# Mohammad Abrar v. State of U.P

- **Citation:** (2020) 1 ILRA 135
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-13
- **Case number:** Criminal Appeal No. 2077 of 2014
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-abrar-v-state-of-u-p-45193
- **Pages:** 14

## Headnote

Criminal Law - Indian Penal Code -
Sections 376 and 506 - Appeal against
conviction.

There
is
no
material
contradiction
or
exaggeration
or
embellishment
regarding
contention made for commission of offence of
rape by accused. (para 15)

In cross-examination, there is no material
contradiction in his statement, except of trivial
one, which has been asked in hair spiting
cross-examination, but learned trial court has
rightly
appreciated
that
those
minor
contradictions bound to occur in such type of
hair-splitting cross-examination. There was no
material contradiction, rather, they make
witness as a natural witness. (para 29)

In
the
present
case,
prosecutorix
was
subjected to rape by her real maternal uncle.
She was a minor and crippled girl, suffering
with trauma of being nonambulatory, having
upper and lower limbs polio affected. The
apathy of that Station House Officer, who was
posted there at that time. Neither cloths of
the victim were taken nor same were got
examined in laboratory nor DNA test was got
conducted. If these steps would have been
taken
by
the
Station
House
Officer,
concerned, in time, it would have been much
more helpful, in judicial proceeding and its
decision
making,
but
even
then,
the
prosecutorix, in her testimony, and other
formal witnesses, discussed above, proved
charges
leveled
against
convict-appellant
beyond reasonable doubt. (para 35)

The appeal is rejected. (E-2)
List of cases cited: -

## Text

_Characters 0–39,930 of 47,081. This is a partial read: ask again with offset=39930 for what follows._

1 All. Ram Lalak & Ors. Vs. State of U.P.
135
object as sought to be bifurcated by
learned senior counsel for appellants only
qua P.W-1 cannot be sustained as the
deceased had sown the seeds of the fruit
bearing trees, which were being plucked
in the earlier part of the day by P.W-1
(nephew of the deceased), to which all the
4 accused had taken an offence. The
deceased was not a rank outsider who can
be said to have no interest in the dispute
between P.W-1 and the appellants. P.W-1
is a close blood relative of the deceased,
was being attacked with lethal weapons.
It was but natural for the deceased (Ram
Das) alongwith Dwarka and Ayodhya
(family members of P.W-1) to make an
attempt to rescue P.W-1. The appellants
instead of acceding to the request of the
deceased, attacked not only Ramdas
(deceased)
but
also
persons
accompanying him i.e, Dwarika and
Ayodhya. The object of the appellants
cannot be bifurcated qua P.W-1 and the
deceased. Thus in view of above A-4 and
A-5 cannot feign ignorance that they had
no knowledge that such assault was likely
to be made on Ramdas in prosecution of
the common object.

20. We have perused the judgment of
Maiyadeen (supra) and are of the view
that the said decision would not come to
the rescue of appellants as in the said case
Maiyadeen (injured) and Babulal-deceased
were cutting their crops. The evidence
indicated
that
the
said
appellants'
grievance was against Khushali as the
latter was cutting the crops at the fields at
which there was dispute between them.
The said appellants chased Khushali.
While the chase was on Maiyadeen and
Babulal sought to intervene. One of the
appellants therein assaulted them as a
result
of
which
Babulal
died
and
Maiyadeen got injured. The said appellants
never resisted Maiyadeen and Babulal
from cutting the crops. On such evidence
appellants therein were not convicted with
the aid of Section 149 IPC as the common
object of the unlawful assembly was to
harm Khusali.

21. We find that in so far the role
of A-1 to A-3 is concerned, same was
undoubtedly
established
with
the
evidence of P.W-1 and 2 unequivocally.
Learned Senior Counsel for A- 1 to A-3
in all fairness submitted that in view of
direct clinching evidence he is not in a
position to assail their conviction. We
too, independent of his submission find
that there was strong previous enmity
between both the faction, a day light
occurrence supported by testimony of
injured witnesses and nothing has been
elicited in their cross-examination to
doubt their credibility, prosecution has
established its case beyond reasonable
doubt against all the appellants, the
appeal is bereft of merits, liable to be
dismissed.

22. The appeal is dismissed. The
appellants are on bail. Their bail bonds
stand cancelled. They shall be taken into
custody forthwith to serve the remainder
sentence.

23. Let a copy of this judgement
along with records be sent to the learned
Sessions Judge, for compliance and
intimation to this court within 2 months.
----------
(2020)1ILR A135

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.12.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.
136 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal Appeal No. 2077 of 2014

Mohammad Abrar ...Appellant
Versus
State of U.P. Opposite Party

Counsel for the Appellant:
Sri Sushil Kumar Pandey, Sri Pawan Singh
Pundir, Sri Sanjay Singh, Sri Vikas Sharma

Counsel for the Opposite Party:
A.G.A., Sri Harish Chandra

Criminal Law - Indian Penal Code -
Sections 376 and 506 - Appeal against
conviction.

