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

- **Citation:** (2020) 6 ILRA 1111
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-04-27
- **Case number:** Criminal Appeal No. 5665 of 2013
- **Bench:** Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kuldeep-in-jail-v-state-of-u-p-45754
- **Pages:** 12

## Headnote

Section
376,
308
IPC-
Appeal
against
conviction.

A. Criminal Law-Indian Penal Code,
1860-Section 376-delay in lodging FIRDelay in lodging FIR is not fatal its indicates
that FIR has not been convincingly explained.
(Para-25)

Medical Evidence -Medical evidence does
not support the prosecution case in entirety.
(Para-27)
Criminal Appeal allowed. (E-2)

List of cases cited: -

## Text

6 All. Kuldeep Vs. State of U.P. 1111
709, it has been held in paras 11 and 12
that :-

"11. The question falling for
consideration
is
whether
there
are
adequate and special reasons warranting
exercise of discretion to reduce the
sentence
of
imprisonment.
What
is
'adequate and special reasons' would
depend upon several factors and no
strait-jacket formula can be imposed. No
catalogue can be prescribed for adequacy
of reasons nor instances can be cited
regarding special reasons. They differ
from case to case.

12. It is stated that at the time of
occurrence, appellant no. 1 was working
as a police driver and appellant no. 2 was
a
singer
having
good
reputation,
performing as a singer on the stage and
both the appellants were aged about 2425 years, at the time of the occurrence. It
is also stated that both the appellants
have no criminal antecedents and they
hail from backward area. Learned
counsel for the appellants have also
produced certificate issued from the Jail
Authorities to show that the conduct of
the appellants (post conviction) are very
good and satisfactory and they have been
participating
in
the
sports/garden
activities and other programmes of the
Jail.
Considering
the
facts
and
circumstances of the case and that the
appellants have no criminal antecedents
and also the conduct of the appellants in
the Jail (post conviction), the sentence of
imprisonment of fifteen years (for the
conviction under Section 376 (2)(g) IPC)
and sentence of imprisonment of ten years
(for the conviction under Section 120B
IPC) are reduced to eight years."
(emphasis supplied)

28. Considering that no case is made
out against the accused-appellant under
Section 3(2)(V) of SC/ST Act, he is
languishing in jail since 6.2.2008 (i.e.
more than 12 years), further he was about
20 years at the time of occurrence and
today he is about 34 years and no other
criminal history is reported, we, therefore,
modify the sentence under Section 376
IPC to sentence already under gone.

29. The appeal is partly allowed.
The conviction/sentence under Section
376 IPC r/w Section 3(2)(V) of SC/ST
Act is altered to conviction under Section
376 IPC only on sentence undergone
while acquitting the appellant under
Section 3(2)(V) of SC/ST Act. Appellant
is in jail. He shall be released forthwith, if
not detained in any other case.

30. A certified copy of this
judgment be sent to the trial court for
necessary compliance.
----------
(2020)06ILR A1111
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.04.2020

BEFORE

THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 5665 of 2013

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

Counsel for the Appellant:
Sri S.K. Verma, Sri Devendra Kumar
Mishra, Sri Dheeraj Kumar Dwivedi, Sri
Sharad Kumar Srivastava, Sri Virendra
Kumar Yadav
1112 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Opposite Party:
A.G.A.

Section
376,
308
IPC-
Appeal
against
conviction.

A. Criminal Law-Indian Penal Code,
1860-Section 376-delay in lodging FIRDelay in lodging FIR is not fatal its indicates
that FIR has not been convincingly explained.
(Para-25)

Medical Evidence -Medical evidence does
not support the prosecution case in entirety.
(Para-27)
Criminal Appeal allowed. (E-2)

List of cases cited: -

1. Niranjan Prasad Vs St. of MP, 1996 CrLJ
1987 (SC).

2. Thaman Kumar vs St. of UT of Chandigarh,
(2003) 6 SCC 380.

3. Ram Narain Popli Vs CBI, (2003) 3 SCC 641.

4. Vallabhaneni Venkateshwara Rao Vs St. of
AP, 2009 (4) Supreme 363.

(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.)

1. Heard Sri Sharad Kumar
Srivastava, learned counsel for
the
appellant, learned AGA for the state and
perused the record.

