# Prem & Ors v. State of U.P. 626 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 9 ILRA 625
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-06
- **Case number:** Criminal Appeal No. 520 of 1999
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-ors-v-state-of-u-p-626-indian-law-reports-allahabad-series-50718
- **Pages:** 12

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 156(3), 161 & 164 -
Indian Penal Code,1860 - Sections 34,
376 & 376(2)(g) - Indian Evidence Act,
1872 - Section - 114(g) - Appeal - against
conviction & sentence - appeal survives only in
respect of appellant no. 2 since appellant no. 1
and 3 are died - application u/s 156(3) - FIR -
offence of rape - victim alleged that, she was
raped accused-appellant no. 1, while other
appellant nos. 2 & 3 were hold of her -
appellant argued that, Sessions Judge made
several errors, including not considering Défense
evidence, delay in filing the application, lack of
public witnesses, and contradictions in the
prosecution's evidence - and there was a
property dispute between the victim and the
accused, leading to false implications -
Evaluation of Evidences - court finds that
-
the
prosecution
presented
several
witnesses, including the victim, her husband,
and her daughter - further, in the medical
examination no any injuries was found on the
victim -
several
discrepancies
in
the
prosecution's case, including the source of
light during the incident, the place where the
victim was sleeping, and the roles of the
accused - held, the court concluded that the
prosecution failed to establish the guilt of the
accused beyond a reasonable doubt - hence,
appeal is liable to be allowed and the
impugned order of conviction and sentenced
is quashed. (Para - 39, 53, 55)

Appeal allowed. (E-11)

List of Cases cited:

## Text

9 All. Prem & Ors. Vs. State of U.P.
625

37. It feels pain to observe that in our
present system of trial despite having
sufficient power to the judge to ask
questions to the witnesses in order to find
out truth, most of them do not ask questions
to the witnesses to shift the grain from the
chaff. Practice of leaving witnesses to the
Advocates, when a witness becomes
hostile, is not un-common in the trial
Courts. Time and again Hon'ble Apex
Court has reminded that a Judge does not
preside over a criminal trial merely to see
that no innocent man is punished, but a
Judge also presides to see that a guilty man
does not escape. Both are public duties,
which the Judge has to perform. Therefore,
the trial Court must shed their inertia and
must intervene in all those cases where
intervention is necessary for the ends of
justice.

38. No proper explanation of injuries
on the person of injured witnesses have
been given. Mere suggestion is not
sufficient. Moreover it itself indicates a
false case. All the witnesses being the close
relatives, it is beyond apprehension that
they instead of naming out real culprit, they
would falsely implicate the accused persons
knowing them innocent.

39. This Court has gone through the
impugned judgment and evidence on
record. The trial court relying on the
testimony of witnesses, even though who
were declared hostile, has concluded that
the accused had assaulted the injured
persons. Looking into the totality of
statement of witnesses, the conclusion
drawn by the trial court cannot be said to be
reasonable.

40. It is established principle of law of
evidence that statement of witness is to be
read as a whole and conclusion should not
be drawn only by picking up a single
sentence of the statement of a witness.
Thus the trial court has overlooked the
material evidence available on record with
regard to guilt of accused and to that extent
conclusion drawn by the trial Court suffers
with patent infirmity and perversity and
therefore, liable to be reversed and set
aside.

41. Thus in view of above, after
analysis of circumstances of present case in
the light of aforesaid settled legal principles, I
come to the conclusion that the trial court has
erred passing the impugned judgment and
order, therefore, this appeal succeeds and is
allowed. The judgment and order dated
30.07.1999 passed by learned Additional
Sessions Judge, Bahraich in Sessions Trial
No.327 of 1994, under Sections 323/34, 504,
506, 308/34 I.P.C., Police Station Risiya,
District Bahraich is set aside and reversed.
The appellants, namely, appellant no.2 Nabi
Ullaha, appellant no.3 Rafi Ullaha and
appellant no.4 Mulzim are acquitted of
charges under Sections 323/34, 506, 308/34
I.P.C. Their personal bonds and surety bonds
are canceled and sureties are discharged.

