# Mohd. Hamid v. State of U.P

- **Citation:** (2024) 8 ILRA 140
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-08
- **Case number:** Criminal Appeal No. 4723 of 2013
- **Bench:** Ashwani Kumar Mishra, Dr. Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-hamid-v-state-of-u-p-52298
- **Pages:** 6

## Headnote

Criminal Law - Indian Penal Code,1860 -
Section 376 - Rape - Failure to Prove Guilt
Beyond Reasonable Doubt - Acquittal -
Parents of the victim (PW-1 & PW-2) were
not present at the time of the incident and
did not support the prosecution's case
regarding the commission of rape by the
accused upon their minor daughter. Both
were declared hostile. No eyewitness
came
forward
to
establish
that
the
accused was seen committing the offence
or was apprehended at the spot. Although
the
Investigating
Officer
stated
that
villagers apprehended the accused at the
scene, there was no independent witness
to confirm his arrest. Prosecution relied on
medical evidence, which established that
the 4-5-year-old victim was subjected to
sexual assault. Medical report revealed
swelling on the vulva, a ruptured hymen
with irregular margins, tenderness, and
bleeding from the private part. However,
no evidence connected those findings to
the
accused
appellant.
Held:
The
prosecution failed to prove the accused's
complicity
in
the
offence
beyond
a
reasonable doubt. Conviction set aside.
Appeal allowed.

Allowed. (E-5)

## Text

140 INDIAN LAW REPORTS ALLAHABAD SERIES

71. Now, we recapitulate the facts and
circumstances of the case. PW-2 Krishna Pal
and PW-3 Pravindra Sharma, who are eyewitnesses, had seen the appellant giving sugar
coated cardamom seeds in paper which was
enquired by PW-7 Investigating Officer D.N.
Verma. In forensic chemical examination,
elaichi danas were having elements of
aluminum phosphide, as a result of which,
three innocent children died. Thus, looking to
the nature of allegations, the materials on
record and also manner of executing the
crime, it appears that the accused appellant
did not have any strong motive and
animosity, as a result of which, she has given
devotional offerings mixed with aluminum
posphide. The accused appellant has acted in
a sudden emotion without pre-concerted plan.
She might have no immediate intention to
cause death of the deceased children but she
has a knowledge that if someone take
aluminum posphide he might be dead. Hence,
the
accused-appellant
deserves
to
be
convicted and sentenced under Section 304
Part-I of IPC. The judgment and order dated
05.09.2005 passed by learned Special
Additional Sessions Judge, Muzaffar Nagar is
modified to the extent of awarding the
conviction and sentence under Section 304
Part-I of IPC only. The conviction and
sentence awarded under Section 328 IPC
shall remain intact.

72. Accused-appellant is in actual
incarceration for last about 20 years and
about 6 years remission earned. Thus, she has
served about 26 years of the sentence
awarded.

73. Resultantly, the instant criminal
appeal is partly allowed to the extent that the
appellant is convicted under Sections 304
Part-I and 328 I.P.C. So far as the quantum of
sentence is concerned, learned trial court has
not imposed the fine in either of the Sections,
which is integral part of the sentence under
these sections. It will serve the ends of
justice, if she is released for the period
already undergone under Section 304 Part-I
of IPC and a fine of Rs.2,00,000/-, which will
go to the to their father. In case, he is not
alive, the amount will go to their surviving
mother or their legal heirs, as compensation.
In case of default, she will serve one year's
additional imprisonment. The conviction and
sentence awarded under Section 328 IPC
shall remain intact with the modification that
she will further pay a fine of Rs.1,00,000/-,
which will go to the to the father of the
deceased. In case, he is not alive, the amount
will go to their surviving mother or to their
legal heirs, as compensation. In case of
default, she will serve six months additional
imprisonment.

74. Certify the judgment to the trial
court to incorporate entry of the result of this
appeal
in
the
relevant
register.
The
compliance be reported to this court within
fifteen days.

75. Trial court record be sent back.
----------
(2024) 8 ILRA 140
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.08.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE DR. GAUTAM CHOWDHARY, J.

