# Pappu & Anr v. State of U.P

- **Citation:** (2022) 8 ILRA 761
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-27
- **Case number:** Criminal Appeal No. 3276 of 2013
- **Bench:** Siddhartha Varma, Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pappu-anr-v-state-of-u-p-48940
- **Pages:** 11

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 323/34, 506, 376(2)(g) &
342 - The Code of Criminal Procedure,
1973 - Section 313 - appeal against
conviction -In the absence of a proper
762 INDIAN LAW REPORTS ALLAHABAD SERIES
proof accused persons could not be
convicted under Section 376 (2)(g) -
possibility of a false accusation could not
be ruled out and the accused would
entitled to acquittal.(Para - 34,35,)

Allegation in First Information report - 3
miscreants forcefully took wife of first informant
to mustard field - gang-raped from 7:00 PM of
8.1.2010
to
4:00
AM
of
9.1.2010
-
contradictions in the testimonies of P.W. - 1,
P.W. - 2, C.W. - 2 and C.W. - 3 - no semen or
spermatozoa found in vaginal smears of victim -
medical
examination

-
prosecutrix
had
absolutely no external or internal injury - three
young strong men commit crime of rape on a
feeble woman who was 19 years of age - gangrape highly improbable.(Para - 2,39,40)

HELD:-Prosecution had to prove its own case to
the hilt and when no injuries, external or
internal, were found on the body of the
prosecutrix and no dead or live spermatozoa
were found in her vaginal smear and the glan
penis smear of the accused-persons then it can
safely be said that at least there was no crime
of rape committed on her. (Para - 40)

Criminal Appeal allowed. (E-7)

List of Cases cited:-

## Text

8 All. Pappu & Anr. Vs. State of U.P.
761
but there was no intention to cause death of
the deceased and there was no intention to
cause any such injury which was likely to
cause death of the deceased therefore, the
case would not travel beyond Section 304
IPC. In this context, the learned counsel for
the
appellants
also
submitted
that
noticeably except for the abrasions, which
could be co-related to dragging, no other
injury is found on the body to suggest that
the accused had physically assaulted the
deceased
with
kicks
and
fists
and,
thereafter,
strangulated
him.
The
submission of the learned counsel for the
appellants is that even if the ocular account
is accepted, it is a simple case of tying a
knot around the neck and pulling the
deceased with a view to teach him a lesson.
Hence, the conviction of the appellants for
the charge of murder with the aid of section
34 IPC is not sustainable.

53. We have given our anxious
consideration to the alternative submission.
Upon a careful perusal of the autopsy
report, we notice that there was internal
damage also. The hyoid bone was found
fractured. There was bleeding from both
nostrils. First and second tracheal cartilages
were also fractured and the right carotid
sheath ruptured along with its contents
which suggests that there was extraordinary
pressure exerted on the neck. Once this is
the position, there appears an intention to
cause death. No doubt, the accused did
have a country made pistol which they did
not use but whether that country made
pistol was loaded is not known. May be
that country made pistol was taken to
threaten intervention by others. Otherwise
also, as to what was in the mind of the
accused is only a matter of conjecture and
speculation. What is to be seen is the nature
of the injuries inflicted. The injuries
inflicted were such that it cannot be an
accidental strangulation. As already noticed
above, the injuries appeared grievous and
reflected an intention to cause death. We,
therefore, find no justification to alter the
conviction from Section 302 IPC to Section
304 IPC. Consequently, and for all the
reasons detailed above, we find no merit in
this appeal. The appeal is, accordingly,
dismissed. The appellants are on bail.
Their bail bonds are cancelled. They shall
be taken into custody forthwith and shall
serve out the sentence awarded by the trial
court.

54. Let a copy of this order be
certified to the court below along with the
record for information and compliance
----------
(2022) 8 ILRA 761
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.07.2022

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Appeal No. 3276 of 2013

Pappu & Anr. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Ravindra Sharma, Sri A.P. Tewari, Ms.
Abhilasha Singh, Sri Ashutosh Yadav, Sri
Nagendra Kumar Singh, Sri Nayab Ahmad
Khan, Sri R.S. Tripathi

Counsel for the Opposite Party:
Govt. Advocate

(A) Criminal Law - Indian Penal Code,
1860 - Sections 323/34, 506, 376(2)(g) &
342 - The Code of Criminal Procedure,
1973 - Section 313 - appeal against
conviction -In the absence of a proper
762 INDIAN LAW REPORTS ALLAHABAD SERIES
proof accused persons could not be
convicted under Section 376 (2)(g) -
possibility of a false accusation could not
be ruled out and the accused would
entitled to acquittal.(Para - 34,35,)

