section 376 IPC leave apart the offence under
Sections 363 & 366 of IPC and Section
3(1)(xii) and read with Section 3(2)(v) of
S.C./S.T. Act, 1989 and the prosecutrix has
roped in the accused with ulterior motive.

11. Reliance has also been placed upon
the various judgments of Gujarat High Court
by us, which are as under:

(i) Jaysukh @ Karo Ramji
Dharaviya-Satvara vs. State of Gujarat
dated 10.03.2015, passed in Crl.Appeal
No.145 of 2010

(ii)
Somabhai
Bhedarbhai
Bhagora & 2 vs. The State of Gujarat
dated 10.10.2013, passed in Crl.Appeal
No.151 of 2006

(iii) Tulsibhai Somabhai Parmar
vs. State of Gujarat dated 08.01.2015,
passed in Crl.Appeal No.160 of 1997; and

(iv) State of Gujarat vs. Rafiq
Dhanvarbhai Memon, passed in Crl. Appeal
No.238 of 1992, and

(v) Maheshwar Tigga vs. The
State of Jharkhand dated 28th September,
2020, passed in Crl.Appeal No.635 of
2020.

12. It is submitted by learned counsel
for the State that prosecutrix belonged to
2 All. Jaipal Batham Vs. State of U.P.
837
Scheduled Caste community and the
judgment of learned Trial Judge cannot be
found fault with just because there is
silence on the part of the prosecutrix. It is
submitted
that
the
incident
occurred
because of the caste of the prosecutrix. It is
further submitted that any incident on
person belonging to a particular caste
would be an offence. It is further submitted
by learned counsel for the State that the
accused ravished the prosecutrix as she was
belonging to lower strata of life.

13. Learned counsel for the appellant
has relied on the judgment of Sadashiv
Ramrao Hadbe Vs. State of Maharashtra
(supra) and has submitted for acquittal of
the accused. The judgment in the case of
Manne Siddaiah @ Siddiramulu (supra)
rendered by Andhra Pradesh High Court,
though it is a judgment of Single Bench,
i.e. by Justice B. Sudershan Reddy (as he
then was). Learned counsel has relied on
findings returned in paragraphs 14, 15 and
16 of the said judgment, which lay down as
follows :-

"14. In nutshell the version given
by P.W.5 is not supported by even P.Ws. 1
and 2. P.W.1 in his evidence in categorical
terms states that he caught hold of the
appellant herein as his wife informed him
that the appellant has raped her. P.W.5 in
her evidence does not state that she has
informed P.W.1 about the rape at any time.
These
major
inconsistencies
and
contradictions in the evidence of material
witnesses - P.Ws. 1, 2 and 5 create a lot of
suspicion and doubt about the prosecution
case. Added to that, P.W.10 - the Civil
Assistant Surgeon who examined P.W.5, in
her evidence clearly states that she did not
find any external injuries on the body of
P.W.5. She has also not noticed any semen
and spermatozoa in the vaginal slides.

15.
In
the
aforesaid
circumstances, it would not be safe to
convict the appellant herein on mere
suspicion.
The
inconsistencies
and
contradictions noticed above are fatal to
the case of the prosecution and create any
amount of doubt. Obviously, it is the
appellant who is entitled for the benefit of
doubt.

16.
In
the
aforesaid
circumstances, I find it difficult to sustain
the conviction of the appellant herein for
the offence Under Section 3(1) (xii) and
Section 3(2) (v) of the Act read with Section
376 of the Code. The conviction as well as
the sentence of the appellant herein is set
aside."

14. Learned counsel for appellant
presses into service the judgment in the
case of Sadashiv Ramrao Hadbe Vs.
State of Maharashtra (supra) more
particularly observations in paras 9, 10, 11
of the said judgment, which are verbatim
reproduced as follows :-

"9. It is true that in a rape case
the accused could be convicted on the sole
testimony of the prosecutrix, if it is capable
of inspiring of confidence in the mind of the
court. If the version given by the
prosecutrix is unsupported by any medical
evidence
or
the
whole
surrounding
circumstances are highly improbable and
belie the case set up by the prosecutrix, the
court shall not act on the solitary evidence
of the prosecutrix. The courts shall be
extremely careful in accepting the sole
testimony of the prosecutrix when the entire
case is improbable and unlikely to happen.

