# Ram Sanehi v. State of U.P

- **Citation:** (2025) 7 ILRA 259
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-07-10
- **Case number:** Jail Appeal No. 1192 of 2020
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-sanehi-v-state-of-u-p-53505
- **Pages:** 13

## Headnote

Sections 376(3), 342 IPC and Section 3/4 of the
POCSO Act was sustainable in light of serious
discrepancies in witness testimonies, lack of
corroborative medical and forensic evidence,
and absence of independent witnesses.

HEADNOTES
Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section - 161, 164,
313, 383, - Indian Penal Code, 1860 -
Section - 352, 376, 376(3), 504, -
Protection
of
Children
from
Sexual
Offences (POCSO) Act, 2012 - Section - 3,
4, 4(2)- Jail Appeal - conviction and sentenced
- offence of Rape and threat - FIR - Minor
victim alleged that the appellant raped her after
confining her in his room, threatened to kill her
if she spoke out, and was rescued six hours
later by family and neighbors - statements
recorded - custody - investigation and Trial -
Statement - medical examination report -
charge-sheet
-
conviction
-
during
trial
pprosecution examine nine witnesses and relied
upon the medical reports, school records, site
plan, recovery memo - in defence appellant
denied all charges and claimed false implication
by police - Trial court convicted & sentenced
the appellant u/Sections 376(3), 342 IPC and
Section 3/4(2) POCSO Act relying primarily on
witness testimonies and circumstantial evidence,
260 INDIAN LAW REPORTS ALLAHABAD SERIES
but acquitted u/Section 504 IPC - Appeal -
Court finds that - prosecution's case unreliable,
especially
-
(i)
minor
contradictions
in
witnesses' statements and site plan were
deemed natural - Medical report showed no
recent sexual activity, but court prioritized
witness
testimonies
-
alleged
motive
of
animosity (burning of saree) was dismissed as
insufficient for false implication - (ii) appellant
had languished in jail for over nine years
without support or legal aid, and suspecting
possible property-related motives behind the
false implication - (iii) Moreso, the courts
cannot shut their eyes to the ground realities
from the fact that now a days it has become
very common to level allegations of commission
of serious and heinous offences - held - Trial
court has convicted the appellant without proper
appreciation of evidence on record and without
giving
due
weight
to
the
medico-legal
examination
report
and
the
pathological
examination report of the victim - hence, the
finding of guilt recorded by the trial court are
unsustainable in the eyes of law - consequently,
the appeal is allowed - appellant is acquitted of
all the charges - direction issued for his
immediate release, and to restore possession of
his house. (Para - 49, 50, 52, 53, 54,55, 56)
Appeal Allowed. (E-11)

CASE LAW CITED
Raj Kumar @ Raju Yadav vs. State of Bihar,
(2006) 9 SCC 589, Manoj Mishra @ Chhotkau
vs. State of U.P., (2021) 10 SCC 763.

LIST OF ACTS
Code of Criminal Procedure, 1973 - Indian Penal
Code, 1860 - Protection of Children from Sexual
Offences (POCSO) Act, 2012.

LIST OF KEYWORDS
Jail Appeal - Amicus Curiae - Appellant - Victim
- custody - False implication - Medico-legal
contradiction
-
Minor
discrepancies
-
Independent
witness
absence
-
Tarpaulin
concealment - Loft recovery - Property dispute
motive
-
Judicial
scrutiny
-
Wrongful
incarceration - Bail neglect - - Sentence
reduction - Acquittal - restoration of possession
of house.

CASE ARISING FROM
Judgment Dated 03.11.2020 passed by Special
Judge, POCSO Act, Hardoi in Special Session
Trial No. 329/2016 - Case Crime No. 81/2016,
Police Station Harpalpur, District Hardoi.

APPEARANCE OF PARTIES
Counsel for Appellant: - Rehman Ahmad
Siddiqui Amicus Curiae.
Counsel for Respondent: - G.A. Mohd. Asif Khan
AGA

## Text

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7 All. Ram Sanehi Vs. State of U.P.
259
motive kept her at the residence of his
relative for about 20 days, where he not
only outraged the modesty of the victim but
also attempted rape by undressing her.
However, he could not commit intercourse
on account of her protest. The victim has
stated that the appellant had done bad work
with her. The victim reiterated and
supported the statement given under
Section 164 CrPC before the Magistrate in
her evidence during trial also. Nothing
could be extracted from her in crossexamination, which may create any doubt
on her version or about the veracity of her
evidence. The appellant also tried to
establish prior relationship with the victim
by producing certain letters, which have
been denied to be written by the victim by
her in evidence and no cogent material
could be placed on record to prove the
same. The delay in lodging the FIR has
properly been explained in the FIR itself
and in view of law laid down by the
Hon'ble Apex Court as discussed above,
the delay is immaterial in such cases,
particularly when the prosecution has
proved its case. The plea of implication of
the applicant on the ground of enmity could
not be proved by the appellant and no
evidence could be adduced to prove any
enmity. Thus, the impugned judgment and
order has been passed after considering the
evidence and material on record and the
appellant has rightly and in accordance
with law been convicted and punished
under Sections 363, 366, 376/511 and 354
IPC, therefore it does not call for any
interference by this Court. The appeal has
been filed on misconceived and baseless
grounds and it is liable to be dismissed.