Allegation in First Information report - 3
miscreants forcefully took wife of first informant
to mustard field - gang-raped from 7:00 PM of
8.1.2010
to
4:00
AM
of
9.1.2010
-
contradictions in the testimonies of P.W. - 1,
P.W. - 2, C.W. - 2 and C.W. - 3 - no semen or
spermatozoa found in vaginal smears of victim -
medical
examination

-
prosecutrix
had
absolutely no external or internal injury - three
young strong men commit crime of rape on a
feeble woman who was 19 years of age - gangrape highly improbable.(Para - 2,39,40)

HELD:-Prosecution had to prove its own case to
the hilt and when no injuries, external or
internal, were found on the body of the
prosecutrix and no dead or live spermatozoa
were found in her vaginal smear and the glan
penis smear of the accused-persons then it can
safely be said that at least there was no crime
of rape committed on her. (Para - 40)

Criminal Appeal allowed. (E-7)

List of Cases cited:-

1. Nain Singh Vs St. of U.P. , 1991 (2) SCC
432

2. St. of U.P. Vs Rajveer , 2014 (2) ACR 1561
(DB)

3. Lalta Prasad Vs St. of M.P. , AIR 1979 SC
1276

4. Sakariya Vs St. of M.P. , 1991 CrLJ 1925(MP)

5. Zahoor Ali Vs St. of U.P. , 1989 CrLJ 1177(All)

6. Charan Singh Vs St. of Har., (1988) 3 Crimes
85 (P&H)

7. St. of St. of Orissa Vs Rama Swain & ors. ,
2007 CrLJ 714 (Ori)

8. Mansingh Vs St. of M.P. , 2007 CrLJ 201(MP)

9. St. of Maha. Vs Abdul Hafees Faroki , 1998
CrLJ 3603 (SC)

10. Sampad Vs St. of Odisha , 2001 CriLJ
793(Odisha)

11. St. of Maha. Vs Rameshwar Sridhar Jaware ,
2008 CrLJ 675(Bom.)

12. Suresh Govinda Nagdeve Vs St of Maha.,
2008 CrLJ 2943 (Bom.)

13. Goverdhan Vs St. of M.P. , 2006 CrLJ 4118

14. Joseph Vs St. of Kerala , 2000 CrLJ 2467
(SC)

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. This appeal has been filed against
the judgement and order dated 25.5.2013
passed by the Additional District and
Sessions Judge, Court No. 6, Budaun, by
which the appellants Pappu son of Bhole
and Vijaypal son of Bhole have been
punished under Sections 323/34, 506,
376(2)(g) and 342 of the I.P.C. They have
been punished under Section 376(2)(g) of
the IPC with life imprisonment and have
been fined with Rs. 1 lac each. In the event
of default it has been provided that they
would have to further undergo ten months
simple imprisonment. They have been
punished under Section 342 IPC with an
imprisonment of six months along with a
fine of Rs. 600/- each. In the even of
default, they have to further undergo three
months of simple imprisonment. Under
Sections 323/34 of the I.P.C., they have
been
punished
with
one
month's
imprisonment with a fine of Rs. 100/- each.
In the event of default, they have to further
undergo 15 days imprisonment. With
regard to punishment under Section 506
IPC, the appellants have been punished
with two years' of imprisonment with a fine
8 All. Pappu & Anr. Vs. State of U.P.
763
of Rs. 2,000/- each. In the even of default,
they would have to further undergo two
months' simple imprisonment. All the
sentences
were
directed
to
run
concurrently.

2. The case as had been narrated in the
first information report was that the first
informant along with his mother Smt. Ganga
Dei, wife Rekha and two small daughters, on
8.1.2010, while were going from Rasoolpur
Kalan to Aslaur, were at about 7PM in the
evening stopped by Vijay Pal s/o Bhole,
Pappu s/o Bhole and Rishipal son of Saudan.
The three miscreants, after stopping them at
pistol point took them to a field. There the
first informant, his mother with the two
daughters were made to stay at a particular
place and one miscreant with a pistol
remained
with
them.
The
two other
miscreants forcefully took the wife of the first
informant to a mustard field where they, one
after the other, raped her.

3. As per the first information report,
the whole incident started off at 7:00PM in
the evening of 8.1.2010 and continued till
4:00AM of the next day i.e. till the morning
hours of 9.1.2010. At 4:00 am of 9.1.2010,
when Dharamveer and Danveer who were
passing by saw the first informant and his
family and recognized the three miscreants,
the latter ran away. Through the first
information report, action was prayed for.

