# Nankey @ Ladain v. State of U.P

- **Citation:** (2023) 12 ILRA 268
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-18
- **Case number:** Criminal Appeal No. 887 of 2015
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nankey-ladain-v-state-of-u-p-49558
- **Pages:** 6

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Section 376 - Protection of Children from
12 All. Nankey @ Ladain Vs. State of U.P.
269
Sexual Offences Act, 2012 - Section 3/4 -
Against conviction - Prosecution case as
per written report is that daughter of
informant aged about 8 years was going
to boring - On the way, appellant dragged
her towards corner of pond and raped her
- Chick FIR lodged - Victim's St.ment
under Section 164 Cr.P.C. recorded, she
supported
prosecution
case
-
After
investigation, charge sheet filed and
further charges framed - P.W.1 and P.W.2,
though
not
eyewitnesses,
supported
prosecution - P.W.3, victim, is about 8-11
years old as per medical evidence and
witnesses - Victim in her testimony St.d
she was raped by accused - Even after
cross-examination, she remained firm and
reiterated same - Testimony of victim in
her
examination
in
chief,
cross
examination, read with her St.ment under
section 164 CrPC intact - Testimony of
victim corroborated by P.W.1 and P.W.2
and also by medico legal examination
report - Accused taken no substantial
defence except alleging false implication
due to enmity, denied by P.W. 1 to 3 -
Directions accordingly. (Para 2, 3, 5, 8, 10,
11)

Appeal disposed of. (E-13)

List of Cases cited:

## Text

268 INDIAN LAW REPORTS ALLAHABAD SERIES
S.C. 866, (ii) State of Haryana Vs.
Bhajanlal, 1992 SCC (Crl.)426, (iii) State
of Bihar Vs. P.P. Sharma, 1992 SCC
(Crl.)192, (iv) Zandu Pharmaceutical
Works Ltd. Vs. Mohd. Saraful Haq and
another, (Para-10) 2005 SCC (Cri.) 283
and (v) Neeharika Infrastructure Pvt. Ltd.
Vs. State of Maharashtra, AIR 2021 SC
1918.

54. From the aforesaid decisions the
Apex Court has settled the legal position for
quashing of the proceedings at the initial
stage. The test to be applied by the court is to
whether uncontroverted allegation as made
prima facie establishes the offence and the
chances of ultimate conviction is bleak and
no useful purpose is likely to be served by
allowing
criminal
proceedings
to
be
continued.

55. In S.W. Palankattkar & others Vs.
State of Bihar, 2002 (44) ACC 168, it has
been held by the Hon'ble Apex Court that
quashing of the criminal proceedings is an
exception than a rule. The inherent powers of
the High Court itself envisages three
circumstances under which the inherent
jurisdiction may be exercised:-(i) to give
effect an order under the Code, (ii) to prevent
abuse of the process of the court ; (iii) to
otherwise secure the ends of justice. The
power of High Court is very wide but should
be exercised very cautiously to do real and
substantial justice for which the court alone
exists.

56. Accordingly in view of the
above discussions and observations made, the
appeal is allowed, the impugned summoning
as well as cognizance order dated 07.02.2022
passed by learned Special Judge, S.C./S.T.
Act, Raebareli, whereby the appellant has
been summoned in Special Sessions Trial
No.107 of 2022 (State Vs. Manager B.L.
Singh and Others) arising out of Case Crime
No.439 of 2021 under Section 143 and 506
I.P.C. as well as under Section 3(1)(Dha) of
S.C./S.T. Act, 1989, Police Station-Kotwali,
District-Raebareli, is hereby set aside and
reversed, the criminal proceedings of the
aforesaid case is also quashed so far as it
relates to the present appellant.

57. The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad or certified copy issued from the
Registry of the High Court, Allahabad.

58.
The
concerned
Court/
Authority/Official
shall
verify
the
authenticity of such computerized copy of
the order from the official website of High
Court Allahabad
and
shall
make
a
declaration of such verification in writing.

