# Ram Sewak @ Baura v. State

- **Citation:** (2022) 10 ILRA 656
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-27
- **Case number:** Jail Appeal No. 1043 of 2015
- **Bench:** Ashwani Kumar Mishra, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-sewak-baura-v-state-47771
- **Pages:** 11

## Headnote

Law
-Code
of
Criminal
Procedure, 1973-Section 374(2)/383 -
Indian Penal Code, 1860-Sections 363 &
376 -challenge to-conviction-no disclosure
of name and address of the accused in the
FIR-Informant-PW-1 denied to recognize
the accused in her statement recorded u/s
161 Cr.P.C. as well as in her statement
recorded before the court below as PW-1neither any test identification parade of
the accused had been carried out nor the
accused was identified by the victim(PW2)-Statement of the victim (PW-2) had not
been recorded-no thumb impression or
signature of the victim in the medical
report, hence it is not proved that the
injury report is of the victim-PW-1 had not
seen the incident with her own eyes-other
witnesses were not examined in support
of
the
prosecution
version-Hence,
prosecution failed to prove the guilt of the
accused beyond reasonable doubt.(Para 1
to 38)

B. It is well settled that where a witness
identifies an accused who is not known to
him in the Court for the first time, his
evidence is absolutely valueless unless
there
has
been
a
previous
Test
Identification Parade to test his powers of
observations. The idea of holding T.I.
Parade under Section 9 of the Evidence
Act is to test the veracity of the witness on
the question of his capability to identify an
unknown person whom the witness may
have seen only once. If no T.I. parade is
held then it will be wholly unsafe to rely
on his bare testimony regarding the
identification of an accused for the first
time in Court.(Para 19)

The appeal is allowed. (E-6)

List of Cases cited:

## Text

656 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2022) 10 ILRA 656
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.09.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Jail Appeal No. 1043 of 2015

Ram Sewak @ Baura ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Uttar Kumar Goswami, Sri
Virendra Pratap Yadav (A.C.)

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

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 374(2)/383 -
Indian Penal Code, 1860-Sections 363 &
376 -challenge to-conviction-no disclosure
of name and address of the accused in the
FIR-Informant-PW-1 denied to recognize
the accused in her statement recorded u/s
161 Cr.P.C. as well as in her statement
recorded before the court below as PW-1neither any test identification parade of
the accused had been carried out nor the
accused was identified by the victim(PW2)-Statement of the victim (PW-2) had not
been recorded-no thumb impression or
signature of the victim in the medical
report, hence it is not proved that the
injury report is of the victim-PW-1 had not
seen the incident with her own eyes-other
witnesses were not examined in support
of
the
prosecution
version-Hence,
prosecution failed to prove the guilt of the
accused beyond reasonable doubt.(Para 1
to 38)

B. It is well settled that where a witness
identifies an accused who is not known to
him in the Court for the first time, his
evidence is absolutely valueless unless
there
has
been
a
previous
Test
Identification Parade to test his powers of
observations. The idea of holding T.I.
Parade under Section 9 of the Evidence
Act is to test the veracity of the witness on
the question of his capability to identify an
unknown person whom the witness may
have seen only once. If no T.I. parade is
held then it will be wholly unsafe to rely
on his bare testimony regarding the
identification of an accused for the first
time in Court.(Para 19)

The appeal is allowed. (E-6)

List of Cases cited:
1. Kanan & ors. Vs St. of Ker. (1979) 3 SCC 319

2. Suresh Chandra Bahri Vs St. of Bih. (1995)
SCC (Crl.) 60

3. Dana Yadav @ Dahu & ors. Vs St. of Bih.
(2002) 7 SCC 295

(Delivered by Hon'ble Shiv Shanker
Prasad, J.)

1. This jail appeal has been preferred
by accused-appellant, namely, Ram Sewak
@ Baura against the judgment and order
dated 21st January, 2015 passed by the
Additional Sessions Judge, Court No.1,
Banda in Sessions Trial No. 188 of 2013
(State Vs. Ramsewak @ Baura) arising out
of Crime No. 363, 308 and 376 I.P.C.,
Police
Station-Pailani,
District-Banda,
whereby the accused-appellant has been
convicted and sentenced to undergo to (i)
life imprisonment under Section 376 I.P.C.
with fine of Rs. 40,000/-, in default thereof,
he has to further undergo eight months'
additional simple imprisonment and (ii)
five years rigorous imprisonment under
Section 363 I.P.C. with fine of Rs. 10,000/-
, in default thereof, he has to further
undergo
two
months'
additional
imprisonment, with the observations that
10 All. Ram Sewak @ Baura Vs. State
657
the total amount of fine which was to be
recovered from the accused was to be paid
in favour of victim as compensation and
also all the sentences were to run
concurrently.

