# Rameshwar @ Ramesh Revisionist v. State of U.P

- **Citation:** (2020) 8 ILRA 637
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-18
- **Case number:** Criminal Revision No. 888 of 2018
- **Bench:** Rajendra Kumar -Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rameshwar-ramesh-revisionist-v-state-of-u-p-45881
- **Pages:** 6

## Headnote

A.G.A.

Competent court - can fully rely - on a
solitary
witness-record
conviction
-
legal system laid emphasis-quality over
quantity-no legal or otherwise error in
judgment
of
Court
below-Revision
partly allowed.

Held, so far as the public witness is
concerned, it is well settled that in absence of
public witness, prosecution story cannot be
disbelieved unless it is otherwise proved.
Incident like rape or sexual assault is
generally committed in lonely place and it is
not possible for prosecution to produce public
witness. (para 16)

Revision partly allowed. (E-9)

Cases referred: -

## Text

8 All. Rameshwar @ Ramesh Vs. State of U.P.
637
recovered safe and sound. Thus, for the
reasons noted above, the third ingredient of
the offence under Section 364-A IPC is
found not proved.

21. As a consequence of the above
discussion and for the reasons given, we
find that ingredients of offence under
Section 365 IPC was made out, inasmuch as
the victim, who was a minor child, is found
to have been kidnapped and wrongfully
confined by the appellant. In absence of the
third/further ingredient of the offence under
Section 364-A IPC, we find the present to
be a fit case to modify the charge and,
therefore, the conviction and sentence
awarded to the appellant-Guddoo @ Nitin
Singh, to one under Section 365 IPC in
place of Section 364-A IPC.

22. Accordingly, the appeal is allowed
in part. The conviction of the appellantGuddoo @ Nitin Singh under Section 364-A
IPC is modified to one for offence punishable
under Sections 365 IPC. The maximum
punishment for such offence is seven years
only. The sentence is modified accordingly.
The appellant-Guddoo @ Nitin Singh has
remained confined for more than 15 years.
He is directed to be released forthwith, unless
required in any other case. The fine of Rs.
10,000/-, awarded by the learned court
below, is set-aside.
----------
(2020)08ILR A637
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.06.2020

BEFORE

THE HON'BLE RAJENDRA KUMAR -IV, J.

Criminal Revision No. 888 of 2018

Rameshwar @ Ramesh ...Revisionist
Versus
State of U.P. ...Opposite Party

Counsel for the Revisionist:
Sri Satendra Kumar Upadhyay, Smt. A.P.
Upadhyay, Sri M.P.S. Chauhan

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

Competent court - can fully rely - on a
solitary
witness-record
conviction
-
legal system laid emphasis-quality over
quantity-no legal or otherwise error in
judgment
of
Court
below-Revision
partly allowed.

Held, so far as the public witness is
concerned, it is well settled that in absence of
public witness, prosecution story cannot be
disbelieved unless it is otherwise proved.
Incident like rape or sexual assault is
generally committed in lonely place and it is
not possible for prosecution to produce public
witness. (para 16)

Revision partly allowed. (E-9)

Cases referred: -

1. Dalip Singh Vs. St. of Punjab, AIR,1953, SC 364

2. Dharnidhar Vs. St. of U.P. (2010) 7 SCC 759,

3.Ganga Bhawani Vs. Rayapati Venkat Reddy
& ors., 2013(15) SCC 298

4.Sampath Kumar Vs. Inspector of Police,
Krishnagiri, (2012) 4 SCC 124

5. Sachin Kumar Singhraha Vs. St. of M.P. in
Criminal Appeal Nos. 473-474 of 2019

6.Namdeo Vs. St. of Maharashtra (2007) 14
SCC 150

(Delivered by Hon'ble Rajendra Kumar -IV, J.)

1. Heard Sri MPS Chauhan, learned
counsel for revisionist, learned AGA for State
and perused the material available on record.
638 INDIAN LAW REPORTS ALLAHABAD SERIES

2.

Impugned
order
dated
27.01.2018, passed by Additional District
and Sessions Judge, Court No.6, Aligarh,
in Criminal Appeal No. 284 of 2016 and
judgment and order dated 7.11.2016
passed by learned Additional Chief
Judicial Magistrate, Court No.4, Aligarh
in Criminal Case No. 1401 of 2009, are
under challenge in the present revision.

3. Trial Court convicted the accused
under Section 377 IPC and sentenced
him to undergo 7 years' rigorous
imprisonment and fine of Rs. 25000/-
with default sentence.