4. Investigation, thereafter, commenced
on 10.1.2010. The police in the presence of
Roopkishore,
the
first
informant
and
Dharamveer recovered the underwears of
Vijaypal and Rishipal and kept them in a
sealed cover.

5. On the next date, i.e. on 11.1.2010,
the Police in the presence of the first
informant, Roopkishore and Danveer took
into custody the petticoat and the white
underwear of the prosecutrix and kept them
in a sealed cover. On the very same day,
remains of the clothes which were burnt and
the broken bangles of the prosecutrix were
also taken by the Police and kept in sealed
cover.

6. On 11.1.2010 at about 12:10PM, the
prosecutrix was examined by Dr. Anita
Dhasmana. On the same day, she found from
the vaginal smear that there was no
spermatozoa seen in the vagina and also gave
her conclusion in the medical report that no
definite opinion about rape could be given. In
the medical examination, she had also
categorically stated that no mark of injury
was seen on the body of the prosecutrix.

7. Roopkishore, the first informant, was
also medically examined on 10.1.2010 and
likewise, the mother Ganga Dei was also
examined on 12.1.2010. After the accused
Vijay Pal and Rishipal were arrested they
were also made to undergo medical
examination on 10.1.2010. The Doctor who
had examined the accused had also sent the
smear of the penis of the accused for
examination and thereafter, reports were also
received
with
a
comment
that
no
spermatozoa was seen in them.

8. The police after investigation
submitted the charge sheet on 9.3.2010.
Thereafter, the Additional Sessions Judge,
Court No. 4, Budaun, framed charges under
Section 376(2)(g), 342, 323 and 506 IPC
against the appellants Pappu and Vijay Pal on
4.2.2011.

9. In the meantime, Rishipal one of
the accused was declared juvenile on
27.8.2010 and his file, after separating
his case, was sent to Juvenile Justice
Board.
764 INDIAN LAW REPORTS ALLAHABAD SERIES

10. The accused Pappu and Vijaypal
were made to understand the charges but
they denied the charges and prayed for
trial.

11. From the side of the prosecution,
the
first
informant,
Roopkishore
was
examined as P.W. -1, the prosecutrix Rekha
was examined as P.W. 2 and the Doctor
Anita Dhasmana who had done the medical
examination of the prosecutrix was examined
as P.W. 3. The Investigating Officer Ram
Surat Singh Yadav was examined as P.W. 4.
Dr. A.K. Verma who had done the medical
examination of the first informant and also
that of the accused was examined as C.W. -1.
Danveer and Dharamveer who as per the first
information report had passed by the first
informant and his family on 9.1.2010 at
around 4:00AM were examined by the Court
as court witnesses 2 and 3. The statements of
the accused appellants Vijay Pal and Pappu
were taken under Section 313 Cr.P.C. They,
through their statements, denied the charges
and in fact stated that because of the enmity
which was there in the village due to the
election of the Pradhan, the Gram Pradhan
and the first informant together had planted a
false case on them.

12. Thereafter when the trial took
place and the Additional District and
Sessions Judge, Court no. 6 on 25.5. 2013
convicted the appellants under Sections
323/34, 506, 376(2)(g) and 342 of the
I.P.C., the instant criminal appeal was
filed.

13. Ms. Abhilasha Singh was heard
for the appellants and Sri Vikas Goswami
was heard for the State.

14. Learned counsel for the appellant,
in effect, essentially made the following
arguments.

I. The place of occurrence has
been differently given by the different
witnesses. She submitted that as per the
first informant, he along with his family
had reached Rashoolpur Ghat and there the
three accused persons stopped them and,
thereafter, his wife was dragged into the
mustard field wherein she was raped
several times by the three accused one after
the other between 7:00pm of 8.1.2010 and
4:00am of 9.1.2010. She tried to bring to
the fore the fact that in the first information
report the place of occurrence was shown
to be Rashoolpur Ghat whereas in his
examination-in-chief the P.W. 1 had stated
that when the family had reached Kanua
Nagla Ghat then the accused had accosted
them and had taken away his wife. This
was also as per the learned counsel stated
by the P.W. - 2 the prosecutrix that the
incident had occurred at Kanua Nagla Ghat.