59. No order as to the costs.
----------
(2023) 12 ILRA 268
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.12.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Appeal No. 887 of 2015

Nankey @ Ladain ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Syed
Mohammad
Nasir,
Ajeet

Kumar
Mishra,Kailash Nath Mishra, Ravi Kant Pandey

Counsel for the Respondent:
G.A., Pawan Kumar Mishra

Criminal Law - Indian Penal Code, 1860 -
Section 376 - Protection of Children from
12 All. Nankey @ Ladain Vs. State of U.P.
269
Sexual Offences Act, 2012 - Section 3/4 -
Against conviction - Prosecution case as
per written report is that daughter of
informant aged about 8 years was going
to boring - On the way, appellant dragged
her towards corner of pond and raped her
- Chick FIR lodged - Victim's St.ment
under Section 164 Cr.P.C. recorded, she
supported
prosecution
case
-
After
investigation, charge sheet filed and
further charges framed - P.W.1 and P.W.2,
though
not
eyewitnesses,
supported
prosecution - P.W.3, victim, is about 8-11
years old as per medical evidence and
witnesses - Victim in her testimony St.d
she was raped by accused - Even after
cross-examination, she remained firm and
reiterated same - Testimony of victim in
her
examination
in
chief,
cross
examination, read with her St.ment under
section 164 CrPC intact - Testimony of
victim corroborated by P.W.1 and P.W.2
and also by medico legal examination
report - Accused taken no substantial
defence except alleging false implication
due to enmity, denied by P.W. 1 to 3 -
Directions accordingly. (Para 2, 3, 5, 8, 10,
11)

Appeal disposed of. (E-13)

List of Cases cited:

1. Mohd. Ali alias Guddu Vs St. of U.P. (2015)7
SCC 272

2. Bavo @ Manubhai Ambalal Thakore Vs St. of
Gujarat AIR 2012 SC 979
(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. This criminal appeal arises out of
judgment and order dated 18.6.2015, passed by
Addl. Sessions Judge, Room No.1, Gonda, in
S.T.No.8 of 2013 arising out of crime No.106
of 2013 State versus Nankey alias Ladain
whereby the appellant has been convicted and
sentenced to undergo rigorous imprisonment
for fourteen years R.I. under section 376 I.P.C.
and a fine of Rs.25000/- with default provision
and under section 3/4 Protection of Children
from Sexual Offences Act, 2012 for fourteen
years R.I. and a fine of Rs.25,000/-, with default
provision.

2. Prosecution case as per written report is
that on 20.5.2013 at about 7.30 p.m., the
daughter of the informant aged about 8 years
was going to boring. On the way, Nanke alias
Laden son of Swami Nath Chaubey dragged
her towards the corner of the pond and raped
her. When she raised alarm, villagers ran and
then the accused ran away.

3. On the basis of the written report, chick
first information report was registered. Statement
of the victim under section 164 CrPC was
recorded where she supported the prosecution
case. The victim on the very next day, i.e. on
21.5.2013 was medically examined by Dr. Karuna
Gupta, P.W.4 of District Women Hospital, Gonda
who has given the following report :

"History - पीड़िता के घर वालों ने बताया ड़क
20.5.13 को सायं 7.30 बजे पीड़िता के ड़वरुद्ध लैंड़िक हमला
हुआ है I

सामान्य परीक्षण-पीड़िता सामान्य कद काठी की थी I
वजन 20 ड़कग्रा0, ऊचाई 123 सेमी0, दााँत नहीं देखे िये थे I
प्राइवेट पाटों पर कोई बाहरी चोट नहीं थी Iदोनों स्तन
ड़वकासशील अवस्था में नहीं थे, कााँख के बाल ड़दखाई नहीं दे रहे
थे I Public Hair मौजूद नहीं थे I

आन्तररक परीक्षण - कोई रक्तस्राव नहीं था I हाईमन ताज़ा
फटा हुआ था लाड़लमा मौजूद थी I Semilunar
abrasion present inner side of labia
minora including the fourchette योड़न की
सतह पर ब्लड स्लाट मौजूद था I

