# Khalid & Anr v. State Of U.P

- **Citation:** (2016) 5 ILRA 634
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-11
- **Bench:** Mrs. Ranjana Pandya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/khalid-anr-v-state-of-u-p-43895
- **Pages:** 11

## Headnote

Gang Rape - Section 376(2)(g) IPC - Conviction by Trial Court Set Aside - Delay in FIR
Unexplained - Medical Evidence Belying Prosecution Version - Acquittal - Alleged gang rape by
four accused on 14.04.1993 at about 05:00 P.M.; victim driven away pigs from wheat field when accused
intercepted, gagged her mouth, cut tape of Salwar with knife and committed gang rape one by one; eye
witness PW-3 Ameena (aunt) arrived at spot during incident; accused fled leaving sleepers and knife; FIR
lodged only on 19.04.1993 - five days after occurrence - after relatives of accused threatened informant
and dissuaded her from lodging report; husband returned from Ludhiana on 18.04.1993 but did not lodge
report that day; trial court (Addl. District & Sessions Judge, Court No. 10, Bijnor) in Sessions Trial No. 418 of
2008 arising out of Case Crime No. 88 of 1993 convicted all three appellants under Section 376(2)(g) IPC and
sentenced each to 10 years' rigorous imprisonment with fine of Rs. 5,000/- each; aggrieved, appellants
preferred present appeals. (Paras 1-11)

Delay in FIR - Not Satisfactorily Explained - Dent in Prosecution Case - Held, husband of
informant returned home on 18.04.1993 but did not lodge report that day; informant's explanation not
supported by documentary evidence; prosecution failed to produce G.D. entry showing husband visited police
station on 18.04.1993; delay thus remained unexplained causing definite dent in prosecution case. (Paras 1215)
Prosecution Story Concocted and Improbable - Contradictions Between PW-2 and PW-3 - Held, PW-3
Ameena arrived at spot only when Sajid was raping victim i.e. last in sequence, yet she deposed that Ashfaq
had stuffed cloth in mouth of victim at the very beginning; it was physically impossible for her to have
witnessed what happened prior to her arrival; this critical internal inconsistency remained unanswered
throughout trial; prosecution story held concocted, unreliable and improbable. (Paras 16-22)

Medical Evidence Belies Prosecution Version - Acquittal Warranted - Held, victim claimed severe
injuries including abrasions on back, injuries on elbows, bleeding from vagina, lesions in vagina, scratches on
face and signs of tearing on whole body, all allegedly shown to doctor; yet PW-4 Dr. Beenu Gupta found
absolutely no external or internal injury, no sign of sexual intercourse, hymen old torn and vagina admitting
two fingers easily; even accounting for five-day gap between occurrence and medical examination, wholesale
disappearance of multiple serious injuries could not be accepted; evidence of prosecutrix and eye witness thus
directly belied by medical evidence entitling appellants to acquittal. (Paras 23-28)

Material Evidence Suspect - Salwar Reduced to 10-12 Inch Piece of Cloth - Held, Salwar produced
as Material Exhibit-2 was merely a 10-12 inch piece of cloth, not in shape of a Salwar; admitted by PW-7 in
cross-examination; forensic lab report based on such

## Text

634 INDIAN LAW REPORTS ALLAHABAD SERIES
Magistrate wilfully flouted the interim order of this Court by keeping the proceeding under
suspension even though the said proceeding ought to have continued on account of non-compliance
of the condition. It has thus been prayed that contempt proceeding be initiated against the opposite
party no.1, who is the Presiding Officer of the Court concerned, as well as against the opposite
party no.2, who had failed to make deposit.

6. So far as drawing of contempt proceeding against the opposite party no.2 is concerned,
there is no good ground to initiate contempt proceeding against him because the interim order itself
provided that if the deposit is not made then the interim order would stand automatically vacated.
Accordingly, once the deposit was not made the interim order does not survive to enable any action
against the opposite party no.2 for wilful disobedience of the stay order. With regard to drawing of
proceeding against the opposite party no.1, who is the Presiding Officer of the Court, suffice it to
say that the officer appeared to have exhibited extreme caution so as to avoid violation of the
interim order passed by this Court and, therefore, he required the parties to seek clarification.
Under the circumstances, this Court does not find it to be a fit case to draw contempt proceeding
against the opposite party no.1 as well.