2. We have heard Mr. Virendra Pratap
Yadav, learned Amicus Curiae appearing
for the accused-appellant no.1 and Mrs.
Archana Singh, learned A.G.A. for the
State. We have also perused the materials
available on record.

3. The prosecution story, as reflected
from the records, is as follows:

On the basis of written report
submitted by the informant-P.W.1, namely,
Chunni wife of Rajava on 17th September,
2001 at 2115 hours for the alleged incident
dated 15th September, 2001 between 10:00
a.m. to 11:00 a.m. (Exhibit-Ka/1), a first
information report has been lodged on 17th
September, 2001 as Crime No. 65 of 2001,
under Sections 363/308/376 I.P.C. at Police
Station-Pailani,
District-Banda
(ExhibitKa/2)
alleging
therein
that
on
15th
September, 2001 between 10:00 a.m. to
11:00 a.m. while seducing the daughter of the
informant (hereinafter referred to as the
"victim"), who was about six years of age, the
relative of her neighbour, namely, Ram
Jiyavan son of Ramnath, who was not known
and recognized by her, took the victim to
jungle where he beat her due to which she
fainted and thereafter she was brutally raped
by him due to which bleeding occurred from
the genitals and ears of the victim. In the
written report dated 17th September, 2001
addressed to the Superintendent of Police,
Banda, it has been alleged that when the
informant, just after the said incident, reached
the Police Station for lodging of the first
information report, the Station House Officer
of the Police Station concerned refused to
lodge the same. After lodging of the first
information report, the victim was taken to
the Women Hospital, Banda by the Constable
Madhuri Dubey, Police Station-Women Cell,
Police Office, for her medical examination,
where Dr. Rekha Rani (P.W.-4), the then
Medical Officer, Women Hospital, Banda on
17th
September,
2001
has
medically
examined the victim.

4. On external examination of the
victim, the Doctor found that there was no
external injury on the body of the victim. On
internal examination, the Doctor has opined
that:

"Full circumferential recent tear
of hymen with reddened brownish margin
present post vaginal wall torned at 6
o'clock position in peroneal region with
diamond shaped raw area of about 1 cm. x
1.5 cm dimension. Base is bluish white
filled with whitish mucoid discharge.
Vagina admits one finger easily whose
negotiation was very painful and smeared
with blood mixed discharge when taken
out. Vagina smears taken and sent for
pathological examination of spermatozoa.
Advised X-ray Right Wrist Joint including
all carpel bone and Right Shoulder Joint
for confirmation of age. Supplementary
report pending till X-ray report and smear
report is received from District Hospital,
Banda and District Women Hospital,
Jhansi."

5. In the vaginal smear report of the
victim (Exhibit-Ka/5), it has been reported
that
vaginal
smear
is
negative
for
spermatozoa. On examination of vaginal
smear report (Exhibit-Ka/5), the Doctor
(P.W.-2) has opined that:

"No opinion about rape can be
given. Injury in private part is simple in
658 INDIAN LAW REPORTS ALLAHABAD SERIES
nature and caused by hard and blunt object
. Her age is about 6 years."

6. After the medical examination of
the victim was conducted, initially one
Uma Shanker Singh Chandel, the then
Station House Officer, Police StationPailani,
District-Banda
(P.W.-6)
investigated the matter and recorded the
statements of informant (P.W.-1), the
victim (P.W.-2) and other witnesses,
thereafter Mr. K.L. Sagar, Station House
Officer of Police Station-Pailani (P.W.-5)
has
investigated
the
matter.
After
conclusion of the statutory investigation in
the matter under Chapter-XII Cr.P.C.,
P.W.-5 has submitted Charge-sheet no. 78
of 2001 dated 24th December, 2001
(Exhibit-Ka/6)
against
the
accusedappellant
under
Sections
363/308/376
I.P.C. The Magistrate concerned took
cognizance of the charge-sheet and as the
offence was triable by the court of
Sessions, the same was committed to the
Court of Sessions. Consequently, Sessions
Trial No. 188 of 2013 (State of U.P. vs.
Ramsewak) was registered in the matter.
The trial proceeded in the matter.