15. Learned counsel for the appellant
relying upon Nain Singh vs. State f U.P.
reported in 1991 (2) SCC 432 and State of
U.P. v. Rajveer reported in 2014 (2) ACR
1561 (DB) stated that if there was a
discrepancy in the statement of the various
witnesses with regard to the place of
occurrence then that would vitiate the
prosecution case.

II. Learned counsel for the
appellant further stated that there were
various other contradictions in the evidence
of the prosecution witnesses which went to
the root of the matter and because of the
contradictions the prosecution case would
get demolished.

(a) The P.W. 1, Roopkishore the
first informant had stated in his evidence
that they had reached Kanua Nagla Ghat at
about 7.30PM then the accused person had
met them while the P.W. - 2, the
8 All. Pappu & Anr. Vs. State of U.P.
765
prosecutrix, had deposed that the accused
persons had met them at Kanua Nagla Ghat
at around 7:00pm.

(b) Learned counsel for the
appellant
pointed
out
that
P.W.
1,
Roopkishore had deposed that at about
4:00AM
on
9.1.2010
Danveer
and
Dharamveer had reached the place of
occurrence while they were passing by and
they had questioned the accused persons as
to why they had committed the crime and
the three accused persons had fled away
brandishing the pistol on the complainant
and his family, Dharamveer and Danveer.
On the other hand, learned counsel also
pointed out that P.W. - 2 had deposed that
when Danveer and Dharamveer had come
to answer the call of nature, namely, for
defecation then they had met the accused
and, thereafter, the accused had fled away.

(c) The P.W. - 1, Roopkishore
had mentioned in the First Information
Report the names of the three accused, but
in the cross-examination he had stated that
when there was a hue and cry and the
villagers had collected then the names of
the accused were known to him. With
regard to Pappu he states that the name
came to the fore after he was apprehended.
Learned counsel states that Pappu in fact
was apprehended much later, about ten
days
after
the
incident.
She
states,
therefore, that the P.W. - 1 could not have
know his name also at the time of the
lodging of the first information report.

16. To bolster her point, she
specifically read out a certain portion of the
testimony of the P.W.-1 :- "जब शोर पर`
गांि िाले इिट्ठे हो गये थे तो गांि िालो ने इनिे
नाम पता पिडे जाने पर बताया था। पिड़े जाने
पर पप्पू ने अपना नाम पता बताया ि गांि िालो
ने नाम पता बताये थे अगर यह बात मेरी ररपोटि
ि ब्यान में नहीं है तो िजह नहीं बता सिता।
यह बात दि मै मुखिमों िो पहले से जानता था
यह बात न रपट दलिायी न िरोगा जी िो
बतायी।"

17. Learned counsel categorically
showed to the Court the statement of Ram
Surat Singh Yadav, the P.W. - 4 who had
stated that the accused Vijay Pal and
Rishipal were arrested on 10.1.2010 and,
therefore, learned counsel stated that if the
names of Vijay Pal and Rishipal were
known only on 10.1.2010 then it could not
have been possible for the first informant to
know the names of Vijaypal and Rishipal
on 9.1.2010 when he had got the first
information report lodged. Further, from
the very statement of Ram Surat Singh
Yadav, she had pointed out that Pappu was
not arrested till 24.1.2010 and, therefore,
again she argued that it was not possible for
the first informant to know the name of
even Pappu.

(d) At one place, it has been
submitted by the learned counsel for the
appellant that, the first informant says that
he was illiterate and, therefore, he had got
the first information report written on his
dictation by one Sajjan Singh whereas later
on he had said that he was a literate person
and he had written the first information
report himself and had given it to the
Darogaji.

III. The next argument which the
learned counsel for the applicant has made
was that it was very unlikely that two real
brothers would commit the crime of rape
together. She has submitted that the
appellant Pappu and Vijay Pal were real
brother and therefore, there was very little
likelihood of their committing the crime of
rape together.
766 INDIAN LAW REPORTS ALLAHABAD SERIES

IV. The P.W.-2 had deposed in
her cross-examination that the accused
persons had covered their faces and,
therefore, learned counsel had stated that
there was no question of any identification.
Learned counsel further states that no
identification parade was undergone and,
therefore, identification itself becomes
doubtful.

V. Learned counsel for the
appellant has further argued that the P.W. 2
the prosecutrix, had admitted that both
Danveer and Dharamveer were relatives as
they were uncle and nephew and both of
them had brought the family on their
bullockart from Asraul to Rasoolpur and
they had on that date disclosed the names
of the accused. Learned counsel, therefore,
submits that this was also a fact which was
demolishing the story of the prosecution as
P.W. 1 had at one place in his crossexamination submitted that the accused had
told their names only after they were
apprehended.