42. L et record of lower Court be sent
back to Court concerned along with copy of
judgment and order for information.
----------
(2023) 9 ILRA 625
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.09.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Appeal No. 520 of 1999

Prem & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party
626 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellants:
Diwakar Singh, Ajeet Kumar, P.K. Rai,
Upendra Prakash Pathak, Vishwa Nath
Singh

Counsel for the Opposite Party:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 156(3), 161 & 164 -
Indian Penal Code,1860 - Sections 34,
376 & 376(2)(g) - Indian Evidence Act,
1872 - Section - 114(g) - Appeal - against
conviction & sentence - appeal survives only in
respect of appellant no. 2 since appellant no. 1
and 3 are died - application u/s 156(3) - FIR -
offence of rape - victim alleged that, she was
raped accused-appellant no. 1, while other
appellant nos. 2 & 3 were hold of her -
appellant argued that, Sessions Judge made
several errors, including not considering Défense
evidence, delay in filing the application, lack of
public witnesses, and contradictions in the
prosecution's evidence - and there was a
property dispute between the victim and the
accused, leading to false implications -
Evaluation of Evidences - court finds that
-
the
prosecution
presented
several
witnesses, including the victim, her husband,
and her daughter - further, in the medical
examination no any injuries was found on the
victim -
several
discrepancies
in
the
prosecution's case, including the source of
light during the incident, the place where the
victim was sleeping, and the roles of the
accused - held, the court concluded that the
prosecution failed to establish the guilt of the
accused beyond a reasonable doubt - hence,
appeal is liable to be allowed and the
impugned order of conviction and sentenced
is quashed. (Para - 39, 53, 55)

Appeal allowed. (E-11)

List of Cases cited:

1. Santosh Prasad @ Santosh Kumar Vs St. of
Bihar, (2020) 3 SCC 443,

2. Lalta Prasad Vs St. of M.P., AIR 1979 SC
1276,
3. Charan Singh Vs St. of Har., (1988) 3 Crimes
85 (P&H),

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

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

6. Maharashtra Vs Abdul Hafees Faroki, 1998
CrLJ 3603 (SC),

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

8. Sampad Vs St. of Orissa, 2001 CrLJ 793 (Ori),

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

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

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

12. St. of Maharashtra Vs Rameshwar Sridhar
Jaware, 2008 CrLJ 675 (Bom),

13. Suresh Govinda Nagdeve Vs St. of Mah.,
2008 CrLJ 2943 (Bom).

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

1. As per order dated 17.02.2014, this
appeal in respect of appellant no.3, Mohan,
after his death, has been abated and this
appeal has also been abated vide order
dated 29.11.2016 in respect of appellant
no.1, Prem. Hence, this appeal survives
only in respect of appellant no.2, Nand
Kishor.

2. Heard Sri Ajeet Kumar, learned
counsel for the surviving appellant, Sri
Arvind Kumar Singh, learned AGA for the
State and perused the record.

3. This appeal has been preferred
against the judgment and order dated
01.10.1999 passed by Special Judge (EC
Act)/Additional Sessions Judge, Barabanki
9 All. Prem & Ors. Vs. State of U.P.
627
in ST No.99 of 1994 (State Vs. Prem and
others) arising out of Case Crime No.98 of
1992, under Section 376(2)(g) IPC, Police
Station Tikait Nagar, District Barabanki to
undergo ten years rigorous imprisonment
and fine of Rs.2,500/- to each and in
default of payment of fine four months
rigorous imprisonment to each of the
convicts.