There
is
no
material
contradiction
or
exaggeration
or
embellishment
regarding
contention made for commission of offence of
rape by accused. (para 15)

In cross-examination, there is no material
contradiction in his statement, except of trivial
one, which has been asked in hair spiting
cross-examination, but learned trial court has
rightly
appreciated
that
those
minor
contradictions bound to occur in such type of
hair-splitting cross-examination. There was no
material contradiction, rather, they make
witness as a natural witness. (para 29)

In
the
present
case,
prosecutorix
was
subjected to rape by her real maternal uncle.
She was a minor and crippled girl, suffering
with trauma of being nonambulatory, having
upper and lower limbs polio affected. The
apathy of that Station House Officer, who was
posted there at that time. Neither cloths of
the victim were taken nor same were got
examined in laboratory nor DNA test was got
conducted. If these steps would have been
taken
by
the
Station
House
Officer,
concerned, in time, it would have been much
more helpful, in judicial proceeding and its
decision
making,
but
even
then,
the
prosecutorix, in her testimony, and other
formal witnesses, discussed above, proved
charges
leveled
against
convict-appellant
beyond reasonable doubt. (para 35)

The appeal is rejected. (E-2)
List of cases cited: -

1. Anil Rishi Vs. Gurbuksh Singh, AIR 2006 SC
1971

2. Prem Lata Jain Vs. Arihant Kumar Jain, AIR
1973 SC 626

3. Babban Vs. Shiva Nath, AIR 1986, Allahabad,
185

4. Kumbhan Lakshmanna & ors. Vs. Tangirala
Venkateswarlu, AIR (36) 1949 PC 278

5. St, of J &K Vs. Hindustan Forest Company,
reported in (2006) 12 SCC 198

6. M. Krishnan Vs. Vijay Singh & anr., reported
in 2001, Cr. L.J, 4705

7. A. Raghavamma & anr. Vs. A Chenchamma,
AIR 1964 SC 136

8. Kalu Ram vs. St. of H.P., reported in AIR
1976 SC 966

9. Pratap Vs. St. of U.P., AIR 1976 SC 966

10. Narbada Prasad Vs. Chhagan Lal, reported
in AIR 1969 SC 393

11. Kunwar & ors. Vs. St. of U.P., reported in
1993 (3) AWC 1305,

12. Rajinder @ Lala & etc. Vs. St., reported in
2010 CRL.L.J. 15

13. Rajendra Prasad Vs. Narcotic Cell, reported
in AIR 1999 SC 2292

(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. This Criminal Appeal, under
Section 374 (2) of Code of Criminal
Procedure, 1973 (In short, hereinafter,
referred to as ''Cr.P.C.'), has been filed by
the convict-appellant, Mohammad Abrar,
against the judgment of conviction and
sentence, awarded therein, by the court of
Additional Sessions Judge, court no.6,
1 All. Mohammad Abrar Vs. State of U.P.
137
Muzaffar Nagar, in Sessions Trial No.1566
of 2010, arising out of Case Crime No. 64
of 2010, under Sections 376 and 506 of
Indian Penal Code (hereinafter, in short,
referred to as ''IPC') of Police StationMirapur, District-Muzaffar Nagar, with a
prayer
for
setting
aside
impugned
judgment of conviction and sentence,
awarded
therein.
Thereby,
awarding
acquittal, for offences, charged with.

2. Grounds of challenge, taken in the
Memo of Appeal, are that the judgment
and order of conviction and sentences,
awarded therein, was made without
appreciating evidence on record, resulting
finding perverse. It was based on surmises
and conjectures. Medical evidence was not
in support of the prosecution case. There
was deliberate delay of more than twenty
nine days in lodging first information
report because the incident was of
12.1.2010 and the report was of the same
was lodged on 31.1.2010. This itself
creates doubt on the prosecution version
and lead it into peril of suspicion.
Judgment of conviction and sentence,
awarded therein, was against facts, law
and evidence and it was a conviction, not
in commensurate to the degree of offence.
Hence, a prayer for quashing of the
impugned judgment and order, dated
7.5.2014, passed by the court of Additional
Sessions Judge, Court No.6, Muzaffar
Nagar, in Sessions Trial No.1566 of 2010,
arising out of Case Crime No. 64 of 2010,
under Sections 376 and 506 of IPC of
Police Station-Mirapur, District-Muzaffar
Nagar, and to acquit the appellant from the
charges levelled against him, was made.

