# Rahul Rajbhar (In Jail) v. State of U.P

- **Citation:** (2021) 8 ILRA 229
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-12
- **Case number:** Criminal Appeal No. 3872 of 2015
- **Bench:** Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rahul-rajbhar-in-jail-v-state-of-u-p-47198
- **Pages:** 7

## Headnote

230 INDIAN LAW REPORTS ALLAHABAD SERIES
Evidence Law - Indian Evidence Act, 1872-
Section 8- Motive- It is a case of direct
evidence as P.W.-1 Km. Pooja and P.W.-2
Km. Rinki are the eye witnesses of the
incident; in case of direct evidence, motive
has no relevancy. Motive is important in
case of circumstantial evidence. Although in
this case, P.W.-1 Km. Pooja has stated about
the motive behind the crime that she was
molested by accused-appellant on several
occasions before the present occurrence and
every time she stopped him. In my opinion
since prosecution has produced P.W.-1 Km.
Pooja and P.W.-2 Km. Rinki as eye
witnesses of the occurrence, motive has no
importance in this case.

In a case of direct evidence, motive loses its
relevance.

Investigation- latches of Investigating
Officer- If there are procedural latches of
prosecution or Investigating Officer, its
benefits cannot be given to the accused as
held by Hon'ble Apex Court in Ram Bali Vs.
State of U.P. 2004 Vol. 47 ACC 453. It is
also held in Paras Yadav Vs. State of Bihar,
1999 (2) SCC 126, it was held that if the
lapse or omission is committed by the
investigating
agency
or
because
of
negligence
there had
been
defective
investigation, the prosecution evidence is
required to be examined de hors such
omissions to find out whether the said
evidence is reliable or not and to what
extent, such lapse affected the object of
finding out the truth. The contaminated
conduct of the officials alone should not
stand on the way of evaluating the courts
in finding out the truth, if the materials on
record are credible and truthful, otherwise
the designed mischief at the instance of
biased or interested investigator would be
perpetuated and justice would be denied
to the complainant party and in the
process to the community at large.

Settled law that the accused cannot be accorded
advantage of a defective investigation. In case
of latches and omissions by the investigating
officer, the Court has to evaluate the evidence
excluding the omissions of the investigating
officer to find out as to whether the rest of the
evidence of the prosecution is reliable or not.

Indian Evidence Act, 1872- Section 3-
Injured Witnesses- Testimony of- Injuries
Corroborated
with
medical
evidence-
P.W.-1 Km. Pooja and P.W.-2 Km. Rinki
have fully supported the prosecution case
in their respective statements and their
statements were fully corroborated by
medical evidence as discussed above, and
prosecution has succeeded to prove its
case
against
the
accused
beyond
reasonable doubt.

It is settled law that the testimony of an injured
witness is accorded greater credibility since his
injuries, when duly corroborated with the
medical evidence, establish his presence on the
spot at the time of commission of the offence. (
Para 10, 13, 14, 15, 21, 22, 23, 24)

Criminal Appeal rejected. (E-2)

Judgements/ Case law relied upon:-

## Text

8 All. Rahul Rajbhar Vs. State of U.P.
229
negative for spermatozoa. Hence, rape with
the victim is not proved.

I am unable to agree with the
above contention of learned counsel for the
appellant because at page 12 of the paper
book in the examination report of victim, it
is written that hymen was torn at 6:00
O'clock, swollen red colour. At page 16 of
the paper book, it has been mentioned that,
according
to
physical
examination
radiological report of the radiologist, the
victim is about 7 years. There is sign of
vaginal penetration because hymen is torn.

P.W.-4 Dr. Vinita Jaiswal has
proved the medical examination report of
the victim. She has given evidence that
there is sign of vaginal penetration because
hymen was torn. P.W.-3 victim has
tendered evidence that appellant Sarvjeet
@ Shashi Kapoor committed rape with her.

From the above analysis, it is
clear that there is corroboration of oral
evidence of P.W.-3 victim with medical
evidence.
There
is
no
contradiction
between oral evidence of P.W.3 victim and
P.W.-4 Dr. Vinita Jaiswal.