2. This criminal appeal has been
filed against the impugned judgment
dated 23.11.2013, passed by Additional
Sessions Judge, court No. 9, Fatehpur, in
Sessions Trial No. 15 of 2011, arising out
of Case Crime No. 204 of 2010, under
Section 376, 308 IPC, Police Station
Bindki, District Fatehpur by which the
accused-appellant
Kuldeep
has
been
convicted and sentenced for ten years
rigorous imprisonment and Rs. 50,000/-
fine
and
in
default
three
months
additional simple imprisonment for the
offence under Section 376 IPC and five
years rigorous imprisonment along with
fine of Rs. 5000/- and in default fifteen
days additional simple imprisonment for
the offence under Section 308 IPC. It has
further been directed that all the sentences
shall run concurrently.

3. The brief facts of this case is that
the informant is the resident of Mohalla
Mahajani Gali Lahauri Town Bindki,
Police Station Bindki, District Fatehpur.
On 14.07.2010, the accused-appellant
Kuldeep
committed
rape
with
the
daughter of the informant and stabbed by
a knife in her stomach. At that point of
time, the informant had gone to her
relations and when she got information
about the incident on phone, the victim
was
admitted
in
District
Hospital,
Fatehpur and the stomach of the victim
was operated. Therefore, on 20.07.2010,
she gave an application to the police of
Bindki
mentioning
therein
that
application was already sent to SP,
Fatehpur about the incident, although, the
same is not on record. On the basis of said
information, the offence was registered
under Sections 376, 308 IPC and chik was
prepared. The offence was investigated by
Investigating Officer who recorded the
statement
of
the
formal
witnesses,
informant and has also recorded the
statement of the victim in the hospital
with the statement of her brother Jeetu
and relative Vinod. After receiving the
medical
report
of
the
victim
on
24.07.2010, the same was copied in the
case diary. Similarly, the X-ray report,
pathology report, supplementary report of
the victim was also entered in the case
diary.
The
accused
surrendered
on
26.08.2010
and
his
statement
was
6 All. Kuldeep Vs. State of U.P. 1113
recorded. He also prepared the site map.
After completing the investigation, the
charge sheet was submitted for the
aforesaid offence. Charges were framed
against the accused under section 308/376
IPC to which the accused denied and
claimed trial.

4. In support of the prosecution
case, PW-1 Shivdevi (informant), PW-2
Golden (victim), PW-3 Jeetu, PW-4 iDr.
Kamal Dhawan, PW-5 SI Prem Chandra,
PW-6 Subhash Chandra Singh (Chief
Pharmacist), PW-7 Dr. D.K. Verma, PW8 Constable Arvind Kumar Rahi, PW-9
Awadhpal Singh (Ward Boy), PW-10 Dr.
V.C. Budhani and PW-11 Dr. Rakesh
Pathak
have
been
examined.
The
statement of Dr. Pradeep Kumar and Dr.
Istiyaq Ahmad has also been recorded as
CW-1 and CW-2. The prosecution
witnesses have proved the incident and
also proved the written report as Ext. Ka1,
medical
report
Ext.
Ka-2,
supplementary report Ext. Ka-3, site map
Ext. Ka-4, letter to C.M.O. Ext. Ka-5,
charge sheet Ext. Ka-6, bed head ticket
Ext. Ka-7, chik first information report
Ext. Ka-8, G.D. Report Ext. Ka-9, photo
copy of the extract of the injury register
Ext. Ka-10, pathology report Ext. Ka-11,
radiologist report Ext. Ka-12 and X-ray
plate as material Ext.-1.

5. The statement of the accusedappellant Kuldeep was recorded under
Section 313 CrPC. He has put forward the
case of denial and stated that the victim
sustained injuries by falling down and
after consultation and deliberation with
malafide and greed, this false case was
instituted. In defence, he has also
examined DW-1 Dr. Vikas Anand, DW-2
Dr. Vikas Tripathi, DW-3 Dr. A.K. Singh
and document Ext. Kha-1 has also been
proved.

6. After hearing the counsel for both
the parties, the learned trial court has
passed the impugned judgment convicting
and sentencing the accused-appellant.

7. Feeling aggrieved by the
impugned
judgment,
this
criminal
appeal has been preferred and the
impugned
judgment
has
been
challenged on the ground that the
conviction and sentence has been
erroneously awarded by completely
misreading the evidence on record. The
accused appellant is innocent and he has
been
falsely
implicated
and
the
prosecution failed to establish the guilt
against the accused appellant. The
learned trial court did not apply its
judicial mind and only on the basis of
the statements of the interest witnesses,
the judgment has been passed. There is
error of law, appreciation of facts is
incorrect
and
evidence
of
the
prosecution witnesses are not reliable.
The impugned judgment is not based on
direct evidence and is only based on
circumstantial evidence. There was
contradictions in the statement of
witnesses and also with the medical
evidence.
Therefore,
the
impugned
judgment is not sustainable under law,
the appeal is liable to be allowed and
the accused-appellant is entitled for
acquittal.