(I) Grounds of appeal-

4. The appellants had taken grounds
that the learned Sessions Judge had
committed
manifest
error
in
not
considering the defence evidence; there
was inordinate delay of about 9 days in
filing the application before the Judicial
Magistrate; no FIR was lodged regarding
the alleged incident; the Sessions Judge has
committed manifest error of law in not
considering the delay and in convicting the
appellants without application of mind;
there was no public witness of the alleged
crime; the appellants have been falsely
implicated in the case due to previous
enmity; the prosecution witnesses have not
supported the prosecution version; there
was vital discrepancy in the evidence of
prosecutrix and the prosecution witnesses;
the eye-witnesses have contradicted the
prosecutrix which falsifies the entire
prosecution case; there was material
contradiction in the statement recorded
under Section 161 CrPC and the evidence;
the clothes of the prosecutrix were not sent
for chemical examination; appellants (Prem
and Nand Kishor) both are devar and
Mohan is father-in-law of the prosecutrix;
the trial court has erred in not appreciating
the contradictions in the evidence of all the
witnesses; no spermatozoa was found in the
private part of the prosecutrix; there was
family dispute between the prosecutrix and
the appellants; no injury was found on the
private part or on the body of the
prosecutrix; PW-6, medical officer has
deposed that no opinion of rape can be
given; the delay in filing the application
before the Judicial Magistrate is not
explained which creates doubt on the entire
prosecution story; the alleged witnesses
Chhotka, Bahadur and others who allegedly
had seen the occurrence were not examined
as a witness deliberately, therefore, the
conviction and sentencing passed by the
trial court be set aside and the appellant be
acquitted.

(II) Brief facts of the case-

5. According to the prosecution story,
the victim moved an application under
Section 156(3) CrPC before the concerned
Magistrate
that
in
the
night
of
09/10.06.1992 at about 12 o'clock when she
was sleeping at her door and lantern was
lighting and her husband Sohan Lal had
gone to the kinship, the accused Prem
reached on the spot and started raping with
her. She kicked and pushed him, by then
Nand Kishor and Mohan caught hold of
her. On her noise neighbours reached there
and accused persons escaped. She could not
go to the police station as her husband was
not present, when her husband came, she
had gone to the police station. It is,
therefore, requested to kindly direct the
police station Tikait Nagar to lodge the FIR
and investigate the matter.

6. The aforesaid application was
moved on 18.06.1992 after eight days of
the alleged incident. The case was lodged
at Crime No.98 of 1992, under Section 376
IPC. The investigating officer (for short
'IO') investigated the matter, prepared site
plan Ex.Ka-6 and after recording the
statements of the witnesses, the chargesheet under Section 376 IPC was submitted
628 INDIAN LAW REPORTS ALLAHABAD SERIES
to the court. The case was committed to the
court of sessions which was transferred to
the court of Additional Sessions Judge-IV,
Barabanki who framed the charge on
07.06.1995 against the accused Prem under
Section 376 IPC and against the accused
Nand Kishor and Mohan under Section 376
read with Section 34 IPC and an alternative
charge against all the accused persons was
framed under Section 376(2)(g) IPC.
Accused persons denied the charge and
sought trial.

7.

The
prosecution
examined
following witnesses:-

1
PW-1
The victim
2
PW-2
Sohan Lal, husband of the
victim
3
PW-3
Mantora, daughter of the
victim
4
PW-4
Arvind Pratap Singh
5
PW-5
Giridhar Prasad Gupta
6
PW-6
Dr. Chandra Lekha

8. The prosecution has produced
following documentary evidences:-

1
Ex.Ka-1
Written complaint
2
Ex.Ka-2
Fard (dhibri/lantern)
3
Ex.Ka-3
Chik FIR
4
Ex.Ka-4
Kaymi case GD carbon
copy
5
Ex.Ka-5
Weeding report of original
GD
6
Ex.Ka-6
Map
7
Ex.Ka-7
Charge-sheet
8
Ex.Ka-8
Medical report

