# Rajendra Prasad Pandey (In Jail) v. State of U.P

- **Citation:** (2021) 1 ILRA 1170
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-10
- **Case number:** Criminal Appeal No. 3345 of 2003
- **Bench:** Ramesh Sinha, Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-prasad-pandey-in-jail-v-state-of-u-p-46106
- **Pages:** 22

## Headnote

Indian Evidence Act, 1872- Section 154-
Hostile Witness- Injured witnesses- No
corroboration with medical- The presence
of (PW-2), (PW-4) and (PW-12) are
concerned although PW-2 and PW-4 have
been brought forward as the two injured
eye
witnesses
but
they
have
not
supported the prosecution case and have
been declared hostile. Even (PW-12) the
other eye witness who is said to be
1 All. Rajendra Prasad Pandey Vs. State of U.P.
1171
accompanying PW-2 while they were on
their way to attend the call of the nature
also did not support the prosecution case
and has been declared hostile- The
medical evidence does not corroborate at
all with the prosecution version.

It is settled law that testimony of a hostile
witness can be considered to the extent it
supports the case of the prosecution. However,
where the witness is hostile completely and his
injuries are also not corroborated from the
medical, it would be unsafe to rely upon such
testimony.

Criminal Law-Indian Penal Code, 1860-
Section 376- In so far as the statement of
''R' recorded under Section 164 Cr.P.C. is
concerned, she in Court has resiled from it
and has in very specific terms stated that
she had deposed under the threat of
police.
The
deposition
given
in
the
statement recorded under Section 164
Cr.P.C. remains uncorroborated.

The court cannot secure the conviction of the
accused where the prosecutrix not only resiles from
her statement u/s 164 Cr.Pc but also fails to support
the case of the prosecution and the medical also fails
to corroborate the case of the prosecution.

Indian Penal Code, 1860- Section 376(2)
(g) - Section 34 IPC- Conviction under- It
is settled law that common intention or
the intention of the individual concerned
in furtherance of the common intention
could
be
proved
either
from
direct
evidence or by inference from the acts or
attending circumstances of the case and
conduct of the parties. Direct proof of
common intention is seldom available, and
therefore, such intention can only be
inferred from the circumstances appearing
from the proved facts of the case and the
proved circumstances.

Although common intention can only be inferred
from the proved facts and circumstances but
where the prosecution witnesses fail to prove
the facts and attending circumstances, such
intention cannot be inferred so as to convict the
accused with the aid of section 34.
Since
all
the
prosecution
witnesses
(excluding the ones who were part of
interrogation) have not supported the
prosecution case and have been declared
hostile, the corroboration through medical
evidence
is
also
not
available,
the
statement of ''R' recorded under Section
164 Cr.P.C. remains uncorroborated and
also that the site plan does not show the
place from where the eye witnesses are
said to have seen the present occurrence,
it is very unsafe to rely on the prosecution
case as put forward.

Criminal Appeal allowed. (E-2) (Para 45, 47,
49, 50, 51, 52)

Judgements/ Case law relied upon: -

## Text

_Characters 0–39,967 of 76,612. This is a partial read: ask again with offset=39967 for what follows._

1170 INDIAN LAW REPORTS ALLAHABAD SERIES
Settlement Officer of Consolidation would
be free to determine in accordance with
law. It is also clarified that in working out
the shares of parties in the Khata in
question the legal representatives of the
original petitioner Ram Dei, those of
original respondents no. 3, Ramji besides
the LRs of original respondent nos. 4 and 5,
Jagardev and Mukhdev, respectively, shall
be heard.

68. To sum up, this matter would
have to go back to the Settlement Officer of
Consolidation, who would be obliged to
decide afresh, on the basis of evidence on
record or some further evidence, if
forthcoming. The issue whether the sale
deed dated 15.02.1960 was executed by
Sona Kunwar or by an impostor shall be
gone into and decided. To this end, the
Settlement Officer of Consolidation would
have to decide the question whether Sona
Kunwar-I or Sona Kunwar-II is the genuine
person. The issues/ questions that have
been finally determined by this Court are
no longer open to the Authorities below to
examine. It is also clarified that except for
the two counts on which this matter would
stand remanded to the Settlement Officer of
Consolidation, no other or further or fresh
issues would be open to the parties to
canvas.

69. In the result, this petition
succeeds and is allowed in part. The
impugned orders passed by the Deputy
Director of Consolidation, Ghazipur dated
26.02.1985 and the Settlement Officer of
Consolidation, Ghazipur dated 04.12.1972
are hereby quashed. The five appeals,
originally filed by Smt. Sona Kunwar and
Smt. Ram Dei shall be decided afresh by
the Settlement Officer of Consolidation,
after necessary substitution of the parties'
legal representatives in accordance with
law and hearing all parties concerned,
bearing in mind what has been said in the
body of this judgment. The Settlement
Officer of Consolidation concerned shall
endeavour to decide the appeals within six
months of receipt of a certified copy of this
judgment. Till decision of those appeals by
the Settlement Officer of Consolidation,
status quo regarding possession, nature and
character of the land in dispute as exists
today, shall be maintained by the parties.
Costs easy.
----------
(2021)01ILR A1170
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.12.2020

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE SAMIT GOPAL, J.