8. It appears that 11 witnesses and
two court witness have been examined to
support the prosecution case. Before
analyzing the statement of the prosecution
witnesses and the other evidences on
record, it appears appropriate to see what
1114 INDIAN LAW REPORTS ALLAHABAD SERIES
has been stated by the witnesses in this
case.

9. PW-1 Shiv Devi is the informant
and mother of the victim. She has stated
that she knows accused Kuldeep present
in the Court who is son of the mother-inlaw (Fuferi) of her elder daughter. The
incident took place an year before and it
was 1:30 PM in the day time. She had
gone to her maternal relatives in Raugan.
She was informed by Sohan Lal that her
daughter (victim) has fallen down from
the roof. Sohan Lal is the father of
Kuldeep and, therefore, he gave a false
information. On that day, she could not
return and on the next day, she saw the
victim in the district hospital in serious
condition who was not in a position to
speak and her intestine was coming
outside from her stomach. When she
became conscious, she told that Kuldeep
committed rape with her on the point of
knife and when she said that she will
make a complaint about it, he stabbed the
knife in her stomach. The informant got a
written report typed and gave the same to
Kotwali Bindki after putting thumb
impression on the same, which is Ext. Ka1. She has also stated that when she went
to lodge the report, her daughter was
hospitalized. Her son and her elder sonin-law Vinod had reached there and they
any how saved the victim. Had they not
reached, the accused could have killed the
victim. The SO took her statement and
inspected the place of occurrence. In the
cross-examination, she has stated that she
did not see the incident herself.

10. PW-2 is victim herself who has
stated that she knows the accused who
is son of her sister's mother-in-law
(Fuferi). The accused Kuldeep had
come to her house on 14.07.2010. Her
brother-in-law had gone to Bindki. It
was about 01:30 PM. She was cooking
and Kuldeep was sitting under the
shade. When she went inside to keep
vegetables, accused came behind her,
caught her and closed her mouth. She
said, what stupid he is doing. Then he
threatened her to keep quite otherwise
he would stab knife. He started doing
forcible sexual assault and got her
naked and committed rape with her. She
cried but he forcibly committed rape.
Thereafter, because she was shouting,
he stabbed knife in her stomach. When
the accused was committing rape, her
brother and her brother-in-law came
inside. They saw the incident. They saw
the accused wearing his pant. She did
not know who took her to the hospital
as she got fainted. She remained in
District Hospital, Fatehpur for one and
half months. On 17th of the month her
stomach was operated and still she was
not able to move. The SO came and
inquired about the incident. When she
got conscious, she told about the whole
incident to her mother who lodged the
first
information
report.
She
was
medically examined in the district
hospital.

11. PW-3 Jeetu, the brother of the
victim, has stated that he knows accused
Kuldeep. The incident took place on
14.07.2010 at about 01:30 PM. He had
gone to Bindki Tehsil for getting caste
certificate. When he returned, he saw
Kuldeep in the house wearing his pant. He
had stabbed the victim in her stomach. He
warned him to run away otherwise he
would kill him and thereafter he fled away
from there. Her sister said that he
committed rape with her. Sushil also
reached there and both took the victim to
the hospital where she remained under
6 All. Kuldeep Vs. State of U.P. 1115
treatment in the whole night and then she
was referred to the District Hospital,
Fatehpur.

12. PW-4 Dr. Kamal Dhawan has
stated that on 22.07.2010, he was posted
as medical officer in the Emergency of
District Women Hospital and in the noon
at about 02:40 PM, Constable Manju
Yadav brought the victim to the hospital
and she was examined by him. Because of
the injury, she was admitted in the
District Hospital, Fatehpur for some days.
She made complaint about commission of
rape on her on 20.07.2010. She was slim
and 45 Kg. in weight. Teeth 14 X 14 were
found. Breasts were average. Hair were
present on vagina and no injury was
found on the breasts. Urinal tube was
inserted. For external injuries, he referred
her to District Hospital, Fatehpur for
medico legal examination. It was not
possible to give any opinion about rape as
she told that her period started on that
day. The medical report is Ext. Ka-2.
Supplementary report was given on
26.07.2010. Vaginal swab was taken
which was examined by Dr. B.C. Budhani
on
23.07.2010
who
gave
the
supplementary report Ext. Ka-3.