VI. It is the contention of the
learned counsel for the appellants that the
prosecutrix, the P.W. 2, had deposed in her
cross-examination that on account of
continuous
rape
which
continued
throughout the whole night she had
sustained injuries in her back and on her
buttocks but in fact no external injury was
found in the medical examination. Learned
counsel for the appellants stated that if
three strong young men had committed the
crime of rape continuously from 8:00PM of
8.1.2010 which had continued till 4:00AM
of 9.1.2010 then the prosecutrix would
have been in an extremely bad shape and
she would not have been able to even walk
properly to the Police Station. In this
regard, the statement of P.W. 1 is important
which is mentioned below:-

" मेरी पत्नी रेिा िो मुखिमान पप्पू ि
ऋदिपाल जबरजस्ती लहटा िे िेत में ले गए
दफर थोड़ी िेर बाि पप्पू हमारे पास आ गया
और दिजयपाल हम लोगों िे पास से मेरी पत्नी
िे पास िला गया। इसी प्रिार तीनो मुलदजमान
िा एि - एि िरिे हम लोगों िे पास आना ि
मेरी पत्नी िे पास जाना सुबह िार बजे ति
िलता रहा । मेरी पत्नी ने िार बजे िे िरीब
आने पर मुझे बताया िी तीनो मुखिमान ने बारी
-बारी से उसिे साथ बुरा िाम दिया है ।"

18. Similarly, the P.W.-2, the
prosecutrix has deposed that:

"सबसे पहले मेरे साथ बलात्कार
ऋदिपाल ने दिया था। उसिे बाि पप्पू ने मेरे
साथ बलात्कार दिया था जो आज हादजर
अिालत है। मुखिम ऋदिपाल मेरे पास से िला
गया तो उसिे बाि दिजयपाल हादजर अिालत
ने मेरे साथ मेरी मजी िे दबना बलात्कार दिया
था। यह क्रम सुबह िे िार बजे ति लगातार
िलता रहा और सभी ने एि-एि िरिे िार
बजे ति बलात्कार दिया था। ...... तीनो लोगो ने
रातभर बुरा िाम दिया दजससे मेरी पीठ, िूतड़
दिल गए थे। मैंने डॉक्टर िो यह सब दिला हुआ
दििा दिया था। मेरी पेटीिोट, िच्छी, जांघ, पेट
सब िीयि से सन गए थे। डॉक्टर ने सब िेिा।"

19. In this regard, the statement of
P.W. - 3 is also material who deposed that:

"पीदड़ता िे शरीर पर दिसी संघिि िे
दनशान नही पाये गए। शुक्राणु भी पैथोलॉजी
ररपोटि में नही पाये गए...... इसदलए िहा जा
सिता है दि 80 घंटे िी अिदि में पीदड़ता िे
साथ मैथुन िी संभािना नही होती।"

20. On the contrary learned counsel
submits that the medical report states that
neither was there any external injury and
8 All. Pappu & Anr. Vs. State of U.P.
767
nor was there any internal injury. What is
more, the learned counsel for the appellant
states that there were absolutely no signs of
any spermatozoa found either in the vaginal
smear of the prosecutrix or on the glan
penis smear of the accused persons.
Learned counsel for the appellant also
brought to the notice of the Court the
statement of the Doctor which said that in
vaginal smear if sexual intercourse had
taken place then spermatozoa would be
found till as late as 80 hours. She also
opined that no definite opinion about rape
could be given. In the instant case when the
vaginal smear sample was collected well in
time and when there was absolutely no
indication of any spermatozoa then it could
be safely said that no sexual intercourse
had taken place. Learned counsel stated
that definitely no crime of rape had
occurred.

VII. Learned counsel for the
appellants has still further submitted that
P.W. 1 had stated that he himself, his
mother and the two daughters, one of
whom was only 15 days old were left
under the open sky in the cold January
night. Learned counsel states that in the
freezing conditions the children and the
old mother would have died but in fact
nothing at all had happened to them.

21.
Learned
counsel
for
the
appellants states that there is no medical
report with regard to any fever or with
regard to any ailment which might have
been there because of the cold freezing
night.

22.
Learned
counsel
for
the
appellant has also argued that statement
of the Court Witness- 2 Danveer and the
statement of the Court Witness - 3
Dharamveer were at absolute variance
with the case which was taken by the
P.W. -1 and P.W. - 2. Learned counsel
states that C.W. - 2 Danveer upon
reaching the spot had found that there
was one male, one female and just one
girl child. Therefore, she says that where
exactly that 15 days old girl child had
disappeared was not clear and, therefore,
she states that the prosecution case
cannot be said to be truthful.