7. However, at this stage, it would be apposite to observe that in matters such as this, where
an interim order is conditional and it is provided that if the condition is not fulfilled, the interim
order would stand vacated automatically, the Court concerned, which is to obey the interim order,
when approached by a party claiming that the condition has not been fulfilled, must always require
the party, which was required to fulfil the condition, to file an affidavit with proof disclosing
whether condition has been fulfilled or not and if the party fails in doing so, the Court must proceed
in accordance with law after passing an order noticing the aforesaid position.

8. This contempt application is, therefore, disposed of giving liberty to the applicant to
apply before the Court below where the complaint proceeding is pending disclosing that the interim
order stood vacated for non fulfilment of the condition and in that event the Court below will
proceed in the light of the observation made herein above.
----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.05.2016

BEFORE

THE HON'BLE MRS. RANJANA PANDYA, J.

Criminal Appeal No.- 2717 Of 2011

Khalid & Anr. ...Appellants
Versus
State Of U.P. ...Respondent

Counsel for the Appellants:
5 All. Khalid & Anr. Vs State Of U.P.

635
Prashant K. Lal, Gaurav Kakkar, Mrs Swati Agrawal, Shams Uz Zaman

Counsel for the Respondent:
G.A.
.................................

Gang Rape - Section 376(2)(g) IPC - Conviction by Trial Court Set Aside - Delay in FIR
Unexplained - Medical Evidence Belying Prosecution Version - Acquittal - Alleged gang rape by
four accused on 14.04.1993 at about 05:00 P.M.; victim driven away pigs from wheat field when accused
intercepted, gagged her mouth, cut tape of Salwar with knife and committed gang rape one by one; eye
witness PW-3 Ameena (aunt) arrived at spot during incident; accused fled leaving sleepers and knife; FIR
lodged only on 19.04.1993 - five days after occurrence - after relatives of accused threatened informant
and dissuaded her from lodging report; husband returned from Ludhiana on 18.04.1993 but did not lodge
report that day; trial court (Addl. District & Sessions Judge, Court No. 10, Bijnor) in Sessions Trial No. 418 of
2008 arising out of Case Crime No. 88 of 1993 convicted all three appellants under Section 376(2)(g) IPC and
sentenced each to 10 years' rigorous imprisonment with fine of Rs. 5,000/- each; aggrieved, appellants
preferred present appeals. (Paras 1-11)

Delay in FIR - Not Satisfactorily Explained - Dent in Prosecution Case - Held, husband of
informant returned home on 18.04.1993 but did not lodge report that day; informant's explanation not
supported by documentary evidence; prosecution failed to produce G.D. entry showing husband visited police
station on 18.04.1993; delay thus remained unexplained causing definite dent in prosecution case. (Paras 1215)
Prosecution Story Concocted and Improbable - Contradictions Between PW-2 and PW-3 - Held, PW-3
Ameena arrived at spot only when Sajid was raping victim i.e. last in sequence, yet she deposed that Ashfaq
had stuffed cloth in mouth of victim at the very beginning; it was physically impossible for her to have
witnessed what happened prior to her arrival; this critical internal inconsistency remained unanswered
throughout trial; prosecution story held concocted, unreliable and improbable. (Paras 16-22)

Medical Evidence Belies Prosecution Version - Acquittal Warranted - Held, victim claimed severe
injuries including abrasions on back, injuries on elbows, bleeding from vagina, lesions in vagina, scratches on
face and signs of tearing on whole body, all allegedly shown to doctor; yet PW-4 Dr. Beenu Gupta found
absolutely no external or internal injury, no sign of sexual intercourse, hymen old torn and vagina admitting
two fingers easily; even accounting for five-day gap between occurrence and medical examination, wholesale
disappearance of multiple serious injuries could not be accepted; evidence of prosecutrix and eye witness thus
directly belied by medical evidence entitling appellants to acquittal. (Paras 23-28)

Material Evidence Suspect - Salwar Reduced to 10-12 Inch Piece of Cloth - Held, Salwar produced
as Material Exhibit-2 was merely a 10-12 inch piece of cloth, not in shape of a Salwar; admitted by PW-7 in
cross-examination; forensic lab report based on such a piece of cloth could not reliably establish prosecution
case. (Paras 29-31)

