# Okansh Kumar Singh v. State of U.P. & Anr

- **Citation:** (2023) 8 ILRA 1302
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-03
- **Case number:** Criminal Appeal No. 1129 of 2023
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/okansh-kumar-singh-v-state-of-u-p-anr-50532
- **Pages:** 9

## Headnote

G.A.,
Chandan
Srivastava,
Yogesh
Somvanshi

Criminal Law - Indian Penal Code, 1860
- Sections 376D, 342 & 506 - Gang rape
- Life imprisonment with fine - Against
summoning order, bailable warrant -
Inconsistency
in
Statementof
prosecutrix - Relevancy - Scheduled
Castes
and
Scheduled
Tribes
(Prevention of Atrocities) Act, 1989 -
Section 3(2)(v) - Initially F.I.R lodged
against appellant, Investigating Officer
submitted Final Report and thereafter
protest application filed, entertained by
trial
Court
and
after
considering
Statementu/s 161 and 164 of Cr.P.C., of
prosecutrix and other evidences on
record,
impugned
order
dated
04.10.2019 passed, whereby, appellant
has been summoned - There might be
certain contradiction in Statementof
victim/prosecutrix
that
can
be
examined at trial proceedings - 'Plea of
alibi'
can
be
examined
in
trial
proceedings
by
trial
Court,
requires
appreciation of evidences and factual
contradictions - By plethora of judgments
of
Apex
Court,
only
Statementof
prosecutrix u/s164, is sufficient to lead
conviction. (Para 28, 29, 31, 32)

Appeal dismissed. (E-14)

List of Cases cited:

## Text

1302 INDIAN LAW REPORTS ALLAHABAD SERIES
the appellant as there was no evidence of
cruelty or harassment in connection with
demand of dowry. The appeal preferred by the
State was allowed by the High Court and the
appellant was convicted and sentenced for five
years rigorous imprisonment.

40. On appeal the Apex Court found that
the letters written by the deceased to her sisterin-law regarding beating her and for forcing her
to take a divorce had not been proved. Hence,
the benefit of doubt was given to the accused
and order of acquittal was passed.

41. In Gurucharan Vs. State of Punjab
(2017) 1 SCC 433, the Apex Court held that
essential ingredients for constituting the offence
of abatement of suicidal death under Section
306 of the I.P.C are intention and involvement
of accused to aid and instigate commission of
suicide.

42. Any severance or absence of any of
these constituents would mitigate against the
said indictment remoteness of culpable life or
omissions rooted in intention of accused or
actualizing the suicide would fall short of
offence of abatement of suicide essential to
attract Section 306 of the I.P.C. Contiguity,
continuity, culpability and complicity of
indictable acts or omissions or concomitant
indices of abatement under Section 306 I.P.C.
In the instant case, the family members of the
husband were convicted for the offence under
Section 306 I.P.C in commission of suicide by
wife together with two daughters, but these
ingredient remained unproved. Therefore the
appellants were acquitted.

43. On the basis of above discussions, this
Court is of the considered view that the
prosecution has not been able in proving the
essential
ingredients
of
abatement
for
committing suicide by the deceased on the part
of the appellant accused Dilip Kumar Tiwari.
Mere not permitting the deceased to go to
Unchahar for watching the cinema along is not
a ground to conclude that the accused had
abated the deceased to commit suicide.

44. On the basis of above discussions, this
Court is of the considered view that the
judgement and order of conviction, sentencing
passed by the learned trial court is bad in the
eyes law and is not liable to sustained.

O R D E R

45. The appeal is allowed. The
judgement and order of conviction and
sentencing of the appellant dated 03.03.3004
passed by learned Sessions Judge (FTC - IV),
Pratapgarh, in Sessions Trial No. 162/96, Case
Crime No. 77/94, under Sections 498-A, 304-B
I.P.C, Police Station Nawabganj, District
Pratapgarh, State of U.P. Versus Shyam Bihari
and others, is set aside.