3. From very perusal of the
impugned judgment and record of Trial
court, it is apparent that the first
information report, Exhibit Ka-1, was
presented before the Senior Superintendent
of Police, Muzaffar Nagar, on 31.1.2010,
whereupon,
order
of
Senior
Superintendent of Police, Muzaffar Nagar,
was passed for getting prosecutorix
medically
examined
and
taking
appropriate action in the matter, upon
which, Case Crime No. Nil of 2010, under
Sections 376 and 506 of IPC was got
registered, at Mahila Thana, Distrct
Muzaffar Nagar. Chik FIR, Exhibit Ka-7,
was prepared, with a copy of General
Diary Entry of registration of this case
crime number, Exhibit Ka-8. Since place
of
this
occurrence
was
within
the
jurisdiction of Police Station-Mirapur,
hence, this case was remitted to that Police
Station-Mirapur, where it was entered as
Case Crime No.64 of 2010, for offences,
punishable, under Sections 376 and 506 of
IPC, by making its entry in General Diary,
Exhibit Ka-2 of above Police Station,
wherein, investigation was deputed to Sub
Inspector, Layak Ram. Prosecutorix was
got medically examined on 31.1.2010, at
District Hospital, Muzaffar Nagar. Her
Medico Legal Report, Exhibit Ka-3,
Ossification report regarding her age,
Exhibit Ka-4, X-ray, Exhibit Ka-5 were
got prepared. Her statement was recorded
on 31.10.2010 and spot was got inspected
upon pointing of victim-prosecutorix,
whereupon, spot map, Exhibit Ka-9, was
got prepared. Thenafter, investigation was
transferred to Sub Inspector, Mitrapal Sen,
who detained accused, Mohammad Abrar
on 17.2.2010. His statement was got
recorded
and
after
investigation,
a
conclusion was drawn for commission of
offence, as above, punishable, under
Section 376 and 506 of IPC. Hence,
chargesheet, Exhibit Ka-6, was submitted
by the Investigating Officer before the
Chief Judicial Magistrate, Muzaffar Nagar,
upon which cognizance was taken by the
138 INDIAN LAW REPORTS ALLAHABAD SERIES
Chief Judicial Magistrate, Muzaffar Nagar,
for offecnes, punishable, under Sections
376 and 506 of IPC. As offence,
punishable, under Section 376 of IPC, was
triable before the court of Sessions, hence,
this file was committed to the court of
Sessions, vide order of the Chief Judicial
Magistrate, Muzaffar Nagar, where, this
Sessions Trial was entered in the Register
of Sessions Cases. Subsequently, this file
was allocated to the court of Additional
Sessions Judge/Fast Track Court No.1,
Muzaffar Nagar, where the Presiding
Judge, Shamsher Khan, framed charges in
vernacular, English Translation of which,
done by the Court, is being reproduced
below:

Charge

I, Shamsher Khan, Additional
Sessions Judge, Fast Track court no.1, do
hereby, charge, Abrar, as follows:

Firstly : That on 12.1.2010 at
about (time not known) at village
Churiyala, Police Station-Mirapur, at a
distance of 28 Kilometeres, towards
western side of Police Station-Mirapur, in
the District of Muzaffar Nagar, you
committed
rape
with
daughter
(prosecutorix) of informant, who was
disabled, against her consent, thereby,
committed offence, punishable, under
Section 376 of IPC, within cognizance of
this Court.

Secondly : That on above date,
time and place, you committed rape
against wishes of prosecutorix, daughter of
informant and extended threat of dire
consequences, in case of opening of lips to
anyone,
thereby
committed,
offence,
punishable, under Section 506 of IPC,
within cognizance of this Court.

So, I, hereby direct you for your
trial for above offences.

Sd/-

Dated:7.2.2011

(Shamsher Khan)

Additional Sessions Judge/FTC-1

 Muzffar Nagar.

Charges
were
readover
and
explained to the accused, who pleaded not
guilty and requested for trial.

4. Prosecution examined informant,
Noor Mohammad, as PW-1, Prosecutorixvictim, as PW-2, Constable, Subhash
Chand as PW-3, Dr. Indra Singh, as PW-4,
Dr. Anand Swaroop, as PW-5, Mitrapal
Sen, as PW-6, Ravita Gupta, as PW-7 and
Layak Ram as PW-8.

5. For having explanation, if any, of
accused over incriminating materials and
evidence furnished by the prosecution and
for getting defence version, statement of
accused was recorded, under Section 313 of
Cr.P.C., wherein, accusation levelled was
denied by submitting that it is a false and
malicious accusation for which a false first
information report was got registered,
whereby, false accusation was got made with
preparation of false and fictitious documents.
Prosecutorix was major at the time of
occurrence and the testimony of PW-1 is
false and under greed. Testimony of PW-2,
prosecutorix, is under influence of her step
father, informant. It was a false and
fabricated
testimony.
Statement
of
Constable-Subash Chand, PW-3, was false,
statement of Dr. Subash Chand was also
false and medical report was prepared by
him was false and fictitious, testimony of Dr.
Anand Swaroop and documents prepared by
him were false and fictitious. Investigation
by Sub Inspector, Mitrapal Sen, was made
1 All. Mohammad Abrar Vs. State of U.P.
139
for false accusation and a false chargesheet
was filed. First information report was got
registered by Ravita Gupta and her
testimony was false and against facts. Sub
Inspector, Layak Ram, had made a false
accusation and investigation conducted by
him was owing to enmity and with false and
malicious contention. He has categorically
stated that the informant, step father of the
prosecutorix, and his mother, who is sister of
accused-appellant, took ornaments of the
mother of accused-appellant, and thereafter
taken loan, after mortgaging ornaments, for
construction of their house, with an
assurance to return the ornaments at the
earliest. On being asked to return the
ornaments, they started quarrelling with
them, and as such, the ornaments of the
mother of was not returned back, rather, this
false case was got registered.