(III)
Brief
discussion
on
the
evidence/statements of the prosecution
witnesses-

9. PW-1, victim has deposed that
about 6 years ago at about 12 o'clock on a
summer night she was sleeping on a cot in
the sahan, her daughter and son were also
sleeping on another nearby cot. The dhibri
(country-made lamp) was on, accused Prem
came and lifted her saree and started raping
her, she woke up and kicked him thereafter
accused Nand Kishor and Mohan who had
come with Prem, had caught hold of her
and Prem forcibly committed rape with her.
She started crying on which all the three
accused ran away. On her crying her son
and daughter had also woke up who saw
and recognised the accused persons. The
witness recognised the accused persons in
the court and pointing on the accused Prem,
deposed that he had committed rape with
her and Nand Kishor and Mohan had
caught hold of her. She had recognised
them well at the time of the incident. Her
husband was out of the house and had gone
to the kinship. After few days when he
returned, she narrated the whole story who
came
to
Barabanki
and
moved
an
application before the Magistrate to lodge
the FIR. The witness recognised her thumb
impression on the application Ex.Ka-1 and
rectified that due to typing mistake in place
of dhibri she had written it to be lantern.
On the basis of the said application a report
was lodged, IO had recorded her statement.
She had pointed out the place of
occurrence, IO had taken her to the district
hospital
where
she
was
medically
examined. Dhibri was inspected and was
given in the custody of her husband. Upon
her
noise,
witnesses
Smt.
Chhotka,
Bahadur (blind person) and others had also
reached on the spot and had seen the
occurrence.
9 All. Prem & Ors. Vs. State of U.P.
629

10. In the cross-examination, this
witness accepted that she had not gone to
the police station for lodging the FIR. She
had come to the court and had not gone to
any other place. In the court premises she
had met to the counsel and instructed him
to prepare such a case in which accused
persons must go to the jail and must be
convicted. The said counsel had typed the
paper and had got her thumb impression.
The application was not read over to her.
She had shown the cot to the IO. On the
day of occurrence she was sleeping and had
woken up at 05:00 a.m. She had slept at
08:00 p.m. She further deposed that she
often used to sleep out of the house.

11. In further cross-examination this
witness deposed that the lantern was
lighted under the hut. She was sleeping on
the cot at a distance of 20 steps from her
door. It is true that she was sleeping
underneath the hut. It is wrong to say that
she was sleeping in the sahan. She further
deposed that she had not named any
witness, none had come on the spot. This
witness denied that any case with the
accused Prem was going on. According to
this witness, the IO had conducted her
medical examination just after two days of
the incident. She had gone there with her
husband and after the medical examination
she had gone to the court premises. This
witness further deposed that since before
the death of her father-in-law all were
living separately. The land had also been
separated. Her father-in-law had taken
possession of the land of his share. The
land of Barsati had been divided. The land
of Barsati had been cultivated by Prem and
Nand Kishor. She was claiming share in it
and they were not providing the share to
her in the property of her father-in-law.
The witness denied that she had instituted
the case and has also implicated Mohan as
he was the friend and helper of the rest of
the accused persons.

12. PW-2, Sohan Lal, husband of the
victim has deposed that on the day of
occurrence he had gone to the kinship and
after 4-5 days when he returned, his wife
had narrated the story. His wife came to the
court premises, narrated the application and
produced the same in the court. Dhibri
lighted at the time of the incident was
shown to the IO. A recovery memo of
dhibri was prepared and thereafter it was
returned to him. The witness recognised his
thumb impression on the recovery memo
Ex.Ka-2. The witness denied that since the
accused persons were not providing the
share in the property of Barsati, therefore,
he had lodged a false FIR against the
accused persons through his wife.

13. PW-3, Mantora daughter of the
victim has deposed that at the time of
alleged occurrence she was about 12-13
years old. She was lying at the door near
her mother, dhibari was lighted. Her father
Sohan Lal had gone to the kinship. By that
time accused Prem, Nand Kishor and
Mohan reached, Mohan caught hold of
hands of her mother and accused Prem
started bad deed with her mother. Her
mother cried on which she woke up and
saw that accused Mohan had caught hold of
hands of her mother and Prem was doing
bad deeds with her mother without her
consent. Nand Kishor was standing away.
When she cried, accused persons ran away.
Accused Prem had done bad deed and had
run away and two other accused persons
also ran away. Bahadur and Chhotka had
cried from their houses and had not come
on the spot. After three days of the incident
her father came to the house and her
mother had narrated the whole story. The
IO had interrogated her. After three days of
630 INDIAN LAW REPORTS ALLAHABAD SERIES
the incident when her father had come, he
gone to lodge the FIR with her mother. Her
mother had slept 2-4 steps away from her.
Barsati was her grandfather. His father
were four brothers. His elder brother has
died. When IO had visited her house, her
mother has shown the lantern which was
returned by him after seeing the same.
Accused Mohan was her grandfather in
relation. His father was aged about 60-65
years. Mohan is elder to her father. The
witness denied that as the accused persons
had occupied the land of her uncle Sundar
and were not intended to give share,
therefore, false FIR had been lodged.