46. The accused is set free, bail bonds and
personal bond are cancelled. Sureties are
discharged.

47. A certified copy of this judgement and
order be sent to the trial court alongwith original
lower courts record for consignment.
----------
(2023) 8 ILRA 1302
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 03.08.2023

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Criminal Appeal No. 1129 of 2023

Okansh Kumar Singh ...Appellant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Appellant:
8 All. Okansh Kumar Singh Vs. State of U.P. & Anr.
1303
Umesh Chandra Tripathi, Chandra Bhushan
Pandey, Shambhunath Mishra

Counsel for the Opposite Parties:
G.A.,
Chandan
Srivastava,
Yogesh
Somvanshi

Criminal Law - Indian Penal Code, 1860
- Sections 376D, 342 & 506 - Gang rape
- Life imprisonment with fine - Against
summoning order, bailable warrant -
Inconsistency
in
Statementof
prosecutrix - Relevancy - Scheduled
Castes
and
Scheduled
Tribes
(Prevention of Atrocities) Act, 1989 -
Section 3(2)(v) - Initially F.I.R lodged
against appellant, Investigating Officer
submitted Final Report and thereafter
protest application filed, entertained by
trial
Court
and
after
considering
Statementu/s 161 and 164 of Cr.P.C., of
prosecutrix and other evidences on
record,
impugned
order
dated
04.10.2019 passed, whereby, appellant
has been summoned - There might be
certain contradiction in Statementof
victim/prosecutrix
that
can
be
examined at trial proceedings - 'Plea of
alibi'
can
be
examined
in
trial
proceedings
by
trial
Court,
requires
appreciation of evidences and factual
contradictions - By plethora of judgments
of
Apex
Court,
only
Statementof
prosecutrix u/s164, is sufficient to lead
conviction. (Para 28, 29, 31, 32)

Appeal dismissed. (E-14)

List of Cases cited:

1. Prashant Bharti Vs St. (NCT of Delhi), (2013)
9 SCC 293, (Para 24, 25)

2. Popular Muthiah Vs St., (2006) 7 SCC 296,
(Para 29, 30)

3. Rajendra Singh Vs St. of U.P. & anr., (2007) 7
SCC 378, (Para 11)

4. St. of U.P. & anr.s Vs Akhil Sharda & ors.,
Criminal Appeal No. 840 of 2022, (Para 7)
5. Mohd. Allauddin Khan Vs St. of Bihar & ors.,
(2019) 6 SCC 107, (Para 14)

6. Hazrat Deen Vs The St. of Uttar Pradesh &
anr. Special Appeal No. 9552 of 2021

7. St. of T.N.Vs Ravi @ Nehru, (2006) 10 SCC
534, (Para 20)
(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri Chandra Bhushan
Pandey, Advocate assisted by Sri Shambhu
Nath Mishra, learned counsel for the
appellant, Sri Aniruddh Kumar Singh,
learned AGA for the State and Sri Chandan
Srivastava, learned counsel for opposite
party no. 2.

2. By means of the instant appeal, the
appellant has assailed the summoning order
dated 04.10.2019 and the order of bailable
warrant dated 15.11.2019, passed by the
Court of Special Judge (SC/ST Act),
Barabanki.

3. Brief facts of the case are that the
informant lodged a First Information
Report against the present appellant and
other accused persons on 27.07.2017,
alleging
therein,
the
incident
dated
16.05.2017, under Sections 376D, 342, 506
of IPC and 3(2)(v) of the SC/ST (P.A.) Act,
which was registered as Case Crime No.
224 of 2017, at P.S. Jaidpur, District
Barabanki.
After
lodging
the
First
Information
Report,
the
Investigating
Officer recorded the statement of the
complainant/prosecutrix
on
16.08.2017,
wherein, the prosecutrix stated that the
appellant along with another co-accused,
namely, Anjani Verma committed rape
upon her. The medical examination of the
complainant/prosecutrix was also got done
in District Women Hospital, Barabanki, on
1304 INDIAN LAW REPORTS ALLAHABAD SERIES
17.08.2017 and as per the medical
examination report, the evidence of rape
was found. Thereafter, on 29.08.2017, the
statement of the prosecutrix under section
164 Cr.P.C. was also recorded, before the
learned Trial Court, in which the statement
given under Section 161 Cr.P.C., was
reiterated and further, in her subsequent
statement
(Majeed
Bayan)
dated
08.12.2017, the prosecutrix stated that she
has been used as a tool by Digvijay Verma
as she was asked to lodge a false and
fabricated case so as to mount pressure
over the appellant, who is the witness in the
Case Crime No. 456 of 2017. Further plea
is that the appellant was on duty as
Lecturer
of
Physics
in
an
aided
Government Inter-College, namely, Shri
Deshraj Narang Dayanand Inter College,
Govind Nagar, Walterganj, District Basti
and he was present over there, in between
7:00 A.M. to 12:30 P.M. on 15th and 16th
of May, 2017, i.e., the date, when the
incident is said to have taken place.