7. On 21st November, 2013, the
concerned Court framed following charges
against the accused-appellant:

"मैं
बृजलाल
िौरच या,
चवशेि
न्यायाधीश
(आ०व०अचध०)/
अपर
 त्र
न्यायाधीश, बािंदा आप अचियुक्त राम ेवक उफा
बौरा उफा िन्देल पर चिम्नचलखिर् आरोप लगार्ा
हिं-

1. यह चक चदिािंक 15.9.2001 को
 मय 10.00 व 11.00 बजे के बीि स्थाि जिंगल
बहद ग्राम िरी अन्तगार् थािा पैलािी चजला बािंदा
पर आप अचियुक्त द्वारा वाचदया मुकदमा
श्रीमर्ी िुन्नी की िाबाचलग पुत्री कु० कमलेश उम्र
6 विा का व्यपहरण चकया गया। इ प्रकार
आपिे ऐ ा कृत्य चकया जो िा०दिं० िं० की धारा
363 के र्हर् दण्डिीय है और इ न्यायालय के
प्र िंज्ञाि में है।

2. यह चक उपरोक्त वचणार् चर्चथ,
 मय व स्थाि पर आप अचियुक्त द्वारा वाचदया
मुकदमा की िाबाचलग पुत्री कु० कमलेश उम्र 6
विा को ऐ ी पररखस्थचर् में बुरी र्रह े मारपीट
कर बेहोश कर चदया चज े यचद कु० कमलेश
उम्र 6 विा की मृत्यु हो जार्ी र्ो आप हत्या की
कोचट में ि आिे वाले आपराचधक मािव वध के
दोिी होर्े। इ प्रकार आपिे ऐ ा कृत्य चकया
जो िा०दिं० िं० की धारा 308 के र्हर् दण्डिीय
है और इ न्यायालय के प्र िंज्ञाि में है।

3. यह चक उपरोक्त वचणार् चर्चथ,
 मय व स्थाि पर आप अचियुक्त द्वारा वाचदया
मुकदमा की िाबाचलग पुत्री कु० कमलेश उम्र 6
विा का व्यपहरण करके उ की इच्छा के
चवरूद्ध उ के ाथ बलात्सिंग चकया गया। इ
प्रकार आपिे ऐ ा कृत्य चकया जो िा०दिं० िं० की
धारा 376 के र्हर् दण्डिीय है और इ
न्यायालय के प्र िंज्ञाि में है।

अर्एव एर्द्द्वारा चिदेचशर् चकया
जार्ा है चक उक्त अरोपो का चविारण इ
न्यायालय द्वारा चकया जायेग"

The charges were read out to the
accused-appellant,
who
denied
the
accusation and demanded trial.

8. The prosecution in order to
establish the charges levelled against the
accused-appellant relied upon documentary
evidence, which were duly proved and
consequently marked as Exhibits. The same
are catalogued herein below:
10 All. Ram Sewak @ Baura Vs. State
659

(i) the written report given by the
informant (P.W.-1) dated 17th September,
2001 has been marked as Exhibit-Ka-1;

(ii) the first information report
registered on 17th September, 2001 on the
written report of P.W.-1, has been marked
as Exhibit-Ka-2;

(iii) Injury/medical examination
report of the victim dated 17th September,
2001 has been marked as Exhibit-Ka-4;

(iv)
Supplementary
medical
examination report of the victim dated 15th
October, 2001 has been marked as ExhibitKa-5;

(v)
Charge-sheet
dated
24th
December, 2001 has been marked as
Exhibit-Ka-6; and

(vi) Site plan with index has been
marked as Exhibit-Ka-7.

9. The prosecution has also adduced
oral testimony of following witnesses:-

"i).
The
informant,
namely,
Chunni mother of the victim has been
adduced as P.W.-1;

ii). The Victim has been adduced
as P.W.-2;

iii)
Head
Constable-274
Ramnaresh, who has proved the Chik first
information report has been adduced as
P.W.-3;

iv) Dr. Rekha Rani, who has
conducted the medical examination of the
victim has been adduced as P.W.-4;

v). Inspector K.L. Sagar who has
investigated the matter and submitted the
charge-sheet has been adduced as P.W.-5;

vi). Sub-Inspector Uma Shanker
Singh Chandel, who initially investigated
the matter, has been adduced as P.W.-6."