14. PW-4, constable Arvind Kumar
Singh has proved chik FIR Ex.Ka-3 and
kaymi case GD Ex.Ka-5. According to him
he had lodged the FIR and had prepared the
kaymi case GD on 15.07.1992. In crossexamination this witness explained that
there was no order regarding lodging the
FIR. There was an order to investigate and
inform about the incident. He had lodged
the FIR on the order of the SO.

15. PW-5, Girdhar Prasad Gupta, IO
has deposed that on 15.07.1992 this case
had been lodged and he was entrusted the
investigation of the case after which he
visited the spot and prepared map Ex.Ka-5
on the pointing of the informant in his own
hand writing and signature. After taking
dhibari in possession he had returned it and
a memo Ex.Ka-2 was prepared in his hand
writing and signature. He had recorded the
statement of witnesses Mantora, Smt.
Chhotka, Smt. Kunwar, Bahadur, Ganga
Ram and had arrested the accused persons
on 24.07.1992. Medical examination of the
victim was conducted and her statement
under Section 164 CrPC was recorded and
after completion of investigation, he had
submitted charge-sheet Ex.Ka-7.

16. During the cross-examination this
witness accepted that he has not mentioned
the distance of the places as shown in the
map. The witness could not say the length
and width of the hut. He could not say the
distance of the cot of the prosecutrix from
the door and the hut. He could not say the
distance of the house of the accused
persons from the house of the victim. He
further deposed that he had found dhibari at
place-C made on the wall which was 4 feet
above from the earth. Nothing has been
said about the lantern. This witness has
admitted that IO had sent a report to the
court on 07.07.1992 stating therein based
on the statement of the husband of the
victim that his father Barsati had died one
and a half month ago. On the day of terhi
he wanted share in the property of Barsati,
Prem and Nand Kishor had not provided
the same and had possessed the plot,
therefore, the victim on account of enmity
wants to implicate Prem and Nand Kishor
as accused. The witness further deposed
that the petticoat and saree of the victim
were not taken into possession and were
not sent for the chemical examination. The
witness denied that under the connivance
with the informant, he had submitted false
and forged charge-sheet.

17. PW-6, Dr. Chandra Lekha has
deposed that on 29.07.1992 she had
medically examined the witness. There was
no injury on the person of the victim. The
hymen was already old torn and healed and
two fingers were easily entering into her
private part. The witness has already
opined that no opinion regarding rape can
be given as the victim was habitual to the
intercourse.

18. In cross-examination this witness
deposed that considering the age of the
victim she was not referred to the X-Ray,
9 All. Prem & Ors. Vs. State of U.P.
631
examination for ascertaining her age. She
further deposed that neither she had
prepared any supplementary medical report
nor any report for semen test is on record.
At the time of incident no internal or
external injury was found on the person of
the victim and also no sign of rape was
found.

19.

After
conclusion
of
the
prosecution evidence the statement of the
witnesses were recorded in which accused
Prem
and
Nand Kishor
denied
the
allegations,
charge
and
oral
and
documentary evidence produced by the
prosecution and have stated that the
informant and her husband were claiming
share in the property of his father. On
account of such enmity they were falsely
implicated.

20. The accused Mohan has also
denied the allegations, charge, oral and
documentary evidence and has further
stated that he used to sit and move with
accused Nand Kishor and Prem, therefore,
he was falsely implicated.