जााँघ पर कोई चोट नहीं थी I प्राइवेट पाटट पर कोई चोट
के ड़नशान नहीं थे I योड़नस्राव लेकर दो स्लाईड तैयार की ियी
उसे पैथालोड़जस्ट ड़जला मड़हला ड़चड़कत्सालय िोण्डा को जीड़वत
एवं मृत शुक्राणु की जााँच हेतु भेजा िया I"
270 INDIAN LAW REPORTS ALLAHABAD SERIES

In the aforesaid report, the doctor
opined that hymen was freshly torn,
redness was present and similunar abrasion
was also present inside of labia minora
including the fourchette, small bits of blood
clots (blackish material) were present over
public surface. The medico legal report is
Ext.Ka.3.

Supplementary report was also given
by the doctor, which is Ext. Ka.4.

4. Ext.Ka.7 is the report of the
Radiologist. Ext. Ka.8 is the dentist
opinion, in which, the dental age was
assessed to be 9-11 years. Ext.Ka-11 is the
specimen of vaginal smear slides sent in a
closed envelope for determination of
presence of spermatozoa. This was sent by
the pathologist, District Women Hospital,
Gonda. Forensic report is at page 10, in
which no spermatozoa was found.

5. After completing investigation and
recording the statement of witnesses,
charge sheet was filed by the investigating
officer. Case was committed to the court of
Sessions
who
framed
charges
on
31.10.2013 under sections 376 I.P.C. and
3/4 of Protection of Children from Sexual
Offences Act, 2012. Charges were read
over to the accused who denied them and
claimed to be tried.

6. P.W.1 Mohammad Saeed in his
chief has repeated the prosecution story. In
the written report, he is not an eye-witness.
In the cross examination, he remained firm
on his testimony in the examination in
chief. He denied the suggestion that he is
having any enmity with the accused
appellant and has lodged a false case. He
has further denied the suggestion that no
rape has been committed upon his daughter
and he is giving a false testimony.

P.W.2 Rehana Khatun is sister in law
of
P.W.1.
She
also
supported
the
prosecution version. She has stated that the
victim was eight years old at the time of
offence. She was the first person to whom
the incident was told by the victim while
she was weeping. She along with the
victim,
Mohd.
Saeed
P.W.1,
and
Mohammad Jameel went to the police
station and gave a written report on the
basis of which, the first information report
has been registered. She is also not an eyewitness. She also denied the suggestion that
no incident has been committed and she has
given a false affidavit as she is related to
P.W.1.

P.W.3 is the victim. She has stated in
her examination in chief that the incident
took place one year ago. She went to give
wrench to her father P.W.1 in a sugarcane
field alone. On the way, the accused met
her and asked her to stop. When she did not
stop, he gagged her mouth and dragged her
to pond. He was trying to open the dress of
the victim which was not opening, hence
tore it apart and committed rape upon her.
From her vagina, blood was oozing. She
started crying. The accused offered her
Rs.500 and sleeper, and threatened that if
she cries, he will kill her. Upon her alarm,
the villagers came and then the appellant
fled away.She further stated that she told
the incident to her parents.

She was medically examined. She
gave statement under section 161 CrPC and
affirmed it in the court and identified her
signatures and thumb impression. In her
cross, she stood firm on her testimony and
again reiterated that she was raped by the
appellant. She denied any enmity with the
appellant. She also denied that she has
given a false testimony to implicate the
appellant.
12 All. Nankey @ Ladain Vs. State of U.P.
271

P.W.4
Dr.
Karuna
Gupta
who
conducted medical examination of the
victim on the very next day has opined that
hymen was freshly torn, redness was
present and similunar abrasion was also
present inside of labia minora including the
fourchette, small bits of blood clots
(blackish material) were present over
public surface. No injury was seen over
thighs and private part.

In her cross, she has stated that the
hymen was freshly torn. It could happen
upon falling and getting injured also. She
could not give any definite opinion about
rape. She has further stated that in the
pathological report, no live or dead
spermatozoa was found. he further stated
that she has not given any specific opinion
in regard to sexual assault, in the
supplementary report.