Accordingly, the contention of
learned counsel for the appellant with
regard to contradiction between oral and
medical evidence is rejected.

17. Learned counsel for the appellant
lastly submitted that appellant is detained
since 4.5.2014 and is languishing in jail
since more than 7 years. Keeping in view
his detention period, lenient view should be
taken. Appellant should be released from
jail considering him undergone.

From the evidence on file, it is
established beyond reasonable doubt that
appellant Sarvjeet @ Shashi Kapoor
committed rape with a girl aged about 7 to
8 years by putting cloth in her mouth.
Perpetrator of such a heinous and gruesome
crime deserves no leniency. Taking lenient
view with such an offender would be miscarriage of justice.

Learned
Additional
Sessions
Judge, Court No.5, Ghazipur has awarded
appellant Sarvjeet @ Shashi Kapoor 10
years rigorous imprisonment and Rs.
10,000/-
fine
which
appears
to
be
appropriate punishment.

The
upshot
of
the
above
discussion
is
that
prosecution
has
established its case beyond reasonable
doubt against appellant Sarvjeet @ Shashi
Kapoor by cogent, credible and trustworthy
evidence.

Appeal lacks merit and is liable to
be dismissed.

Appeal
is,
accordingly,
dismissed.

Judgment be certified to the
lower court for compliance.
----------
(2021)08ILR A229
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.08.2021

BEFORE

THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 3872 of 2015

Rahul Rajbhar ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Shiv Dayal Tiwari, Sri Deepak Kumar
Srivastava, Sri Ganesh Shanker Srivastava,
Sri Sabhapati Tiwar, Sri Santosh Kumar
Pandey, Sri Saurabh Tripathi, Smt. Usha
Srivastava

Counsel for the Opposite Party:
A.G.A.
230 INDIAN LAW REPORTS ALLAHABAD SERIES
Evidence Law - Indian Evidence Act, 1872-
Section 8- Motive- It is a case of direct
evidence as P.W.-1 Km. Pooja and P.W.-2
Km. Rinki are the eye witnesses of the
incident; in case of direct evidence, motive
has no relevancy. Motive is important in
case of circumstantial evidence. Although in
this case, P.W.-1 Km. Pooja has stated about
the motive behind the crime that she was
molested by accused-appellant on several
occasions before the present occurrence and
every time she stopped him. In my opinion
since prosecution has produced P.W.-1 Km.
Pooja and P.W.-2 Km. Rinki as eye
witnesses of the occurrence, motive has no
importance in this case.

In a case of direct evidence, motive loses its
relevance.

Investigation- latches of Investigating
Officer- If there are procedural latches of
prosecution or Investigating Officer, its
benefits cannot be given to the accused as
held by Hon'ble Apex Court in Ram Bali Vs.
State of U.P. 2004 Vol. 47 ACC 453. It is
also held in Paras Yadav Vs. State of Bihar,
1999 (2) SCC 126, it was held that if the
lapse or omission is committed by the
investigating
agency
or
because
of
negligence
there had
been
defective
investigation, the prosecution evidence is
required to be examined de hors such
omissions to find out whether the said
evidence is reliable or not and to what
extent, such lapse affected the object of
finding out the truth. The contaminated
conduct of the officials alone should not
stand on the way of evaluating the courts
in finding out the truth, if the materials on
record are credible and truthful, otherwise
the designed mischief at the instance of
biased or interested investigator would be
perpetuated and justice would be denied
to the complainant party and in the
process to the community at large.

Settled law that the accused cannot be accorded
advantage of a defective investigation. In case
of latches and omissions by the investigating
officer, the Court has to evaluate the evidence
excluding the omissions of the investigating
officer to find out as to whether the rest of the
evidence of the prosecution is reliable or not.

Indian Evidence Act, 1872- Section 3-
Injured Witnesses- Testimony of- Injuries
Corroborated
with
medical
evidence-
P.W.-1 Km. Pooja and P.W.-2 Km. Rinki
have fully supported the prosecution case
in their respective statements and their
statements were fully corroborated by
medical evidence as discussed above, and
prosecution has succeeded to prove its
case
against
the
accused
beyond
reasonable doubt.