10. In the present case there were
so many persons in the clinic and it is
highly improbable the appellant would
have made a sexual assault on the patient
838 INDIAN LAW REPORTS ALLAHABAD SERIES
who came for examination when large
number of persons were present in the near
vicinity. It is also highly improbable that
the prosecutrix could not make any noise or
get out of the room without being assaulted
by the doctor as she was an able bodied
person of 20 years of age with ordinary
physique. The absence of injuries on the
body improbablise the prosecution version.

11. The counsel who appeared for
the State submitted that the presence of semen
stains on the undergarments of the appellant
and also semen stains found on her petticot
and
her
sari
would
probablise
the
prosecution version and could have been a
sexual intercourse of the prosecutrix.

12. It is true that the petticot and
the underwear allegedly worn by the
appellant had some semen but that by itself is
not sufficient to treat that the appellant had
sexual intercourse with the prosecutrix. That
would only cause some suspicion on the
conduct of the appellant but not sufficient to
prove that the case, as alleged by the
prosecution."

15. Learned counsel for the appellant has
also relied on the latest decision of Apex Court
in the case of Hitesh Verma Vs. State of
Uttarakhand & another, 2020(10)SCC 710,
pertaining to Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989 and
has contended that the incidence reported is
prior to 2016, amendment, more particularly
relates to the year 2006, where no offence of
S.C./S.T. Act, 1989 has been committed on the
lady on the basis of her caste belonging to a
particular caste. The learned Trial Judge has
misread the provisions of law, just because the
prosecutrix is belonging to scheduled caste
community, the offence would not be made out.

16. We now decide to sift the
evidence threadbare of the prosecution
story, the evidence led and discussed before
the trial court and as appreciated by the
learned Trial Judge.

17. Provision of Section 3(2)(v) of the
Scheduled Castes and Scheduled Tribes
Act, 1989 read as follows : -

(v) commits any offence under the
Indian Penal Code (45 of 1860) punishable
with imprisonment for a term of ten years
or more against a person or property on the
ground that such person is a member of a
Scheduled Caste or a Scheduled Tribe or
such property belongs to such member,
shall be punishable with imprisonment for
life and with fine;

18. Section 3(2)(v) of Scheduled
Casts and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 is concerned, the FIR
nor the evidence nowhere suggests that any
one or any act was done by the accused on
the basis that the prosecutrix was a member
of Scheduled Castes and Scheduled Tribes
then the accused can be convicted for
commission of offence under the said
provision. The learned Trial Judge has
materially erred as he has not discussed
what is the evidence that the act was
committed because of the caste of the
prosecutrix. We are unable to accept the
submission of learned AGA that the
accused knowing fully well that the
prosecutrix belongd to lower strata of life
and therefore had caused her such mental
agony which would attract the provision of
Section 3(2)(v) of the Atrocities Act. The
reasoning of the learned Judge are against
the record and are perverse as the learned
Judge without any evidence on record on
his own has felt that the crime was
committed
because
the
accused
had
captured the will of the prosecutrix and
because the police officer had investigated
the matter as a attrocity case which would
2 All. Jaipal Batham Vs. State of U.P.
839
not be undertaken within the purview of
Section 3(2)(v) of SC/ST Act and has
recorded conviction under Section 3(2)(v)
of Act which cannot be sustained. We are
supported in our view by the judgment of
Gujarat High Court in Criminal Appeal
No.74 of 2006 in the case of Pudav Bhai
Anjana Patel Versus State of Gujarat
decided on 8.9.2015 by Justice M.R. Shah
(as he then was) and Justice Kaushal
Jayendra Thaker.

19. Learned Judge comes to the
conclusion that as the prosecutrix belonged
to community falling in the scheduled caste
and the appellant falling in upper caste the
provision of SC/ST Act are attracted in the
present case.

20. While considering the judgment, we
have considered the judgment of the Apex
Court and the recent judgment rendered by
this Bench in the case of Vishnu vs. State of
UP passed in Criminal Appeal No.204 of
2021 (Defective Appeal No.386 of 2005),
dated 28.01.2021, wherein we have held that
unless it is made out that the accused had
perpetrated any offence, which could be said
to be intentional. The reliance placed by
learned counsel for the appellant on the
judgment relied by us, which is also referred
by us in the case of Vishnu (supra), the
accused-appellant cannot be held guilty.