4. Contention of the learned counsel
for the appellant is that the summoning
order dated 04.10.2019 and the bailable
warrant
dated
15.11.2019,
are
not
sustainable in the eyes of law as the learned
Court below has failed to appreciate the
evidences, which were available on record.
He submits that after lodging of the First
Information
Report,
the
Investigating
Officer, when found no cogent piece of
evidence to substantiate the incident,
submitted the Final Report and after delay
of 20 months, the protest application of the
appellant has been accepted.

5. Further submission is that as per the
medical examination of the prosecutrix, there
is no evidence of rape and that also does not
support the version of the prosecutrix. He
added that no proper reasons have been
recorded
while
accepting
the
protest
application and the same is based on
conjecture and surmises.

6. Adding his arguments, he submits
that the learned trial Court has failed to
appreciate the facts and evidences that the
appellant was working as Lecturer in a
Government-Aided College, namely, Shri
Deshraj Narang Dayanand Inter College,
Govind Nagar, Walterganj, District Basti and
on the date and time of the said incident, he
was on duty and furthermore, there is a clear
cut evidence emerging out from the statement
of the prosecutrix, that the First Information
Report was lodged by the prosecutrix as a
counter blast to the First Information Report
lodged by one Akash Kumar Verma, the
informant in the FIR No. 456 of 2017,
against Digvijay Verma and Himanshu
Verma under Sections 376, 516, 506 of IPC
and the prosecutrix was used as an
instrument by Digvijay Verma to pressurize
the appellant, not to stick on the statement as
witness and to turn hostile in Case Crime
No. 456 of 2017.

7. Further contention is that the
prosecution story as narrated by the
prosecutrix is highly improbable and
doubtful as she stated herself to be
suffering from Jaundice and stated to be
travelled, without any attendant from
Lucknow to Barabanki, in early hours of
morning at 5:00 A.M. He submits that the
prosecutrix has changed the story at every
stage
for
filling
up
the
lacuna
of
prosecution and if the statement of the
prosecutrix are gone through, it shows that
only the statement under Section 164
Cr.P.C. remains in existence, though the
same is also in contradiction to the
statement under Section 161 as well as the
subsequent statement which was recorded
as a 'Majeed Bayan' by the Police.
8 All. Okansh Kumar Singh Vs. State of U.P. & Anr.
1305

8. It has also been argued that the
learned trial Court has erroneously taken
cognizance and summoned the accused
under Section 3(2)(v) of the SC/ST Act,
though there is no independent witness to
support the story that the appellant hurled
any abuse, naming the caste of the
prosecutrix, in public view.

9. In support of his contention, the
learned counsel appearing for the appellant
has placed reliance on a case reported in
(2013) 9 SCC 293, Prashant Bharti Vs.
State (NCT of Delhi) and has referred
paragraphs 24 and 25 of the judgement,
which reads as under :-

"24. Most importantly, as against
the aforesaid allegations, no pleadings
whatsoever
have
been
filed
by
the
complainant. Even during the course of
hearing, the material relied upon by the
accused was not refuted. As a matter of
fact,
the
complainant/prosecutrix
had
herself approached the High Court, with
the prayer that the first information lodged
by her, be quashed. It would therefore be
legitimate to conclude, in the facts and
circumstances of this case, that the
material relied upon by the accused has not
been
refuted
by
the
complainant/prosecutrix.
Even
in
the
charge sheet dated 28.6.2007, (extracted
above)
the
investigating
officer
has
acknowledged, that he could not find any
proof to substantiate the charges. The
charge-sheet had been filed only on the
basis
of
the
statement
of
the
complainant/prosecutrix under Section 164
of the Cr.P.C.