Criminal Appeal No. 3345 of 2003
with
Criminal Appeal No. 3371 of 2003

Rajendra Prasad Pandey
 ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri M.C. Chaturvedi, Sri Bed Kant Mishra,
Sri Dwivedi S.C., Sri Sanjay Kumar

Counsel for the Opposite Party:
A.G.A.

Indian Evidence Act, 1872- Section 154-
Hostile Witness- Injured witnesses- No
corroboration with medical- The presence
of (PW-2), (PW-4) and (PW-12) are
concerned although PW-2 and PW-4 have
been brought forward as the two injured
eye
witnesses
but
they
have
not
supported the prosecution case and have
been declared hostile. Even (PW-12) the
other eye witness who is said to be
1 All. Rajendra Prasad Pandey Vs. State of U.P.
1171
accompanying PW-2 while they were on
their way to attend the call of the nature
also did not support the prosecution case
and has been declared hostile- The
medical evidence does not corroborate at
all with the prosecution version.

It is settled law that testimony of a hostile
witness can be considered to the extent it
supports the case of the prosecution. However,
where the witness is hostile completely and his
injuries are also not corroborated from the
medical, it would be unsafe to rely upon such
testimony.

Criminal Law-Indian Penal Code, 1860-
Section 376- In so far as the statement of
''R' recorded under Section 164 Cr.P.C. is
concerned, she in Court has resiled from it
and has in very specific terms stated that
she had deposed under the threat of
police.
The
deposition
given
in
the
statement recorded under Section 164
Cr.P.C. remains uncorroborated.

The court cannot secure the conviction of the
accused where the prosecutrix not only resiles from
her statement u/s 164 Cr.Pc but also fails to support
the case of the prosecution and the medical also fails
to corroborate the case of the prosecution.

Indian Penal Code, 1860- Section 376(2)
(g) - Section 34 IPC- Conviction under- It
is settled law that common intention or
the intention of the individual concerned
in furtherance of the common intention
could
be
proved
either
from
direct
evidence or by inference from the acts or
attending circumstances of the case and
conduct of the parties. Direct proof of
common intention is seldom available, and
therefore, such intention can only be
inferred from the circumstances appearing
from the proved facts of the case and the
proved circumstances.

Although common intention can only be inferred
from the proved facts and circumstances but
where the prosecution witnesses fail to prove
the facts and attending circumstances, such
intention cannot be inferred so as to convict the
accused with the aid of section 34.
Since
all
the
prosecution
witnesses
(excluding the ones who were part of
interrogation) have not supported the
prosecution case and have been declared
hostile, the corroboration through medical
evidence
is
also
not
available,
the
statement of ''R' recorded under Section
164 Cr.P.C. remains uncorroborated and
also that the site plan does not show the
place from where the eye witnesses are
said to have seen the present occurrence,
it is very unsafe to rely on the prosecution
case as put forward.

Criminal Appeal allowed. (E-2) (Para 45, 47,
49, 50, 51, 52)

Judgements/ Case law relied upon: -

1. C. Muniappan & ors. Vs St. of T.N, (2010) 9
SCC 567

(Delivered by Hon'ble Samit Gopal, J.)

1. The aforesaid criminal appeals are
connected together and arise out of
judgement and order dated 17.07.2003
passed by the Special Judge, SC / ST Act,
Kanpur Dehat in Special Session Trial No.
28 of 2002 (State of U.P. Vs. Rajendra
Prasad Pandey and Another) whereby the
appellant Rajendra Prasad Pandey has been
convicted and sentenced under Section 452
I.P.C. for one year Rigorous Imprisonment,
under Section 3(1)(x) of the Scheduled
Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 for one year Rigorous
Imprisonment and a fine of Rs. 1000/-,
under
Section
376
I.P.C.
to
life
imprisonment, under Section 3(2)(v) of the
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 to life
imprisonment and a fine of Rs. 1000/-,
Section 323 read with Section 34 I.P.C. to
six months Rigorous Imprisonment, under
Section 3(1)(x) of the Scheduled Castes
and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 to six months
1172 INDIAN LAW REPORTS ALLAHABAD SERIES
Rigorous Imprisonment and under Section
504
I.P.C.
to
six
months
Rigorous
Imprisonment.

The accused / appellant Sunil
Kumar Singh has been convicted and
sentenced under Section 452 I.P.C. to one
year Rigorous Imprisonment, under Section
3(1)(x) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities)
Act,
1989
for
one
year
Rigorous
Imprisonment and a fine of Rs. 1000/-,
Section 376 read with Section 34 I.P.C. to
life imprisonment, under Section 3(2)(5) of
the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 to life
imprisonment and a fine of Rs. 1000/-,
Section 323 read with Section 34 I.P.C. to
six months Rigorous Imprisonment, under
Section 3(1)(x) of the Scheduled Castes
and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 to six months
Rigorous Imprisonment and under Section
504
I.P.C.
to
six
months
Rigorous
Imprisonment.