29.
The
appeal
is,
accordingly,
dismissed.
----------
(2025) 7 ILRA 259
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 10.07.2025

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Jail Appeal No. 1192 of 2020

Ram Sanehi ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Jail Appeal, Rehan Ahmad Siddiqi A C

Counsel for the Respondent:
G.A.

ISSUE FOR CONSIDERATION
Whether the conviction of the appellant under
Sections 376(3), 342 IPC and Section 3/4 of the
POCSO Act was sustainable in light of serious
discrepancies in witness testimonies, lack of
corroborative medical and forensic evidence,
and absence of independent witnesses.

HEADNOTES
Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section - 161, 164,
313, 383, - Indian Penal Code, 1860 -
Section - 352, 376, 376(3), 504, -
Protection
of
Children
from
Sexual
Offences (POCSO) Act, 2012 - Section - 3,
4, 4(2)- Jail Appeal - conviction and sentenced
- offence of Rape and threat - FIR - Minor
victim alleged that the appellant raped her after
confining her in his room, threatened to kill her
if she spoke out, and was rescued six hours
later by family and neighbors - statements
recorded - custody - investigation and Trial -
Statement - medical examination report -
charge-sheet
-
conviction
-
during
trial
pprosecution examine nine witnesses and relied
upon the medical reports, school records, site
plan, recovery memo - in defence appellant
denied all charges and claimed false implication
by police - Trial court convicted & sentenced
the appellant u/Sections 376(3), 342 IPC and
Section 3/4(2) POCSO Act relying primarily on
witness testimonies and circumstantial evidence,
260 INDIAN LAW REPORTS ALLAHABAD SERIES
but acquitted u/Section 504 IPC - Appeal -
Court finds that - prosecution's case unreliable,
especially
-
(i)
minor
contradictions
in
witnesses' statements and site plan were
deemed natural - Medical report showed no
recent sexual activity, but court prioritized
witness
testimonies
-
alleged
motive
of
animosity (burning of saree) was dismissed as
insufficient for false implication - (ii) appellant
had languished in jail for over nine years
without support or legal aid, and suspecting
possible property-related motives behind the
false implication - (iii) Moreso, the courts
cannot shut their eyes to the ground realities
from the fact that now a days it has become
very common to level allegations of commission
of serious and heinous offences - held - Trial
court has convicted the appellant without proper
appreciation of evidence on record and without
giving
due
weight
to
the
medico-legal
examination
report
and
the
pathological
examination report of the victim - hence, the
finding of guilt recorded by the trial court are
unsustainable in the eyes of law - consequently,
the appeal is allowed - appellant is acquitted of
all the charges - direction issued for his
immediate release, and to restore possession of
his house. (Para - 49, 50, 52, 53, 54,55, 56)
Appeal Allowed. (E-11)

CASE LAW CITED
Raj Kumar @ Raju Yadav vs. State of Bihar,
(2006) 9 SCC 589, Manoj Mishra @ Chhotkau
vs. State of U.P., (2021) 10 SCC 763.

LIST OF ACTS
Code of Criminal Procedure, 1973 - Indian Penal
Code, 1860 - Protection of Children from Sexual
Offences (POCSO) Act, 2012.

LIST OF KEYWORDS
Jail Appeal - Amicus Curiae - Appellant - Victim
- custody - False implication - Medico-legal
contradiction
-
Minor
discrepancies
-
Independent
witness
absence
-
Tarpaulin
concealment - Loft recovery - Property dispute
motive
-
Judicial
scrutiny
-
Wrongful
incarceration - Bail neglect - - Sentence
reduction - Acquittal - restoration of possession
of house.

CASE ARISING FROM
Judgment Dated 03.11.2020 passed by Special
Judge, POCSO Act, Hardoi in Special Session
Trial No. 329/2016 - Case Crime No. 81/2016,
Police Station Harpalpur, District Hardoi.

APPEARANCE OF PARTIES
Counsel for Appellant: - Rehman Ahmad
Siddiqui Amicus Curiae.
Counsel for Respondent: - G.A. Mohd. Asif Khan
AGA

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Rehan Ahmad Siddiqui,
the learned Amicus Curiae appearing for
the appellant, Sri Mohd. Asif Khan, the
learned Additional Government Advocate-I
appearing for the State and perused the
records.