6. In defence, Ikramulla, DW-1, and
DW-2, Mohd. Abrar, accused-appellant,
himself have been examined.

7. Learned Additional Sessions
Judge, after hearing arguments of learned
Public Prosecutor as well as learned
counsel for the defence, passed impugned
judgment
of
conviction,
wherein
Mohammad Abrar, accused-appellant, has
been held guilty for offence, punishable,
under Section 376 and 506 of IPC. Both
sides were heard on quantum of sentence,
thereupon, sentence of 10 years' rigorous
imprisonment, with fine of Rs. 20,000/-, in
default of deposit of which, two years'
imprisonment,
and
three
years'
imprisonment, for offence, punishable,
under Section 506 (2) of IPC, was
awarded, with a direction for concurrent
running of sentences, so awarded.

8.
 Against
this
judgment
of
conviction and sentence, this Criminal
Appeal, with above prayer, has been
preferred by the accused-appellant.

9. Learned counsel for the accusedappellant has argued that the prosecutorix
is a close relative of accused, Mohammad
Abrar. Informant, Noor Mohammad, step
father of the prosecutorix, had taken
money, by way of taking ornament of
mother of the accused for getting it
mortgaged, for taking loan from market to
construct his house and this construction
was made by him, but, even after
completion of construction, neither money
was returned nor ornaments were returned
back. When ornaments were demanded
back, this false accusation for offence of
rape was lodged, wherein, prosecutorix
was a major one. She was disabled girl and
was used as a victim by her step father.
Testimony of PW-1 and of prosecutorix,
PW-2, was in contradiction to each other.
Though there were several contradictions
on record, but learned Trial Judge failed to
appreciate the same and on the basis of
surmises
and
conjectures,
passed
impugned
judgment
of
conviction,
wherein, sentences, awarded were too
severe, i.e., not commensurate with the
degree of offence. Hence, this Appeal with
above prayer.

10. Learned AGA, representing State
of
U.P.,
has
vehemently
opposed
arguments of learned counsel for appellant
with this contention that the prosecutorix
is a close relative of accused-appellant and
she, being physically disable, always
needs help of some-one. Under belief and
trust, accused was given that responsibility
for that day of occurrence. Accusedappellant committed this offence of rape
with the victim, who was a minor and
disabled girl. Offence was very heinous,
hence, learned Trial Judge, on the basis of
140 INDIAN LAW REPORTS ALLAHABAD SERIES
those facts and circumstances, has passed
the impugned judgment of conviction and
sentences, awarded therein. There is no
illegality, irregularity or short-coming in
this judgment.

11. Under Section 102 of Evidence
Act, initial onus to prove a fact always
remains upon plaintiff, i.e., as propounded
by the Apex Court in the case of Anil
Rishi vs. Gurbuksh Singh, AIR 2006 SC
1971, initial onus to prove a fact is on the
person who asserts it. Initial onus is
always on the plaintiff to prove his case
and if he discharges, then so, onus shifts to
defendant. As has been propounded by the
Apex Court, in the case of Prem Lata
Jain vs. Arihant Kumar Jain, reported
in AIR 1973 SC 626, as well as in the case
of Babban vs. Shiva Nath, reported in
AIR 1986, Allahabad, 185 of this Court,
where, both parties have already produced
whatever evidence they had, the question
of burden of proof ceases to be of any
importance, but, while appreciating the
question of burden of proof, misplacing
the burden of proof on a particular party
and recording finding in a particular way
will definitely vitiate the judgment. In civil
cases, burden of proof on the pleading
never shifts, it always remains constant.
Initial proving of a case in his favour is
cast on plaintiff when he fulfils it, onus
shifts over to defendant to adduce
rebutting evidence to meet the case made
out by the plaintiff, the onus may again
shift back to plaintiff, as has been
propounded in an age old precedent in the
case of Kumbhan Lakshmanna and
others vs. Tangirala Venkateswarlu,
reported in AIR (36) 1949 PC 278. In the
case of Sate of Jammu & Kashmir vs.
Hindustan Forest Company, reported in
(2006) 12 SCC 198, Apex Court has
propounded that the plaintiff cannot
obviously take advantage of the weakness of
defendant. The plaintiff's case must stand or
fall upon evidence, adduced by him. In civil
cases, burden of proof is not to prove beyond
all
reasonable
doubt,
but
even
preponderance of probabilities may serve as
a good basis for decision, as has been
propounded by the Apex Court, in the case
of M. Krishnan vs. Vijay Singh and
another, reported in 2001, Cr. L.J, 4705.
Burden to prove and onus to prove are two
different things. Burden to prove lies upon a
person, who has to prove the fact and which
never shifts. Onus of proof shifts. Such a
shifting of onus is a continuous process in
the evaluation of evidence as has been
propounded by the Apex Court, in the case
of A. Raghavamma and another vs. A
Chenchamma, AIR 1964 SC 136.