10. After recording of the prosecution
evidence, the incriminating evidence were
put to the accused-appellant Ramsewak @
Baura for recording his statement under
section 313 Cr.PC. In his statement
recorded U/s 313 Cr.P.C. on 6th January,
2015, the accused appellant denied his
involvement
in
the
crime.
Accused
appellant has also stated that the statements
of the Prosecution witnesses are incorrect,
as he has been falsely implicated due to
rivalry. No witness on behalf of defence
has been produced.

11. While passing the impugned
judgment of conviction, the trial court after
relying upon the documentary as well as
oral evidence adduced by the prosecution
has recorded its following finding:

(i) qua the statement given by
accused-appellant
under
Section
313
Cr.P.C.
that
the
oral
as
well
as
documentary evidence produced by the
prosecution are false, as he has been falsely
implicated due to rivalry, the trial court has
recorded that neither any evidence with
regard to enmity or rivalry has been
produced before the court below nor any
fact has been borne out from the oral or
documentary
evidence
of
prosecution
which would prove any fact of implicating
the accused due to rivalry. As such, the
aforesaid plea of the defence has no legs to
stand.
660 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) with regard to the ground
taken by the defence that there is delay of
two days from the date of incident in
lodging of the first information report for
which no explanation has been given by the
prosecution,
therefore,
the
entire
prosecution version is doubtful, the trial
court has recorded that the same has also
no legs to stand on the ground that on
perusal of the evidence it is apparent that
the informant (P.W.-1) went to the Police
Station for lodging of the first information
report on the same day i.e. date of incident
but the Station House Officer of the Police
Station concerned refused to lodge the
same. Such delay of two days in lodging of
the same has satisfactorily been explained
by the prosecution.

(iii) qua the ground taken by the
defence that no case under Section 308
I.P.C. is not proved against the accusedappellant, the trial court finds substance in
the same by recording that the necessary
ingredients for the offence punishable
under Section 308 I.P.C. is not made out
against the accused-appellant, as the
medical examination report of the victim
does not support the prosecution version.

(iv) so far
as the offence
punishable under Section 363 I.P.C is
concerned, the trial court has recorded that
it is an admitted fact that the place of
occurrence is one kilometre away from the
house of victim. As per the statement of the
victim, the accused-appellant took her on
his shoulder to the place of occurrence
from her house. At the time of occurrence,
the victim was 6 to 7 years of age and
minor and was in lawful guardianship of
her parents. The accused-appellant had not
taken any permission from the parents of
the victim to take her to the place of
occurrence.
As
such,
the
offence
punishable under Section 363 I.P.C. is
proved against the accused-appellant.

(v) with regard to the offence
punishable under Section 376 I.P.C., the
trial court has recorded that from the
statement/evidence of the victim, the
opinion of the doctor and the medical
examination report of the victim prepared
by the doctor and the investigation of the
investigating officer and evidence, the
same is also proved against the accusedappellant.

12. After recording such finding, the
trial court has come to the conclusion under
the impugned judgment of conviction that
the prosecution has been able to fully prove
that the accused-appellant, committed the
offence of rape upon the victim (P.W.-2).
As such, the trial court has found the
offence under Sections 363 and 376 I.P.C.
to have been committed by the accused
person Ramsewak.

13. Aggrieved by the aforesaid
judgment and the order of conviction and
sentence, the present jail appeal has been
filed on the ground that conviction is
against the weight of evidence on record
and against the law and the sentence
awarded to the accused-appellants is too
severe.

14.

Questioning
the
impugned
judgment and order of conviction, learned
Amicus Curiae appearing for the appellant
submits that the first information report is
highly belated for which no plausible
explanation
has
been
given by
the
prosecution,
which
makes
the
entire
prosecution story doubtful. It is also
noteworthy that there is no disclosure of
name and address of the accused-appellant
in the F.I.R. Informant-P.W.-1, namely,
10 All. Ram Sewak @ Baura Vs. State
661
Chunni wife of Rajava has stated in her
cross-examination
that
she
had
not
disclosed the name of the accusedappellant to the Investigating Officer at
the time of recording of statement under
Section 161 Cr.P.C. that is why she was
unaware of the name of the accusedappellant. She has also stated that she had
not seen the accused-appellant taking her
daughter (victim) along with him. She has
further stated that she had not seen the
incident. She has stated that her daughter
had told her about the incident and after
that she knew the name of the accusedappellant. Victim (P.W.-2) has also not
identified the accused-appellant in her
statement given before the court below.
The identification parade had also not
been done by the Investigating Officer at
the time of the investigation. The said
offence has not been committed by the
accused-appellant, hence, the prosecution
story is wholly improbable as also the
same has not supported by the evidence
that is why the accused-appellant is not
guilty of the offence punishable under
Sections 363 and 376 I.P.C.