It is settled law that the testimony of an injured
witness is accorded greater credibility since his
injuries, when duly corroborated with the
medical evidence, establish his presence on the
spot at the time of commission of the offence. (
Para 10, 13, 14, 15, 21, 22, 23, 24)

Criminal Appeal rejected. (E-2)

Judgements/ Case law relied upon:-

1. Ram Bali Vs St. of U.P. 2004 Vol. 47 ACC 453.

2. Paras Yadav Vs St. of Bih., 1999 (2) SCC 126

3.Balwan & ors. Vs St. of Har., Criminal Appeal
No.1842 of 2014

(Delivered by Hon'ble Ajai Tyagi, J.)

1. Heard learned counsel for the
appellant and learned A.G.A. for the
respondent.

2. This criminal appeal has been
preferred against the impugned judgment
and order dated 28.8.2015 passed by
Additional Sessions Judge, Court No.5
Basti in S.T. No.63 of 2014 (State Vs.
Rahul Rajbhar) arising out of Case Crime
No.511 of 2013, under Sections 326-A
I.P.C., Police Station Munderwa, District
Basti
convicting
and
sentencing
the
appellant
for
ten
years
rigorous
8 All. Rahul Rajbhar Vs. State of U.P.
231
imprisonment and Rs.20,000/- as fine under
Section 326-A I.P.C. and further six
months imprisonment in case of default of
fine.

3. Relevant facts of this case are that on
10.05.2013 complainant Kanhaiya Lal son of
Shivdas lodged an FIR in Police Station
Munderwa, District Basti with the averments
that on 10.05.2013 at about 4:30 AM his
daughter Km. Pooja aged about 16 years was
going to ease herself out with her mother
Belmati and sister Km. Rinki; when she
reached on the road in front of the village,
accused Rahul Rajbhar who was sitting on
the road, poured acid from a box upon his
daughter Pooja, as a result of which, she
sustained serious injuries on her face and
other parts of the body. On account of raising
alarm by his wife and daughter, accused fled
away from the spot; many people of village
had seen the occurrence.

4. Accused-appellant was charged and
tried by learned trial court under Section
326-A I.P.C. and he was convicted and
sentenced for that offence.

5. Learned counsel for the appellant
has submitted that accused is innocent and
he has falsely been implicated in the
present case with delayed FIR. Injuries to
the victim were of simple in nature and
case was not proved by prosecution
evidence; while on the other hand learned
A.G.A. submitted that in this case P.W.-1
Pooja is the star witness; she has supported
the prosecution case; her statement before
the learned trial court is corroborated with
medical evidence which is well proved by
the doctor who conducted the medical
examination of the victim. Km. Pooja
remained admitted for 14 days in hospital
and accused has been rightly convicted by
the learned trial court.

6. In detailed arguments learned
counsel for the appellant first of all argued
that in this case there is a delay in lodging
the FIR. It is submitted that as per the
prosecution case, occurrence has taken
place at about 4:30 AM while FIR was
lodged at 6:00 PM. Statement of the victim
under Section 161 Cr.P.C. was recorded by
Investigating Officer after 12 days of
occurrence but perusal of the record shows
that occurrence is said to have taken place
at about 4:30 AM on 10.05.2013 and First
Information Report was lodged at 6:40 AM
that is near about after two hours of the
occurrence. The argument of learned
counsel for the appellant that FIR was
lodged at 6:00 PM is against the record.
Perusal of Chick F.I.R. Exb. KA-4 also
shows that it was lodged at 6:40 AM; P.W.-
6 constable Jang Bahadur Bharti also said
in his statement that F.I.R. was lodged at
6:40. Moreover, there is an entry in general
diary, Exb. Ka-5 of registration of case at
6:40 and giving Majrubi Chhithi to Km.
Pooja for medical examination; medical
examination report at the back of the
Majrubi Chhithi Exb. KA-2 shows the time
of medical examination as 10:55 AM.
Hence, argument of learned counsel for the
appellant that F.I.R. was lodged at 6 PM is
totally against the record. Hence, it is
obvious that there was no delay in lodging
the FIR.