25.
Based
on
the
holistic
consideration of the facts and circumstances
summarized
in
the
foregoing
two
paragraphs; we are satisfied, that all the
steps delineated by this Court in Rajiv
Thapar's case (supra) stand - satisfied. All
the steps can only be answered in the
affirmative. We therefore have no hesitation
whatsoever in concluding, that judicial
conscience of the High Court ought to have
persuaded it, on the basis of the material
available before it, while passing the
impugned order, to quash the criminal
proceedings initiated against the accusedappellant, in exercise of the inherent powers
vested with it under Section 482 of the
Cr.P.C.
Accordingly,
based
on
the
conclusions drawn hereinabove, we are
satisfied, that the first information report
registered under Section 328, 354 and376 of
the Indian Penal Code against the appellantaccused, and the consequential chargesheet
dated 28.6.2007, as also the framing of
charges by the Additional Sessions Judge,
New Delhi on 1.12.2008, deserves to be
quashed.
The
same
are
accordingly
quashed"

10. Referring the aforesaid judgement,
he submits that in the abovesaid case the
charge-sheet under section 164 of Cr.P.C.was
filed, only on the basis of the statement of
prosecutrix and there were no proof to
substantiate the charges and therefore the
Hon. Apex Court while categorically giving
it's findings, quashed the criminal proceeding
and also held that while invoking the inherent
powers vested under Section 482 Cr.P.C.,
such issues can be dealt with..

11. He has further placed reliance on a
judgement reported in (2006) 7 SCC 296,
Popular Muthiah Vs. State and has referred
paragraphs 29 and 30 of the above said
judgement. Paragraphs 29 and 30 are quoted
hereinunder:-

"29. The High Court while, thus,
exercising its revisional or appellate
1306 INDIAN LAW REPORTS ALLAHABAD SERIES
power, may exercise its inherent powers.
Inherent power of the High Court can be
exercised, it is trite, both in relation to
substantive as also procedural matters.

30. In respect of the incidental or
supplemental power, evidently, the High
Court can exercise its inherent jurisdiction
irrespective
of
the
nature
of
the
proceedings. It is not trammeled by
procedural restrictions in that
(i) power can be exercised suo motu in the
interest of justice. If such a power is not
conceded, it may even lead to injustice to
an accused.

(ii) Such a power can be
exercised concurrently with the appellate
or revisional jurisdiction and no formal
application is required to be filed therefor.

(iii) It is, however, beyond any
doubt that the power under Section 482of
the Code of Criminal Procedure is not
unlimited. It can inter alia be exercised
where the Code is silent where the power of
the court is not treated as exhaustive, or
there is a specific provision in the Code ;
or the statute does not fall within the
purview of the Code because it involves
application of a special law. It acts ex
debito justitiae. It can, thus, do real and
substantial justice for which alone it
exists."

12. While referring the aforesaid, he
submits that it has categorically been held
by the Apex Court that the High Courts
while exercising its revisional or appellate
powers, may exercise its inherent powers,
both in relation to substantive and also
procedural matters and even this can be
stretched to be exercised Suo Moto, in the
interest of justice.

13. Concluding his arguments, he
submits that in fact, the trial Court has not
only skipped material facts and evidences
to discuss while passing the summoning
order but has also ignored the settled
proposition of law and therefore it is
submitted that the proceeding of Sessions
Trial No. 346 of 2019 arising out of Case
Crime No. 0224 of 2017, may be quashed.

14. On the other hand, learned
counsel appearing for the State has
vehemently
opposed
the
contentions
aforesaid and submits that the First
Information Report has been lodged against
the present appellant under Sections 376 D,
342, 506 of IPC and Section 3(2)(v) of the
SC/ST Act and those are heinous in nature
and badly impacts the society. He added
that initially, after investigation, the Final
Report was submitted but after filing of the
protest application, the learned trial Court
while recording detailed discussions and
reasoning thereof, has passed the order on
04.10.2019. Further, from the statement of
the prosecutrix, recorded under Section 164
CrPC, it is quite clear that the rape has been
committed
upon
the
complainant/prosecutrix by the present
appellant and another co-accused and the
medical examination report also supports
the same..