On the cumulative strength of the
aforesaid
arguments,
learned
Amicus
Curiae appearing for the accused-appellant
submits that the impugned judgment and
order of conviction cannot be legally
sustained and is liable to be quashed.

15 On the other hand, Mrs.
Archana Singh, learned A.G.A. for the
State supports the prosecution version by
submitting that the impugned judgment and
order of conviction does not suffer from
any illegality and infirmity so as to warrant
any interference by this Court. As such the
appeal filed by the accused-appellant who
committed heinous offence is liable to be
dismissed.

16.

We
have
considered
the
submissions made by the learned counsels
for the parties and have gone through the
records of the present appeal especially, the
judgment and the order of conviction and
evidence adduced before the trial court.

17. The only question which is
required to be addressed and determined in
this appeal is whether the conclusion of
guilt arrived at by the trial court and the
sentence awarded is legal and sustainable
under law and suffers from no infirmity and
perversity.

18. In written report submitted by the
informant-P.W.-1, namely, Chunni wife of
Rajava has not disclosed the name of the
accused Ram Sevak. From perusal of the
first information report also, it is clear that
in the column of accused, name of Ram
Jiyavan son of Ramnath Kevat, resident of
Nari, Police Station Pailani, District Banda
has been mentioned. Name of the accusedappellant Ram Sewak has not been
mentioned in the first information report as
"accused". The informant who has given
typed application to the Superintendent of
Police. Banda in which she has admitted
that she does not know the accusedappellant nor she recognizes him by his
name, meaning thereby that at the time of
lodging of the first information report, the
informant as well as the victim were
unaware of the name and identity of the
accused-appellant.
The
informant
has
admitted in her cross-examination as P.W.-
1 that she had not disclosed the name of
accused-appellant
to
the
Investigating
Officer at the time of recording of her
statement under Section 161 Cr.P.C. She
has further stated in cross-examination that
it has also not been disclosed by her to the
Investigating Officer that the accusedappellant raped her daughter (victim). She
662 INDIAN LAW REPORTS ALLAHABAD SERIES
has further stated that her daughter told her
the name of the accused-appellant, whereas
the victim in her statement before the court
has not identified the accused-appellant.
With regard to identification of the
accused-appellant, no question about the
manner as to how the victim and her
mother
P.W.-1
have
recognized
the
accused-appellant, has been put by the
prosecution. From perusal of the case diary,
witnesses Phool Kevat and Ram Mohan
have stated in their statements recorded
under Section 161 Cr.P.C. while accusedappellant Ram Sevak was taking the victim
along with him, they have seen the
accused-appellant Ram Sevak but both the
witnesses, namely, Ram Mohan and Phool
Kevat have not been adduced before the
court below to identify the accusedappellant. No identification parade has
been done by the Investigating Officer. The
informant-P.W.-1 denied to recognize the
accused-appellant in her statement recorded
under
Section
161
Cr.P.C.
by
the
Investigation Officer as well as in her
statement recorded before the court below
as P.W.-1. Hence, it is clear that in the
prosecution case the alleged offence has
been committed by the accused-appellant,
is doubtful.

19. For appreciating the aforesaid
issue, it would be worthwhile to reproduce
judgment of the The Apex Court in the case
of Kanan & Ors. Vs. State of Kerala
reported in 1979 (3) SCC 319 has opined as
under:

"......It is well settled that where a
witness Identifies an accused who is not
known to him in the Court for the first time,
his evidence Is absolutely valueless unless
there has been a previous T. I. parade to
test his powers of observations. The Idea of
holding T. I. parade under Section 9 of the
Evidence Act is to test the veracity of the
witness on the question of his capability to
identify an unknown person whom the
witness may have seen only once. If no T. I.
parade is held then it will be wholly unsafe
to rely on his bare testimony regarding the
identification of an accused for the first
time in Court. ........."