It has been ordered that in default
of payment of fine both the accusedappellants
shall
undergo
six
months
additional imprisonment. The trial court has
ordered the sentences to run concurrently.
The benefit of Section 428 Cr.P.C. has been
ordered to be extended to the accused -
appellants.

2. In view of the legislative mandate
as contained in Section 228-A of the Indian
Penal Code, 1860 and the observations
made by the Hon'ble Supreme Court in
various judgements the identity of the
prosecutrix / victim is not being disclosed
and she will be referred to as ''R'
hereinafter.

3. The prosecution case as per the
First Information Report lodged by ''R' /
P.W.-1 is that on 31.10.2000 at about 2:00
A.M. she was present in her house wherein
Inspector Rajendra Prasad Pandey and
Constable Sunil reached her house and told
her to open the door citing some reason of
some accused on which she opened the
door and then both the persons caught hold
of her, took her towards the field wherein
Inspector Pandey forcibly threw her on the
ground and committed rape on her. It is
further stated in the First Information
Report that at that time one Aashiq Ali son
of Khuda Baksh and Ibrar son of Tasveer
Ali who are co-villagers came there to
attend the call of nature and on seeing them
the first informant started shouting on
which the said two persons caught hold of
Aashiq Ali and had mercilessly beaten him.
On hearing the shouts and shrieks many
persons of the village reached there and the
Inspector was apprehended by them but
Constable Sunil somehow managed to run
away. She then states that her report be
registered and appropriate action be taken.

4. The application for lodging of the
First Information Report was given by ''R'
to the police of which Shiv Narayan Singh
is the scribe, the same is marked as Exb:
Ka-1 to the records. On the basis of the said
application a First Information Report was
registered on 31.10.2000 at 11:40 AM at
Police Station Bilhaur, District Kanpur
Dehat as Case Crime No. 490 of 2000,
under Sections 376, 323, 34 I.P.C. and
Section 3(1)(x) of the Scheduled Castes
and Scheduled Tribes Act against SubInspector R.P. Pandey and Constable Sunil
Kumar Singh. The said First Information
Report is marked as Exb: Ka-7 to the
records.

5. The prosecutrix / victim ''R' was
medically examined on 31.10.2000 at about
09:00 PM by Dr. Manju Agarwal P.W.- 14
1 All. Rajendra Prasad Pandey Vs. State of U.P.
1173
at Duffrin Hospital, Kanpur. The medical
examination report is marked as Exb: Ka-2
to the records. The doctor conducting the
medical examination found no mark of
injury on the external body. Further no
mark of injury was seen on the private part
of body. The hymen was torn and an old
tear was present. The vagina admitted two
fingers easily. The victim was referred for
X-Ray for the opinion about her age.

6. A supplementary report dated
04.11.2000 was prepared by Dr. Manju
Agarwal which is marked as Exb: Ka-3 to
the records. While, placing reliance on
the X-Ray report and pathological report
and the medical examination report the
doctor opined that no definite opinion
regarding rape can be given as she is used
to intercourse. The age of the victim was
opined to be above 25 years. The said
report is marked as Exb: Ka-3 to the
records.

7. The accused-appellant / Rajendra
Prasad Pandey was also subjected to
medical examination on 31.10.2000 at
about 11:20 PM by Dr. R.S. Pratihar
(P.W.- 15). The doctor conducting the
medical examination has mentioned in
the said report that no smell of alcohol is
coming out from his breath. He is in full
sense and not under intoxication. While,
examining the private part of the accused
the doctor did not find any injury or any
semen on it. The opinion as arrived by
him is that he is not under intoxication
and is in full sense. Further there is no
semen seen on the tip of his penis. The
said
medical
examination
report
is
marked as Exb: Ka-6 to the records.

8. Aashiq Ali (P.W.- 2) was
examined on 31.10.2000 at about 12:15
PM by Dr. R.S. Pratihar (P.W.- 15). The
doctor found the following injuries on his
person:-

(1) Contused 4 cm x 1.2 cm on
back side of left fore-arm 6 cm below the
elbow. Red colour.

(2) Contusion Swelling 9 cm x
3.5 cm on antero lateral aspect of the left
leg. 9 cm below the left knee, red colour.

(3) LW of size 3 cm x 2 cm x
Muscle on back side of Rt. Leg 3 cm
below the knee.

The injuries were opined to be
simple in nature having a duration of
about half day and caused by hard and
blunt
object.
The
said
medical
examination report is Exb: Ka-5 to the
records.