23. Similarly, learned counsel for
the appellants states that the statement of
C.W.-3 Dharamveer was also not in
consonance with the statement of P.W. -
1 and P.W.- 2 and C.W.-2. C.W. - 3 has
deposed that he did not know Pappu and
Vijay Pal at all who were present there in
the Court. He states that on 8.1.2010 he
had gone to bed at 9:00PM and had got
up at around 8:00AM on 9.1.2010 and,
thereafter, when he had gone to the field
he had found one man, one old lady and
just one girl sitting in the cold. He, of
course,
had
also
found
prosecutrix
shivering in the cold. This witness also
does not speak about the second daughter
who was only 15 days old. Even though
the learned counsel for the appellants
states that this witness was declared
hostile by the prosecution, the statements
of the C.W.-3 become very relevant
specially
in
view
of
the
medical
examination reports of the prosecutrix
and of the two accused.

VIII. Learned counsel for the
appellants further submitted that a very
important witness i.e. the mother of the first
informant Ganga Dei was never brought to
the witness box.

IV. Learned counsel also submits
that if Rekha had a fifteen days old girl
daughter she would not have ventured to
768 INDIAN LAW REPORTS ALLAHABAD SERIES
travel from Budaun to Delhi and also if the
child was born fifteen days prior to the
incident then there would have been
evidence of this fact in the medical report.

24. Learned counsel for the appellant
while summing up her argument stated that
in view of the various contradictions, in
view of the statement made by Dharamveer
who, though was declared hostile and also
in view of the medical report of the
prosecutrix and the accused, the conviction
of the appellants was wrongly done and the
appellants, in fact, ought to have been
acquitted.

25. Learned AGA, however, has
opposed the appeal and has submitted that
if there were any contradictions in the
statements of the P.W. -1 and P.W. - 2 then
they were there because of the fact that the
witnesses were illiterate persons. Further
submission is that the statement of
Dharamveer should not be read in evidence
on the account of the fact that he had turned
hostile and, therefore, his testimony was
not reliable. Still further, learned AGA
submitted that the incident could not be
attributed to any enmity because of the
elections of the Pradhan etc. as no evidence
was brought on record to that effect.

26. Having heard the learned counsel
for the appellants and the learned AGA, we
are of the view that the appeal deserves to
be allowed and the appellants ought to be
acquitted. Though we find that there were
various contradictions in the testimonies of
P.W. - 1, P.W. - 2, C.W. - 2 and C.W. - 3 ,
we cannot lose sight of the fact that P.W. -
1 and P.W. - 2 and also C.Ws. 2 & 3 were
illiterate villagers and contradictions in
their statements cannot be taken seriously.
However, one fact definitely occurs to us
and that is that the P.W. - 1, the first
informant, had narrated the names of the
accused in the first information report as if
he knew them at that point of time but in
his cross-examination he has stated that he
came to know about the names after the
accused
were
apprehended
and
he
specifically states that Pappu had told his
name only after he was arrested. From the
statement of P.W. - 4, we find that Pappu
was arrested much later after 20.1.2010.
This does not appear to be an innocent
aberration. The lodging of the first
information
report
appears
to
be
a
motivated exercise on the part of the first
informant. Further, we find that even
though C.W.-3 has been declared hostile,
his testimony cannot be ignored. He very
truthfully has said that though the first
informant, the mother and one child were
found by him, he does not deny the finding
of the prosecutrix in the field . He,
however, does not in any manner say that
the prosecutrix was raped by the appellants.

27. In the case of Lalta Prasad vs.
State of M.P. reported in AIR 1979 SC
1276, it could not be established that the
prosecutrix was ever subjected to any
sexual intercourse by the accused against
her will. On the other hand, there was the
evidence of the Doctor that when she was
examined after the occurrence, the Doctor
found old torn hymen and no sign of any
rape or any forcefully intercourse with her.
That being so, the conviction of the
appellant under Section 376 IPC was set
aside.

28. In the case of Sakariya vs. State
of M.P. reported in 1991 CrLJ 1925(MP)
there was an allegation of rape upon a
married women who was alleged to have
been dragged towards the place of
occurrence and then raped but the report of
medical examination was in the negative so
8 All. Pappu & Anr. Vs. State of U.P.
769
far as the seminal stains and presence of
spermatozoa in the vagina was concerned
and to top it all there was not even a scratch
on her body and the accused was acquitted.