20. The first informant-P.W.-1,
namely, Chunni wife of Rajava has stated
in her cross-examination that she had not
seen the accused-appellant taking the
victim to the forest along with him. She has
further stated that her brother-in-law
(Devar) namely, Budhram Sajivan and
Ram Mohan etc. have seen the accusedappellant taking the victim along with him
but all above are not examined in support
of the prosecution version. The informant
has accepted that she has not disclosed his
name in her typed application which was
given to Superintendent of Police, Banda.
She has further stated that she had not seen
the incident with her own eyes as she was
not present on the spot when the incident
occurred. She has further stated that neither
she
knew
accused-appellant
nor
she
recognized him by his name from before
the incident. From the aforesaid it is
apparently clear that the informant-P.W.-1
had not seen the incident with her own
eyes.
Even
otherwise,
there
is
inconsistency/improvement
in
the
statements of the P.W.-1.

21. P.W.-2 Victim has stated in her
examination-in-chief that the Investigating
Officer had prepared site plan on her
identification whereas the first informantP.W.-1 has stated in her examination-inchief that the site plan was prepared by the
Investigating Officer on identification of
herself. Therefore, it is not clear as to
whose on identification, the Investigating
10 All. Ram Sewak @ Baura Vs. State
663
Officer had prepared the site plan of the
place of occurrence. In the statements of
P.W.-2
also,
there
is
inconsistency/improvement.

22. P.W.-3, Head Constable-274
Ramnaresh, who is the scriber of the first
information report has stated in his crossexamination that inspection of the injury of
victim was not done by him due to nonappearance of the victim at the police
station. He has further admitted that during
the course of scribing of the first
information report, he did not ask about the
victim as to why she did not come to the
Police Station. Hence at the time of
scribing of the first information report, he
had not seen the injuries of the victim.
There is also no disclosure in General
Diary with regard to the same.

23. P.W.-4 Dr. Rekha Rani, Chief
Medical Officer, Mahila Hospital, Budaun
has examined the victim on 17.09.2001 and
she found following injuries on the which
are extracted hereinbelow:-

1. Secondary sex character:-

Breast
rudimentary/
infantile.
Pubic and axillary hairs absent. No external
injury mark seen anywhere on external
surface of body

2. Internal Examination:-

Full circumferential recent tear of
hymen with reddened brownish margin
present post vaginal wall torned at 6 O'
clock position in perineal region with
diamond shaped raw area of about 1 cm X
1.5 cm dimension. Base is bluish white
filled with whitish mucoid discharge.
Vagina admits one finger easily whose
negotiation was very painful and smeared
blood mixed discharge when taken out.
Vaginal
smear
taken
and
sent
for
pathological examination of spermatozoa.
Advised X-ray Rt. Wrist joint including all
carpel bone and Rt. Shoulder joint for
confirmation of age. Supplementary report
pending till X-ray report and smear report
is received from D.H. Banda and D.W.H.
Jhansi.

24. In Supplementary medical report
of the victim Doctor has opined that no
opinion about rape can be given. Injury in
private part is simple in nature and caused
by hard and blunt object.

25.

From
perusal
of
medical
examination report of the victim (ExhibitKa-4) it is evident that there is no signature
of victim on the injury report. There is only
a thumb impression of mother of the
victim, which is attested by the Medical
Officer, Women Hospital, Banda. This fact
has been admitted by the Doctor Rekha
Rani (P.W.-4) in her cross-examination that
the right hand thumb impression of mother
of victim has been verified by her (ExhibitKa-4). P.W.-4 has admitted that while
preparing the report and verifying the
thumb impression, inadvertently, she had
not mentioned the name of the "mother of
victim". She had only mentioned as
"mother of the victim". She has further
admitted that she had not asked the name of
mother of the victim at the time of
verifying the thumb impression that is why
her name had not been mentioned. The
Doctor has also stated in her crossexamination that she has not inquired about
the name of the mother of the victim i.e.
P.W.-1
at
the
time
of
medication
examination.

26. In such circumstances, it is not
clear whether the injuries shown in the said
664 INDIAN LAW REPORTS ALLAHABAD SERIES
injury report are of the victim or are of her
mother, Chunni Devi. There is no thumb
impression or signature of the victim on
this very report (Exhibit-Ka-4). Even
otherwise, the Doctor has opined that no
opinion about rape can be given as vaginal
smear is negative for spermatozoa. As
such, the said medical evidence of the
prosecution is also doubtful.