9. Rakesh (P.W.-4) was medically
examined on 31.10.2000 at 12:25 PM by
Dr. R.S. Pratihar (P.W.- 15) and the doctor
found the following injuries on his person:-

(1) Contusion 4 cm x 2 cm on Rt.
Side head11.5 cm above the Rt. Ear. Red in
colour.

(2) Abraded Contusion 2.5 cm x
1.5 cm on dorsal side of left hand-- just
above the root of the left ring and little
finger, reddish / blue colour.

C/o pain on both side of buttock

C/o pain on Left side chest.

The injuries were opined to be
simple in nature having a duration of about
half day and caused by hard and blunt
object
/
weapon. The
said
medical
examination report is Exb: Ka-4 to the
records.

10. Certain clothes being a sari,
petticoat and an underwear were sent to the
chemical analyst for analysis. A report
dated 12.01.2001 was sent by the chemical
analyst in which after analysis he found
1174 INDIAN LAW REPORTS ALLAHABAD SERIES
spermatozoa to be present on sari and
underwear which were marked as item nos.
1 & 3 respectively and also human semen
were found on the said items. On the item
no. 2 being the petticoat no spermatozoa or
semen was found. The said report is Exb:
Ka-15 to the records.

11. The investigation concluded and a
charge-sheet
dated
17.01.2001
was
submitted against Rajendra Prasad Pandey
the appellant in Criminal Appeal No. 3345
of 2003, under Sections 376, 354, 452, 323,
504, 34 I.P.C. and Section 3(2)(5) of the
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 and
against Sunil Kumar Singh the accused in
Criminal Appeal No. 3371 of 2003 under
Sections 354, 323, 504, 452, 34 I.P.C. and
3(1)(x) Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989
as an absconder. The same is Exb: Ka-14 to
the records.

12. The trial court vide its order dated
15.03.2002 framed charges under Sections
452 I.P.C. read with Section 3(1)(x) of the
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989,
Section 376 I.P.C. read with Section 3(2)(5)
of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989,
Section 323 / 34 I.P.C. read with Section
3(1)(x) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities)
Act, 1989 and Section 504 I.P.C. read with
Section 3(1)(x) of the Scheduled Castes
and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 against accused
Rajendra Prasad Pandey.

13. Against accused Sunil Kumar
Singh, the trial court vide its order dated
15.03.2002 framed charges under Sections
452 I.P.C. read with Section 3(1)(x) of the
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989,
376/34 I.P.C. read with Section 3(2)(5) of
the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989,
Section 323/34 I.P.C. read with Section
3(1)(x) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities)
Act, 1989 and Section 504 I.P.C. read with
Section 3(1)(x) of the Scheduled Castes
and Scheduled Tribes (Prevention of
Atrocities) Act, 1989.

14. Both the accused persons pleaded
not guilty and claimed to be tried. They
have also led their defence by way of
producing defence witnesses.

15. The prosecution in order to prove
its case produced ''R' as P.W.-1 who is the
prosecutrix / victim and the first informant
also. Aashiq Ali (P.W.-2) is one of the
injured persons and a co-villager, Rajesh
Kumar (P.W.-3) is also a co- villager,
Rakesh (P.W.-4) is the other injured person
and a co-villager who runs a general
merchant shop in the village, Sipahi Lal
(P.W.-9) is a relative of the husband of the
prosecutrix / victim being the elder brother
of the brother-in-law of Nandram who is
the husband of the prosecutrix / victim.
Ibrar (P.W.-12) is the nephew of Aashiq Ali
as the eye-witness of the incident. Amongst
the formal witnesses Shiv Narain (P.W.-5)
is the scribe of the First Information
Report, Smt. Samina wife of Ibrar is the
daughter-in-law of Aashiq Ali, Shri Krishna
(P.W.-7) is the witness of the recovery of
clothes of the accused and the victim,
Dinesh Kumar (P.W.-8) is the witness like
Shri Krishna (P.W.-7) as being the witness
of the clothes of the accused and the victim,
Dr. Ram Narain (P.W.-10) provided first aid
and dressing to Aashiq Ali, Nandram (P.W.-
11) is the husband of ''R', Praveen Kumar
1 All. Rajendra Prasad Pandey Vs. State of U.P.
1175
(P.W.-13) is a Constable in police who
states to have got his ravangi recorded at
the police station along with accused Sunil
Kumar Singh for duty in village Dalelpur,
Dr. Manju Agarwal (P.W.-14) conducted
the medical examination of ''R', Dr. R.S.
Pratihar (P.W.-15) conducted the medical
examination of Aashiq Ali (P.W.-2) &
Rakesh (P.W.-4) and Rajendra Prasad
Pandey the accused, Dharmendra Kumar
Mishra (P.W.-16) is the head Constable
who transcribed the First Information
Report, prepared its chik and states to have
received an information on telephone
through Village Pradhan that Sub-Inspector
Rajendra
Prasad
Pandey
has
been
apprehended
by
villagers,
Smt.
Kamleshwari Chand (P.W.-17) is the Circle
Officer and is the second Investigating
Officer who took up the investigation from
01.11.2000 from Sri B.N. Chaturvedi,
Circle Officer, Bilhaur, concluded the
investigation and submitted the chargesheet, B.N. Chaturvedi, Circle Officer
(P.W.-18) is the Investigating Officer who
had the case in his hand up to 01.11.2000
and then the same was transferred to Smt.
Kamleshwari Chand (P.W.-17) and lastly,
Sukh Sagar Shukla, Sub-Inspector (P.W.-
19) who received information about some
dispute between Sub-Inspector Rajendra
Prasad Pandey and Constable Sunil Kumar
Singh with the villagers through the head
Constable of Police Station- Bilhaur and
also
the
fact
that
they
have
been
apprehended by the villagers who then
proceeded to the place of occurrence along
with other police personnels.