4. Criminal Appeal No. 284 of 2016
filed there-against has also been dismissed by
Additional Sessions Judge, Court No. 6,
Aligarh, vide order dated 27.01.2018.

5. Brief facts, as per prosecution
story, are that on 4.10.2000, at about 5:00
pm, victim boy (name withheld) aged
about 5 years, was playing at the roof of
the house. Accused called him fondly
and took him to the field and molested
him in Millet filed. On hearing his
scream,
Dinesh
and
other
persons
reached there. Victim approached his
grandmother-Kailashi and narrated the
entire incident. PW-1, Mahendra Singh
uncle of the victim, submitted written
Tehrir, Ex.Ka-1, in respect of incident
before the Police Station concerned. On
the basis of written Tehrir, Ex.Ka-1,
Chick FIR has been registered by
Constable Clerk, under Section 377 IPC,
against the accused and entry of case was
made in the General Diary.

6. PW-3, Dr. S.B. Sharma,
medically examined the victim and
prepared
injury
report,
Ex.KA-2.
Investigating Officer of case commenced
investigation,
prepared
site
plan,
recorded the statements of witnesses,
collected other evidence, found sufficient
evidence and submitted charge-sheet
against the accused under Section 377
IPC before the Court concerned.

7. Trial Court, on 19.4.2003, framed
the charge against the accused, under Section
377 IPC. Accused-revisionist herein denied
the charge levlled against him and claimed to
be tried.

8. In support of its case, prosecution
examined PW-1 Mahendra Singh, PW-2
victim and PW-3 Dr. S B Sharma. Out of
whom, PW-1 and 2 are the witnesses of
fact and PW-3 is formal witness
conducting medical examination.

9. On closure of evidence of
prosecution,
statement
of
accusedrevisionist was recorded by the Trial
Court
under
Section
313
Cr.P.C.
Accused-revisionist
denied
the
prosecution story in toto. He examined
DW-1 Sahab Singh in his defence
evidence. Statements of witnesses are
said to be wrong by him. Trial Court
considering
the
entire
evidence,
convicted the accused-revisionist and
sentenced as stated above.

10. Learned counsel for revisionist
advanced the arguments in the following
manner :-

There is no public witness in
support of prosecution.

There is no motive to accusedrevisionist to commit the present crime.

Informant PW-1, is not an eye
witness. He reached on the spot on
hearing the alarm raised by victim.
8 All. Rameshwar @ Ramesh Vs. State of U.P.
639

There is contradiction in the
statements of witnesses. Statement of
victim PW-2 is self contradictory.

Medical evidence does not go
with the oral testamentary.

Prosecution has failed to prove
its case beyond reasonable doubt. Trial
Court did not appreciate the evidence on
record carefully and convicted the
accused-revisionist on the basis of
surmises and conjectures.

In case revision fails, accusedrevisionist may be sentenced to the the
period already under gone.

11. In response thereto, learned
AGA for State opposed the revision by
arguing that accused-revisionist had
carnal intercourse with victim, aged
about 5 years, and victim himself is a
responsible witness. His statement is duly
intact and believable, worthy to credence.
Trial Court after full care and caution,
appreciated the evidence and rightly
convicted and sentenced to the accusedrevisionist. Appeal there-against is also
well reasoned and has been rightly
dismissed. It is an offence against the
society and accused-revisionist requires
no
sympathetic
consideration
and
revision is liable to be dismissed.

12. I have heard learned counsel for
accused-revisionist, learned AGA for
State at considerable length and perused
the record with the assistance of learned
counsel for parties.

13. Now I may consider the
evidence of prosecution. PW-2 (victim of
the present case) deposed that he was
playing on the roof of the house;
accused-revisionist-Rameshwar took him
in the Millet field from there. He
committed carnal intercourse in the
Millet field with him. At that time, it was
5:00 pm. At the time of intercourse, he
cried and on hearing his scream, one
Dinesh reached there at the place of
occurrence and he rushed to his grandmother Kailashi and narrated the entire
story to her. His anus was bleeding. His
uncle took him to Police Station, later on
Aligarh
Hospital,
where
he
was
medically examined. Police inquired him
whereupon who told the incident to
Police. Victim PW-2 withstood lengthy
cross-examination but nothing adverse
material could be brought on record so as
to disbelieve his natural evidence. At the
time of incident, victim was aged about 5
years. There was no reason to him to
state
falsely
against
the
accusedrevisionist. His statement appears to be
quite natural.