12. In a criminal trial, as has been
propounded by the Apex Court, in the case
of Kalu Ram vs. State of Himanchal
Pradesh, reported in AIR 1976 SC 966,
the onus is upon prosecution to prove the
different ingredients of the offence and
unless it discharges that onus, it cannot
succeed. As propounded by the Apex
Court, in the case of Pratap vs. State of
U.P., AIR 1976 SC 966, prosecution has
to prove charge beyond all reasonable
doubt and accused has to prove only
establishing or existence of preponderance
of probabilities for a case, other than
proved by the prosecution. In Appeal,
burden is always on the appellant to prove
how the judgment, under Appeal, is
wrong.
He
must
show
where
the
assessment has gone wrong, as has been
propounded by the Apex court in the case
of Narbada Prasad vs. Chhagan Lal,
reported in AIR 1969 SC 393.

13. Hence, in the present Appeal, the
prosecution had proved charges levelled
1 All. Mohammad Abrar Vs. State of U.P.
141
against the appellant before the Trial
court/learned
Sessions
Judge,
where,
judgment of conviction and, thenafter,
order of sentence was passed. Now in this
Appeal, appellant has to show as to where
and on what points, learned Trial Judge
had failed to appreciate facts and law
placed on record. This Court of Appeal has
to appreciate facts and evidences placed on
record, under above perspective of law.

14.

PW-1,
Noor
Mohammad,
informant, in his statement, on oath, has
stated that Nusarat Jahan, victim, who is
his daughter, is disabled. Three and half
years back, he was residing with his family
at Village, Churiayala, within the area of
Police Station-Mirapur. He was a patient
of tuberculosis and was under treatment at
Delhi. Hence, he went to Delhi on
10.1.2010, alongwith his wife, for getting
medicines, leaving behind his disabled
daughter, prosecutorix, alone at the home,
under guardianship of accused, Abrar, who
is her maternal uncle. He came back on
13.1.2010. Her daughter was under threat
and agony. She had narrated to her mother
that she was subjected to rape by accusedAbrar, who is her maternal uncle, in the
night of 12.1.2010, at about 4.00 AM. He
went at the house of accused-Abrar,
where, his parents were present. Matter
was complained, but, they abused him. He
went to concerned Police Station, but
report was not got lodged. Abrar was not
traceable. Report was not being registered
inspite of repeated visits to Police Station,
then, he went to Superintendent of Police,
Muzaffar Nagar on 31.10.2010, where, an
application, under his signature was filed
and
upon
the
order
of
Senior
Superintendent of Police, Muzaffar Nagar,
this case crime number was registered.
The same application is on record as paper
no. 5Ka, having signature of this witness,
in a typed form, and it has been exhibited
as
Exhibit
Ka-1.
His
daughter,
prosecutorix, was medically examined.

15. In his cross-examination, there is
no material contradiction or exaggeration
or embellishment regarding contention
made for commission of offence of rape
by accused-Abrar with prosecutorix in the
night of 12.1.2010, at about 4.00 AM,
while she was left at her home, under the
care of accused-Abrar, who is her maternal
uncle and the prosecutorix was a minor
girl of 17 years of age, whereas, his
another daughter was about 18 years of
age. Entire cross-examnation was related
with facts, which were not material or
relevant to this fact said in examination-inchief, rather, were explanatory, in nature,
that he is resident of Ghaziabad and after
marriage shifted to this village, Churiyala.
His wife was previously married to
someone else. Prosecutorix is not daughter
from him, rather, he was a step father etc.
etc. But, all these facts are not related with
above material fact regarding offence, in
question. Prosecutorix was said to be
disabled by her limbs, but, her mental
condition was proper. When he came back
from Delhi, prosecutorix was all alone at
the home and she was under trauma. When
asked for her agony, she narrated that after
tying her limbs, she was subjected to rape
by her maternal uncle, Abrar. Police
personnel visited spot, after report was
lodged, in compliance of the order of the
Senior Superintendent of Police, Muzaffar
Nagar. A suggestive question has been put
about taking of some ornaments or quarrel
regarding it. This was answered in
negative. Report was got lodged on
31.1.2010, whereas, occurrence was of
night of 12.1.2010. This was because of
the fact that the Police Station, concerned,
did not register report. Thenafter, repeated
142 INDIAN LAW REPORTS ALLAHABAD SERIES
visits was made, failing which, he moved
an
application
before
the
Senior
Superintendent of Police, Muzaffar Nagar.
Thereafter, this report was got lodged.