2. By means of the instant jail appeal
filed under Section 383 Cr.P.C., the
appellant has challenged the validity of a
judgment and order dated 03.11.2020,
passed by Smt. Deepa Rai, the learned
Special Judge, POCSO Act, Hardoi in
Special Sessions Trial No.329 of 2016,
arising out of Case Crime No.81 of 2016,
under Sections 376, 342, 504 Indian Penal
Code and Section 3/4 of Protection of
Children from Sexual Offences Act, Police
Station Harpalpur, District Hardoi.

3. The aforesaid case was instituted on
the basis of an F.I.R. lodged on 18.03.2016
alleging that at about 9.30 p.m. on
17.03.2016 the informant had gone to
attend the call of nature in the latrine
constructed near her house, the appellant
caught hold of her with evil intention,
locked her inside his room and raped her.
The appellant threatened that in case victim
told about the incident to her parents he
would kill her. The F.I.R. alleged that the
door of the room was opened with the
intervention of the family members of the
7 All. Ram Sanehi Vs. State of U.P.
261
informant
and
some
neighbours.
Thereafter, she could come out of the house
after about six hours.

4.
The
appellant
had
filed
an
application for his release on bail but the
said application was rejected by the trial
Court by means of an order dated
17.10.2016.

5. The prosecution examined nine
witnesses during trial and produced the
statement of the victim under Section 164
Cr.P.C., medical examination report and
the supplementary report, copy of F.I.R.,
transfer certificate of the victim issued by
school,
scholar's
register,
site
plan,
recovery memo of a tarpaulin and X-Ray
examination
report
as
documentary
evidence.

6. The appellant denied the charges in
his statement under Section 313 Cr.P.C. He
stated that the Sub-Inspector of Police Sri
Manoj Kumar Awasthi had called him from
his home for checking his inverter and
thereafter he challaned him in the present
case. However, no defence witness was
examined by the trial Court.

7. The learned trial court held that the
incident took place on 17.03.2016 and the
medico-legal examination of the victim was
conducted
on
20.03.2016.
In
these
circumstances, the finding recorded in the
medico-legal examination report that there
was
no
evidence
of
recent
sexual
penetration, was merely an opinion and when
the victim and other witnesses had stated that
the appellant had raped her, those statements
have to be given precedence over the medical
report. It was contended on behalf of the
appellant that the witnesses had stated that the
latrine where the incident took place, is
constructed in front of the victim's house
whereas the site plan shows that it is
constructed in front of house of Ram Gopal,
and this contradiction in the statements of the
witnesses and the site plan regarding the
place of the incident shows that the accused
has been falsely implicated. The trial Court
rejected this contention stating that an
accused person cannot be acquitted merely on
the ground of some defects in investigation.

8. It was also submitted on behalf of the
appellant that the victim (PW-1) has stated
that she had gone to attend the call of nature
at about 09:30 p.m., her father (PW-2) has
stated that she had gone at about 10:00 p.m.
whereas her mother (PW-3) has stated that
she had gone between 08 and 09 p.m. PW-3
stated that no family member had gone to the
police station to lodge the report whereas the
father of the informant (PW-2) has stated that
the victim, her mother and her father had
gone to lodge the report. The police constable
- moharrir (PW-5) has stated that the victim
had come to lodge the report alongwith her
mother. The victim (PW-1) has stated that her
legs had got swollen and her hands had
turned red and her mother (PW-2) has stated
that the victim had suffered injuries.
However, the medico-legal examination
report mentions no injury on any part of the
victim's body. It was submitted that the
aforesaid facts indicated that the accused has
been falsely implicated due to animosity. The
trial Court rejected this submission on the
ground that the statements have been
recorded about one year after the incidents
and some minor discrepancies are natural to
occur and these do not affect the prosecution
case that the accused had raped the victim.

9.
Regarding
the
allegation
of
animosity due to burning of the saree by
the appellant, the trial court held that it was
not such an incident as may lead the victim
to falsely implicate the accused in a rape
262 INDIAN LAW REPORTS ALLAHABAD SERIES
case. The learned trial court held the
appellant guilty of offences under Sections
376 (3), 342 I.P.C. and Section 3/4(2) of
POCSO Act and he was acquitted of the
charges under Section 504 I.P.C. The
appellant was sentenced to undergo twenty
years rigorous imprisonment and to pay
Rs.10,000/- as fine for the offence under
Section 376(3) I.P.C. and to undergo
simple imprisonment for an additional
period of one and half years in case of
failure to pay fine. He was sentenced to
undergo imprisonment for one year for the
offence under Section 342 I.P.C. No
sentence was awarded for the offence under
Section 4(2) of POSCO Act. The amount
was fine was ordered to be paid to the
victim and it was ordered that all the
punishments will run concurrently.

10. As per the office report dated
16.03.2021, notice of the appeal was served
upon the informant personally, but he has
not put in appearance for opposing the
appeal. On 09.08.2021, this Court had
appointed Sri. Rehan Ahmad Siddiqui as
Amicus Curiae for doing Pairvi on behalf
of the appellant.