21. After considering the evidence
and after hearing the argument, the accused
persons were convicted under Section
376(2)(g) IPC and were awarded rigorous
imprisonment of ten years and fine of
Rs.25,000/- to each accused with default
stipulation.

22. Being aggrieved this appeal has
been preferred.

23. According to learned counsel for
the appellant there is undue delay in
lodging the FIR. After a delay of five days,
the FIR has been lodged and no plausible
explanation
has
been
given.
The
prosecution has an explanation that as the
husband of the victim namely Sohan Lal
was out of the house and had gone to the
kinship, therefore, the FIR could not be
lodged. It is noteworthy that the victim was
not alone in the house. Her daughter and
son were also present there, therefore, she
was able to lodge the FIR without any
undue delay after visiting the concerned
police station with her children. However,
it has not been proved that in which kinship
her husband had gone. If virtually he had
gone to the relatives, the relative concerned
could have been examined to prove the
presence of her husband at his house.

(IV) Enmity-

24. The witnesses of fact PWs-1, 2
and 3 have admitted that there was property
dispute between both the parties. PW-1,
victim has admitted that her father-in-law
Barsati had also taken share in the property
and after his death, it was occupied by the
accused persons. She was claiming her
share but accused persons were not giving
the share and its possession.

25. PW-2, Sohan Lal has admitted
that there was dispute regarding the land of
his father though he has denied that on
account of enmity accused persons had
been falsely implicated.

26. PW-3, Mantora daughter of the
victim has also admitted that accused
Mohan is her grandfather in relation and he
was aged about 60-65 years. This witness
has also denied that there was property
dispute. The enmity is double edged
weapon. On account of enmity an offence
can be caused and an innocent person may
also be falsely implicated in a false and
concocted case. In this case considering the
facts, circumstances, medical and oral
evidences and improvements from the
632 INDIAN LAW REPORTS ALLAHABAD SERIES
original case, during the course of trial, it
can safely be concluded that on account of
enmity the accused persons had falsely
been implicated as the victim was claiming
share of land of her father-in-law, Barsati
which was under the possession of the two
accused persons.

(V) Source of light-

27. It is the prosecution case that the
victim and the witnesses recognized the
accused persons in the light of dhibri or
lantern. Whether dhibri was on or lantern
was lighted, there is difference in the
evidence of the witnesses. PW-1 has
deposed at page-1 and 3 and that dhibri was
lighted and she recognized accused persons
in the light of dhibri which was kept on the
wall of the hut but the same witness
deposed at page-7 that lantern was lighted
there under the hut.

28. PW-2 Sohan Lal husband of the
victim was not present on the spot but
according to him dhibri was lighted at the
time of commission of crime.

29. PW-3, Mantora daughter of the
victim has deposed at page-1 that dhibri
was lighted while the same witness has
deposed at page-3 that lantern was lighted
and when IO had visited the spot, her
mother had shown the lantern to him. It is
noteworthy that according to the IO dhibri
was shown to him and he had prepared a
fard regarding dhibri and the dhibri was
returned to the victim.

30. According to PW-5, IO, he was
informed that dhibri was lighted at the time
of commission of crime. This witness
denied that any lantern was shown to him.
Thus, what was the source of light, is not
free from doubt.

(VI) Place of sleeping-

31. According to the charge, the
victim was sleeping at the door of her
house but PW-1, the victim has deposed at
page-1 that she was sleeping in sahan on an
independent cot nearby the cots of her
daughter and son on which they were
sleeping. According to the victim the
offence was committed with her at about 12
o'clock but this witness has deposed at
page-5 that on the day of occurrence she
had slept at 08:00 p.m. and woke up at
05:00 a.m. According to this Court, if such
occurrence would be caused with a lady,
she would hardly sleep after such incident
and would wake up at 05:00 a.m. The
victim PW-1 has deposed at page-7 that she
was sleeping under the chhappar. It is
wrong to say that she was sleeping in
sahan. PW-3 Mantora has deposed that she
was sleeping on another cot near her
mother at the door. According to the IO,
PW-5, the victim was sleeping in sahan and
he has also shown the cot of the victim in
the sahan. Thus, on the basis of difference
in the evidence of the witnesses of fact, it is
concluded
that
the
prosecution
has
miserably failed in establishing the place of
occurrence and that where the victim was
sleeping at the time of commission of the
alleged crime.