16. No cross-examination is over this
fact of registration of this case crime
number by proving it as Exhibit Ka-1,
whereas, a Division Bench of this Court,
in the case of Kunwar and others vs.
State of U.P., reported in 1993 (3) AWC
1305, has propounded fact not examined
and a fact admitted in examination-inchief, under Section 137 of Evidence Act
and held that if some fact has been averred
in examination-in-chief of testimony of a
witness and same is not being crossexamined, truthfulness of unctroverted
part of fact shall be accepted.

17. In the present case, it was
specifically said by this witness, in his
examination-in-chief that he went at Police
Station for getting first information report
lodged, but inspite of repeated visits, same
was not lodged. Then, on 31.1.2010, he went
to Senior Superintendent of Police, Muzaffar
Nagar, where an application, which was in
typed form and under his signature, was
presented and upon an order over this
Application by the Senior Superintendent of
Police, Muzaffar Nagar, a report was got
lodged and this report is Exhibit Ka-1, on
record, but no question in cross-examination,
on this portion of examination-in-chief, has
been put by learned counsel for defence.
Hence, this un-cotroverted part justified that
there was no delay in lodging of this report
and it was lodged by presenting Exhibit Ka1 over which there was an order of Senior
Superintendent of Police for registration of a
report.

18.

PW-3
is
Constable-Clerk,
Subshash Chandra, who, in his testimony,
has categorically said, in examination-inchief, that, while being posted at Police
Station-Mirapur, District Muzaffar Nagar,
as Constable-Clerk, on 31.1.2010, he had
received Chik FIR of Case Crime No.
Nil/2010, under Sections 376/506 of
I.P.C., against Mohammad Abrar of Police
Station Mahila Thana and this was brought
by Sub Inspector of Mahila Thana,
Muzaffar Nagar, on the basis of which
Case Crime Nmber 64 of 2010, under
Sections 376 and 506 of I.P.C. was got
registered at Police Station-Mirapur. This
registration of case crime number was
entered in General Diary entry at Report
No.34 at 17.30 PM, by way of affixing a
carbon beneath it and in one and common
process, carbon copy prepared as an
original one, by way of pasting carbon
copy, beneath it, which is paper no. 7Ka
on record and General Diary entry of this
registration of case crime number is same
one. Compared and verified from original
one at the time of recording of evidence.
This was proved as Exhibit Ka-2.

19. This witness has been crossexamined,
wherein,
reiteration
of
examination-in-chief is there. There is no
material contradiction, exaggeration or
embellishment. Hence, very contention
about registration of case crime number,
firstly, at Mahila Thana, Muzaffar Nagar,
then, at Police Station, Mirapur, Muzaffar
Nagar, has been duly corroborated by this
witness and under above facts and
circumstances,
it
was
instant
first
information report.

20. PW-4 is Dr. Indra Singh, Senior
Consultant, was posted at Muzaffar Nagar
District Women Hospital, on 31.1.2010, on
Emergency
Duty,
where,
she
had
examined
prosecutorix,
brought
by
Constable Sudeshna and father of the
1 All. Mohammad Abrar Vs. State of U.P.
143
victim, i.e., Noor Mohammad, at about 2.00
PM. Mark of identification was black mole
over left cheek and she was weight of about 30
Kilograms and a disabled girl, crippled to stand
by herself, having teeth 14/14, no external
mark of injury was there, except her disability.
Upon internal examination, hymen was old
torn and healed, permitting penetration of one
figure, uterus was normal, no mark of injury
was there, swab was taken for preparation of
slide and examination of it in pathology. Her
age determination test was referred. Medico
legal report, under hand-writing and signature
of this witness, on record, is proved and
exhibited as Exhibit Ka-3.

21. In her cross-examination, no
question about her answer, at above date,
time and place or examination made by
her of prosecutorix, as above, has been
asked, rather, there is reiteration of the
statement, made in examination-in-chief.

22. PW-5 is Dr. Anand Swaroop,
who, in his examination-in-chief, has said
that while, being posted at District
Hospital, Muzaffar Nagar, on 6.2.2010,
he got X-ray of Prosecutorix, conducted
by X-ray Plate No. 659, made and
reported by Senior Radiologist Dr. O.P.
Bhargava and on the basis of this X-ray
report and plate, she was held to be age of
17 years in ossification report. This report
was prepared by him and in his handwriting and signature and exhibited as
Exhibit Ka-4. He was fully aware of
hand-writing of Radiologist of Dr. O.P.
Bhargava, who was posted with him.
Hence, he has proved Exhibit Ka-5, under
hand-writing and signature of Dr. O.P.
Bhargava. X-ray report, on record as
Exhibit -1, which was prepared on the
basis
of,
X-ray
Pate
No.659
of
prosecutorix, has been duly proved by
this witness.