Seizure Memo Irregularly Prepared by Non-Investigating Officer - Held, PW-7 (Chowki Incharge)
was not the Investigating Officer and had no authority to prepare seizure memo; he himself admitted the
same in cross-examination; seizure of articles thus conducted irregularly further undermining evidentiary value
of seized material. (Para 32)

Trial Court's Failure to Mark and Refer Defence Documents - Condemned - Observed, trial judge did
not mark 17 documents filed by defence as Exhibits nor refer to or deal with them in judgment; duty of trial
judge to refer to evidence of both parties; public documents filed by defence ought to be marked as Kha-1,
636 INDIAN LAW REPORTS ALLAHABAD SERIES
Kha-2 etc. and either relied upon or disbelieved with reasons; failure to do so is serious lapse in conduct of
trial. (Para 35)

Both Appeals Allowed - Conviction and Sentence Set Aside - Appellants Directed to be Released
Forthwith - Compliance with Section 437-A Cr.P.C. Directed

Case Law Discussed:

1. State of Rajasthan vs. N.K. (Accused), AIR 2000 SC 1812

2. State of Rajasthan vs. Narayan, AIR 1992 SC 2004

3. State of Punjab vs. Gurmit Singh & Others, (SC, cited)

4. Sri Narayan Shah vs. State, 2005 SCC (Cri) 410

5. Abbas Ahmad Chaudhary vs. State of Assam, 2010 Crl.L.J. 2061

6.State vs. Rahul, 2011 (2) JCC 701 (Delhi HC)

7. Radhu vs. State of Madhya Pradesh, (2007) 12 SCC 57

8. Joseph S/o Kooveli Poulo vs. State of Kerala, AIR 2000 SC 1608

9. Yerumalla Latchaiah vs. State of Andhra Pradesh, (2006) 3 SCC (Cri) 373

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

1. Challenge in these appeals is to the judgment and order dated 26.04.2011, passed by
Additional District & Sessions Judge, Court No. 10, Bijnor, in Sessions Trial No. 418 of 2008
(State vs. Khalid and others), arising out of Case Crime No. 88 of 1993, under Section 376(2)(g)
I.P.C., Police Station Badhapura, District Bijnor, whereby the appellants Khalid, Sajid and Ashfaq
were found guilty under Section 376(2)(g) I.P.C. and sentenced to undergo 10 years' rigorous
imprisonment along with fine of Rs. 5000/- each with default stipulation.

2. Filtering out unnecessary details, the prosecution case in brief is that an application was
moved by the informant to the S.P., Bijnor stating that her daughter is a minor. Her husband had
sown wheat in the fields of Abid on agreement to get half of the wheat. The wheat crop was
standing in the field. The accused Kalloo, Khalid, Ashfaq and Sajid are miscreants, characterless,
dangerous type of people who also keep illegal weapons with them. Towards the north of the
aforesaid field, a room of the accused persons is also situated. On 14.04.1993, the husband of the
informant had gone to Ludhiyna (Punjab) and the victim had gone to the jungle to bring grass. On
the same day at about 05:00 P.M., the fields in which the husband of the informant had sown wheat,
pigs had entered, at which the sister-in-law (Deorani) of the informant asked the victim to drive
away the pigs from the field. When the victim was taking away the pigs towards the south, seeing
the victim alone, the accused persons came from that room and Kalloo pressed the mouth of the
5 All. Khalid & Anr. Vs State Of U.P.