13. PW-5 SI Prem Chandra has
stated that on 20.07.2010, he was posted
at Police Station Bindki as in-charge
officer and took over the investigation on
that date. He copied the written report in
the case diary and recorded the statement
of Constable Kuldeep Yadav on that very
day. On 22.07.2010, he recorded the
statement of Shiv Devi and on her
identification, place of occurrence was
inspected and site map Ext. Ka-4 was
prepared. The statement of the victim was
recorded in the women's ward on bed no.
17 of the district hospital and on the same
day statement of Jeetu and Vinod was
also
recorded.
On
24.07.2010,
he
obtained X-ray report, pathology report,
supplementary report and the same were
entered in the case diary. On 28.07.2010,
he obtained the injury report of victim
which was copied in the case diary. On
26.08.2010, the accused surrendered and
his statement was taken. The victim was
medically examined by PW-4 Dr. Kamal
Dhawan and according to medical report,
there was no injury on the private parts of
the victim. The surgery of the victim was
done by Dr. D.K. Verma. He recorded the
statement of Chief Pharmacist Subhash
Chandra Singh and after completing the
investigation, he submitted charge sheet
which is Ext. Ka-6.

14. PW-6 Subhash Chandra Singh,
Chief Pharmacist has stated that he has
come with the bed head ticket of victim.
On 15.7.2010, at 2:00 PM, the injured
was brought as referred patient from
CHC, Bindki and treatment was provided
by Dr. D.K. Verma. She was aged about
18 years and she was discharged from the
district hospital on 28.07.2010.

15. PW-7 Dr. D.K. Verma has stated
that on 15.07.2010, he was posted as
surgeon in the District Hospital, Fatehpur
and on that day at 02:00 PM, the injured
was
admitted
for
treatment
with
complaint of pain in her stomach.
Ultrasound was conducted and it was
found that her small intestine was torn.
He operated and stitched the small
intestine on 17.07.2010 and necessary
medicines
were
given.
On
being
recovered,
she
was
discharged
on
28.07.2010. It was possible that the
injuries in her stomach may have been
caused by the butt of a knife, and if the
same was not operated, death was
1116 INDIAN LAW REPORTS ALLAHABAD SERIES
possible. He has proved the bed head
ticked as Ext. Ka-7.

16. PW-8 Constable Arvind Kumar
Rahi has stated that on 20.07.2010, he
was posted at Police Station Bindki and at
09:30 PM, on the basis of type-written
application of Shiv Devi, he registered
Case Crime No. 204 of 2010, under
Sections 376, 308 IPC against accused
Kuldeep. The first information report is
Ext. Ka-8 and the carbon copy of the GD
in which entry about registration of
offence is Ext. Ka-9.

17. PW-9 Awadh Pal Singh has
stated that he is working as ward boy in
the CHC, Bindki. He had come with the
emergency
OPD
Register
dated
01.01.2010 to 11.02.2010 in which on
14.07.2010 at Sl. No. 1978 at 07:50 PM,
the name of victim is mentioned and it
has been also mentioned that she was
referred to District Hospital, Fatebpur.
The relevant extract of register is Ext. Ka10.

18. PW-10 Dr. B.C. Budhani has
stated that on 21.07.2010, he was posted
as
Pathologist
in
District
Hospital,
Fatehpur and on that day, he examined
two slides of vaginal smears of the victim,
which were sent by Dr. Kamal Dhawan,
through constable Manju Yadav. In
examination of the same, red blood cells
were found on the slides and no live or
dead
spermatozoa
was
found.
The
pathology report is Ext. Ka-11.

19. PW-11 Dr. Rakesh Pathak has
stated that on 23.07.2010, he was posted
as radiologist in the District Hospital,
Fatehpur and under his supervision X-ray
of wrist and elbow joint of the victim
were conducted and on the basis of X-ray
plate, he prepared the report which is Ext.
Ka-12. According to which all the
epiphyses of the joint were found to be
fused. In the X-ray of wrist, radius and
alna bone, epiphyses were found to be
joint. The victim was aged about more
than 16 years and less than18 years. X-ray
plate is material Ext. -1.

20. DW-1 Dr. Vikas Anand has
stated
that
he
was
posted
in
emergency of District Hospital on
15.7.2010
and
at
02:00
PM by
reference
slip
of
CHC,
Bindki,
Fatehpur, victim was brought and she
was admitted in the hospital on the
basis of self inflicted injury and after
first aid treatment, she was admitted
under the surgeon. Admission ticket
Ext. Ka-7 is in his writing and
signature. The injured victim told
whatever and whatever was written in
the reference slip, he also wrote the
same at the time of admission. The
condition of the victim was quite
normal. She did not say anything that
she was assaulted by any one and rape
was committed on her.