27. P.W.-5 K. L. Sagar, Sub-Inspector
has also been examined. He is a formal
witness. He has submitted the charge-sheet
before the court below. He has admitted in
his cross-examination that he has prepared
Parcha No. 13 on 26.11.2001. He has also
admitted that in second line of Parcha no.
13 there is overwriting of date and by
making
such
overwriting,
the
date
"14.11.2001" has been mentioned.

28 P.W.-6 S.I. Umashanker Chandel
is the second Investigating Officer. He has
stated in his cross-examination that on
15.09.2021 the victim had not come
alongwith her mother to the police station.
He has also admitted that Inspector
Indrajeet Singh had not written the injuries
of the victim on Parcha No.1. He further
admitted that he had not asked about the
injuries of the victim. He further admitted
that the first informant/ complainant had
not disclosed the name of the accusedappellant.
Indrajeet
Singh,
the
first
Investigating
Officer
has
not
been
examined by the prosecution to support the
prosecution case.

29. It is also noteworthy that from the
record it is not clear as to whether the
victim has been produced before the
Magistrate concerned for recording her
statement under Section 164 Cr.P.C. and
why such statement has not been recorded.
It is also not clear that if such statement has
been recorded, why the same has not been
produced before the court below during the
course of trial so that the same could be
exhibited and kept on record.

30. It is also noteworthy that
according to medical report the injuries
found on the victim were not serious, hence
the trial court has not found guilty the
accused-appellant of the offence under
Section 308 I.P.C.

31. We have examined the judgment
and order of conviction passed by the trial
court,
which
merely
noticed
the
prosecution version to hold that the
prosecution has established guilt of the
accused-appellant based on prosecution
evidence. The trial court has not carefully
examined the statements of the prosecution
witnesses so as to evaluate the correctness
or otherwise of the same. We have noticed
hereinabove
that
there
is
material
contradictions,
inconsistencies
and
discrepancies in the statements of the
prosecution
witnesses
specially
star
prosecution witness i.e. P.W.-1 and P.W.-2.

32. Apart from the above, neither any
test identification parade of the accusedappellant has been carried out nor the
accused-appellant was identified by the
victim (P.W.-2). Statement of the victim
under Section 164 Cr.P.C. is not on record.
The first informant (P.W.-1) and the victim
(P.W.-2) both did not know the name of the
accused-appellant
and
they
did
not
recognize him during the course of trial.
There is no thumb impression or signature
of the victim in the medical examination
report (Exhibit-Ka-4). Hence it is not
proved that the injury report is of the
victim. Doctor has opined that no opinion
about rape can be given as vaginal smear is
found negative.
10 All. Ram Sewak @ Baura Vs. State
665

33. We may note that on 22nd March,
2014, when the victim has been adduced as
P.W.-2 by the court below i.e. after more
than 13 years from the date of alleged
incident, she recognized him by his name
for the first time in the Court, after she
came to know about the accused-appellant
from some villagers. As already noted
above, no identification parade has been
done in the present case. Hence it is not
possible for a victim who was six years of
age at the time of incident, to recognize the
accused by his name after long lapse of
time in the court.

34. In Suresh Chandra Bahri Vs.
State of Bihar, reported in 1995 SCC
(Crl.) 60, the Apex Court has observed that
identification of accused by the witness in
court is substantial piece of evidence.
Where accused is not previously known to
the witness, Test Identification Parade must
be held at the earliest possible. The relevant
portion of the said judgment reads as
follows:

"78. ..............It is well settled that
substantive evidence of the witness is his
evidence in the court but when the accused
person is not previously known to the
witness concerned then identification of the
accused by the witness soon after his arrest
is of great importance because it furnishes
an assurance that the investigation is
proceeding on right lines in addition to
furnishing corroboration of the evidence to
be given by the witness later in court at the
trial. From this point of view it is a matter
of
great
importance
both
for
the
investigating agency and for the accused
and
a
fortiori
for
the
proper
administration
of
justice
that
such
identification is held without avoidable
and unreasonable delay after the arrest of
the accused and that all the necessary
precautions
and
safeguards
were
effectively taken so that the investigation
proceeds on correct lines for punishing
the real culprit. It would, in addition, be
fair to the witness concerned also who was
a stranger to the accused because in that
event the chances of his memory fading
away are reduced and he is required to
identify the alleged culprit at the earliest
possible opportunity after the occurrence.
It is in adopting this course alone that
justice and fair play can be assured both
to the accused as well as to the
prosecution. But the position may be
different when the accused or a culprit
who stands trial had been seen not once
but for quite a number of times at
different point of time and places which
fact may do away with the necessity of TI
parade. ....."