23. In cross-examination, he has said
that the prosecutorix was brought by the
Police Constable, Sri Pal. He had not
conducted X-ray examination, rather, it
was conducted by Dr. Bhargava and on the
basis of X-ray prepared by Dr. Bhrgava,
ossification report, about age of the
prosecutorix, was made by this witness.
The basis of determination of age has been
elaborately replied by this witness, where
there is no inconsistency.

24. PW-6 is Sub Inspector, Mitrapal
Sen, who was the Investigating Officer of
this Case Crime Number 64/2010, after it
having been transferred from erstwhile
Investigating Officer, Layak Ram and he
has formally proved his investigation and,
thereby,
submission
of
chargesheet,
Exhibit Ka-6, under his hand-writing and
his signature. In cross-examination, there
is no contradiction or exaggeration, rather,
there is full reiteration of examination-inchief.

25. PW-7, Constable, Ravita Gupta,
is the Constable-Clerk, who has registered
this case crime number at Police Station,
Mahila Thana, Distrct Muzaffar Nagar.
She, in her examination-in-chief, has said
that, while, being posted as ConstableClerk, at Police Station Mahila Thana,
District Muzaffar Nagar, on 31.1.2010, she
had registered Case Crime No. Nil/2010,
under Sections 376/506 of IPC, on the
basis
of
a
typed
application
of
informant/applicant, Noor Mohammad,
presented before the Senior Superintendent
of Police, Muzaffar Nagar, and order by
him for its registration. Chik Report,
Exhibit Ka-7, is on record and the same is
under her handwriting and signature. This
registration of case crime number was
entered in the General Diary Entry of the
Police Station, concerned, at 15.30 PM, at
144 INDIAN LAW REPORTS ALLAHABAD SERIES
report no.80. Carbon copy of the same
prepared, under verification process, is on
record, which was annexed with original
General Diary Entry, brought before the
court at the time of recording of evidence,
which is exhibited as Exhibit Ka-8.

26. In cross-examination, she has
said that this registration was made in
compliance with the order of Senior
Superintendent
of
Police
and
after
registering
this
case
crime
number,
prosecutorix
was
sent
for
medical
examination by Sub Inspector, Omwati of
Mahila Thana. This report was received at
above Police Station. Since this case was
of Police Station Mirapur, hence, this
entire case was transferred to concerned
Police Station, where, it was got registered
and investigated.

27. There is no material contradiction
of testimony of this witness. It is in
corroboration of testimony of PW-1 on the
point of registration of case crime number.

28.

PW-8
is
the
erstwhile
Investigating Officer, who was the first
Investigating Officer, who has stated that,
while, being posted as Sub Inspector, at
Police Station Mirapur, District-Muzaffar
Nagar, he was deputed with investigation
of Case Crime No. 64/2010, under
Sections 376/504 of IPC, State vs.
Mohammad Abrar, on 31.10.2010, and on
the basis of Chik FIR, medical reports,
G.D.
entry,
statement
of
Constable,
Subhash Chandra, he recorded statement
of informant, Noor Mohammad and the
prosecutorix, her mother, Ashida, in case
diary. Thenafter, visited spot and prepared
spot map, under the pointing of the
prosecutorix, same is under hand-writing
and signature of this witness and is Paper
no. 8K, which has been proved as Exhibit
Ka-9. Thenafter, raid was made on
3.2.1010 for arrest of accused, but arrest
could not be made. In between, he was
transferred from above Police Station.

29. In cross-examination, there is no
material contradiction in his statement,
except of trivial one, which has been asked
in hair spiting cross-examination, but
learned Additional Sessions Judge has
rightly appreciated that those minor
contradictions bound to occur in such type
of hair splitting cross-examination. There
was no material contradiction, rather, they
make witness as a natural witness.

30. Regarding charge for offence of
rape, punishable under Section 376 I.P.C.,
Section 375 of I.P.C. provides: "A man is
said to commit "rape" who, except in the
case hereinafter excepted, has sexual
intercourse
with
a
woman
under
circumstances falling under any of the six
following descriptions:--

(Firstly) -- Against her will.

(Secondly)
--Without
her
consent.

(Thirdly) -- With her consent,
when her consent has been obtained by
putting her or any person in whom she is
interested in fear of death or of hurt.

(Fourthly) --With her consent,
when the man knows that he is not her
husband, and that her consent is given
because she believes that he is another
man to whom she is or believes herself to
be lawfully married.

(Fifthly)-- With her consent,
when, at the time of giving such consent,
by reason of unsoundness of mind or
intoxication or the administration by him
personally or through another of any
stupefying or unwholesome substance, she
is unable to understand the nature and
1 All. Mohammad Abrar Vs. State of U.P.
145
consequences of that to which she gives
consent.