16. In defence, accused / Rajendra
Prasad Pandey produced two witnesses
being Krishna Narain Bhatt the Station
Officer, Police Station Bidhnu as D.W.-1
who has stated about some dispute between
S.B. Pathak, S.P.R.A. with the accusedappellant / Rajendra Prasad Pandey and
then Madan Prasad Sharma, Sub-Inspector
Police Station Bidhnu (D.W.-2) who also
states about some dispute between S.B.
Pathak, S.P.R.A. and accused-appellant /
Rajendra Prasad Pandey.

17. The trial court after considering
the entire evidence on record came to the
conclusion that there is sufficient evidence
against accused-appellant / Rajendra Prasad
Pandey for committing rape on ''R'. In so
far as, the accused Sunil Kumar Singh is
concerned the trial court came to a
conclusion that although Sunil Kumar
Singh did not commit rape on the
prosecutrix but still under the amended
Section 376(2)(g) I.P.C., he is guilty of
gang rape and although he has not
committed actual rape but still would be
guilty of the same and further that ''R' is a
downtrodden women belonging to the
Scheduled Castes / Scheduled Tribes
community, hence, provisions of Scheduled
Castes and Scheduled Tribes Act would
also be applicable and thus convicted the
accused persons as stated above.

18. We have heard Sri Bed Kant
Mishra, learned counsel for the appellants
in both the appeals and Mrs. Archana
Singh, learned A.G.A. for the State and
perused the record. Since both the appeals
arise out of a common judgement and
order, the same are being decided by this
judgement.

19. Learned counsel for the appellants
made the following submissions:-

(i) The prosecutrix / victim is a
major lady. She is a married women. There
is no evidence whatsoever in the present
matter to show that rape has been
committed on her.
1176 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) The medical evidence does
not in any manner corroborate with the
prosecution case. The doctor did not find
any mark of injury either on the external
body of the prosecutrix or on her internal
part. She was opined to be used to sexual
intercourse. The link which comes forward
by
way
of
medical
evidence
for
corroborating an incident of rape is totally
missing as the doctor in the supplementary
medical examination report herself has
opined that no definite opinion about rape
can be given and she is used to intercourse.

(iii) All the prosecution witnesses
being ''R' (P.W.-1), Aashiq Ali (P.W.-2),
Rajesh Kumar (P.W.-3), Rakesh (P.W.-4),
Shiv Narain (P.W.-5), Smt. Samina (P.W.-
6), Shri Krishna (P.W.-7), Dinesh Kumar
(P.W.-8), Sipahi Lal (P.W.-9), Dr. Ram
Narain (P.W.-10), Nandram (P.W.-11) and
Ibrar (P.W.-12) have not supported the
prosecution case and have been declared
hostile.

(iv) The report of the chemical
examination cannot be given reliance upon
as a fact of corroboration as the witnesses
of the recovery of the said clothes being
Shri Krishan (P.W.-7) and Dinesh Kumar
(P.W.-8) have not supported the prosecution
case and have been declared hostile and as
such the said report is of no worth. Even if
the same is considered to be of any worth,
the same cannot be given credence as there
is no evidence whatsoever to show that the
stains present on the said clothes were due
to the act of rape as committed by the
accused-appellant and as such the same
cannot in any manner be linked and
associated with the present incident.

(v) The accused Rajendra Prasad
Pandey has come forward with a specific
defence of his superior police officer being
annoyed with him due to which he has been
falsely roped in for which two defence
witnesses were produced by him which
have wrongly been not disbelieved by the
trial court.

20. On the other hand, the learned
Additional Government Advocate for the
State opposed the submissions of the
learned counsel for the appellants on the
ground that although the said 12 witnesses
have been declared hostile but the manner
in which they have been declared hostile
shows that they were at some point of time
won over and thus they changed their
version before the trial court. The evidence
of the prosecutrix / victim is sufficient
enough to prove a case of rape. It is argued
that the statement of ''R' was recorded
under Section 164 Cr.P.C. wherein she very
clearly states about the entire story as to
how rape was committed on her. It is
argued that the present occurrence occurred
as stated by the prosecution at the date,
time and place by the accused persons
named therein. It is argued that since the
accused persons are police personnels, they
have won over the witnesses under threat
and pressure. It is argued that the appeal
lacks merit and is liable to be quashed.