637
victim, Khalid took out the knife in his hand, Ashfaq and Sajid picked up the victim and took up
her in the eucalyptus fields of Istkammudin which was situated to the south of the field in which
the husband of the informant had sown wheat. The victim was put down on the ground, Khalid had
cut the tape of her Salwar with the knife, Kalloo gagged the mouth of the victim with cloth and
raped her. Ashfaq and Sajid caught her hands due to which her bangles were broken. After that
Ashfaq, Khalid and Sajid also raped her one by one. When the victim did not returned home for
quite some time after driving away the animals, her aunt Ameena went to the spot searching for her
and she shouted at which Shami, Abdul Rahim and Abdul Hamid also reached at the spot. The
accused saw the witnesses coming at which they left their sleepers and knife and fled away. When
the accused were fleeing, they threatened that if any action has taken against them, they would kill
everybody. Ameena and other witnesses brought the victim home in an unconscious state. When the
informant returned home, Ameena and the victim narrated her the whole incident. When the victim
regained the consciousness, she was being taken by the informant to the police station. The brotherin-law (Devar) of the informant was also with her on the way. They met Abdul Malik, Shahid, Ali
Hussain, Abdul Shami all the relatives of the accused and Juhurul Hasan, who said that they would
paint the faces black of their relatives who are accused, made them sit on donkey and whatever fine
would be imposed by the Panchayat would be paid by them. Further, he said that if the witnesses
and the informant could not return back then they would be dealt with more badly and their corps
would be set to fire. The informant got frightened and drew back her daughter. Next day, the
informant sent her brother-in-law (Devar) to fetch her husband, who came back and went to the
police station to lodge the report. The police took the knife in their possession but the report was
not lodged, hence the informant has moved an application before the S.P., Bijnor, then the report
was lodged.

3. On the basis of the written report, PW-7 is Rajendra Kumar Sharma, Chowki Incharge,
scribed the chik which was proved by this witness as Exhibit Ka-7. This witness further proved the
copy of G.D. as Exhibit Ka-8. The witness has stated that the victim and the complainant came to
the police station on 19.04.1993. She also handed over her Salwar on which she claimed stains of
blood and semen and handed it over to this witness which was seized by this witness in the
presence of witnesses which was sealed and the seizure memo was prepared and proved as Exhibit
Ka-9. On the same day, a pair of sleepers which was said to have left by the accused was seized in
the presence of the witnesses. It was wrapped in a piece of cloth and sealed. The memo was
prepared. The witnesses signed the memo which was proved by this witness as Exhibit Ka-10. The
witness proved the clothes as material Exhibit-1, Salwar as material Exhibit-2 and the pairs of
sleepers as material Exhibit-3.

4. PW-5 is Dhirendra Singh Yadav, who conducted the investigation in the matter. He
copied the chik report in the case diary. He further copied the seizure memo in the case diary. He
prepared the site plan on the pointing out of the informant and the victim, which was proved by this
witness as Exhibit Ka-4. The medical report of the victim was copied in the case diary by this
witness. Further, the witness recorded the statements of witnesses Abdul Rahim and Abdul Hamid
etc. The accused were arrested, their statements were also recorded. The clothes of the victim was
sent to the Forensic Lab for chemical analysis. The robkar was proved by this witness as Exhibit
638 INDIAN LAW REPORTS ALLAHABAD SERIES
Ka-5. PW-6 is S.I. Raj Kumar, who proved the copy of G.D. as Exhibit Ka-6. Dr. Smt. Beenu Gupta
is PW-4, who conducted the medical examination of the victim. She did not find any external or
internal injury on the body of the victim. The vagina was admitting two fingers easily. The hymen
was old torn. There was no swelling and bleeding from vagina. This witness proved the medical
report as Exhibit Ka-2 and the radio logical report as Exhibit Ka-3.

5. The prosecution has examined as many as seven witness. PW-1 is the informant, who
proved the written report as Exhibit Ka-1. PW-2 is the victim. PW-3 is Smt. Ameena, who is said to
be an eye witness.

6. PW-4 is Dr. Smt. Beenu Gupta, PW-5 is Dihrendra Singh Yadav, PW-6 is Raj Kumar and
PW-7 is Rajendra Kumar Sharma, whose evidences have earlier been discussed above.

7. After close of the prosecution evidence, the statements of the accused appellants have
been recorded under Section 313 Cr.P.C. in which they denied the occurrence and have stated that
they have been falsely implicated in this case due to enmity regarding land property. The accused
Ashfaq has further stated that the informant and her family members used to throw garbage in his
fields due to this enmity, they had been implicated.

8. The accused persons has examined DW-1 Bhoorey and DW-2 Shajeed Hussain in their
defence.

9. After hearing the learned counsel for the parties, the learned lower court convicted and
sentenced the accused as stated in para 1 of the judgment.