11. On 10.06.2021, the following
order was passed in this appeal: -

"Though the name of Sri Rehan
Ahmad Siddiqui, learned Amicus Curiae
for the appellant has been printed in the
cause list but he is not present today.

Sri Manoj Kumar Singh, learned
Additional
Government
Advocate
is
present.

It transpires from the record that
there is no application for bail on behalf of
the appellant.

Learned
Amicus
Curiae
is
permitted to file application for bail.
However, taking into consideration that the
appellant is confined in jail, affidavit in
support of application for bail is dispensed
with.

Office is directed to send the
reminder to the Court concerned for
transmitting the lower Court record in
pursuance of the earlier order dated
09.08.2021.

Let the matter be listed in the
month of July, 2022."

12. It appears from the record that Sri
Rehan
Ahmad
Siddiqui,
the
learned
Amicus Curiae, did not file any application
for release of the appellant on bail in terms
of the aforesaid order dated 10.06.2021 and
the appellant continues to languish in Jail
since 22.03.2016.

13. During hearing of this appeal, Sri
Rehan
Ahmad
Siddiqui,
the
learned
Amicus Curiae representing the appellant,
did not make any submissions challenging
the findings of the trial Court and he has
confined his submission for reduction of
the sentence awarded to the appellant to the
period already undergone in custody stating
that the appellant has been sentenced to
undergo imprisonment for twenty years, he
is languishing in jail since 22.03.2016 and
he has already undergone about nine years
and four months period in jail.

14. The learned Amicus Curiae has
relied upon a judgment of Hon'ble
Supreme Court in the case of Raj Kumar
@ Raju Yadav @ Raj Kumar Yadav Vs.
State of Bihar: (2006) 9 SCC 589, wherein
the Hon'ble Supreme Court reduced the
sentence
of
seven
years
rigorous
7 All. Ram Sanehi Vs. State of U.P.
263
imprisonment awarded to the appellant to
the period already undergone in custody.
He has also relied upon a judgment of
Hon'ble Supreme Court in the case of
Manoj Mishra @ Chhotkau Vs. The
State of U.P.: (2021) 10 SCC 763, wherein
the Hon'ble Supreme Court reduced the
sentence to the period already undergone in
custody.
The
only
other
submission
advanced by Sri. Siddiqui was that this
Court should make an order for payment of
his fee.

15.
The
learned
Additional
Government
Advocate-I
appearing
on
behalf of the State has responded to the
limited submission made by the learned
Amicus Curiae and he stated that in view of
the aforesaid judgments passed by the
Hon'ble Supreme
Court
he
has
no
objection to the reduction of period of
sentence of the appellant.

16. In this appeal filed from jail by the
appellant himself, he has stated that he is a
poor person and there is no one in his
family to look after his case, a jail appeal
should be filed and he should be provided
with the services of an advocate by the
Government.

17. As the aforesaid facts indicate that
the appellant is a poor person and no
person from his family has come forward to
make any effort to get him out of jail and
even the learned Amicus Curiae has not
filed any application for the appellant's
release on bail in spite of the order dated
10.06.2021 and he has not advanced any
submissions in support of the appeal, this
Court went through the record of the case to
ascertain as to whether the order of
conviction and sentence passed by the
learned trial court deserves to be upheld or it
needs any interference.

18. The record reveals that the F.I.R.
was lodged on the basis of a written
complaint filed by the victim herself on
18.03.2016 stating that when she had gone to
attend the call of nature at about 09.30 p.m.
on 17.03.2016 in a latrine constructed near
her house, her neighbor Ram Sanehi (the
appellant) forcibly caught hold of her with
evil intention, locked her in a room and raped
her. The appellant threatened her that in case
she tells about the incident to her parents, he
would kill her. The door was opened with the
intervention of her family members and
neighbors and she could come out of the
room after about 6 hours and thereafter she
came to the police station to lodge the F.I.R.

19. In the statement of the victim
recorded under Section 161 Cr.P.C. she stated
that she had gone to attend the call of nature
at about 9.30 p.m. on 17.03.2016. The
appellant is her cousin, he shut her mouth,
took her to his house and raped her. She
stated that the appellant kept her locked
inside his room for six hours and he raped her
thrice during this period. Her mother started
searching for her and got the room of the
appellant opened with the help of neighbors.
The appellant had hidden her beneath a
tarpaulin upon the loft inside the room. The
persons searching for her found her on the
loft and made her get down from the loft. She
went to the police station with her parents on
the following day and lodged the report.

20. Strangely, the statement of the
victim recorded under Section 161 Cr.P.C.
bears her signature whereas the statement
recorded under Section 161 Cr.P.C. should
not be signed by the person making the
statement.