21. ''R' (P.W.-1) is the prosecutrix /
victim and the first informant of the present
case. She in her exaimination-in-chief
states that on 30/31.10.2000 the accused
persons came to her house at about 2:00
A.M. At that time she, her five children,
Guddi wife of her son and her nandoi /
Sipahi Lal were present. Her husband
Nandram had gone to village Biharipur.
The accused persons came and from
outside asked her to open the door as some
persons of bad antecedents were living
there and a raid is being conducted for
arresting them. Sipahi Lal the nandoi of ''R'
opened the door. Both the accused were in
their uniforms. Both of them disclosed their
name to her. She states that Inspector was
1 All. Rajendra Prasad Pandey Vs. State of U.P.
1177
not in a state of intoxication. She identifies
the accused in the court as Rajendra Prasad
Pandey and Sunil Kumar Singh Constable
and states that both of them were in their
uniform. She further states that both the
accused persons then took Sipahi Lal her
nandoi out of the house to a near by road
crossing. She was not taken out of the
house. She states that the accused persons
did not take her out of the house towards
the field. She further states that neither the
said persons assault her on her body nor
they committed rape on her. She further
states that she was then waiting for her
nandoi to return wherein 2-3 unknown
persons wearing kurta-pyjama came and
took her towards the field and all the said
03 persons committed rape on her against
her wish. She raised shouts on which
Aashiq Ali reached there. It was night. No
other person came. Aashiq Ali was not
assaulted by the said persons. While,
running he fell down and received injuries.
She states that Sipahi Lal was not beaten by
the accused persons present in court before
her. She states that the accused persons
were not apprehended by the villagers. She
went to the police station along with Shiv
Narain. The Inspector of police present at
Police Station Bilhaur had got her thumb
impression affixed on plain paper and had
told her that she may go back and her
report will be registered. She states to have
not dictated any First Information Report to
Shiv Narain. She further states that police
Inspector present there had himself got her
medically
examined
and
her
X-Ray
examination was also got conducted. She
states that the Inspector had taken her
petticoat and had taken the sari of her
daughter-in-law which was called from the
house. She states that no clothes of the
accused were taken before her. Bundle of
clothes present before the trial court were
opened from which the sari and the
petticoat were identified by ''R' as that of
her but she states that she does not know
about the underwear. The said witness was
then declared hostile at the request of the
A.D.G.C.
and
was
allowed
crossexamination. In the cross-examination ''R'
admits her thumb impression on the written
report. She denies the fact that the accused
persons took her from the house and
committed rape on her. She further denies
the fact that Aashiq Ali received injury
during the course of saving her from the
accused persons on which he was beaten by
them. Even the fact of beating Sipahi Lal
and Rakesh is being denied by her. She
denies the fact that the accused-appellant
Rajendra Prasad Pandey was apprehended
at the place of occurrence. She denies the
fact of getting a report prepared at the
village from Shiv Narain and then affixing
her thumb impression. To her statement
recorded under Section 161 Cr.P.C. twice,
she denies and states that she never gave
any such statement. While, being countered
to her statement recorded under Section
164 Cr.P.C. she states that the police
Inspector had threatened her that if she
does not give the statement as stated by
him then she would be implicated in a case
of charas. She states that she did not make
any complaint to any police official about
the fact that she was threatened to give the
name of the present accused persons in the
matter. To a suggestion that she has sided
with the accused persons who have
threatened her and as such she is giving
such statement, she denies. She further
denies the fact that the underwear of
accused Rajendra Prasad Pandey was taken
into custody in her presence. The trial court
drawing her attention to the statement
recorded
under
Section
164
Cr.P.C.
clarified to which she has stated that when
her statement was being recorded Inspector
Sukh Sagar Shukla was not standing inside
1178 INDIAN LAW REPORTS ALLAHABAD SERIES
the court but was standing outside and even
no police personnel was standing inside the
court then further in the cross-examination
she states that her elder son is aged about
22-23 years, she was married around 25
years back and there is no other person by
the same name as that of her and her
husband in the village.

22. Aashiq Ali (P.W.-2) states that on
the day and time of the incident or at any
time or date the accused persons did not
commit rape on ''R' and did not assault her.
He further states that even the said persons
did not assault him. He was declared
hostile
and
was
permitted
crossexamination by the A.D.G.C. In his crossexamination he denies giving any statement
under
Section
161
Cr.P.C.
to
the
Investigating Officer. To a suggestion that
he under pressure of the accused who are
police personnels and under threat is giving
the said statement and not stating the truth,
he denies. He further denies the fact that
under threat he and ''R' had given affidavit
in the court. He specifically denies that the
accused persons assaulted him as a result of
which he received injuries. To the fact that
villagers had apprehended the accused he
states that he does not know about it.