21. DW-2 Dr. Vikas Tripathi has
stated that on 16.07.2010, he was posted
as EMO in the District Hospital, Fatehpur
and on call he examined the victim at
07:40 AM. She was complaining pain in
her stomach, upon which treatment
advised was written on her bed head
ticket. She did not complain anything
other than the stomach pain.

22. DW-3 Dr. A.K. Singh has stated
that on 14.07.2010, he was attached in
PHC as Medical Officer and the victim
came for her treatment. The witness has
proved
the
reference
slip
dated
15.07.2010
as
Ext.
Kha-1.
6 All. Kuldeep Vs. State of U.P. 1117

23. CW-1 Dr. Pradeep Kumar is just
a formal witness who has not stated
anything relevant.

24. Cw-2 Dr. Ishtiyaq Ahmad has
stated that on 30.05.2013, he was posted
as in-charge medical officer in CHC,
Bindki. He came with the OPD Register
dated 01.01.2010 to 11.09.2010 and duty
register dated 14.07.2010 and 15.07.2010
and by way of photo-estate, he has filed
after making comparison by his writing
and signature which are Ext. Ka-10 and
Ext. Ka-11. He has stated that on
15.7.2010, Dr. A. K. Singh was doctor on
duty in CHC, Bindki.

25. The first submission is with
regard to delay in lodging FIR. The
incident took place on 14.7.2010 at any
time and on the basis of type-written
report given by PW-1 Shiv Devi (mother
of victim), the FIR was registered on
20.7.2010 at 7.10 AM. The place of
occurrence is situated at the distance of
one furlong from the police station. As
such, the FIR has been lodged on seventh
day from the date of incident. PW-2
Victim has stated that the incident took
place at about 1.30 PM. PW-1 has stated
that she was not present in the house and
had gone to her relatives and came back
on the next day after being informed and
she met her daughter in the district
hospital. She has also stated that she was
not present at the place of occurrence and
her daughter told her about the incident in
the hospital. The prosecution evidence
clearly shows that the victim was
admitted in the district hospital on
15.7.2010. Thus, on 15.7.2010, the
informant had the knowledge of the
incident as told to her by the victim. Both
victim and informant have stated Jeetu
and Vinod to be witness of the incident
and they must have also informed the
informant about the incident. Therefore,
the prosecution had to explain why till
20.7.2010, she did not lodge FIR. The
informant, during cross-examination, just
to shorten the delay, started saying that on
the fourth day, she met her daughter in
the hospital. This appears to be selfcontradictory to the version of FIR and
statement given to the IO under section
161 CrPC. It is true that in cases of rape,
the delay in lodging FIR is not fatal but
there is no case that the informant took
time in taking decision for lodging FIR.
This indicates that the delay in lodging
FIR has not been convincingly explained
by the prosecution.

26. Another defect is that in the
written report, it has been mentioned that
the accused stabbed the victim in her
stomach and PW-1 has stated in her
examination-in-chief that she met her
daughter in the hospital, her condition
was serious and her intestine was coming
out from stomach. She said that the victim
was stabbed by the accused. PW-2 victim
and PW-3 Jitu have also stated that the
accused stabbed the victim. The medical
report however does not support it as no
stabbed wound has been found by the
doctor. The prosecution case is that
initially the victim was given treatment at
CHC and on 15.7.2010, she was brought
to district hospital as referred case. The
doctor who gave treatment to her at CHC
has not been examined by prosecution.
He has been examined as defence witness
as DW-1 Dr. Vikas Anand, Medical
Officer, working in Emergency at District
Hospital on 15.7.2010, who has stated
that the victim was admitted on the basis
of reference slip of CHC and she was
admitted for the treatment of self inflicted
injury. Similarly, DW-2 Vikas Tripathi,
1118 INDIAN LAW REPORTS ALLAHABAD SERIES
EMO, District Hospital has also stated
that on 16.7.2010, at 7.40 AM, he
examined the victim in the ward and she
was complaining of stomach pain. Both
these witnesses have not been even crossexamined
by
the
prosecution
and
therefore, there remains no doubt with
regard
to
the
correctness
of
their
statements.
I
find
that
after
the
examination of two defence witnesses,
CW-1 Dr. Pradeep Kumar, Medical
Officer, District Hospital and CW-2 Dr.
Ishtiyaq Ahamad, In-charge CHC, Bindki
were summoned as court witnesses and
on the basis of their statement, Dr. A. K.
Singh, the then Medical Officer, CHC,
Bindki has been examined who has
proved the reference slip of victim as Ext.
Kha-1 and has stated that the victim had
come for treatment of self inflicted injury.
He has been cross-examined, but nothing
favorable to prosecution has come out.