15. Next contention is that, so far as
the submission of the learned counsel for
the appellant, regarding the 'plea of alibi' is
concerned, that is not considerable at this
stage, as plea of alibi cannot be gone into at
this stage as this would amount to a mini
trial, which is not permissible under the
law. In support of his contention, he has
placed reliance on a judgement reported in
(2007) 7 SCC 378, Rajendra Singh Vs.
State of U.P. and Another and has
8 All. Okansh Kumar Singh Vs. State of U.P. & Anr.
1307
referred paragraph 11 of the judgement,
which is quoted hereinunder:-

"11.
Having
considered
the
submissions made by learned counsel for
the parties, we are of the opinion that the
statements of the witnesses under Section
161Cr.P.C. being wholly inadmissible in
evidence could not at all be taken into
consideration. The High Court relied upon
wholly inadmissible evidence to set aside
the order passed by the learned Sessions
Judge. That apart, no finding on a plea of
alibi can be recorded by the High Court for
the first time in a petition under Section
482Cr.P.C. As mentioned above, the
burden to prove the plea of alibi lay upon
the accused which he could do by leading
evidence in the trial and not by filing some
affidavits or statements purported to have
been recorded under Section 161 Cr.P.C.
The whole procedure adopted by the High
Court is clearly illegal and cannot be
sustained. The other argument based upon
the acquittal of co-accused Daya Singh has
also no merits. The question as to whether
an order passed under Section 319 Cr.P.C.
would cease to be operative if the trial of
the co-accused has been concluded, has
been considered in Shashikant Singh v.
Tarkeshwar Singh and it was held as
under in para 9 of the report :

"9. The intention of the provision
here is that where in the course of any
enquiry into, or trial of, an offence, it
appears to the court from the evidence that
any person not being the accused has
committed any offence, the court may
proceed against him for the offence which
he appears to have committed. At the stage,
the court would consider that such a person
could be tried together with the accused
who is already before the Court facing the
trial. The safeguard provided in respect of
such person is that, the proceedings right
from the beginning have mandatorily to be
commenced afresh and the witnesses reheard. In short, there has to be a de novo
trial against him. The provision of de novo
trial is mandatory. It vitally affects the
rights of a person so brought before the
Court. It would not be sufficient to only
tender
the
witnesses
for
the
crossexamination of such a person. They have to
be examined afresh. Fresh examination in
chief and not only their presentation for the
purpose of the cross-examination of the
newly added accused is the mandate of
Section 319(4). The words 'could be tried
together with the accused' in Section
319(1), appear to be only directory. 'Could
be' cannot under these circumstances be
held to be 'must be'. The provision cannot
be interpreted to mean that since the trial
in respect of a person who was before the
Court has concluded with the result that the
newly added person cannot be tried
together with the accused who was before
the Court when order under Section 319(1)
was passed, the order would become
ineffective and inoperative, nullifying the
opinion earlier formed by the Court on the
basis of evidence before it that the newly
added person appears to have committed
the offence resulting in an order for his
being brought before the Court."

Therefore the mere fact that trial
of co-accused Daya Singh has concluded
cannot have the effect of nullifying or
making the order passed by the learned
Sessions
Judge
on
26.5.2005
as
infructuous."

16. While placing reliance on
abovesaid Judgment, he submits that the
Hon. Apex Court has held that no finding
of 'plea of alibi' can be recorded by High
Court in petition under Section 482 Cr.P.C.
1308 INDIAN LAW REPORTS ALLAHABAD SERIES
and the burden to prove the 'plea of alibi' is
upon the accused, which he could do by
way of adducing evidence in the trial
proceedings and not by filing some
affidavits or statement purported to have
been recorded under Section 161 of Cr.P.C.