14. PW-3, S.B. Sharma, deposed
that on 5.10.2000, he was posted as
Emergency Medical Officer (EMO) in
Malkhan Singh Hospital, Aligarh. On the
very same day, at about 1:50 am, victim,
aged about 5 years, was taken by HG
Ram Kumar for medical examination. He
examined the victim and found local
tenderness over his anal region, skin was
red in colour, anal swab was taken by
him
and
sent
for
pathological
examination but he did not found any
external mark of injury over the body.

15. Thus doctor PW-3 examined the
victim supported the prosecution case,
medical evidence completely goes with
the statement of victim.

16. So far as the public witness is
concerned, it is well settled that in
640 INDIAN LAW REPORTS ALLAHABAD SERIES
absence of public witness, prosecution
story cannot be disbelieved unless it is
otherwise proved. Incident like rape or
sexual assault is generally committed in
lonely place and it is not possible for
prosecution to produce public witness.

17. In Dalip Singh v. State of
Punjab, AIR,1953, SC 364. Court held
as under :-

"A witness is normally to be
considered independent unless he or she
springs from sources which are likely to
be tainted and that usually means unless
the witness has cause, such as enmity
against the accused, to wish to implicate
him falsely. Ordinarily, a close relative
would be the last to screen the real
culprit and falsely implicate an innocent
person. It is true, when feelings run high
and there is personal cause' for enmity,
that there is a tendency to drag in an
innocent person against whom a witness
has a grudge along with the guilty, but
foundation must be laid for such a
criticism
and
the
mere
fact
of
relationship far from being a foundation
is often a sure guarantee of truth.
However, we are not attempting any
sweeping generalisation. Each case must
be judged on its own facts. Our
observations are only made to combat
what is so often put forward in cases
before us as a general rule of prudence.
There is no such general rule. Each case
must be limited to and be governed by its
own facts."

18. In Dharnidhar v. State of UP
(2010) 7 SCC 759, Court has observed as
follows :-

"There is no hard and fast rule
that family members can never be true
witnesses to the occurrence and that they
will always depose falsely before the
Court. It will always depend upon the
facts and circumstances of a given case.
In the case of Jayabalan v. U.T. of
Pondicherry (2010) 1 SCC 199, this
Court had occasion to consider whether
the evidence of interested witnesses can
be relied upon. The Court took the view
that a pedantic approach cannot be
applied while dealing with the evidence
of an interested witness. Such evidence
cannot be ignored or thrown out solely
because it comes from a person closely
related to the victim"

19.

In
Ganga
Bhawani
v.
Rayapati Venkat Reddy and Others,
2013(15) SCC 298, Court has held as
under :-

"11. It is a settled legal
proposition that the evidence of closely
related witnesses is required to be
carefully scrutinised and appreciated
before any conclusion is made to rest
upon it, regarding the convict/accused in
a given case. Thus, the evidence cannot
be disbelieved merely on the ground that
the witnesses are related to each other or
to the deceased. In case the evidence has
a ring of truth to it, is cogent, credible
and trustworthy, it can, and certainly
should, be relied upon.

(Vide: Bhagalool Lodh & Anr.
v. State of UP, AIR 2011 SC 2292; and
Dhari & Ors. v. State of U. P., AIR 2013
SC 308)."

20. In so far as discrepancies,
variation
and
contradiction
in
the
prosecution case are concerned, we have
analysed entire evidence in consonance
with the submissions raised by learned
8 All. Rameshwar @ Ramesh Vs. State of U.P.
641
counsel's and find that the same do not go
to the root of case.

21. In Sampath Kumar v.
Inspector of Police, Krishnagiri, (2012)
4 SCC 124, the Apex Court has held that
minor contradictions are bound to appear
in the statements of truthful witnesses as
memory sometimes plays false and sense
of observation differs from person to
person.

22. In Sachin Kumar Singhraha
Vs. State of Madhya Pradesh in
Criminal Appeal Nos. 473-474 of 2019
decided on 12.3.2019 Hon'ble Supreme
Court has observed that the Court will
have to evaluate the evidence before it
keeping in mind the rustic nature of the
depositions of the villagers, who may not
depose
about
exact
geographical
locations with mathematical precision.
Discrepancies of this nature which do not
go to the root of the matter do not
obliterate otherwise acceptable evidence.
It need not be stated that it is by now well
settled that minor variations should not
be
taken
into
consideration
while
assessing the reliability of witness
testimony and the consistency of the
prosecution version as a whole.