27. In the same continuity, the
medical evidence given by prosecution on
the point, if analyzed, same result comes
out and there is no indication of any stab
injury to the victim. For instance, PW-4
Dr. D.K. Verma has stated that on
15.7.2010, the victim was admitted for
treatment and she was complaining
stomach pain and on ultra-sound her
intestine was found lacerated. She was
operated by him on 17.7.2010 and after
being cured, she was discharged on
28.7.2010. He has stated that the intestine
may be torn by hitting very powerfully by
blunt object such as butt of a knife. He
has admitted during cross-examination
that she was admitted in hospital on
reference for the treatment of self
inflicted injury and there was no injury by
sharp weapon. He has also stated that
Sohan Lal told him on phone that the
victim had fallen from roof. PW-7 has
stated that there was no injury of sharp
weapon to the victim. He has stated that
on falling from roof on some blunt object
from the side of stomach, such injury is
possible. PW-10 Dr. B. C. Budhani has
not indicated injury on her private part.
Therefore, medical evidence does not
support the prosecution case in entirety.
On the contrary, it does not rule out the
defence case that she sustained injury as
she fell down from roof.

28. PW-3 Jitu, the real brother of the
victim, was not there in the house and he
has stated that that when reached in the
house, accused Kuldeep was wearing his
pant and the moment he reached, the
accused assaulted by knife in the stomach
of victim and threatened him to run away
otherwise he would assault him also by
knife. Thereafter, he ran away from there.
His sister, as he saw, sustained injury on
her stomach His sister told her that the
accused committed rape on her. It is
strange that if everything was in the
knowledge of PW-3, what prevented him
and his brother in law to lodge FIR about
the incident. He did not tell about the
incident to his relative or neighbors nor
took their help. He did not even inform to
his mother and strangely, she was
informed by the father of accused that
victim has fallen. It is difficult to
understand the conduct of this witness
which appears to be unnatural and not of
a prudent person and certainly it reflects
upon the credibility of his testimony. His
presence at the time of incident or soon
after appears to be doubtful.

29. PW-2 is the victim who has
stated that the accused committed rape on
her on the point of a knife and when she
started crying, he threatened to stab her
by knife and when she continued crying,
6 All. Kuldeep Vs. State of U.P. 1119
he stabbed her after committing rape. She
fell down and at this point of time her
brother Jitu and her brother in law Vinod
reached there. Then, the accused was
wearing his pant. It was bleeding and she
got fainted.

30. Now, the evidence of all the
three witnesses and prosecution case
suffers from serious infirmities. Firstly,
there is no medical evidence showing that
the victim sustained any incised wound in
her stomach caused by knife. The doctors
who examined the victim, treated and
operated her abdomen, have for reasons
best known to them have tried to make
out an injury by butt of the knife, which
was never the case put forward by the
prosecution. The trial court appears to
have acted strangely by placing reliance
on the opinion of doctors that the injury
was possible by the butt of knife as it is
beyond the prosecution case. No such
statement has been given by the victim or
any of the fact witnesses. Moreover, there
is always a presumption that a weapon
was used in a like manner it is used unless
the facts and circumstances permit an
otherwise inference.

31. Niranjan Prasad v State of
MP, 1996 CrLJ 1987 (SC), was a
murder trial, testimony of eye-witnesses
was that the deceased and injured were
assaulted with sharp cutting weapons but
their testimony was not corroborated with
medical
evidence
showing
deceased
having been injured by blunt object
(weapon)
only. Post-Mortem
Report
showing that the deceased had no injury
which could be caused by a sharp cutting
weapon and, indeed, he had sustained
only one injury which could be caused,
according to the doctor by a blunt weapon
only. Keeping in view the sharp contrast
in between the ocular testimony and the
medical evidence, the Supreme Court set
aside the conviction of the accused
persons.