7. Learned counsel for the appellant
further submitted that P.W.-1 Km. Pooja
has said in her cross examination that her
sister Rinki and she are not from the same
mother but are step-sisters. Smt. Belmati
who was said to be with the victim at the
time of said occurrence, is her step-mother
who used to rebuke the victim whenever
any mistake was committed by her. On
10.05.2013 at 8 O' clock in the night,
victim's parents thrashed victim and her
232 INDIAN LAW REPORTS ALLAHABAD SERIES
step-sister due to their going out from
home.

8. Learned counsel for the appellant
has submitted that due to being stepmother, Smt. Belmati used to beat her and
due to that Km. Pooja was burnt by her
step-mother and accused has been falsely
implicated in this case for settling the
scores.

9. Learned counsel for the appellant
further argued that there was no motive for
the accused to throw acid on Km. Pooja,
although it is said by P.W.-1 Km. Pooja in
her statement that before the said occurrence,
appellant Rahul Rajbhar tried to molest her
many times after which, she stopped him and
told that she will complain about this to her
father.
On
account
of
that,
accused
committed offence of throwing acid upon
her. Learned counsel for the appellant has
submitted that above statement is given by
P.W.-1 Km. Pooja but there is nothing on
record to show that any F.I.R. or complaint
for molestation has been filed by Km. Pooja
or her father, hence, motive told by P.W.-1,
Km. Pooja in her statement fails and it is
proved that accused-appellant had no motive
to commit the crime.

10. It is a case of direct evidence as
P.W.-1 Km. Pooja and P.W.-2 Km. Rinki
are the eye witnesses of the incident; in
case of direct evidence, motive has no
relevancy. Motive is important. In case of
circumstantial evidence. Although in this
case, P.W.-1 Km. Pooja has stated about
the motive behind the crime that she was
molested by accused-appellant on several
occasions before the present occurrence
and every time she stopped him. In my
opinion since prosecution has produced
P.W.-1 Km. Pooja and P.W.-2 Km. Rinki
as eye witnesses of the occurrence, motive
has no importance in this case. Moreover, it
was not necessary for Km. Pooja/victim or
by her father to lodge F.I.R. against the
accused
for
molestation
of
earlier
occasions. It was enough if Km. Pooja
complained to her father about molestation
as stated by her in her statement, hence the
argument of learned counsel for the
appellant regarding motive is not tenable.

11. It was also argued by learned
counsel for the appellant that as per the
First Information Report many people of
the village gathered at the place of
occurrence, if it was so then how the
accused fled away from the scene as he
would have been caught by the people but
the same does not hold good ground
because F.I.R. clearly states that people of
the village came on the spot after listening
to the noise made by the victim and her
sister and mother. It was also submitted by
learned counsel for the appellant that
prosecution could not fix and prove the
place of occurrence; P.W.-1 Km. Pooja
could not tell the boundaries of the place of
occurrence, hence on this ground alone, the
prosecution case fails.

12. Perusal of cross examination of
P.W.-1 Km. Pooja reveals that regarding
place of occurrence she just said that she
does not know the name of the house
owners in the north. Apart from it she had
stated that in south, there is a house of
Munnu Chaudhari and in east and west
there is a road. Knowing the names of
owners of the house nearby the place of
occurrence, in my opinion, is not necessary
because they have settled there by coming
from
distant
places.
Moreover,
the
Investigating Officer, P.W.-7 proved the
site plan Exb. KA-6; hence, place of
occurrence is very well established by the
prosecution.
8 All. Rahul Rajbhar Vs. State of U.P.
233

13. It was submitted by learned counsel
for the applicant that according to the
prosecution case, accused poured the acid
from the box but no such box was produced
before the learned trial court by the
prosecution. In my opinion, if above said box
is not produced by the prosecution, it does
not in any way weakens the prosecution case
because if there are procedural latches of
prosecution or Investigating Officer, its
benefits cannot be given to the accused as
held by Hon'ble Apex Court in Ram Bali Vs.
State of U.P. 2004 Vol. 47 ACC 453. It is
also held in Paras Yadav Vs. State of Bihar,
1999 (2) SCC 126, it was held that if the
lapse or omission is committed by the
investigating agency or because of negligence
there had been defective investigation, the
prosecution evidence is required to be
examined de hors such omissions to find out
whether the said evidence is reliable or not
and to what extent, such lapse affected the
object of finding out the truth. The
contaminated conduct of the officials alone
should not stand on the way of evaluating the
courts in finding out the truth, if the materials
on record are credible and truthful, otherwise
the designed mischief at the instance of
biased or interested investigator would be
perpetuated and justice would be denied to
the complainant party and in the process to
the community at large.