Criminal Appeal No. 4723 of 2013

Mohd. Hamid ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Ashutosh Tripathi, Sri Adarsh Shukla, Sri
Amit Krishna, Sri Amit Kumar Pandey, Sri
8 All. Mohd. Hamid Vs. State of U.P.
141
Ashutosh Tripathi, Sri Firdos Ahmad, Ms.
Gunjan Sharma, Sri Rajiv Shukla

Counsel for the Respondents:
Govt. Advocate

Criminal Law - Indian Penal Code,1860 -
Section 376 - Rape - Failure to Prove Guilt
Beyond Reasonable Doubt - Acquittal -
Parents of the victim (PW-1 & PW-2) were
not present at the time of the incident and
did not support the prosecution's case
regarding the commission of rape by the
accused upon their minor daughter. Both
were declared hostile. No eyewitness
came
forward
to
establish
that
the
accused was seen committing the offence
or was apprehended at the spot. Although
the
Investigating
Officer
stated
that
villagers apprehended the accused at the
scene, there was no independent witness
to confirm his arrest. Prosecution relied on
medical evidence, which established that
the 4-5-year-old victim was subjected to
sexual assault. Medical report revealed
swelling on the vulva, a ruptured hymen
with irregular margins, tenderness, and
bleeding from the private part. However,
no evidence connected those findings to
the
accused
appellant.
Held:
The
prosecution failed to prove the accused's
complicity
in
the
offence
beyond
a
reasonable doubt. Conviction set aside.
Appeal allowed.

Allowed. (E-5)

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. This appeal is directed against
judgment and order of conviction and sentence
dated 21.9.2013, passed by the Additional
Sessions Judge, Court No.4, Azamgarh in
Session Trial No.560 of 2011 (State Vs.
Mohd. Hamid), arising out of Case Crime
No.306 of 2011, Police Station Mubaraqpur,
District Azamgarh, whereby the accused
appellant Mohd. Hamid has been convicted
and sentenced to rigorous life imprisonment
alongwith fine of Rs.20,000/- under Section
376 IPC and on failure to deposit fine to
undergo additional imprisonment for two
years.

2. Victim in the present case is a four
year old girl, who has been subjected to rape.
Victim's father has lodged the written report
saying that he is a resident of Village
Gajahara, Police Station Mubaraqpur, District
Azamgarh. On the date of incident, i.e.
15.8.2011 when the informant returned from
work at about 3.00 he came to know that his
wife had gone to get cow dung cake from the
neighbourhood and in between the accused
entered the house and sexually assaulted the
victim. On arrival of the informant's wife she
raised an alarm whereafter the accused fled
and was apprehended by the villagers. The
victim was bleeding from her private parts and
was brought with the informant for lodging the
report. It is with this allegation that the First
Information Report came to be registered as
Case Crime No.306 of 2011 under Section
376 IPC at 4.30 PM on the date of incident.
The Investigating Officer proceeded with the
investigation and collected the clothes worn by
the victim and the same was exhibited during
trial as Ex.Ka.2. The accused was also arrested
on the same day and his jeans pant was
recovered vide Ex.Ka.6 on the same day. The
victim was examined at the District Women
Hospital, Azamgarh on the date of incident
itself and following injuries were found on the
victim:-

"Both vulva swelling and bluish
colour.

Hymen tear and irregular margin.

Tenderness present.

Altered color blood present.

Vagina: Inter tip of finger."

3. A supplementary medical report
was also produced which shows that the
142 INDIAN LAW REPORTS ALLAHABAD SERIES
victim's
hymen
contained
tear
with
margins irregular and tenderness was
present. There was also swelling in both the
vulva. The age of the victim was
determined as five years. Vaginal slides
were also prepared of the victim but no
spermatozoa was seen on it. The cloths
worn by the victim as also the jeans worn
by the accused were sent for scientific
examination to the Forensic Science
Laboratory at Varanasi. The report is on
record according to which no blood or
semen was found on the jeans worn by the
accused. However, on the underwear and
cloths of the victim, blood and semen both
were found.

4. On the basis of material collected
during the course of investigation chargesheet came to be submitted against the
accused appellant Mohd. Hamid by the
Investigating
Officer.
The
concerned
Magistrate committed the case to the Court
of Sessions Judge, Azamgarh where
charges were framed against the accused on
3.11.2011. Charges were explained to the
accused, who denied his implication and
demanded trial.

5. During the course of trial,
documentary evidence have been adduced
by the prosecution in the form of FIR as
Ex.Ka-3;
written
report
as
Ex.Ka-1;
recovery memo of Frock & Chaddhi as
Ex.Ka-2, recovery memo of Jeens Pant as
Ex.Ka-6; medical report as Ex.Ka-9;
supplementary
report
as
Ex.Ka-7;
pathology report as Ex.Ka-8; X-ray report
as Ex.Ka-10; FSL report as Ex.Ka-13;
chargesheet as Ex.Ka-11; and site plan with
Index as Ex.Ka-5.

6. PW-1 is the informant, who in his
examination-in-chief,
conducted
on
29.3.2012, supported the prosecution case,
as per which while his wife had gone to
collect
cow
dung
cake
from
the
neighbourhood the accused entered the
house and committed rape upon the victim.
He also proved the written report in the
examination-in-chief.
The
crossexamination, however, was not conducted
on that date and was deferred on the
application of the accused. The crossexamination of PW-1 was then held on
17.7.2012, when PW-1 turned hostile and
has disowned his previous statement. On
the request of the State Counsel, the
informant was, consequently, declared
hostile by the court concerned. In the crossexamination PW-1 stated that he got the
written report prepared on the disclosure of
the villagers and that neither he himself
saw the incident. He did not disclose the
name of persons from whom he got
information of the incident, either.