32. Similarly, in Thaman Kumar v
State
of
Union
Territory
of
Chandigarh, (2003) 6 SCC 380, the
Supreme Court laid down as follows:

"There may be a case where
there is total absence of injuries, which
are normally caused by a particular
weapon. There is another category
where though the injuries found on the
victim are of the type, which is possible
by the weapon of assault, but the size
and dimension of the injuries do not
exactly tally with the size and dimension
of the weapon. The third category can
be where the injuries found on the
victim are such which are normally
caused by the weapon of assault but are
not found on that portion of the body
where they are deposed to have been
caused by the eye-witnesses. The same
kind of inference cannot be drawn in
three categories of apparent conflict in
oral and medical evidence enumerated
above. In the first category it may
legitimately be inferred that the oral
evidence regarding assault having been
made from a particular weapon is not
truthful.
However,
in
the
second
category and third category no such
inference can straightaway be drawn.
The manner and method of assault, the
position of the victim, the resistance
offered
by
him,
the
opportunity
available to the witnesses to see the
occurrence like their distance, presence
of light and many other similar factors
will have to be taken into consideration
in judging the reliability of the ocular
testimony."
1120 INDIAN LAW REPORTS ALLAHABAD SERIES

33. In this instant case, the first
category is applicable where there is total
absence of injuries, which are normally
caused by a weapon like knife and it may
legitimately be inferred that the oral
evidence regarding assault having been
made by knife is not truthful. There is
another logic to support this inference. As
said by the victim in her on oath
statement, the accused stabbed her after
commission of rape. It does not appeal to
reasoning.
When
rape
was
already
committed by accused, there was no need
for the accused to assault her by knife.
There is no recovery of the said weapon
which could show that the make of the
weapon was such that it could cause
serious injury by butt side. I find apparent
perversity and illegality in the finding of
the learned trial court holding the accused
guilty for the offence under section 308
IPC.

34. Now coming to the charge of
rape, the victim has stated during crossexamination that the accused firstly
dashed her on wall and she sustained
injury on her head. Then he tossed her on
the ground and she sustained injury on
her back and in the commission of rape,
she sustained abraded injuries on her hand
and legs. He had got her completely
naked and after commission of rape when
he was wearing his pant, she was lying
naked and her brother and brother in law
saw her in completely naked position. She
has admitted that her uncles house is
adjacent to her house but they could not
hear her crying as they had gone to field
for agricultural work. If the rape was
committed on her in the way she has
stated, she should have suffered more
injuries but no injury on her head and
back has been found in the medical nor
there is any abrasion on her her hand or
leg. Had the rape committed in such a
way, the victim must have sustained some
injury on her private part. But no such
injury has been found in the medical. PW3 has stated that when he reached on spot,
the accused was wearing his pant but he
has not stated that the victim was lying
naked. He has stated that he did not call
his relatives who lived adjacent to his
house as their relation was not good and
they were not on talking terms. This is
again contrary to what the victim has
stated. There is inconsistency in the
statement of the informant as in the crossexamination, she has stated that on fourth
day she reached in the hospital and the
victim told her about the incident which is
contrary
to
what
she
stated
in
examination-in-chief that next day she
met her daughter in the hospital who told
her about the incident. PW-1 and PW-2
have stated that at the time of incident,
brother/son Jitu and brother in law/son in
law
Vinod
reached
there.
In
the
examination-in-chief, PW-1 has stated
that her son Jitu and son in law reached at
the time of occurrence and saved her
daughter, otherwise, the accused could
have killed her. But, PW-3 Jitu has not
stated about Vinod but about one
Shusheel and he too did not reach with
him and reached subsequently. Thus,
there is contradiction on this point in the
statement of witnesses. The evidence is
on record that the victim was taken to
CHC, Bindki by her brother Jitu and
Shusheel and the victim according to PW3
had
informed
him
regarding
commission of rape by accused. If it was
so, nothing prevented them to disclose it
to the doctor. There is no medical
evidence that the victim was unconscious.
The medical report shows that she was
normal. Prior to 20.7.2010, she was
operated and attended by various doctors
6 All. Kuldeep Vs. State of U.P. 1121
but, she has not stated about rape on her.
Then, why the doctors there were
informed that the victim was admitted for
treatment for self inflicted injury. The
reference slip and statement of doctors
contains this fact and there is no reason to
say that the doctors mentioned this fact
wrongly. PW-4 Dr. Kamal Dhawan has
stated that the victim was admitted in the
hospital from some days and only on
20.7.2010, she complained about rape and
on 22.7.2010, when she was brought by
local police, he examined her. There was
no injury on her private part and she told
that her menses started on that very day.
She had been subjected to sexual
intercourse in view of finger test but no
definite opinion of rape was possible. She
did not complain any pain in her private
parts. Hymen was old torn. Thus, the
medical
evidence
also
does
not
corroborate the incident of rape on the
victim.