14. As was observed in Ram Bihari
Yadav v. State of Bihar and others, J.T.
(1998) 3 SC if primacy is given to such
designed or negligent investigation to the
omission or lapse by per-functionary
investigation or omissions, the faith and
confidence of the people would be shaken
not only in the law enforcing agency but
also in the administration of justice.

15. Hence, if there is any shortcoming
on the part of prosecution that the tin box
containing acid at the time of occurrence
was not produced before the learned trial
court, it alone does not weaken the
prosecution case because evidence of
witnesses of fact is otherwise reliable on
the point of throwing the acid by the
appellant-accused on Km. Pooja and Km.
Rinki.

16. Regarding the injuries sustained
by Km. Pooja and Km. Rinki, learned
counsel for the appellant argued that
injuries to the victim are superficial and
simple in nature; hence, the offence may
fall maximum in the ambit of Section 323
I.P.C.

17. Learned counsel for the appellant
referred the injuries of Km. Rinki (sister of
Km. Pooja) and argued that P.W.-5, Dr.
Ramji Soni who conducted the medical
examination of Km. Rinki also said that
injuries to her were superficial and simple
in nature. It is also said by doctor that such
type of injuries may also come with
hydroelectric acid, sulfuric acid, nitric acid
etc. but he could not tell as to what type of
acid was found on the body of the victim
and also it cannot be said that by above
acid there could be disfigurement or
disability; doctor also did not mention the
degree of the injuries but learned counsel
for the appellant did not refer to the injuries
of main victim Km. Pooja. For ready
reference Section 326-A I.P.C. is being
reproduced as under:-

"Section 326-A. Whoever causes
permanent or partial damage or deformity
to, or bums or maims or disfigures or
disables, any part or parts of the body of a
person or causes grievous hurt by throwing
acid on or by administering acid to that
person, or by using any other means with
the intention of causing or with the
234 INDIAN LAW REPORTS ALLAHABAD SERIES
knowledge that he is likely to cause such
injury or hurt, shall be punished with
imprisonment of either description for a
term which shall not be less than ten years
but which may extend to imprisonment for
life, and with fine;

Provided that such fine shall be
just and reasonable to meet the medical
expenses of the treatment of the victim;

Provided further that any fine
imposed under this section shall be paid to
the victim."

18. I carefully perused the injury
reports of Km. Pooja and Km. Rinki.
Medical examination of Km. Pooja was
conducted by P.W.-4, Dr. Vinay Kumar
Srivastava. In medical report prepared by
the said doctor Exb. KA-2, following
injuries were found on the body of Km.
Pooja:-

Superficial
to
deep
seated
corrosive burn spread in patches over
whole face both side and both side of
forehead, front and left side of neck, upper
chest both side, left arm, left forearm, right
arm front, right forearm front, right lower
thigh front, front of left lower thigh, left
upper leg and left knee.

19. In this report, it is opined by the
doctor that injuries were superficial to deep
seated corrosive burn involving the area as
described above, covering about 33 per
cent of total body surface area. Doctor has
opined that these injuries were grievous in
nature duration of which was about fresh.

20. In his statement as P.W.-4, Dr.
Vinay Kumar Srivastava has well proved
the above injury report as Exb. KA-2 and
corroborated these medical report with the
statement made before the trial court.
Hence, this case falls within the ambit of
Section
326-A
of
I.P.C.
Medical
examination of Km. Rinki was conducted
by P.W.-5 Dr. Ramji Soni who prepared
her medical report which is proved by him
as Exb. KA-3 in which five injuries are
recorded in Exb. KA-3 which were mainly
on her shoulder and arms; her above
injuries were simple in nature; in fact Km.
Rinki sustained burn injuries at the time
when acid was thrown mainly on Km.
Pooja and since Km. Rinki was with her at
that time, hence she also got sprinkles of
acid on her body.