23. Rajesh Kumar (P.W.-3) is a
businessman, he states that on 30.10.2000
the accused persons at about 9:00 PM came
to his shop along with Constable Praveen.
He states that they did not instruct him to
call anyone. He further states that Dipu son
of Ram Asrey Katiyar was not called by
them through him. He states that Sipahi Lal
the relative of ''R' was present with them.
''R' was not with them. He further states
that neither Aashiq Ali was apprehended by
the accused persons nor he was beaten
before him. He even states that Aashiq Ali
did not get medical aid in front of him. He
further states that it is incorrect that ''R' was
with the accused persons and they were
assaulting her and had committed rape on
her. He states that the accused persons
stayed throughout the night at his shop. He
further states that Sipahi Lal the relative of
''R' was there for some time and then he
went back. This witness has also been
declared hostile and was permitted crossexamination by A.D.G.C. To his statement
recorded under Section 161 Cr.P.C., he
denies the same to have been given to
anyone. He further denies the fact that ''R'
was with the accused persons and they
were committing immoral acts on her. He
further denies that Aashiq Ali was also
present there, was beaten and was then
provided first aid. Lastly, to a suggestion
that the accused are police personnels and
as such under threat and pressure he is
giving a false testimony, he denies.

24. Rakesh (P.W.-4) is also a
businessman and a general merchant and is
also an injured. He states that on
30/31.10.2000 at about 2:00 PM Inspector
Rajendra Prasad Pandey and Constable
Sunil Kumar Singh came to his house and
Sunil Kumar Singh asked for a packet of
spices on which he while going down the
ladder he slipped and received injuries. He
states that it is incorrect that the accused
persons had assaulted him. He states that
the police personnels and persons of the
village took him to the doctor but he was
unconscious. He states to have re-gained
consciousness at his house after returning
from the hospital. He was informed by the
villagers that they and the police took him.
He states that he does not know that
Inspector Rajendra Prasad Pandey had
committed rape on ''R' who is the wife of
Nandram and further states that even he has
not heard of any such incident. He was then
declared hostile and the A.D.G.C. was
1 All. Rajendra Prasad Pandey Vs. State of U.P.
1179
permitted cross-examination. The witness
then denies his giving statement under
Section 161 Cr.P.C. and further states that
he did not give any such statement that on
the night of the present incident Inspector
Rajendra Prasad Pandey and Constable
Sunil Kumar Singh had assaulted him as a
result of which he received injuries. He
states that he has not heard on any such fact
that Inspector Rajendra Prasad Pandey had
committed rape on ''R' wife of Nandram
and senior police officials had come there
and further denies that he, ''R', Aashiq Ali
and Inspector Pandey were taken to the
police station and then were sent to the
hospital for medical examination. On a
suggestion that since the accused are police
personnels he is giving a false testimony
under their threat and pressure, he denies
the same.

25. Shiv Narain (P.W.-5) is the scribe
of the application given for lodging of the
First Information Report. He in his
examination-in-chief
identifies
his
handwriting
and
signature
on
the
application. He states that the Station
House Officer, Sukh Sagar Shukla dictated
him the same which he transcribed. He
states that no thumb impression of ''R' was
affixed in front of him. He identifies his
handwriting and signature and the said
document is marked as Exb: Ka-1 to the
records. He was also declared hostile and
the
A.D.G.C.
was
permitted
crossexamination. He denies the fact that ''R' had
dictated the First Information Report and
after reading it to her, her thumb
impression was got affixed. He denies that
the statement which he has given in court
in
the
examination-in-chief
that
the
application was dictated to him by Sukh
Sagar Shukla, Station House Officer is
because of threat and pressure of accused
persons. He denies his giving any statement
under Section 161 Cr.P.C. to anyone. He
further states that he did not make any
complaint to any police official or court
regarding the fact that the said application
was not dictated by ''R' but was dictated by
Sukh Sagar Shukla, Station House Officer.

26. Smt. Samina (P.W.-6) states that
Aashiq Ali is her father-in-law. She states
that her father-in-law was not assaulted by
police on 31.10.2000. She states that on
02.11.2000 she had not given any statement
to police. She was declared hostile and the
A.D.G.C. was permitted cross-examination.
To her statement recorded under Section
161 Cr.P.C., she states that she did not give
any
such
statement
that
the
police
personnels regarding assault in the night on
her father-in-law and Chhotey Lal had
managed first aid. She states that she does
not know the accused persons from before.
To a suggestion that the accused persons
are police personnels and she is giving the
said statement under threat and pressure,
she denies the same.