32 . Manner of occurrence does not
inspire confidence in the mind of the court
that in such circumstances such offence can
be committed with the victim. According to
the witnesses of fact, the children of the
victim were sleeping at a distance of 2-4
steps away from the victim. In such a case
how one would dare to commit such
offence. On the face of record this incident
appears to be false and the whole story
does not inspires confidence in the mind of
the Court.
9 All. Prem & Ors. Vs. State of U.P.
633

33. It has also been proved that out of
three accused persons two accused persons
are real brother. According to this Court
two real brothers cannot commit such
crime together. On this score also the
prosecution story appears to be doubtful.

(VII) Role of Nand Kishor, the sole
surviving accused-

34. It has been proved that accused
Mohan and Prem have died. Accused Prem
had been assigned role of committing rape
on the victim and the role of catching hold
of the victim has been assigned to the
accused Mohan. As per FIR, Nand Kishor
and Mohan had caught hold of the victim
and Prem raped her while as per site plan
prepared on the pointing of the victim, the
alleged offence had been committed at
place-A and her children were sleeping at
some steps away at place-B and two
accused persons were standing around four
steps away at place-D.

35. In this regard it would be proper
to consider the evidence of the witnesses of
fact. PW-1, the victim has deposed that
Nand Kishor and Mohan had caught hold
of her and Prem had committed rape with
her whereas according to PW-3, daughter
of the victim, accused Mohan had caught
hold of hands of the victim and the accused
Prem had raped her mother. This witness
has not assigned any role to the accused
Nand Kishor. She deposed at page-2 that
Nand Kishor was standing at some distance
and after doing bad deeds with her mother,
both the accused persons ran away.

36. According to this Court, there is
gross variation in the evidence of PW-1 and
PW-3. If three accused persons would have
been there, all the three accused persons
would have run away and not only two.

37. In this case two independent eyewitnesses Chhotka and Bahadur have been
shown but they have not been examined,
thus the evidence of the victim does not
find
support
from
any
independent
evidence. Even her son has also not been
examined. In this regard it would be proper
to refer Section 114(g) of the Indian
Evidence Act, 1872:-

"114.
Court
may
presume
existence of certain facts.- The Court
may presume the existence of any fact
which it thinks likely to have happened,
regard being had to the common course of
natural events, human conduct and public
and private business, in their relation to the
facts of the particular case.

x x x x x

(g) that evidence which could be
and is not produced would, if produced, be
unfavourable to the person who withholds
it."

38. It is also noteworthy that the
victim PW-1 has deposed at page-4 in the
evidence that she directed her counsel to
prepare such a case so that accused be sent
to jail and be punished. Thereafter the
counsel typed a paper and got her thumb
impression. The contents of the application
was not read over to her. Thus, it is proved
that the contents of FIR are not the contents
and facts of the victim but after undue
delay an FIR had been prepared after undue
consultation
with
legal
assistance.
Therefore, such delay causes injustice to
the accused persons. It has been proved that
the accused persons were not criminal in
nature, they were gentlemen and they were
falsely implicated on account of enmity
regarding property and share of Barsati and
Sundar.
634 INDIAN LAW REPORTS ALLAHABAD SERIES

(VIII) Conclusion-

39. In Santosh Prasad @ Santosh
Kumar Vs. State of Bihar, (2020) 3 SCC
443 it was alleged that after committing an
offence
of
house
trespass
accused
committed rape with a married lady. There
were material contradictions in deposition
of the prosecutrix. Neither the indecent
witness nor the medical witness was
supporting the prosecution case. FSL report
was also not supporting prosecution case.
There was variation in prosecutrix's
version
about
the
given
complaint.
Prosecutrix failed to pass test of becoming
"sterling witness". There is also delay in
lodging
the
FIR.
There
was
also
enmity/dispute between both the parties
with respect to land. Any other supportive
evidence and the accused was given benefit
of doubt and conviction was reversed.