21. The medico-legal examination
report of the victim mentions that a Homeguard had taken her to the District Women
264 INDIAN LAW REPORTS ALLAHABAD SERIES
Hospital, Hardoi for medical examination.
The
medico-legal
examination
was
conducted on 20.03.2016 at 11.30 a.m., and
the report mentions that the date and time
of the incident was not known. No mark of
injury was seen on any part of the victim's
body.
The
genito-anal
examination
revealed that all the internal parts of her
body were normal, the hymen was found
old torn and healed and hemorrhage or any
other discharge was not present. There
were no signs suggestive of recent
penetration of the vagina. The pathological
examination report of the vaginal smear
slides revealed that no spermatozoa or
gonococci were present in the vaginal
smear of the victim and the pregnancy test
was also negative. As per radiological
examination report, age of the victim was
opined to be between 16-17 years.

22. In the statement of the victim
recorded under Section 164 Cr.P.C. she
stated that she was aged about 15 years, she
had studied up to Class VIII, the appellant
is son of the elder brother of her father.
While she had gone to attend the call of
nature in a latrine constructed in front of her
house at about 09.30 p.m. on 17.03.2016 the
appellant shut her mouth, dragged her to his
room and raped her. When her parents came
there the appellant tied her mouth with a
cloth, wrapped her in a polythene sheet and
put her upon a loft. Her brother and aunt
Kajal brought her down the loft and they took
the appellant to the police station. She also
stated that about ten days ago, the appellant
had burnt her mother's saree and had entered
into a quarrel. Her mother had given
information of the incident to the police and
the appellant was keeping animosity since
then.

23. A site plan prepared by the
Investigating Officer has been marked as
Exhibit Ka-10, which shows that the latrine
is constructed towards the south of the
informant's house, in front of the house of
Ram Gopal, whereas the appellant's house
is situated towards the north of the victim's
house after the latrine where the appellant
is said to have caught hold of the victim
and dragged her to his room. There is some
open space. Thereafter, there is house of
the informant, then there is a shop,
thereafter there is some open space through
which one can enter the house of the
appellant which falls at the rear of the shop.
The loft has been shown in the site plan and
it is mentioned that it is the place where the
appellant had made the victim ride up and
had covered her with a tarpaulin after
committing the misdeed. The room where
the incident took place has a door in its
northern wall.

24. The recovery memo of the plastic
tarpaulin is Ex. Ka-11 and it mentions that
the appellant had covered the victim with
the tarpaulin on the loft after the incident.
The only persons who have witnessed
recovery
of
the
tarpaulin
from
the
appellant's room are the victim and her
father.

25. On 02.06.2016 the appellant had
given an application to the trial court
requesting for safety and security of his
family and property stating that he is
lodged in District Jail Hardoi since
22.06.2016, the passage to his house has
been closed, his father is being threatened
to be killed, he belongs to a poor family
and he requested that a case be registered
against the persons who are harassing his
father and who have implicated the
appellant in the false case. The appellant
further stated that he has absolutely no
knowledge about the present case and the
true purport of the appellant's writing
7 All. Ram Sanehi Vs. State of U.P.
265
appears to be that he has no knowledge
about the allegations leveled in the present
case.

26. The victim has been examined as
PW-1 and she has reiterated her earlier
version in her examination-in-chief. During
cross-examination PW-1 stated that the
appellant is son of the elder brother of her
father, the appellant would be presently
aged about 45 years, father of the appellant
is alone but he does not live with the
appellant. Initially the house of the
appellant and the victim was one. After
partition it was divided into two separate
houses. About 10-15 days ago a saree of
her mother had flown to the house of the
appellant and the appellant had burnt the
saree. Since then an animosity was
simmering amongst them and the parties
were not o talking terms. They were on
talking terms prior to the aforesaid incident.
She stated that her portion of the house is
larger and the portion of the appellant's
house is smaller. The portion of the
appellant consists of one room and a shop.
She had gone to the room of the appellant
only once when the incident took place.
The room has its ingress and egress
towards the East and West. The victim
stated that at the time of the incident her
mother had gone to sleep, but the other
family members were awake. At the time
of incident her mouth was shut so she could
not shout. The appellant kept her mouth
shut with one hand for 4-5 hours and he
was holding her hands with his other hand.
Initially the victim stated that the appellant
was pressing her mouth with his hand but
subsequently she stated that the appellant
had tied a cloth on her mouth. She stated
that she did not know after how long the
appellant had removed his hand from her
mouth but even after the appellant had
removed his hand she could not shout. She
stated that the appellant had tied her hands
but he did not tie her legs. She had moved
her legs in her defence and her legs had got
swollen and hands had turned red. She
further stated that first her mother, father
and brother had come to save her. Then,
she stated that her uncles Jitendra and Ram
Gopal had also come to save her.