10. Feeling aggrieved, the accused have come up in appeal.

11. Heard Sri Anil Kumar Srivastava and Mrs. Swati Agrawal, learned counsel for the
appellants, learned Additional Government Advocate for the opposite party and perused the lower
court record.

12. Learned counsel for the appellants has vehemently argued that there is delay in lodging
the first information report, inasmuch as, the occurrence is said to have taken place at 14.04.1993 at
05:00 P.M., whereas, the report was lodged on 19.04.1993 at 16:00 hrs. The police station being 6
Kms. away from the place of occurrence. In this regard, in the first information report itself, it has
been stated that when the victim regained her senses, she was taken by the informant to the police
station to lodge the first information report. When the relatives of the accused met her, they
threatened her, then she called her husband who came on 18.04.1992 and on 19.04.1993, the report
was lodged. It appears that the date of going of the husband of the informant was wrongly typed as
"18.04.1992". The informant was examined by the court who has stated that after the occurrence,
the accused threatened her, when she was going to the police station. She returned home due to
their fear and did not do anything. Then she sent for her husband on 18.04.1993 to the police
station but her report was not lodged, although the police personnel kept the Salwar, knife and
5 All. Khalid & Anr. Vs State Of U.P.

639
sleepers with them. Next day, an application was moved to the S.P., then the report was registered.
This statement of the informant does not find support from the documentary evidence, available on
record because the recovery memo, as per seizure memo Exhibit Ka-9, the clothes of the victim
was taken into the possession by the police on 19.04.1993 and the recovery memo bears the thumb
impressions of the victim along with other witnesses. Similarly, a pair of sleepers was taken in the
possession of the police on 19.04.1993. Seizure memo was prepared and the recovery memo is
Exhibit Ka-1 which was also prepared on 19.04.1993. there is no reason why, police would keep
the clothes and the sleepers handed over by the informant for no rhyme and reason besides as per
the version of the informant, the knife was also taken to the police station which was taken by the
police into custody but neither, the seizure memo of the knife are available nor there is any
evidence on record to show that the knife was ever handed over to the police. If the husband of the
informant had gone to the police station, there was no reason why the police did not lodge the
report on the same day and if at all the reason was correct. The prosecution could have called for
the copy of the G.D. to prove that the husband of the informant had gone to the police station but
his report was not lodged.

13. In AIR 2000 Supreme Court page 1812, (State of Rajasthan vs. N. K. Accused), the
Hon'ble Apex Court has laid down as under:-

"We may however state that a mere delay in lodging the FIR cannot be a ground by
itself for throwing the entire prosecution case overboard. The Court has to seek an explanation for
delay and test the truthfulness and plausibility of the reason assigned. If the delay is explained to
the satisfaction of the Court it cannot be counted against the prosecution. In State of Rajasthan Vs.
Narayan AIR 1992 SC 2004 this Court observed True it is that the complaint was lodged two days
later but as stated earlier Indian society being what it is the victims of such a crime ordinarily
consult relatives and are hesitant to approach the police since it involves the question of morality
and chastity of a married woman. A woman and her relatives have to struggle with several
situations before deciding to approach the police. In State of Punjab Vs. Gurmit Singh & Ors.
(supra), this Court has held The Courts cannot overlook the fact that in sexual offences delay in the
lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or
her family members to go to the police and complain about the incident which concerns the
reputation of the prosecutrix and the honour of her family."

14. Although, the Hon'ble Apex Court in 2005 Supreme Court Cases (Criminal) page 410,
(Sri Narayan Shah vs. State), has held that mere delay in lodging the first information report is
really of no consequence, if the reasons are explained.

15. In the present case, the husband of the informant had returned home on 18.04.1993 and
although the report was not lodged by him on that day and the delay in lodging the first information
report remained unexplained. Thus, it would definitely cause dent in the prosecution case.
640 INDIAN LAW REPORTS ALLAHABAD SERIES
16. As regards, the testimony of the prosecutrix is concerned, it has been said that in a case
of rape, no self-respecting woman would come forward in a court just to make a humiliating
statement against her honour such as is involved in the commission of rape on her.