29. In the case of Zahoor Ali vs.
State of U.P. reported in 1989 CrLJ
1177(All) the Doctor did not find any
recent injury on the private parts of the girl.
Hymen was found to be torn from before
and healed. Therefore, the charge was held
to be not proved.

30. In the case of Charan Singh vs.
State of Haryana (1988) 3 Crimes 85
(P&H) it was case of a girl above 16 years
who was allegedly raped. In this case also
the question was whether when she
admitted of having suffered some injuries
on her back during the incident and when
the same were not found then what had to
be done. The lady doctor, however, who
examined her did not find any injury on her
private parts or on her body during the
medico legal examination. No tenderness,
swelling or blood was found in the vagina.
She further found that two fingers could
easily be admitted into the vagina. During
the cross-examination, she rightly admitted
that the prosecutrix would have suffered
tenderness and swelling of the vagina if she
was subjected to rape by two young boys.
The gap between the occurrence and her
medico legal examination ruled out any
possibility of any abrasion being healed.
Giving the benefit of doubt the accused
were acquitted.

31. In the case of State of State of
Orissa vs. Rama Swain and others
reported in 2007 CrLJ 714 (Ori) the
accused persons were alleged to have
committed
a
rape
forcibly
on
the
prosecutrix one after another but the
evidence showed that there was dispute
between the victim and the accused persons
regarding damage of crop by the cattle of
the victim over the land cultivated by the
accused persons. There was no semen stain
on the apparels of the victim found. Thus
the evidence of prosecutrix did not inspire
confidence and the judgement of acquittal
was upheld.

32. Similarly due to non support of
medical report, in the case of Mansingh vs.
State of M.P. reported in 2007 CrLJ
201(MP), the conviction of the accused
was set aside as the prosecution case was
not supported by the medical report.

33. In the case of State of
Maharashtra vs. Abdul Hafees Faroki
reported in 1998 CrLJ 3603 (SC), eight
persons were accused for raping a girl
twice by turns and pushing the girl out of
the running train. However, when no
serious injury was found on the person of
the girl and evidence showed that there was
possibility of prosecutrix going with the
accused willingly, the acquittal of the
accused was held proper.

34. In the case of Sampad vs. State
of Odisha reported in 2001 CriLJ
793(Odisha), there was charge of gang
rape against the accused persons who
allegedly had forcibly lifted the victim to a
nearby river bank on knife point and had
committed sexual intercourse with her but
no sign of forcible intercourse or mark of
violence was found either on the spot or
during
the
medical
examination
of
prosecutrix. It was held that in the absence
of a proper proof they could not be
convicted under Section 376 (2)(g).

35. In the case of State of
Maharashtra vs. Rameshwar Sridhar
Jaware reported in 2008 CrLJ 675(Bom.),
770 INDIAN LAW REPORTS ALLAHABAD SERIES
the accused persons were alleged to have
committed rape on a girl of 16 years.
Medical report as well as the report of the
chemical analyst was contrary to the
evidence of prosecutrix. It was held that the
possibility of a false accusation could not
be ruled out and the accused was entitled to
acquittal.

36. In the case of Suresh Govinda
Nagdeve vs. State of Maharashtra
reported in 2008 CrLJ 2943 (Bom.), the
allegation was that the prosecutrix was
subjected to rape by three accused person.
It was alleged that in the night, the crime
was committed in an open field but no
injury on the private part or on the back of
the prosecutrix was found and the Doctor
could not confirm the theory of sexual
intercourse. Similarly no corresponding
injury was there on the private parts or on
the body of the accused. Giving the benefit
of doubt, the accused persons were
acquitted.

37. In the case of Goverdhan vs.
State of M.P. reported in 2006 CrLJ 4118,
the parties were not keeping good relations
in the past and had lodged FIRs against
each
other.
Medical
report
did
not
corroborate the version given by the
prosecutrix. It was held that guilt was not
proved and conviction was improper.

38. In the case of Joseph vs. State of
Kerala reported in 2000 CrLJ 2467 (SC),
the dhoti of the accused contained no blood
or semen stains and there was no injury
caused to the private part of the body of the
victim. The conviction was sought to be
proved by the fact that vaginal smear's
examination confirmed the presence of
semen and spermatozoa. It was held that this
was not a ground for conviction of accused
for the offence of rape and the accused was
entitled to acquittal on the basis of benefit of
doubt.