21. In this case, P.W.-1 Km Pooja is
main injured witness and star witness of
prosecution as she has stated that on
10.05.2013 at about 4:30 AM in the
morning she was going to ease herself out
with her sister and her mother and when
she reached on the road, the accused who
was already there, threw acid from a box in
his hand on her due to which she sustained
serious burn injuries. In her crossexamination there was nothing which could
weaken the statement made by her; in fact
in
cross-examination,
two
different
suggestions were given to Km. Pooja; one
suggestion is given that her mother threw
the acid on her body taken out from the
battery before her father and second
suggestion was given that at the time of
occurrence it was night and nobody
identified the accused. So these are
contradictory suggestions, so prosecution
has failed to put his defence properly.

22. P.W.-2 Km. Rinki was also crossexamined at length but there were no
discrepancy in her statement which could
adversely affect the prosecution case. One
suggestion given to P.W.-2 Km. Rinki is
that being step-mother, Smt. Belmati used
to beat Km. Pooja due to which she herself
poured inflammable substance upon her.
8 All. Khushabe Ali Vs. State of U.P.
235
The prosecution has failed to put its
defence case. Eye witnesses P.W.-1, Km
Pooja is the main injured in this case and
her testimony carries much weight.

23. In Balwan and others Vs. State of
Haryana,
passed
in
Criminal
Appeal
No.1842 of 2014 Hon'ble Apex Court held
that "normally, an injured witness would
enjoy greater credibility because he is the
sufferer himself and thus, there will be no
occasion for such a person to state an
incorrect version of the occurrence, or to
involve anybody falsely and in the bargain
protect the real culprit. It is trite law that
evidence of injured witness, being a stamped
witness, is accorded a special status in law.
This is as a consequence of the fact that
injuries to the witness is an inbuilt guarantee
of his presence at the scene of the crime and
because the witness would not want to let
actual assailant go unpunished."

24. P.W.-1 Km. Pooja and P.W.-2 Km.
Rinki have fully supported the prosecution
case in their respective statements and their
statements were fully corroborated by
medical evidence as discussed above, and
prosecution has succeeded to prove its case
against the accused beyond reasonable doubt.

25. No other point was raised from the
side of accused-appellant.

26. Hence, in my opinion, prosecution
version is consistent and the conviction and
sentence recorded by the learned trial court
below is correct and it has rightly convicted
the accused-appellant which does not call for
any interference, as a result, the appeal is
liable to be dismissed.

27. The appeal is accordingly,
dismissed.
----------
(2021)08ILR A235
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.07.2021

BEFORE

THE HON'BLE MOHD. ASLAM, J.

Crl. Misc. Ist Bail Application No. 3179 of 2021

Khushabe Ali ...Applicant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Harish Kumar Yadav, Sri Keshari Nath
Tripathi

Counsel for the Opposite Party:
A.G.A., Sri Pawan Kumar Shukla

A. Criminal Law - Code of Criminal Procedure,
1973-Section 439 - Indian Penal Code, 1860Sections 498-A, 323, 504, 506, 354 - Dowry
Prohibition Act, 1961-Section 3⁄4-applicationgrant
of
bail-applicant
and
co-accused
demanded dowry coupled with torture and
beating her badly and subjected to unnatural
intercourse by all accused-but in her
statement u/s 164 Cr.P.C., victim confined
herself regarding the demand of dowry and
harassment and offence of sodomy was
committed by her husband-no injury was
found on the body of victim-no criminal
history of the accused. (Para 1 to 12)

The application is allowed. (E-5)

(Delivered by Hon'ble Mohd. Aslam, J.)

1. Heard Sri Keshari Nath Tripathi,
learned counsel for the applicant, learned
A.G.A for the State and informant counsel,
Pawan Kumar Shukla and perused the
record.

2. It has been argued by learned
counsel for the applicant that applicant is