(Sixthly) -- With or without her
consent, when she is under sixteen years of
age. Explanation.--Penetration is sufficient
to
constitute
the
sexual
intercourse
necessary to the offence of rape.

(Exception) --Sexual intercourse
by a man with his own wife, the wife not
being under fifteen years of age, is not
rape.

31. Section 376 I.P.C. provides for
punishment of rape that:-

(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."

32. In the present case, the crucial
witness is prosecutorix and she has been
examined
as
PW-2,
who,
in
her
examination-in-chief,
has
categorically
said that she was of age of 17 years and a
disabled since childhood because of being
victim of Polio. Her both, upper and lower
limbs were non-ambulatory, hence, she
could not walk or even stand, but, she was
being taken care of by her parents. She is
illiterate. Three and half years to four
years back, she was residing with her
parents at Village Churiyala, in her house.
Her
father
was
suffering
with
Tuberculosis. He was under treatment at
Delhi. He had been at Delhi with her
mother. She was left, with a request to her
maternal grand mother for her caring
during absence of her parents. Her grand
maternal mother deputed her maternal
uncle, Abrar, for caring of her, during this
period of absence of her parents. Abrar
assured her father and mother that he will
look after prosecutorix till they return
back. He was residing at the house of
prosecutorix. Those days were of cold.
Prosecutorix was all alone at her home and
was sleeping at her cot. Her maternal uncle
was sleeping over another cot. None else
was there. In the night at about 4 AM,
while she was asleep, her maternal uncle,
Abrar, tied her hands and feet by Scarf
(Dupatta), as she was victim of paralysis,
she could not perceive it, but when she felt
pain in her urinary region, she had
awakened. She found her hands and feet
are tied and her maternal uncle, Abrar,
committed rape with her. She was unable
to protest because of her disability and
knife put by her maternal uncle, Abrar,
over her neck. Her mouth was tied by
cloth. Abrar did penetration by his urinal
part in her vaginal part. She felt pain, but
she could not cry because of mouth being
shut by Abrar. She was subjected to rape
with a threat to face dire consequences, in
case of opening of lips to her parents and
her parents will also be killed. There was
prayer of Fazir (that is a prayer at 4.00
AM, offered by Muslims to the Almight,
Allah). Abrar came out of house, then,
prosecutorix robed herself. On the next
day, neither, Abrar, attended her nor gave
meal to her. She was helpless. On the next
day, her parents came back, then, she
could have meal and she complained to
her mother about this occurrence and
trauma. Her father went for getting first
146 INDIAN LAW REPORTS ALLAHABAD SERIES
information registered at concerned Police
Station, but inspite of repeated attempts,
report could not be lodged. News was
published in the news paper, thenafter,
report was got lodged and she was
medically examined. In examination-inchief, each of ingredients, for constituting
offences, punishable, under Section 376 of
IPC, mentioned as above, has been made
out. Offence, punishable, under Section
506 of IPC, has also been constituted by
this testimony.

33. The veracity of testimony made
by this witness was tested in her crossexamination, wherein, she has reiterated
her statement. She has been put in hair
splitting cross-examination on many dates
by learned counsel for defence and a
number
of
questions,
including
humiliating questions, too, about marriage
of her mother with the informant, she,
being step daughter of informant etc. etc.
have been asked, but she has categorically
replied in examination-in-cross that she
was 17 years' of age and on this point there
was no variation that she was minor as was
held in her medical age determination.
Accused, Abrar, is her real maternal uncle.
He was deputed for her care, during the
period of absence of her parents. He was at
her house on that night on which date she
was subjected to rape by him. Abrar made
penetration by his genital part in her
vagina. She was disabled from her
childhood, having non-ambulatory upper
and lower limbs. She always needed help
of some-one for her routine works, which
was being assisted by her parents. Her
father, too, was under ailment, living in
miserable condition. They were having no
means of their livelihood and doing work
of labourer for getting their two times
meals. Suggestive questions were put to
her that accused had given jewellery of his
wife for keeping as bond for fetching
money for construction of house and this
money was not returned back because of
which this false implication was made.
This question may be a relevant question
to be put to informant, but this may never
be a relevant question to be put before this
witness because she herself said to be a
minor and may not be aware of those facts,
which were said to have been entered into
in between accused and the informant, but
no such question has been asked cogently
to informant, PW-1, and this witness has
replied her ignorance about those facts.
She could not tell exact date of occurrence,
but, she has categorically said that those
were days of cold and time was of Fazir
Namaz, i.e., very cogent reply. She was
subjected to rape by the convict-appellant,
under threat of force. Regarding this
material
allegation,
there
is
no
contradiction,
exaggeration
or
embellishment.

34. Delhi High Court by its Division
Bench's judgment in the case of Rajinder
alias Lala and etc. vs. Stae, reported in
2010 CRL.L.J.