17. Vehemently opposing, another
contention of the learned counsel for the
appellant, the learned AGA has submitted
that it has been held in the catena of
judgements of the Hon'ble Supreme Court
that the High Courts, while invoking the
jurisdiction under Section 482 Cr.P.C.,
cannot
conduct
'mini
trial',
while
appreciating the evidences and the same
can be done in trial proceedings. He added
that so far as the plea taken by the appellant
that there is contradiction in the statements
of the prosecutrix under Sections 161 and
164 of Cr.P.C. and in the supplementary
statement given before the Police authority
are concerned, that cannot be examined or
testified in this appeal.

18. Again, in support of his
contention, he has placed reliance on a
judgement rendered in Criminal Appeal
No. 840 of 2022, State of U.P. and
anothers Vs. Akhil Sharda and others
and has referred paragraph 7 of the
aforesaid judgement. Paragraph 7 of the
judgement is quoted hereinunder:-

"7. Having gone through the
impugned judgment and order passed by the
High Court by which the High Court has set
aside the criminal proceedings in exercise of
powers under Section 482 Cr.P.C., it appears
that the High Court has virtually conducted a
mini trial, which as such is not permissible at
this stage and while deciding the application
under Section 482 Cr.P.C. As observed and
held by this Court in a catena of decisions no
mini trial can be conducted by the High
Court in exercise of powers under Section
482 Cr.P.C. jurisdiction and at the stage of
deciding the application under Section 482
Cr.P.C., the High Court cannot get into
appreciation of evidence of the particular
case being considered."

19. He submits that in the abovesaid
Judgment, the Apex Court in so many words,
has held that virtually conducting mini trial is
not permissible.

20. Further placing reliance on a
judgement, reported in (2019) 6 SCC 107
Mohd. Allauddin Khan Vs. State of Bihar
and Others, has referred paragraph 14.
Paragraph 14 of the judgement is quoted
hereinunder:-

"14. In our view, the High Court
had no jurisdiction to appreciate the evidence
of the proceedings under Section 482 of the
Code Of Criminal Procedure, 1973 (for short
"Cr.P.C.") because whether there are
contradictions or/and inconsistencies in the
statements of the witnesses is essentially an
issue relating to appreciation of evidence and
the same can be gone into by the Judicial
Magistrate during trial when the entire
evidence is adduced by the parties. That
stage is yet to come in this case."

21. Referring the aforesaid, he
submits that the Apex Court is of the view
that the High Court has no jurisdiction to
examine the evidences in proceedings
under Section 482 of Cr.P.C., because of
contradiction and inconsistency in the
statement
of
the
witnesses,
which
essentially is an issue of appreciation of
evidences.

22.

Again
controverting
the
contention of the learned counsel for the
appellant regarding the legal question that
8 All. Okansh Kumar Singh Vs. State of U.P. & Anr.
1309
the statement of prosecutrix under Section
164 is not sufficient to substantiate charges
so as to lead the case to its logical end for
convicting the accused, it has been
submitted that a statement made under
Section 164 Cr.P.C., disclosing the offence
of rape, would be sufficient to frame
charges under Section 376 of IPC and to
proceed with the trial and the fact that there
are certain contradiction in the statements
of the prosecutrix under Section 161 and
164 of Cr.P.C., would have no bearing at
all.

23. In support of his contentions, the
State counsel has placed reliance on a
judgement rendered in Special Appeal No.
9552 of 2021 Hazrat Deen Vs. The State
of Uttar Pradesh and Anr and has
referred the following paragraphs :-

"The FIR is the initial document.
In her statement given by the prosecutrix
under Section 164 of the Code of Criminal
Procedure (CrPC) after the prosecutrix
attained majority, she categorically made
statements which tantamount to offence
under
Section
376
of
the
IPC.
Discrepancies between the FIR and any
subsequent statement under Section 164 of
the CrPC may be a defence. However, the
discrepancies cannot be a ground for
discharge without initiation of trial."

24. Referring the aforesaid, he
submits that it has very clearly been held
by the Apex Court that in case of any
contradiction between the version of First
Information
Report
and
subsequent
statement under Section 164 of Cr.P.C., it
can be taken as defence during trial but
cannot be a ground for discharge.