17. While discussing other aspects of the matter, the Hon'ble Apex Court has also laid
down in 2010 Crl.L.J. Page 2061, (Abbas Ahmad Chaudhary vs. State of Assam), has observed as
under:-

"We are conscious of the fact that in a matter of rape, the statement of the
prosecutrix must be given primary consideration, but, at the same time, the broad principle that the
prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and
there can be no presumption that a prosecutrix would always tell the entire story truthfully."

18. Rape is the most morally and physically reprehensible crime in a society, as it is an
assault on the body, mind and privacy of the victim. While a murderer destroys the physical frame
of the victim, a rapist degrades and defiles the soul of a helpless female. Rape shakes the very core
of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar
on the life of the victim, and therefore a rape victim is placed on a higher pedestal than an injured
witness. Rape is a crime against the entire society and violates the human rights of the victim.
Being the most hated crime, rape tantamounts to a serious blow to the supreme honour of a woman,
and offends both, her esteem and dignity. It causes psychological and physical harm to the victim,
leaving upon her indelible marks.

19. But on the other hand in 2011 (2) JCC page 701, (State vs. Rahul), the High Court of
Delhi has observed that the golden thread which runs through the web of 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. The paramount consideration of the court is to ensure that miscarriage
of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no
less than from the conviction of an innocent.

20. No doubt, rape on the prosecutrix leaves a scare on her soul but a false accusation of
rape on a man also may leave a scar on his whole personality.

21. In the above back drop, the statement of the victim and the medical evidence has to be
looked into. As far as the age of the victim is concerned, as per the medical report Exhibit Ka-3, the
radio logical age of the victim was about 18 years. Since PW-1 informant was not an eye witness to
the prosecution case, hence I would straightway come to the statement of the victim PW-2 and the
eye witness PW-3 Ameena. As far as the incident is concerned, PW-2 in her examination-in-chief
has corroborated the prosecution version. The victim has stated that her aunt (Chachi) came at that
time when Sajid was raping her. But inspite of seeing her aunt coming to the spot, Sajid did not
leave her. When her aunt hit her sleepers at him and removed him from above the victim. In her
examination-in-chief Ameena, the aunt of the victim PW-3, has stated that when she reached at the
5 All. Khalid & Anr. Vs State Of U.P.

641
spot Sajid was lying on top of the victim and was raping her. She has stated that when she assaulted
Sajid with the sleepers, all the accused were present. They were having knives. Nobody assaulted
her or caught her. The victim has further stated that her aunt and the witnesses came together on the
spot. Trying to prove herself to be a minor, she has stated that at the time of occurrence, she was 13
years of age. This witness was subjected to the test of cross-examination, in which she has stated
that when she went to drive away the animals, she took a lathi. When all the four caught her, she
could not hit them with the lathi. She has further stated that she was raped by all for 4 to 5 minutes.
Her clothes were torn. She has also admitted that her other aunt Mobeena had previously lodged a
first information report of rape against Abrar, Fakhruddin and Shakeel but in that first information
report, there was no trial.

22. As regards, coming back of the witnesses is concerned, PW-1 the informant has stated
that Ameena PW-3 covered the victim with a cloth and brought her home while this averment is
wanting in the statement of the victim and her aunt Ameena Pw-3. Further, the victim has stated
that Kalloo pressed her mouth. Her further gagged her mouth with cloth. Corroborating this aspect,
PW-3 Ameena has stated that Ashfaq accused has stuffed the cloth in the mouth of the victim and
Kalloo and Khalid had caught the hands and feet of the victim. Besides the mouth of the victim was
gagged with clothes, prior to her rape by Kalloo. Ameena PW-3 entered, when Sajid was allegedly
raping the victim. How, she could see that Ashfaq stuffed the clothes in the mouth of the victim is a
million dollar question which remained unanswered through out the trial. Thus, as far as, the
factual aspect of the matter is concerned, the prosecution story is concocted, unreliable and
improbable.

23. In the present case, since the prosecution story is not digestible and sought to seek
corroboration from other factors, i.e. the medical evidence.