21. We would like to refer to the
following decisions for deciding whether
Sections 363 or 366 and 376 IP Code are
attracted:-

a) Alamelu vs. State reported in
(2011) 2 SCC 385,

b) Mohd. Imran Khan vs. State
(Governemnt of NCT of Delhi) reported
in (2011) 10 SCC 192,

c) S. Varadarajan vs. State of
Madras reported in AIR 1965 SC 942,

d) Shyam and Another vs. State
of Maharashtra reported in AIR 1995 SC
2169,

e) Bhartiben w/o Sureshbhai
Bhikhabhai Chauhan vs. Sushilaben
Kanubhai Tevar and Anr. reported in
2009 (3) GLH 664,

f) Mussauddin Ahmedabad vs.
State of Assam reported in (2009) 14 SCC
541,

e)
Bhupatbhai
Somabhai
Sardiya vs. State of Gujarat reported in
(2012) 31 GHJ 140,

f) Vinod Kumar vs. State of
Kerala reported in (2014 5 SCC 678,

g) K.P. Thimmappa Gowda vs.
State of Karnataka reported in AIR 2011
SCW 2281, and

h) Judgement dated 10.03.2015 of
the Apex Court in the case of Satish
Kumar Jayanti Lal Dabgar vs. State of
Gujarat in Criminal Appeal NO.230 of
2013.

22. Provisions of Section 363 I.P.C.
read as under:

"363.
Punishment
for
kidnapping- Whoever kidnaps any
person from [India] or from lawful
guardianship, shall be punished with
imprisonment of either description for
a term which may extend to seven
years, and shall also be liable to
fine."
840 INDIAN LAW REPORTS ALLAHABAD SERIES

24. Provisions of Section 376 I.P.C.
read as follows :

"376. Punishment for rape --

(1) Whoever, except in the cases
provided for by sub-section (2), commits rape
shall be punished with imprisonment of either
description for a term which shall not be less
than seven years but which may be for life or
for a term which may extend to ten years and
shall also be liable to fine unless the women
raped is his own wife and is not under twelve
years of age, in which cases, he shall be
punished
with
imprisonment
of
either
description for a term which may extend to
two years or with fine or with both: Provided
that the court may, for adequate and special
reasons to be mentioned in the judgment,
impose a sentence of imprisonment for a term
of less than seven years.

(2) Whoever,--

(a) being a police officer commits
rape--

(i) within the limits of the police
station to which he is appointed; or

(ii) in the premises of any station
house whether or not situated in the police
station to which he is appointed; or

(iii) on a woman in his custody or
in the custody of a police officer subordinate
to him; or

(b) being a public servant, takes
advantage of his official position and
commits rape on a woman in his custody as
such public servant or in the custody of a
public servant subordinate to him; or

(c) being on the management or
on the staff of a jail, remand home or other
place of custody established by or under
any law for the time being in force or of a
woman's or children's institution takes
advantage of his official position and
commits rape on any inmate of such jail,
remand home, place or institution; or

(d) being on the management or
on the staff of a hospital, takes advantage
of his official position and commits rape on
a woman in that hospital; or

(e) commits rape on a woman
knowing her to be pregnant; or

(f) commits rape on a woman
when she is under twelve years of age; or

(g) commits gang rape, shall be
punished with rigorous imprisonment for a
term which shall not be less than ten years
but which may be for life and shall also be
liable to fine: Provided that the Court may,
for adequate and special reasons to be
mentioned in the judgment, impose a
sentence
of
imprisonment
of
either
description for a term of less than ten years.
Explanation 1.--Where a woman is raped by
one or more in a group of persons acting in
furtherance of their common intention, each
of the persons shall be deemed to have
committed gang rape within the meaning of
this sub-section. Explanation 2.--"Women's or
children's institution" means an institution,
whether called an orphanage or a home for
neglected woman or children or a widows'
home or by any other name, which is
established and maintained for the reception
and care of woman or children. Explanation
3.--"Hospital" means the precincts of the
hospital and includes the precincts of any
institution for the reception and treatment of
persons during convalescence or of persons
requiring
medical
attention
or
rehabilitation."
2 All. Jaipal Batham Vs. State of U.P.
841

25. In respect of the prosecutrix, the
doctor in medical report has opined as
under :-

"General Examination: Young
girl of average built Breast well developed.
Axillary and pubic hair present. Hight 145
cm., weight 40 k.g. Teath 14/14. No mark of
fresh injury any where on the body.