23. In Namdeo v. State of
Maharashtra (2007) 14 SCC 150, Court
re-iterated the view observing that it is
the quality and not the quantity of
evidence which is necessary for proving
or disproving a fact. The legal system has
laid emphasis on value, weight and
quality of evidence rather than on
quantity, multiplicity or plurality of
witnesses. It is, therefore, open to a
competent court to fully and completely
rely on a solitary witness and record
conviction. Conversely, it may acquit the
accused inspite of testimony of several
witnesses if it is not satisfied about the
quality of evidence.

24. Considering the entire evidence
and in view of legal proposition of law
discussed herein above, I do not find any
legal or otherwise error in the judgment
rendered by the Courts below, conviction
of the accused revisionist under Section
377 IPC is liable to be maintained. It is
maintained. Revision is dismissed on the
point of conviction under the aforesaid
section.

25. So far as the sentence of
accused is concerned, it is a matter of
discretion to be exercised on the
consideration
of
circumstance
aggravating
and
mitigating
in
the
individual case. It is settled legal position
that sentence should be awarded after a
giving consideration to the facts and
circumstance of each case, nature of
offence, and manner in which it was
committed. The measure of punishment
should be proportionate to the gravity of
offence. Punishment to be awarded for a
crime must not be irrelevant but it should
conform to and be consistency with the
atrocity and brutality.

26. Incident in this case is of 2000. A
considerable time has elapsed. Keeping in
view the nature of allegation against the
accused-revisionist, injury found on the
person of victim, age of accused, applying
the legal principle and having regard to the
totality of facts and circumstance of the case,
sentence awarded by the Court below is
being modified.

27. Revision is partly allowed
confirming the conviction of the accusedrevisionist under Section 377 IPC and the
642 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned order of sentence is modified.
Accused-revisionist shall under go for a
period
of
three
years'
rigorous
imprisonment and he will also pay fine
already imposed by trial court concerned
and under the condition as imposed by
trial
Court.
Period
of
detention
undergone by accused-revisionist shall be
set
off
against
the
sentence
of
imprisonment in accordance with law.

28. Copy of this judgment along
with the lower court record be sent back
forthwith for information and compliance
through District Judge, concerned.
----------
(2020)08ILR A642
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.11.2019

BEFORE

THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Criminal Revision No. 1149 of 2004

Chhote Lal & Ors. ...Revisionists
Versus
State of U.P. ...Opposite Party

Counsel for the Revisionists:
Sri Sudhakar Pandey, Sri Ajeet Kumar
Singh, Sri Surya Pratap Singh Parmar

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

Probation of Offenders Act - Section 4 -
Duty of the Court to award proper
sentence-regard to nature and manner
it was executed-benefit of probation to
be given-punishment of Court below
upheld - Revisionists however not send
to jail-benefit of section 4 - Revision
disposed.

Held, In this instant case, the court below
has not considered the probation law,
although, the revisionists were only convicted
for the offence under Sections 323, 324 and
325 read with Section 34 I.P.C. for which the
accused-revisionists were convicted for the
maximum period of four years. Therefore, the
benefit of probation could have been given in
view of the law referred above. But, while
awarding sentence this aspect was not
considered. The learned court below did not
even write a single word as to why the
benefit of this beneficial legislation was not
given to the accused whereas it was
mandatory to do so under the provisions of
Section 361 Cr.P.C. Moreover, the occurrence
relates to the year 1989 and this revision is
pending since 2004 and therefore, no purpose
of justice will be served if the revisionists are
sent to jail to undergo the terms of sentence
after lapse of such long time.(para 12)

Revision disposed. (E-9)

Cases referred:-

1.Subhash Chand & ors. Vs St. of U.P. (2015
Law Suit (All) 1343)

2. Criminal Revision No. 1319 of 1999
(Hargovind & ors. Vs. St. of U.P.)

3.Maharashtra Vs. Jagmohan Singh Kuldip
Singh Anand & ors. (2004) 7 SCC 659

4. Jagat Pal Singh & ors. Vs. St. of Har., AIR
2000 SC 3622

(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.)

1. Heard Sri Surya Pratap Singh
Parmar, learned counsel appearing on
behalf of revisionists no. 1 and 2, Sri
Ravi Prakash Singh, learned A.G.A. and
perused the record.

2. This court vide order dated
05.01.2019 for securing presence of the