27. The father of the victim has been
examined as PW-2 and he stated that the
appellant is his nephew (son of his brother).
About two years prior to the incident the
appellant
had
enticed
away
a
girl,
whereafter the police had caught him and
the appellant had to spend about 18 months
in jail. The appellant suspected that PW-2
had got him arrested due to which he kept
animosity. On the date of the incident his
daughter had gone to latrine at about 10.00
p.m. When she did not come back after
quite some time his wife went to look after
her in the latrine. When she could not find
her there, PW-2 got suspicious against the
appellant. He went to the appellant's house
along with his neighbors Ram Gopal,
Kamlesh, Kajal Kinnar and Jitendra. The
appellant opened the door of his house after
about ten minutes. The aforesaid persons
entered the room and found that the victim
was lying on the loft, wrapped in a
tarpaulin. She told that the appellant had
raped her. The girl was recovered at about
2.30 a.m. PW-2 stated that he had gone to
the police station for lodging the F.I.R. at
about 1.30 p.m.

28. During cross-examination PW-2
stated that he did not know particulars of
the girl in relation to which the earlier
F.I.R. was lodged against the appellant and
he had not told this thing to the
Investigating Officer. In the earlier incident
the police had recovered the girl from the
appellant's house after entering the same
266 INDIAN LAW REPORTS ALLAHABAD SERIES
through the house of PW-2. He stated that
the portion of his house consists of five
rooms and a verandah. He did not know as
to how many rooms were there in the
portion of the appellant. PW-2 also stated
that the appellant has a brother, his mother
has died, his father is alive, his step mother
is alive and his family lives in another
house about 200 meters away. There is an
agency of Parle-G in the house of the
appellant and no person lives in it. The lock
and key of the house remains with the
persons running Parle-G agency. They do
not stay there and they used leave the place
after their work. He stated that about two to
four days prior to the incident saree of his
wife had fallen in the house of the appellant
and the appellant had burnt it. He stated
that he was not in talking terms with the
family of the appellant for the past six
months. PW-2 stated that there is only a
wall between his house and the house of
the appellant and in case any person makes
a sound in his room it will be heard in the
house of the appellant.

29. The mother of the victim was
examined as PW-3 and she stated that her
daughter had gone to latrine situated outside her
house at about 9.00-9.30 p.m. on the date of the
incident. When she did not come back for quite
some time she and her family members had
gone to look for her but they could not find her.
Thereafter, a police constable was called from
the police station and they went to the house of
the appellant and knocked his door. The
appellant opened the door after ten minutes and
her daughter was found wrapped in a tarpaulin
lying on the loft. Some neighbors had gathered
there. Her daughter told her that the appellant
had shut her mouth, taken her to his home and
had threatened her. Initially her husband had
given a report of the incident at the police
station but when no heed was paid to it,
thereafter a report was registered by her
daughter.

30. During cross-examination, PW-3
denied that earlier her house and the house of
the appellant was one. She stated that about 1015 days prior to the incident her saree had fallen
from her rooftop in the house of the appellant
and the appellant had burnt it, due to which an
altercation had taken place. She stated that she
did not know as to how many rooms are there
in the house where the incident took place. She
stated that when they were on talking terms she
used to visit the said house. They were not on
talking terms for about four to six months since
prior to the incident. She stated that the
appellant's mother has died. His step mother
and father are alive. The appellant has two
brothers and there are three houses. She stated
that her daughter had gone to latrine between
8.00 to 9.00 p.m. She came back home between
12.00 and 01.00 in the night and the police
persons had brought her home from the room of
appellant. The police had gone there at about
11.00 p.m. PW-3 and Kajal (Kinner) had
brought police from the police station. A
constable and a chowkidar had come. The door
was closed from the inside. The girl was
recovered after getting the door opened.
Nothing was done in writing at that time. The
girl stayed at the house during night. Her
daughter and some neighbors had gone to the
police station and no family members had gone
there. She did not know as to which of the
neighbors had gone there. When the report was
not registered at the police station, she took her
daughter to Hardoi and stayed in the Mahila
Thana for three days. The report was lodged at
Hardoi. At the time of incident it was dark but
the neighbors had woke up and had gone to the
police station. She stated that she did not know
the names of neighbors.

31. The doctor who had medically
examined the victim was examined as PW-
7 All. Ram Sanehi Vs. State of U.P.
267
4. She proved the medical report which has
already been referred to above. During
cross examination she stated that she
cannot say whether the victim was used to
sexual intercourse but there was no sign of
recent sexual intercourse.

32. The Police Constable who had
registered the F.I.R was examined as PW-5
and he stated that he did not know as to
what clothes were worn by the informant.
The police had not taken any clothes in
possession. The informant had come to the
police station along with her mother and
father and there was no other person.