24. In (2007) 12 SCC page 57, (Radhu vs. State of Madhya Pradesh), the Hon'ble apex
Court has held as under:-

"It is now well settled that a finding of guilt in a case of rape, can be based on the
uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get
direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis
of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly
subjected to sexual intercourse, her statement will normally be accepted, even if it is
uncorroborated, unless the material on record requires drawing of an inference that there was
consent or that the entire incident was improbable or imaginary. Even if there is consent, the act
will still be a 'rape', if the girl is under 16 years of age. It is also well settled that absence of
injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as
evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual
intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim.
Bruises, abrasions and scratches on the victim especially on the forearms, writs, face, breast,
thighs and back are indicative of struggle and will support the allegation of sexual assault. The
courts should, at the same time, bear in mind that false charges of rape are not uncommon. There
642 INDIAN LAW REPORTS ALLAHABAD SERIES
have also been rare instances where a parent has persuaded a gullible or obedient daughter to
make a false charge of a rape either to take revenge or extort money or to get rid of financial
liability. Whether there was rape or not would depend ultimately on the facts and circumstances of
each case."

25. No doubt, injuries on the person of the victim are not sine-quo-non for conviction for
rape but in AIR 2000 Supreme Court page 1608 (Joseph S/o Kooveli Poulo vs. State of Kerala),
the Hon'ble Apex Court has observed that if there had been any forcible sexual intercourse, the
victim must have made some strong resistance and being a grown up lady and in the process some
injuries would have been found on the vagina/private part of the body or some other parts
indicative of any such use of force and it would be too much to assume that there would have been
no injuries whatsoever on her body on this account.

26. I have not loose sight of the fact that even the victim of rape is put to fear of death, she
may not raise resistance or struggle and in that process, she may not sustain injuries but in the case
in hand, although the accused were said to be armed with knives but still Ameena PW-3 has
specifically stated that ** tc eS ?kVuk ds ckn -------------- dks lcls igys ns[kk rks og [kwu es yFkiFk iM+h FkhA mlds
eqWg] gkFkks] Nkrh ij dej ij] tkW?kks ij [kwu FkkA og osgks'k iM+h FkhA **

27. Even the victim PW-2 herself has stated that she was forcibly raped and beaten badly. Her
whole back was abraded. she sustained injuries on her elbows. Her vagina was bleeding. She sustained
lesion in her vagina. She sustained scratches on her face. She had signs of tearing on her whole body
and all these injuries were shown to the doctor. Thus, this is not a case in which the victim and the eye
witness have stated that there was a struggle for rape. Dr. Beenu Gupta PW-4 has stated that, she did not
find any signs of sexual intercourse on the body of the victim and she did not also find any external
injury on the body of the victim. No doubt, the occurrence is said to have been committed on
14.04.1993 and the victim was examined by the doctor on 19.04.1993, but in five days all the injuries
has vanished and the lesion in the vagina would also disappeared, cannot be digested and accepted by
this Court.

28. Thus, the evidence of prosecutrix and the eye witness Ameena is belied by the medical
evidence which entitles the accused to acquit as as been held in (2006) 3 Supreme Court Cases (Cri.)
page 373 (Yerumalla Latchaiah vs. State of A.P.).

29. Although in the forensic lab report the Salwar bore the spot of sperm and human semen, but
that alone would not be sufficient to record a finding of the conviction against the accused.

30. Coming to the statement of the I.O. PW-5 Dhirendra Singh Yadav, who has stated that
according to the medical evidence factum of rape was not proved. Rajendra Kumar Sharma, PW-7 has
stated that the victim was handed over her sleepers which was taken in the possession by this witness
and it was seized. The Salwar of the victim was produced before the court and this witness was put to
the test of cross-examination, in which he has admitted that the cloth which was produced before the
5 All. Khalid & Anr. Vs State Of U.P.

643
court was by no stretch of imagination in the shape of her Salwar. The cloth was about 10 to 12 inches
which was cut from many places.

31. No doubt, when the forensic lab examines semen and blood on the garments of the victim,
the part of the cloth is cut and examined, which contains spots of blood, semen or spermatozoa. But at
least the cloth i.e. Salwar will remain in its original shape. In this particular case a 10 to 12 inches cloth
cannot be termed to be a Salwar, hence this part of the prosecution case too, is not reliable.

32. PW-7 is Rajendra Kumar Sharma, who has also admitted that preparing the memo, sealing
the property and interrogating the witnesses about the sealed property was the job of the Investigating
Officer, but this witness wrongly did all the aforesaid acts as at that time he was unaware that he could
not prepare the memo.