35. Again in the case of Dana Yadav
@ Dahu & Others Vs. State of Bihar
reported in 2002 (7) SCC 295, the Apex
Court has opined as follows:

"It is also well settled that failure
to hold test identification parade, which
should be held with reasonable despatch,
does not make the evidence of identification
in court inadmissible rather the same is
very much admissible in law. Question is
what is its probative value? Ordinarily
identification of an accused for the first
time in court by a witness should not be
relied upon, the same being from its very
nature, inherently of a weak character,
unless it is corroborated by his previous
Identification in the test identification
parade or any other evidence. The purpose
of test identification parade is to test the
observation, grasp, memory, capacity to
recapitulate what a witness has seen
earlier, strength or trustworthiness of the
evidence of identification of an accused
666 INDIAN LAW REPORTS ALLAHABAD SERIES
and to ascertain if it can be used as reliable
corroborative evidence of the witness
identifying the accused at his trial in court.
If a witness identifies the accused in court
for the first time, the probative value of
such uncorroborated evidence becomes
minimal so much so that it becomes, as a
rule of prudence and not law, unsafe to
rely on such a piece of evidence. We are
fortified in our view by catena of decisions
of this Court in the cases of of Kanta
Prasad v. Delhi Administration, AIR (1958)
SC 350, Vaikuntam Chandrappa (supra),
Budhsen (supra), Kanan & Ors. Vs. State
of Kerala, [1979] 3 SCC 319, Mohanlal
Gangaram Gehani v. State of Maharashtra,
[1982] l SCC 700, Bollavaram Pedda
Narsi Reddy (supra), State of Maharashtra
Vs. Sukhdev Singh, [1992] 3 SCC 700,
Jaspal Singh alias Pali v. State of Punjab,
[1997] l SCC 510, Raju alias Rajendra vs.
State of Maharashtra, [1998] l SCC 169,
Ronny
alias
Ronald
James
Alwaris,
(supra), George & Others Vs. State of
Kerala & Anr., [1998] 4 SCC 605, Rajesh
Govind Jagesha, (supra), State of H.P. Vs.
Lekh Raj & Anr., [2000] l SCC 247 and
Ramanbhai Naranbhai Patel and Ors. v.
State of Gujarat, [2000] l SCC 358."

(Emphasis added)

36. In view of the above discussions,
we find that the trial court was not justified in
returning the finding of guilt against the
accused-appellant on the basis of evidence
led by the prosecution. Finding of the court
below that the guilt of the accused-appellant
has been proved beyond reasonable doubt is
perverse. We hold that the prosecution has
failed to prove the guilt of the accusedappellant beyond reasonable doubt.

37. Consequently, in view of the
deliberation held above, this appeal succeeds
and is allowed. The judgment and order of
conviction 21.01.2015 passed by Additional
Sessions Judge, Court No.1, Banda in S.T.
No. 188 of 2013 cannot be sustained and is
hereby set aside. The accused-appellant Ram
Sewak @ Baura is clearly entitled to benefit
of doubt. As he has already suffered
incarceration of almost ten years since the
trial was started, he is entitled to be released
forthwith.

38. Accordingly, the present appeal
stands allowed.

39. The accused-appellant Ram Sewak
@ Baura shall be released on compliance of
Section 437-A Cr.P.C., unless he is wanted in
any other case forthwith.

40. We record out appreciation of the
able assistance rendered in the case by Mr.
Virendra Pratap Yadav, learned Amicus
Curiae, who would be entitled to his fee from
the High Court Legal Service Authority,
quantified as Rs. 15,000/-

41. Let a copy of this judgment be sent
to the Chief Judicial Magistrate, Banda
henceforth, who shall transmit the same to
the concerned jail Superintendent for release
of the accused-appellant Ram Sewak @
Baura in terms of this judgment.
----------
(2022) 10 ILRA 666
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.09.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 2919 of 2006

Manoj Kumar ...Appellant
Versus
State of U.P. ...Respondent