P.W.5 Constable Moharrir Prabhat
Kumar Yadav is a formal witness. He
proved Ext.Ka.5 which is chick report and
also Ext.Ka.6 which is copy of the G.D.
report.

P.W.6 Dr. R.C. Verma, Radiologist,
district Hospital, Gonda who has conducted
X-ray of the right wrist and elbow of the
victim has prepared the X-ray report.

P.W.7 Dr. S.R. Gaur, Dentist, District
Hospital, Gonda who examined teeth of the
victim has opined age of the victim as 9-11
years.

P.W.8 Hari Shankar Mishra is retired
Inspector who has stated that on the same
day, he arrested the accused, took the
victim
for
medical
examination
and
produced the victim before the Magistrate
for her statement under section 164 CrPC
and after completing investigation and
taking statement, he has filed the charge
sheet. He also recovered clothes of the
victim which were worn by her at the time
of the incident. In her cross, he stated that
on the date of the incident, he inspected the
place of occurrence.

P.W.9
Dr.
Anil
Kumar
singh,
Pathologist, district Hospital, Gonda who
has examined vaginal smear slide did not
find any live or dead spermatozoa.

D.W.1 Deenanath Chaurasia who is
only defence witness in his cross has stated
that at the time of the incident, he was not
present at the place of occurrence. On that
day, he was in his Sasural.

7. I have heard learned counsel for the
appellant
and
learned
Additional
Government Advocate as also perused the
record.

8. P.W.1 and P.W.2, though are not an
eye-witness, however, they have supported
the prosecution case. P.W.3 is the star
witness and the victim of occurrence who is
barely 9-11 years of age according to
medical examination and 8 years according
to P.W.1 and P.W.2. The victim in her
testimony has clearly stated that she was
raped by the accused. Even after detailed
cross-examination, she remained firm and
reiterated that she was raped by the
accused. She has denied any enmity with
the accused and false implication to the
accused. Testimony of the victim in her
examination in chief as well as in the cross
examination, read with her statement under
section 164 CrPC is intact. She has clearly
stated before the Court that she knows the
meaning of rape.

9. In a case where testimony which is
worthy of credence and even after detailed
272 INDIAN LAW REPORTS ALLAHABAD SERIES
cross-examination, the victim remained
firm, law is well settled that even on the
basis of testimony of the victim in the case
of rape, if it is of sterling quality and
unimpeachable,
the
accused
can
be
convicted. Supreme Court in Mohd. Ali
alias Guddu versus State of U.P. (2015)7
SCC
272
has
made
the
following
observations :

""Be it noted, there can be no iota
of doubt that on the basis of the sole
testimony of the prosecutrix, if it is
unimpeachable and beyond reproach, a
conviction can be based. In the case at
hand, the learned Trial Judge as well as
the
High
Court
have
persuaded
themselves away with this principle
without appreciating the acceptability
and reliability of the testimony of the
witness. In fact, it would not be appropriate
to say that whatever the analysis in the
impugned judgment, it would only indicate
an
impropriety
of
approach.
The
prosecutrix has deposed that she was taken
from one place to the other and remained at
various houses for almost two months. The
only explanation given by her is that she
was threatened by the accused persons. It is
not in her testimony that she was confined
to one place. In fact, it has been borne out
from the material on record that she had
traveled from place to place and she was
ravished a number of times. Under these
circumstances, the medical evidence gains
significance, for the examining doctor has
categorically deposed that there are no
injuries on the private parts. The delay in
FIR, the non-examination of the witnesses,
the testimony of the prosecutrix, the
associated circumstances and the medical
evidence, leave a mark of doubt to treat the
testimony of the prosecutrix as so natural
and truthful to inspire confidence. It can be
stated with certitude that the evidence of
the prosecutrix is not of such quality which
can be placed reliance upon."