Internal Examination: No mark of
fresh injury on her private parts. Hymen
has old healed tears. Vagina admits two
finger easily. Vagina ...(illegible).. at
normal size. Vaginal smear made and sent
for examination.

In supplementary report, the
doctor has opined as under:

1. Xray Elbow- Epiphysis of
elbow joint fused with their respected
bones.

2. Xray Wrist- Epishysis of distal
end of radius have not fused.

Vaginal Smear Report 25.11.2005
No.73 /2005-No spermatozoa seen in the
vaginal smear.

Conclusion:

1. No opinion about rape can be
given.

2. Her age is about 17 years.

26. The evidence as discussed by
learned Judge shows that the mere fact that
no external marks of injury was found by
itself would not throw the testimony of the
prosecutrix over board as it has been found
that the prosecutrix had washed out all the
tainted cloths worn at the time of occurrence
as she was an illiterate lady.

27. We venture to discuss the evidence
of the prosecutrix on which total reliance is
placed and whether it inspires confidence or
not so as to sustain the conviction of
accused. In case of Ganesan Versus State
Represented by its Inspector of Police,
Criminal Appeal No. 680 of 2020 (Arising
from S.L.P. (Criminal) No.4976 of 2020)
decided
on
14.10.2020
wherein
the
principles of accepting the evidence of the
prosecutrix are enshrined, her testimony
must be trustworthy and reliable then a
conviction based on sole testimony of the
victim can be based. In our case when we
rely on the said decision, it is borne out that
the testimony of the prosecutrix cannot be
said to be that of a sterling witness and the
medical evidence on evaluation belies the
fact that any case is made out against the
accused.

28. In our finding, the medical evidence
goes to show that doctor did not find any
sperm. The doctor categorically opined that
no signs of forcible sexual intercourse were
found. This was also based on the finding that
there were no internal injuries on the
prosecutrix.

29. For maintaining the conviction
under
Section
376
Cr.P.C.,
medical
evidence has to be in conformity with the
oral testimony. We may rely on the
judgment
rendered
in
the
case
of
Bhaiyamiyan @ Jardar Khan and
another
Versus
State
of
Madhya
Pradesh, 2011 SCW3104. The chain of
incident goes to show that the prosecutrix
was not raped as would be clear from the
provision of section 375 read with Section
376 of IPC.
842 INDIAN LAW REPORTS ALLAHABAD SERIES

30. The judgment relied on by the
learned Advocate for the appellant will also
not permit us to concur with the judgment
impugned of the learned Trial Judge where
perversity has crept in. Learned Trial Judge
has not given any finding as to fact as to
how commission of offence under Section
376 IPC was made out in the present case.

31. While perusing the entire
evidence beginning from FIR to the
statements of PWs-1, 2 and 3, we do not
find that commission of offence was there
because of the fact that the prosecutrix
belonged to a certain community.

32. The learned Judge further has not
put any question in the statement recorded
under Section 313 Cr.P.Code, 1973 of the
accused relating to rape or statement which
is against him.

33. The factual data as it reveals from
the testimony of the prosecutrix is that the
victim herself had moved from place to
place with the young accused. The
evidence goes to show that she herself in
her oral testimony has conveyed that she
and the accused had kept a house on rent. It
would be fruitful for us to reproduce the
Hindi version, i.e., "hamne ghar kiraye par
liya tha", which shows that she followed
the accused. The provisions of Section 376
IPC would also not get attracted. The
consent of the prosecutrix was too
conscious and with a deliberate choice
which can be detected from the factual
data.