27. Shri Krishna (P.W.-7) has been
produced as a witness of the recovery of
clothes of the accused, Rajendra Prasad
Pandey and ''R'. In his examination-in-chief
he denies the fact that any recovery of any
underwear of Rajendra Prasad Pandey and
sari and petticoat of ''R' were effected
before him and Dinesh Kumar. He states
that they were made to sign on plain papers
and even ''R' did not sign before them. He
states that nothing was written on those
papers. He identifies his signatures on two
papers and states again that when he had
signed them then there was nothing written
on them. He was declared hostile and the
A.D.G.C. was permitted cross-examination.
He states that he knows Inspector Rajendra
Prasad Pandey who was posted at the
Police Station- Bilhaur. He denies the fact
1180 INDIAN LAW REPORTS ALLAHABAD SERIES
that clothes of ''R' and the accused were
recovered before him. He further states that
it is incorrect to state that the recovery
memo was drawn, read out to them and
then they were made to sign on it. On his
statement recorded under Section 161
Cr.P.C., he states that he has not given any
such statement to anyone and he has not
given any such statement that police
Constable Dharmendra Mishra had taken
the clothes of the accused and ''R' in
possession. To a suggestion that he is
giving the statement under threat and
pressure of police Inspector, he denies the
same.

28. Dinesh Kumar (P.W.-8) is also
said to be a witness of the recovery of the
clothes of ''R' and the accused. As like Shri
Krishna (P.W.-7) he has also been declared
hostile and has stated the same as has been
stated by Shri Krishna (P.W.-7) and as such
the same is not being repeated being
identical.

29. Sipahi Lal (P.W.-9) is a relative of
''R'. The relationship of Sipahi Lal has been
disclosed by him and he states to be the
elder brother of Chedi Lal who is the
brother-in-law of Nandram the husband of
''R' and as such in short he is the elder
brother of the brother-in-law of the husband
of ''R'. He has been addressed by ''R' a her
nandoi. In his examination-in-chief he
states that on 30/31.10.2000 he was in the
house of Nandram in the night. In the house
on that day ''R' and her daughter-in-law
were present. Nandram was not in the
house and his son Ram Gopal had gone to
village Biharipur for processing of paddy.
He states that he, ''R', her two children, his
daughter had gone to the parental house of
''R'. He further states that in the night at
about 1-1:30 PM two police personnels
came who were not known to him since
before and they said to open the door
disclosing their identity and stating that
persons of bad antecedents are living there.
He states that it was dark and as such he
was unable to identify as to who was a
Constable and who was an Inspector. He
was then taken for some distance up to a
godown nearby which is of fertilizers and
there is a crusher nearby. He states that ''R'
was not taken to accompany them. He was
then in between questioned by them and
was then let off. He was even given one or
two slaps by them. He states that Aashiq
Ali was beaten by the police personnels
before him and they had got him provided
first aid. He further states that no Inspector
or Constable committed any immoral act
with ''R'. He further states that even ''R' did
not inform him of the police either
molesting her or committing any illegal act
on her. He further states that he did not
inform Nandram of any such incident of
rape and molestation being committed on
his wife by Inspector and Constable. He
was declared hostile and permitted crossexamination by the A.D.G.C. To his
statement recorded under section 161
Cr.P.C., he states that he had not given any
such statement to police. On seeing the
accused persons present in the court, he
states that he cannot tell as to they were the
two persons present at that night or not. On
a suggestion to him that the accused are
police Inspector and Constable and under
threat and pressure he is giving such
statement, he denies to the same.

30. Dr. Ram Narain (P.W.-10) is said
to be the doctor who had provided first aid
and dressing to Aashiq Ali. In the
examination-in-chief he states that on
30/31.10.2000 at about 12:00 PM he had
done dressing and provided first aid to
Aashiq Ali for the injuries received by him.
He states that he was not brought by the
1 All. Rajendra Prasad Pandey Vs. State of U.P.
1181
accused persons present in the court. He
states that Aashiq Ali had come all alone.
He further states that Aashiq Ali had
informed him that he had a boil which had
burst. He further states that ''R' was not
accompanying Aashiq Ali. He states that
blood was oozing out of the boil present on
the body of Aashiq Ali. He further states
that Aashiq Ali did not give him money at
that time but stated that he will give it in
the morning. He denies the fact that Aashiq
Ali was brought to him by Inspector
Rajendra Pradad Pandey and Constable
Sunil Kumar. He was declared hostile and
the
A.D.G.C.
was
permitted
crossexamination. He was read over his
statement recorded under Section 161
Cr.P.C. to which he states that he did not
give any such statement that Inspector
Rajendra Pradad Pandey along with ''R' and
her relative Sipahi Lal and Constable Sunil
Kumar Singh had come with Aashiq Ali for
providing him first aid and after the
dressing was done Inspector Rajendra
Pradad Pandey told him that he will give
money in the morning. To a suggestion, he
states that it is incorrect that he is giving
such statement under threat and pressure of
Inspector and Constable.

31. Nandram (PW-11) is the husband
of ''R'. He states that in the night of
30/31.10.2000 he had gone for the
harvesting paddy crop and his son also
accompanied him. He states that his wife,
children and his daughter-in-law were in
the house. He further discloses the name of
his wife who is prosecutrix/victim in this
matter.