33.
PW-6
had
conducted
the
investigation of the case and he stated in
his cross-examination that prior to him Sri
Manoj
Kumar
Awasthi
was
the
Investigating Officer. He had not visited
the place of incident and he had not met the
informant. He had met the victim in the
Court on 07.06.2016. He had met the
victim earlier also. The victim was always
accompanied by lady police and no family
members
used
to
accompany
her.
Statements under Section 161 Cr.P.C. of
the victim or any other person were not
recorded by PW-6. He stated that he had
forwarded the charge-sheet as per the
statement of the victim recorded under
Section 164 Cr.P.C.

34. The Principal of the school where
the victim had studied was examined as
PW-7 and she stated that as per the school
records the victim's date of birth is
10.02.2000.

35.
Investigating
Officer
SubInspector Manoj Kumar Awasthi has been
examined as PW-8 and he stated that he
was entrusted with the investigation on
18.03.2016. On 19.03.2016 he had looked
for the accused and the prosecution
witnesses but could not meet any one of
them. He had recorded statement of the
victim. A lady constable and a lady home
guard had recorded the statement of the
victim's mother. The victim's mother was
asked to hand over the clothes worn by the
victim but she told that clothes had been
washed away. He had recorded the
statement of the informant's father and a
witness Kajal Kinnar on 20.03.2016. On
22.03.2016 he had inspected the place of
incident on the pointing out of the victim
and had prepared a site plan. During
inspection of place of incident the police
had taken possession of a tarpaulin with
which the accused had covered the victim.
The statement of the accused was recorded
on 22.03.2016 in the lock-up of the police
station.

36. The sealed packet containing the
tarpaulin was opened in the court in
presence of PW-8 and after seeing it he
stated that although it was mentioned that
the bundle contained a tarpaulin, in fact it
was a tarpaulin of polythene. The sealed
packet containing the tarpaulin/polythene
had not been signed by any witness. He did
not know the length and breadth of the
tarpaulin and he stated that he had found it
above the loft. The length of tarpaulin
turned out to be lessor by one foot
compared to height of PW-8. PW-8 denied
the suggestion that he had procured the
polythene from the market and had sealed
the same at the police station.

37.
The
Radiologist
who
had
conducted the radiological examination for
ascertainment of the victim's age was
examined as PW-9 and he stated that as per
radiological examination age of the victim
was about 16-17 years. During crossexamination
he
stated
that
X-ray
268 INDIAN LAW REPORTS ALLAHABAD SERIES
examination reports of a healthy person and
a sick person would be different. He did not
remember whether the victim was healthy
or sick. He stated that there can be a
difference of two years on either side in the
age opined by the radiological examination.

38. In the statement recorded under
Section 313 Cr.P.C. the appellant denied
the allegations.

39.
From
the
testimonies
of
prosecution witnesses as referred to above,
it appears that the victim has not disclosed
the relationship between herself and the
appellant in the F.I.R. and she later on
disclosed that the appellant is son of her
father's brother, who was aged about 45
years at the time of the incident. The victim
has alleged that the appellant had shut her
mouth, dragged her inside his house, kept
on shutting her mouth with one hand and
holding her hands with his other hand
continuously for about 5-6 hours and
during this period he raped her thrice.
However, her medico-legal examination
report did not reveal any mark of injury on
any part of her body. At one place the
victim stated that the appellant had shut her
mouth with his hand, whereas at another
place she stated that the appellant had tied
her mouth with a cloth.

40. After the incident the victim is said
to have been recovered from a loft in the
appellant's house and she was covered by a
polythene sheet. Nobody has stated that
when the victim was recovered from the
loft, her mouth was shut or tied with a cloth
and that she was not able to raise her voice.
Nobody has stated that her hands were tied.
The
tarpaulin
referred
by
several
prosecution witnesses turned out to be
polythene sheet, size of which was not
stated by any witness and when the court
measured it in comparison to the height of
PW-8, it turned out that it was about a foot
shorter than his height. At one place the
victim has stated that the appellant had
covered her with a tarpaulin and another
place she stated that the appellant had
wrapped her in the tarpaulin.

41. No reasonable person of ordinary
prudence would believe that a person aged
45 years kept on shutting the mouth of his
minor cousin with one hand and holding
her hands with his other hand, continuously
for 5-6 hours, he raped her thrice, thereafter
he put her upon a loft, even after the victim
was put on the loft, she did not raise her
voice till her family members recovered her
from the loft.

42. Keeping in view the nature of
allegations, the finding recorded in the
medico-legal examination report that there
was
no
evidence
of
recent
sexual
penetration, cannot be brushed aside.
Moreover, even if the aforesaid observation
is merely an expert opinion, the finding that
the pathological examination of the vaginal
smear
slide
showed
absence
of
spermatozoa and gonococci, is not an
opinion and it is a finding recorded upon a
scientific test.