35. The learned trial court has not
considered
the
inconsistency,
improvement and contradiction in the
prosecution evidence. The prosecution
has introduced and added new facts and
story during evidence which makes the
prosecution version improbable. In Ram
Narain Popli v CBI, (2003) 3 SCC 641
and Vallabhaneni Venkateshwara Rao
v State of AP, 2009 (4) Supreme 363, it
has been held that introduction of or
addition of new story or projection of
different story by prosecution adversely
affects and destroys the prosecution case
and it is unsafe to convict the accused and
benefit of doubt should be given to
accused. There is delay in lodging FIR
and no attempt has been made by
prosecution to explain the delay. In rape
cases, it is settled law that delay in
lodging FIR is not material and if the
offence has been proved by cogent
evidence, the same will be insignificant.
In this case, three witnesses of fact
including victim have not been able to
prove prosecution version in a reliable
and credible way and thus, the delay in
lodging FIR goes to render additional
ground to dislodge the prosecution case.
The
medical
evidence
adduced
by
prosecution is to the effect that the victim
was under treatment for self inflicted
injury. Thus, the medical evidence also
does not corroborate the prosecution case
and it does not rule out or improbablize
the defence version that the victim fell
down from roof. In this case, the facts
constituting the offence of attempt to
culpable homicide and rape are so
intermixed and inter-connected that one
of them cannot be isolated from other.

36. In view of above discussion, I
find that the learned trial court ignored
the infirmities in prosecution version and
prosecution
evidence.
There
was
variation,
contradiction,
inconsistency
and improvement in the testimony of fact
witnesses. PW-1 was not present at the
time of occurrence and she lodged FIR on
the seventh day on the basis of what was
said to her by victim. Since, her son was
in the knowledge of the incident and was
well informed by the victim, she must
have been told by her son about the
incident. Her son and son in law could
have lodged FIR. Therefore, the delay in
lodging FIR assumes importance and
creates doubt on prosecution version.
There appears to be no reason advanced
by prosecution why she was admitted for
treatment in the hospital for the treatment
of self inflicted injury. It supports the
defence case. The prosecution case of
causing stabbed injury by knife to victim
by accused has been found to be
1122 INDIAN LAW REPORTS ALLAHABAD SERIES
untruthful. Both the sides are relatives
and the presence of accused there, if it is
believed that he was there, cannot be said
to be unnatural. It has come in the FIR
itself and also in the statement of
informant that she was informed by
Sohan Lal, the father of accused, by
phone that victim had fallen down from
roof. This has also come in the statement
of doctor that Sohan Lal so informed him
on phone. He so informed when there was
no FIR about the incident. The evidence
of
prosecution
witnesses
is
shaky,
unnatural and untrustworthy and the
learned trial court committed error in
placing reliance on them. Thus, there is
apparent perversity and illegality in the
impugned judgment and the same is liable
to be set aside and the accused is entitled
for acquittal.

37. The Criminal Appeal is allowed.
The
impugned
judgment
dated
23.11.2013 convicting and sentencing the
accused for the offence under section
376/308 IPC is set aside. Accused
Kuldeep is acquitted consequently.

38. Accused Kuldeep be released
from jail forthwith.

39. Office is directed to transmit
back the lower court record to the
concerned court along with a copy of this
judgment
for
information
and
compliance.
----------

(2020)06ILR A1122
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.02.2020

BEFORE
THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 5849 of 2017

Amit Porwal ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Krishna Dutt Awasthi, Sri Ghan
Shyam, Sri Vivek Mishra

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

Criminal Law-Indian Penal Code, 1860Sections 323, 504, 506 and Section
3(1)X
SC/ST
Act-
Appeal
against
conviction.

Benefit of undergone-
Conviction upheld sentences reduced to the
period
of
imprisonment

has
already
undergone.

Criminal Appeal disposed of. (E-2)

List of cases cited: -

1. B.G. Goswami Vs Delhi Administration, 1973
AIR 1457.

2. Mohd. Giasuddin Vs St. of AP, AIR 1977 SC
1926,

3. Sham Sunder Vs Puran, (1990) 4 SCC 731.

4. St. of MP Vs Najab Khan, (2013) 9 SCC
509.

5. Jameel Vs St. of UP (2010) 12 SCC 532,

6. Guru Basavraj Vs State of Karnatak, (2012)
8 SCC 734,

7. Deo Narain Mandal Vs St. of UP (2004) 7
SCC 257

8. Shyam Narain Vs State (NCT of delhi),
(2013) 7 SCC 77

9. Sumer Singh Vs Surajbhan Singh, (2014) 7
SCC
323,