25. He has also referred a case
reported in (2006) 10 SCC 534, State of
Tamil Nadu Vs. Ravi @ Nehru and has
referred paragraphs 20 which is quoted
hereinunder:-

"The evidence of a victim of
sexual assault stands on par with evidence
of an injured witness. Just as a witness who
has sustained an injury is the best witness
in the sense that he is least likely to
exculpate the real offender, the evidence of
a victim of a sex-offender is entitled to
great weight, absence of corroboration
notwithstanding.

26. Referring the aforesaid, he added
that
the
Hon'ble
Apex
Court
has
categorically held that the statement of the
injured witness is at par with the statement
of the victim of sexual assault and in all
senses, the prosecutrix of sexual assault is
the best witness and that is of great weight.

27. Further contention of the learned
counsel for the appellant is that since there
is specific allegation of committing rape by
the present appellant with the prosecutrix
and that is intact and therefore, the trial
cannot be interferred at this stage, as the
same would be in contravention to the ratio
of the judgement of the Hon'ble Apex
Court which are rendered, time and again.
Therefore, the submission is that the
present appellant is not entitled for any
relief.

28. Considering the submissions of
the learned counsel for the parties and after
perusal of the material placed on record, it
emerges that initially the First Information
Report was lodged against the present
appellant,
wherein,
the
Investigating
Officer
submitted
Final
Report
and
thereafter protest application was filed,
which was entertained by the trial Court
and after thoroughly considering the
1310 INDIAN LAW REPORTS ALLAHABAD SERIES
statement under Section 161 and 164 of
Cr.P.C., of the prosecutrix and the other
evidences on record, the order dated
04.10.2019 has been passed, whereby, the
appellant has been summoned.

29. The first plea is taken by the appellant,
regarding the inconsistency in the statements of
the prosecutrix under Sections 161 and 164 of
Cr.P.C. This Court finds that there might be
certain contradiction in the statement of the
victim/prosecutrix, but, whether the same can
be examined at this stage, is the first and
foremost question. The Hon'ble Apex Court in
catena of judgements has held that there can be
discrepancies in the statements of an accused
under Sections 161 and 164 of Cr.P.C. but that
cannot be examined/appreciated except apart
the trial proceedings as the same would amount
to mini trial.

30. Further, this Court is of considered
opinion that the statement of the prosecutrix
under Section 164 Cr.P.C. is having at par
evidenciary value as the injured witness in a
criminal case. Therefore, the first contention of
the learned counsel for the appellant is against
the settled proposition of law and thus, have no
force.

31. Considering the second set of
argument of learned counsel for the appellant
and the reply of the counsel for the other side
including the State, that the present appellant
was working as a Lecturer in a College on 15th
and 16th of May, 2017, in between 7:00 A.M.
to 12:30 P.M., the issue with respect to his nonpresence, while saying that he was present at
the College, namely, Sri Deshraj Narang
Dayanand Inter College, Govind Nagar,
Walterganj, District Basti, is an issue of 'plea of
alibi' which has already been decided by the
Hon'ble Apex Court in catena of Judgments,
wherein, it has been held that the 'plea of alibi'
can be examined in the trial proceedings by the
trial Court, as the same requires appreciation of
evidences and factual contradictions. In the
present matter, it has been said that there is
evidence that the appellant was in the College at
Basti at the time of the alleged incident, but the
question that whether the same can be
appreciated at this stage, is answered in
negative, as per the settled law.

32. So far as the contention of learned
counsel for the appellant is with respect to the
question that the statement of the prosecutrix of
a rape case under Section 164 Cr.P.C. is not
sufficient to lead the conviction of an accused is
concerned, the same has also been answered in
plethora of judgements of the Apex Court,
wherein, it has been held that only statement of
prosecutrix under Section 164, is sufficient to
lead the conviction.

33. In view of the above submissions and
discussions it is apparent that there is no merit
in the instant appeal. Resultantly, the appeal is
hereby dismissed.

34. It is further made clear that any
observation made hereinabove would not affect
the merit of the trial.
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(2023) 8 ILRA 1310
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 14.07.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Appeal No. 2067 of 2006

Surendra Yadav ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Balak Ram Verma, Atul Verma, Hari Krishna
Verma, Sanjeet Kumar Patel