 (Emphasised)

10. In the case in hand, the testimony
of the victim is corroborated by P.W.1 and
P.W.2 and also by the medico legal
examination report, Ext. Ka.3 where fresh
injury was found on the hymen, redness
was present and similunar abrasion was
also present inside of labia minora
including the fourchette, small bits of blood
clots (blackish material) were present over
pubic surface. Thus, the testimony of the
victim has been corroborated by the
medical evidence as also by the evidence of
P.W.4 Dr. Karuna Gupta.

11. There is ample corroboration by
way of medical evidence to support the
testimony of the victim, coupled with the
fact that in the statement of the accused
under
section
313
CrPC,
all
the
incriminating circumstances have been put
to the accused and virtually, no defence has
been taken by him and the only defence
taken by the accused that he has been
falsely implicated due to enmity has been
denied by the prosecution witnesses 1, 2
and 3.

12. Thus, in view of the above
discussion, the judgment of conviction is
liable to be and is hereby affirmed.

13. Keeping in view overall facts and
circumstances of the case, the fact that the
incident is of 2013, according to report
dated 27.11.2023 of the Superintendent,
District Jail, Gonda, the appellant has
already incarcerated for more about 10
years, the law laid down by the Supreme
Court in Bavo alias Manubhai Ambalal
Thakore versus State of Gujarat AIR
2012 SC 979, whereby the Supreme Court
12 All. Raju @ Hanuman Vs. State of U.P.
273
keeping in view the age of the victim and
the accused as also the oldness of the
incident, the sentence of life imprisonment
was modified to rigorous imprisonment for
10 years which the accused has already
undergone, the sentence of 14 years
awarded by the trial court separately for the
offences under sections 376 I.P.C. and 3/4
Protection
of
Children
from
Sexual
Offences Act is liable to be reduced to the
period already undergone by the accused.
The accused appellant be released from jail
forthwith.

14. Ordered accordingly.

However, the total fine of Rs.50,000/-
levied by the trial court under sections 376
I.P.C. and 3/4 Protection of Children from
Sexual Offences Act is maintained and
sentence in default of fine is also
maintained. The amount of fine of
Rs.50,000/- to be deposited by the
appellant within six months of his release
shall be paid to the victim of occurrence
under Section 357 CrPC within the next
fifteen days.

15. With the above modification of
sentence, the appeal stands disposed of.

16. The Registry is directed to send
back the record of the trial court, if
received, immediately along with a copy of
the present order.
----------
(2023) 12 ILRA 273
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.12.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Appeal No. 1230 of 2005
Raju @ Hanuman ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Mukul Rakesh, Ashutosh Kumar Shukla, Praveen
Kumar Yadav, Rajesh Kumar Singh

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 363, 366 & 376 - Against
conviction
-
As
per
written
report,
informant's 13-year-old daughter went to
school but did not return - During search,
it was found appellant / tenant, was also
missing, leading informant to believe
appellant had enticed her away - A 9-day
delay in lodging FIR dents prosecution case
- FIR scriber was not examined -
Prosecutrix's
improbable
story,
nonexamination of two alleged eye witnesses
(victim's
brother
and
sister)
and
contradictions
in
P.W.2
and
P.W.4's
St.ments
regarding
recovery
render
prosecution story doubtful - Recovery memo
shows recovery from public place without
independent witnesses, further weakening
case - Evidence suggests prosecutrix was
consenting party, as per her own St.ment
admitting she stayed with appellant for 12
days - No struggle marks found during
medical examination - She visited public
places, including court for marriage, without
raising alarm - Marriage between P.W.2 and
appellant is admitted - Under law prevailing
at that time, a wife above 15 years could
legally consent to sexual intercourse -
Victim was over 16 years of age, therefore,
no offence under aforesaid Sections of IPC
is made out. (Para 3, 48, 54, 56)

Appeal allowed. (E-13)

List of Cases cited:

1. Jaya Mala Vs Home Secretary, Government of
Jammu & Kashmir & ors.: AIR 1982 SC 1296

2. Shweta Gulati & anr. Vs The St. Govt. of NCT
of Delhi reported in 2018 SCC OnLine Del
10448, (Paras 14 to 16)