34. The possibility of the prosecutrix
being above the age of 18 years on the date
of incident is also not ruled out. The nature
of allegations go to show that after being
with the accused for two months, he either
tutored or under great pressure to change
her version. Though in the charge, it was
mentioned that the prosecutrix was allured
and thereby the accused was charged under
Section 363 read with Section 366 IPC. No
certificate whatsoever about the age of girl
was given by father to Investigating Officer
is an admitted position of fact which the
witness father namely PW-3 (Diwari Lal)
has

35. While going through the record
also
we
donot
find
any
certificate
describing the age of the prosecutrix. The
entire change of version of the prosecutrix
goes to show that she was tutored.
According to the prosecutrix, she has
narrated the journey between her place to
Faridabad. We are unable to satisfy
ourselves that a grown up girl, would gain
consciousness only after she reached
Faridabad was transferred to train to bus by
the accused. She has been with her parents.
The statement before the Magistrate under
Section 164 Cr.P.C. goes to show that she
has taken U-turn in her oral testimony. The
medical evidence also will not permit us to
hold that there was forcible sex with her,
which will fall under Section 375, the
doctor has given opinion that no opinion
can be given about rape as there was no
injury and she was above the age of 17
years. Hence, we satisfy ourselves that no
case under Section 376 IPC, for which the
accused has been charged, is made out.

36. Rather, we now move to the
provisions of Section 363 read with Section
366 IPC. The term "kidnapping" has been
defined. Provisions of Section 366 I.P.C.
read as under:

"366.
Kidnapping,
abducting
or
inducing woman to compel her marriage,
etc.- Whoever kidnaps or abducts any
woman with intent that she may be
2 All. Sandeep Singh Vs. State of U.P. & Ors.
843
compelled, or knowing it to be likely that
she will be compelled, to marry any person
against her will, or in order that she may
be forced or seduced to illicit intercourse,
shall be punished with imprisonment of
either description for a term which may
extend to ten years, and shall also be liable
to fine; [and whoever, by means of criminal
intimidation as defined in this Code or of
abuse of authority or any other method of
compulsion, induces any woman to go from
any place with intent that she may be, or
knowing that it is likely that she will be,
forced or seduced to illicit intercourse with
another person shall be punishable as
aforesaid]."

In this case, can it be said that the
girl was kidnapped. When we sift the
evidence, the definition of kidnapping would
be kidnapped from lawful guardianship.
Minor under the age of 16 for male and 18
for female. We are concerned with female. In
this case, the medical evidence does not
prove that the girl was below the age of 18
years. It has come on record that no
certificate showing the age of the girl was
ever produced before the Investigating
Authority. We can safely rely on the evidence
of PW-8. The learned Judge has come to the
conclusion that she was 14 years of age. The
finding of the learned Judge is not in
consonance with the medical evidence
produced. The panchayat certificate showed
her age to be 21 years, therefore, there is a
doubt between this fact and the oral
testimony. The oral testimony cannot be said
to be so sterling that conviction could be
based on the same. Hence, no conviction
under Section 363 I.P.Code read with Section
366 I.P.Code can also be maintained. The
decision of this Court in Mataruwa @ Amar
(supra) would come to the aid of the accused.
Similar is the judgement of this Court in
Arvind Kumar (supra).

37. In view of the facts and evidence on
record, we are convinced that the accused has
been wrongly convicted, hence, the judgment
and order impugned is reversed and the
accused is acquitted. The accused appellant,
if not warranted in any other case, be set free
forthwith.

38. The appeal is, accordingly, allowed.
Records be sent back to trial court.
----------
(2021)02ILR A 843
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.01.2021

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.

Writ Tax No. 278 of 2020

Sandeep Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Imtiyaj Ali, Sri Muatuza Ali, Sri V.K.
Singh

Counsel for the Respondent:
C.S.C.

Civil Law-Sec. 34- United Provinces Excise
Act,1910-Petitioner
had
two
country
liquor shop excise licenses-originally first
license was suspended over certain
violation
during
inspection-thereafter
both license cancelled-appeal dismissedWrit -licensing authority may cancel a
license for any violation of law so grave in
the interest of revenue-either u/s34(1) of
Act of Rule 21 Of Rules or terms and
conditions on Form 5-C-another license
may also be cancelled as one license of
same licensee has already been cancelledMatter remanded back to recommence
proceeding only after decission of the
Appealate authority.