7. PW-2 is the mother of the victim,
who during her examination-in-chief itself
did not support the prosecution case and
turned hostile. She has also disowned her
statement given to the Investigating Officer
under Section 161 Cr.P.C. Similarly, PW-3,
who is a neighbour, also turned hostile at
the stage examination-in-chief itself. The
victim was produced as PW-4 but the court
found that she was not mature enough to
give her statement. Masoom Ali was
produced as PW-5, who is a witness of
recovery of clothes of the victim. This
witness has also turned hostile and has not
supported the recovery of clothes of the
victim.

8. PW-6 is Dr. Lalmani, who had
medically examined the victim. In her
deposition the doctor has supported the
medical evidence brought on record during
trial, according to which the victim was
aged about 5 years and her hymen was
8 All. Mohd. Hamid Vs. State of U.P.
143
ruptured. The margins were irregular and
tenderness was present. In her opinion the
colour of blood was different and the
incident apparently was not fresh. She
further stated that in the vaginal slides
prepared of the victim, no semen or
spermatozoa was found.

9. PW-7 is Head Constable Anil
Kumar Mishra, who has proved the GD and
other police papers. PW-8 is Shailendra
Tripathi,
who
had
conducted
the
investigation in the matter. He has
supported the prosecution case, according
to which the accused was apprehended by
the villagers and his trousers (jeans) was
recovered and was sent for scientific
evaluation. He has denied the suggestion
that investigation has been done by him
sitting in his office. PW-9 is the Station
House Officer, who has supported the
prosecution case, according to which the
accused was apprehended by the villagers.
He has stated that informant was not
present at the time when the accused was
apprehended by the villagers.

10. The above evidence produced
during trial by the prosecution has been
confronted to the accused, who has stated
that the report lodged against him is false
and evidence is fabricated. He has also
stated that due to village enmity on account
of election of Pradhan, he has been falsely
implicated. The above evidence has been
evaluated by the court of session, who
ultimately has convicted and sentenced the
accused appellant, as per above.

11. Challenging the judgment of
conviction and sentence, learned counsel
for the appellant argues that there is
absolutely no evidence on record to
connect the accused appellant with the
commissioning of offence and the contrary
finding of the court below is wholly
perverse. Learned counsel also submits that
neither any injury has been found on the
accused nor any blood or semen has been
found on his clothes and even his arrest at
the spot has not been proved. Submission is
that merely because prosecution has
established that injuries existed on the
victim, it would not necessarily follow that
the offence of rape was committed by the
accused appellant or that his implication is
substantiated on the basis of admissible
evidence. It is further urged that even
though there is no evidence against the
accused appellant, yet he is incarcerated in
jail since the year 2011, and thus the period
of incarceration undergone by the accused
appellant is nearly 13 years, by now.
Submission is that accused appellant is
entitled to be acquitted.

12. Learned AGA, on the other hand,
opposes the argument of the appellant's
counsel and submits that medical evidence
on record clearly proves the commissioning
of offence and since there was none else
present at the place of occurrence,
therefore, the accused appellant has rightly
been convicted and sentenced by the court
below. It is also submitted that sexual
assault on a four year old minor girl is a
serious offence, and therefore, the sentence
of life is appropriate, considering the
gravity of offence.

13. We have heard Sri Ashutosh
Tripathi, learned counsel for the appellant
and Sri G.P. Singh, learned AGA for the
State and have perused the material brought
on record.

14. The evidence led by the
prosecution would go to show that the
informant was himself not present at the
place of occurrence when the incident
144 INDIAN LAW REPORTS ALLAHABAD SERIES
occurred. The informant (PW-1) in the
written report as also in his deposition has
clearly admitted that he had gone out and it
was only on his return that he came to
know that accused had committed rape
upon
his
daughter.
The
informant,
therefore, is not an eye-witness. The other
prosecution witness of fact is the wife of
the informant, who also was not present
when the incident occurred. The assertions
in the written report and the testimony of
PW-1 clearly go to show that the
informant's wife had gone to get cow dung
cake from the neighbourhood and by the
time she returned, the incident of rape was
committed upon her daughter. It is also the
prosecution case that the accused was
apprehended near the spot by the villagers,
once they saw the accused fleeing from the
place of occurrence after subjecting the
four year old minor girl to rape. The
incident of rape has been proved by the
prosecution on the strength of the medical
report, which is on record. The injury
report of the victim clearly goes to show
that the victim had been subjected to sexual
assault. The testimony of doctor supports
the
prosecution
allegation
of
rape,
inasmuch as the doctor found that there was
swelling on the vulva of the victim and the
hymen
was
ruptured.
Margins
were
irregular. Tenderness was also present.
Although
the
doctor
in
the
crossexamination has stated that no semen was
found on the vaginal smear prepared of the
victim but she has clearly ruled out the
possibility of such injury having been
caused accidentally, by the insertion of
pointed object or on account of fall of the
victim etc. as was suggested by the
defence. The FIR allegations otherwise are
to the effect that victim was found bleeding
from her private part. The medical
examination of the victim has been
conducted on the date of incident and the
same has been clearly proved. From the
medical evidence, which is supported by
the statement of the doctor, it is abundantly
clear that 4-5 year old minor victim has
been subjected to sexual assault. The
finding of the sessions court holding that
the prosecution has proved the occurrence
of rape is, therefore, sustained.