33. The accused persons have pleaded enmity with the family of the informant. DW-1 is
Bhoorey, who has stated that his house is near the place of occurrence but there is nothing significant in
the statement of this witness. DW-2 is Shahid Hasan, who has stated that Bundu is husband of the
informant, his cousin is Abid on whose land Bundu used to do work of agriculture. Due to mutual
agreement, on 15.02.1993, DW-2 and his brother Sajid, the accused and Mazahid took this property.
Sajid removed possession of Bundu and he took possession due to which Bundu and his family
members were inimical with the accused Sajid.
 34. In cross-examination, this witness has admitted that he moved an application to lodge the
proceedings under Section 107 and 116 Cr.P.C. and the accused Shahid is his real brother.

35. Now an again, I have been laying a lot of trust on the point that the judges conducting the
trial do not bother to either mark the documents as Exhibits nor they bother to refer the documents filed
by the defence in judgment. As law permits the public documents filed by the defence should be marked
as Kha-1, Kha-2 etc. while proving the documents would require too. In the present case, the defence
filed as many as 13 documents, vide list 78 Kha, four documents vide list 88 Kha but the trial judge did
not even bother to either mark the public documents therein as Exhibits or to refer them in his judgment.
He could have either relied or disbelieved the documents. Thus, he should have referred the evidence of
both the parties which he failed to do so. Out of the documents filed vide list 78 Kha, document nos. 1,
3 and 6 are public documents. Paper No. 2 of list 88 Kha is a public document which is copy of the
charge sheet against Kilua, Shamim and Shami.

36. Thus, on the basis of what has been said and discussed above, the appeal is liable to be
allowed.

37. Accordingly the appeal is allowed.

38. The order of conviction and sentence dated 26.04.2011, passed by Additional District &
Sessions Judge, Court No. 10, Bijnor, in Sessions Trial No. 418 of 2008 (State vs. Khalid and others),
arising out of Case Crime No. 88 of 1993, under Section 376(2)(g) I.P.C., Police Station Badhapura,
District Bijnor, as against the present appellants, is hereby set aside.
644 INDIAN LAW REPORTS ALLAHABAD SERIES
39. The appellants namely Khalid, Sajid and Ashfaq are in jail. They shall be released forthwith
in this case. However, the appellants are directed to comply with the provision of Section 437-A Cr.P.C.

40. Let certified copy of this judgment be sent to the court concerned.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.5.2016

BEFORE

THE HON'BLE MRS. RANJANA PANDYA, J.

Criminal Appeal No.- 2831 Of 2012

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

Counsel for the Appellant:
Dinesh Kumar Tripathi, Arvind Kumar Srivastava, P.K. Singh
Counsel for the Respondent:
Govt. Advocate

This appeal is directed against the judgment and order dated 04.06.2012 passed by the learned
Additional Sessions Judge, Court No. 5, Kanpur Nagar in ST No. 967 of 2009 (State Vs. Virendra), arising out
of Crime No. 72 of 2009 under Sections 354, 376, 306 IPC, Police Station Sachendi, District Kanpur Nagar
whereby the accused appellant was found guilty and sentenced to two years' rigorous imprisonment under
Section 354 IPC; seven years' rigorous imprisonment and Rs.5,000/- fine under Section 376 IPC and ten
years' rigorous imprisonment and Rs.5,000/- fine under Section 306 IPC with default stipulation.

Keeping in view the totality of the circumstances, the manner in which the offence was committed, the
age of the deceased and the age of the accused, I think the custodial sentence of 10 years' rigorous
imprisonment under Section 306 IPC should be reduced to 8 years' rigorous imprisonment.

In view of the aforesaid reasons, the appeal is partly allowed.

Held: Para-

Case Law discussed:
AIR 2000 SC 2602, Sudhakar and another Vs. State of Maharashtra,
Rajindra Kumar Vs. State, AIR 1960 Punjab 310,
(2010) 1 SCC (Cri) 917 Gangula Mohan Reddy Vs. State of Andhra Pradesh,

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

1. This appeal is directed against the judgment and order dated 04.06.2012 passed by the
learned Additional Sessions Judge, Court No. 5, Kanpur Nagar in ST No. 967 of 2009 (State Vs.