39. In even this case no semen or
spermatozoa was found in the vaginal smears
of the victim. The facts of the above cited
decisions are almost similar to the facts of the
present case. It is the case of the appellant
that due to enmity regarding election of gram
pradhan they were falsely implicated and also
no spermatozoa or semen or any injury was
found during the medical examination of the
victim and the accused person. Therefore, all
the above citations are applicable to this case.

40. Furthermore, we find that when the
C.W.-2 and C.W. - 3 give their statements
they have conveniently forgotten about the
presence of the 4th member i.e. the 15 days
old child about whom the first informant had
mentioned in the first information report.
Furthermore, and most importantly, we find
from the medical examination that the
prosecutrix had absolutely no external or
internal injury despite the fact that the
prosecution has stated throughout that she
was gang-raped from 7:00PM of 8.1.2010 to
4:00AM of 9.1.2010. This seems highly
improbable. If three young strong men
commit the crime of rape on a feeble woman
who was 19 years of age and weighed only
37 kg as is clear from the medical report of
Dr. Anita Dhasmana, then she would
definitely have had at least some injuries. The
prosecution had to prove its own case to the
hilt and when no injuries, external or internal,
were found on the body of the prosecutrix
and no dead or live spermatozoa were found
in her vaginal smear and the glan penis smear
of the accused-persons then it can safely be
said that at least there was no crime of rape
committed on her.

41. Under such circumstances, the
appeal is allowed. The order dated
8 All. Ram Sudhar Vs. State of U.P. & Ors.
771
25.5.2013 passed by Additional Sessions
Judge, Court No. 6, Budaun, in S.T. No. 5
of 2011, State vs. Pappu and another, under
Section 376(2)(g), 342, 323, 506 IPC, P.S.
Jarifnagar, District - Budaun, is quashed
and set aside.

42. The accused-appellants- Pappu
and Vijaypal, who are in jail if they are not
wanted in any other criminal case be set
free forthwith.
----------
(2022) 8 ILRA 771
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.07.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Criminal Appeal No. 3505 of 2012
(U/S 372 Cr.P. C.)

Ram Sudhar ...Appellant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Appellant:
Sri C.J. Yadav. Sri Shailendra Kumar
Tripathi

Counsel for the Opposite Parties:
Govt. Advocate

A. Criminal Law - Appeal against acquittal
- Jurisdiction - Mere fact that a view,
other than the one taken by the trial court
can be legitimately arrived at by the
appellate court on reappraisal of the
evidence cannot constitute a valid and
sufficient ground to interfere with an
order of acquittal unless it comes to the
conclusion that the entire approach of the
trial court in dealing with the evidence
was patently illegal or the conclusions
arrived at by it were wholly untenable.
(Para 10 to 25)
While sitting in judgment over an acquittal the
appellate court is first required to seek an
answer to the question whether the findings of
the trial court are palpably wrong, manifestly
erroneous or demonstrably unsustainable. If the
appellate court answers the above question in
the negative the order of acquittal is not to be
disturbed. Conversely, if the appellate court
holds, for reasons to be recorded, that the order
of acquittal cannot at all be sustained in view of
any of the above infirmities it can then and then
only reappraise the evidence to arrive at its own
conclusions.
In
keeping
with
the
above
principles we have therefore to first ascertain
whether the findings of the trial court are
sustainable or not. (Para 10 to 25)

From the meticulous analysis of the ocular
testimony as well as the documents in support
thereof, it reveals that the present case (if to
any extent) falls within the index of
circumstantial evidence. There is no direct
testimony.
Moreover,
no
recovery
whatsoever, has been made from the
accused. None the less, on one hand PW-1
being Ram Teerath has come up with the stand
that the deceased was watching movie till 3:00
in the morning, however, according to the
testimony of the brother of the deceased, the
accused were found near a canal in the canal
strip near farm of Lal Sahai Katheria, wherein
the corpus of the deceased was found. Even
the motive is also not found attributable
to the commission of crime by the
appellant, as merely because there had been
certain
heated
conversation
between
the
accused and the deceased cannot be a ground
to hold the guilty of commission of crime.
Notably, the prosecution has miserably
failed to build up the chain of evidence
and sequence so as to link the commission
of crime by the accused. More or less, the
entire chain of events do not match with
the prosecution, as even the circumstantial
evidence do not link with the commission
of offence. Less to say about last seen
theory as there is a big cloud over the fact
that the accused were with the deceased before
commission of the alleged offence. (Para 30)

This Court has given anxious consideration to
the pleadings so set forth in the appeal as well
as the documents available on record, and after