43. When a 45 years old person is
accused of raping his minor cousin, the
allegations are not supported by the
findings of the medico-legal examination
report and the prosecution relies upon oral
evidence of the victim, her father and
mother only and no independent witness is
examined, although it is said that several
neighbors had gathered at the time of the
incident, it becomes necessary to scrutinize
the oral evidence carefully. The victim
(PW-1) has stated that she had gone to
attend the call of nature at about 09:30
7 All. Ram Sanehi Vs. State of U.P.
269
p.m., her father (PW-2) has stated that she
had gone at about 10:00 p.m. whereas her
mother (PW-3) has stated that she had gone
between 08 and 09 p.m. PW-3 stated that
no family member had gone to the police
station to lodge the report whereas the
father of the informant (PW-2) has stated
that the victim, her mother and her father
had gone to lodge the report. The police
constable - moharrir (PW-5) has stated that
the victim had come to lodge the report
alongwith her mother.

44. PW-3 stated that the police had
come to her house at 11.00 p.m. in the
night, the girl was recovered by the police,
whereas the victim and her father have not
said so.

45. It is significant to mention that in
the statement recorded under Section 164 it
is written that "जब मेरे मां बाप पुभलस वालों के साथ आए,
मुझे मुंह पर कपड़ा बांध कर, पन्नी में लपेटकर टांड पर डाल भदया"
but the words "पुभलस वालों के साथ" have been
struck out subsequently.

46.
The
victim
stated
in
her
examination-in-chief
that
her
mother,
brother and uncle had brought her down
from the loft and they had caught hold of
the appellant and had taken him to the
police station, whereas the police claimed
to
have
arrested
the
appellant
on
22.03.2016.

47.
The
aforesaid
discrepancies
relating to the description of the offence are
not minor discrepancies and these raise a
serious doubt against correctness of the
allegations leveled in the statements.

48. The motive about the incident
alleged by the prosecution witnesses is that
a saree of the victim's mother fell down in
the appellant's house and it had been burnt
by him. The victim and her father stated
that the incident took place about 10 to 15
days ago, whereas the victim's mother
stated that the incident took place about 4
days prior to the incident. The trial court
held that it was not such an incident as may
lead the victim to falsely implicate the
accused in a rape case, but at the same
time, it was not such an incident which may
lead the accused to rape her minor cousin,
particularly when there is no allegation that
the accused had suffered any harm in that
incident.

49. Although, it is correct that minor
discrepancies in the statements of the
witnesses are natural to occur and these
should not lead to acquittal of an accused
person, it is
equally true that the
prosecution has to prove its case beyond
reasonable doubt and when there are
serious discrepancies regarding important
and crucial facts relating to the incident, the
same would render the statements of the
witnesses untrustworthy.

50. All the aforesaid discrepancies in
the statements of the prosecution witnesses
have been lightly brushed aside by the
learned
trial
court,
whereas
these
discrepancies clearly make the statements
of the prosecution witnesses unbelievable,
more particularly when the same are not
corroborated by the findings of the medicolegal examination report of the victim and
the pathological examination report of the
vaginal smear slide.

51. The aforesaid facts indicate that
the appellant has been falsely implicated by
the informant and the police in the present
case.

52.
In
view
of
the
foregoing
discussion, this court is of the considered
270 INDIAN LAW REPORTS ALLAHABAD SERIES
opinion that the evidence on record does
not prove that the appellant had raped the
victim who is his cousin. The trial court has
convicted the appellant without proper
appreciation of evidence on record and
without giving due weight to the medicolegal
examination
report
and
the
pathological examination report of the
victim. The findings of guilt recorded by
the trial court are unsustainable in the eyes
of law.

53. Accordingly, the criminal appeal is
allowed. The judgment and order dated
03.11.2020, passed by Smt. Deepa Rai, the
learned Special Judge, POCSO Act, Hardoi
in Special Sessions Trial No.329 of 2016,
arising out of Case Crime No.81 of 2016,
under Section 376, 342, 504 Indian Penal
Code and Section 3/4 of Prevention of
Children
from
Sexual
Offices
Act,
registered at Police Station Harpalpur,
District Hardoi, whereby the appellant has
been held guilty of offences under Sections
376 (3), 342 I.P.C. and Section 3/4(2) of
POCSO Act and he has been sentenced to
undergo
twenty
years
rigorous
imprisonment and to pay Rs.10,000/- as
fine for the offence under Section 376(3)
I.P.C. and to undergo simple imprisonment
for an additional period of one and half
years in case of failure to pay fine and to
undergo imprisonment for one year for the
offence under Section 342 I.P.C, is set
aside and the appellant is acquitted of all
the charges. The appellant shall be set at
liberty forthwith, subject to his submitting a
personal bond for his appearance in case an
appeal is filed against this order. The
amount of fine paid by the appellant, if any,
shall be refunded to him within a period of
30 days from the date of this judgment.

54. It is indeed very disturbing that a 45
years old person who had nobody to look
after his interest was taken into custody on
22.03.2016 on the allegation of committing
rape of his minor cousin. His bail application
was rejected by the trial Court. Nobody came
forward to do pairavi of his case on his
behalf.