15. This takes us to the central part of
the
prosecution
case,
which
is
the
implication of the accused appellant as
being perpetrator of the aforesaid crime of
rape on a minor girl. The prosecution
heavily relies upon the testimony of
witnesses of fact, all of whom have turned
hostile. Admittedly PW-1 and PW-2, who
are the parents of the victim, were not
present at the time of incident, and they
have not supported the prosecution case
regarding commissioning of rape by the
accused upon minor daughter and they are
declared hostile. It is, therefore, apparent
that there is no oral testimony of any
witness, who implicates the accused
appellant of committing rape upon the
victim.
The
only
other
prosecution
evidence is the medical evidence and the
scientific evidence. The medical evidence
on record has been carefully examined by
us and we find that there is nothing in it to
connect it with the accused appellant. The
accused appellant has not been medically
examined and there is no medical report of
the accused on record. The only recovery
made from the accused is of his trousers
(jeans) on which neither there is any blood
found nor there are any traces of semen etc.
No individual has come forward from the
side of the prosecution to prove the fact
that the accused was seen committing the
offence or he was soon apprehended by
them. Though the Investigating Officer
states that accused was apprehended on the
spot by the villagers, but that statement in
8 All. Rajendra Yogi Vs. State of U.P.
145
itself would not be sufficient to connect the
accused appellant with the commissioning
of offence. Moreover, there is no arrest
memo on record to prove the fact that the
accused was arrested on the spot, nor there
is any independent witness of arrest of the
appellant.

16. We have carefully perused the
available records, but from its perusal we
have not been able to find any credible
evidence produced by the prosecution, on
the basis of which we may reasonably
come to the conclusion that it was the
accused appellant who had committed
sexual assault upon the victim. So far as the
judgment of conviction and sentence is
concerned, we find that the trial court has
placed reliance upon the testimony of PW2,
wherein
she
has
supported
the
prosecution
case
with
regard
to
apprehending of accused on the spot. Apart
from it, there is absolutely no other
evidence, which has been referred to or
relied upon by the trial court to implicate
the accused appellant. The statement of
PW-2 has been perused by us, wherein she
has
alleged
that
the
villagers
had
apprehended the accused but she does not
known whether the accused was rightly
apprehended by the villagers or not. We
find that this evidence in itself would not
be sufficient to sustain the finding that
prosecution has established its case of
arrest of the accused appellant, on the spot,
soon
after
committing
rape,
beyond
reasonable doubt.

17. In the facts of the case, we find
that accused appellant otherwise has
undergone incarceration of nearly 13 years.
Upon analysis of the evidence on record,
we are, therefore, persuaded to accept the
argument of appellant's counsel that the
prosecution has failed to establish the
complicity of the accused appellant in
committing the offence, beyond reasonable
doubt. The accused appellant, accordingly,
is held entitled to benefit of doubt.

18. Consequently, the present appeal
succeeds and is allowed. The judgement
and order of conviction and sentence dated
dated 21.9.2013, passed in Session Trial
No.560 of 2011 (State Vs. Mohd. Hamid)
is set aside. The appellant Mohd. Hamid
shall be released from Jail, forthwith,
unless he is wanted in any other case,
subject to compliance of Section 437-A
Cr.P.C.
----------
(2024) 8 ILRA 145
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.08.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE DR. GAUTAM CHOWDHARY, J.

Criminal Appeal No. 5011 of 2021

Rajendra Yogi ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Subham Chandra Raghav

Counsel for the Respondents:
Sri Anubhav Sinha, G.A.

Indian Penal Code, 1860 - Section 304 -
Culpable
homicide
not
amounting
to
murder - Evidence Act, 1872 - Section 3 -
Unexplained contradiction in the ocular
testimony and the medical evidence - In
the instant case witnesses of fact alleged
that deceased was badly beaten with fists
and kicks and later his head was banged
on the wall and that the deceased died
due to such beating. Held : Since the
deceased was a minor child of six years,