40. In Lalta Prasad Vs. State of MP,
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
forceful intercourse with her. That being
so, the conviction of the appellant under
Section 376 IPC was set aside.

41. In 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.

42. In Zahoor Ali Vs. State of UP,
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.

43. In Sakariya Vs. State of MP,
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 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.

44. In Maharashtra Vs. Abdul
Hafees Faroki, 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.
9 All. Prem & Ors. Vs. State of U.P.
635

45. In Joseph Vs. State of Kerala,
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.

46. In Sampad Vs. State of Orissa,
2001 CrLJ 793 (Ori), 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).

47. In State of State of Orissa Vs.
Rama Swain and others, 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.

48. In Goverdhan Vs. State of MP,
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.

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

50. In State of Maharashtra Vs.
Rameshwar Sridhar Jaware, 2008 CrLJ
675 (Bom), 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.

51. In Suresh Govinda Nagdeve Vs.
State of Maharashtra, 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.

52.

All
the
above
judicial
pronouncements are applying in favour of
the surviving appellant and against the
prosecution.

53. On the basis of above discussion,
this Court is of the considered view that the
Sessions Judge has not properly evaluated
the evidence and treating the evidence of
the victim as gospel truth, he convicted and
636 INDIAN LAW REPORTS ALLAHABAD SERIES
sentenced the accused persons without any
basis. Hence, the appeal is liable to be
allowed.

54. Accordingly, the appeal succeeds
and is allowed.

55. The impugned judgment and order
of
conviction
and
sentencing
dated
01.10.1999 passed by the Special Judge
(EC
Act)/Additional
Sessions
Judge,
Barabanki
is
hereby
quashed.
The
surviving accused be set free immediately,
if he is in jail and if he is not wanted in any
other criminal case.

56. The lower court record alongwith
a copy of this judgment be sent back to the
court concerned for its consignment and
necessary compliance.
----------
(2023) 9 ILRA 636
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.09.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Criminal Appeal No. 586 of 2003

Daya Ram Pasi ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Nisha Srivastava

Counsel for the Opposite Party:
G.A.

A. Criminal Law-Criminal Procedure
Code,1973-Section 374(2) - Indian
Penal Code, 1860-Sections 395 & 397Challenge to-Conviction- P.W.1, P.W.2,
P.W.3 and P.W.4 who are witnesses of
the
fact
have
given
consistent
statements
that
on
that
day,
an
incident of dacoity took place in their
houses- P.W.1 and P.W.2 have not said
anything
with
regard
to
the
involvement of the present appellant
in the commission of dacoity-P.W.3 has
identified the accused in the open
Court likewise P.W.4 has specifically
said that the accused, who is present
in the Court, was the person who had
committed dacoity in his own house
and
neighbourhood-a
test
identification parade was conducted in
District
Jail
where
both
correctly
identified
the
accused-defence
contended
that
the
identification
parade has been carried out after a
gap of a number of months and that it
is not possible to retain the memory of
face for such a long period,therefore
the evidence of the prosecution cannot
be relied upon but there were sources
of light to sufficiently see their facesMore so,when some incident of intense
nature takes place, the victim may
retain its vivid memory life long- Thus,
The identification of the accused in the
open Court is a substantive evidenceThe conduct of identification parade
during the investigation, though a very
important piece of evidence has, at the
most, a corroborative value-There is
nothing to suggest that there was any
cause for them to falsely implicate the
accused- The accused was not named
in the F.I.R and he is a resident of
another village-There is not even a
suggestion of having any previous
enmity or any reason which could have
prompted the witnesses to identify
falsely the accused as one of the
dacoits or to doubt the identification
evidence given by the prosecution-
Hence,The
learned
trial
court
has
elaborately dealt with the evidence
produced by the prosecution and took
up all the arguments advanced on
behalf of the defence systematically
and found the charges as having been
proved beyond reasonable doubt. (Para
1 to 19)

The appeal is dismissed. (E-6)