# Rinka @ Jitendra v. State of U.P

- **Citation:** (2021) 11 ILRA 74
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-30
- **Case number:** Criminal Appeal No. 3879 of 2015
- **Bench:** Dr. Kaushal Jayendra Thaker, Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rinka-jitendra-v-state-of-u-p-46691
- **Pages:** 5

## Headnote

Evidence Law - Indian Evidence Act, 1872-
Sections 3 ,101 , 145 & 155(3) - Only
examination of interested witnesses- Major
contradictions - Failure to prove injuries with
weapon alleged - Perverse findings- Just
because the F.I.R had named the accused it
cannot mean that the site plan depicting the
presence of the accused at a particular place is
proved beyond reasonable doubt. There are
several contradictions and these contradictions
are
not
minor
in
nature-
All
interested
witnesses
have
been
examined
by
the
prosecution. Not a single witness who can be
said to be an independent witness has been
examined. The finding of the learned Judge is
not accepting the submission of the accused
goes
to
through
the
perversity
in
the
judgement. The F.I.R never stated that the
accused had any altercation with the deceased
girl, it was juvenile delinquent who had passed
remarks-The accused should be granted what
is known as benefit of doubt. One of the
reasons been the manner in which the injuries
was caused was not with the weapon which
was alleged to be carried by the accused, the
scribe also did not prove the time of the
11 All. Rinka @ Jitendra Vs. State of U.P.
75
incident. The manner of assault is also not been
proved against the accused.

Settled law that the burden of proving its case beyond
all reasonable doubt lies upon the prosecution. Where
the prosecution has examined only interested
witnesses whose testimony has major contradictions,
the time, place and manner of the alleged assault has
not been proved and the judgement of the trial court
is perverse, then the accused is entitled for the
benefit of doubt. (Para 12, 13)

Criminal Appeal Allowed. (E-3)

Judgements/ Case law relied upon:-

## Text

74 INDIAN LAW REPORTS ALLAHABAD SERIES
In view of the law settled by the Supreme Court
in the case of Nasib Singh versus State of
Punjab 2021 SCConline Supreme Court 924 a
joint Trial could have been held As the college
where the three accused were studying was one,
its Principal had lodged the FIR regarding
similar interpolations in marksheets by the three
accused on the basis of same record of results
maintained by it in its ordinary course of
business and the very same evidence was to be
produced to bring home the charge in the case of
each of the accused and the prosecution
witnesses who were examined to prove the
charges were also the same.

73. This Court having considered the law
laid down by the Supreme Court for considering
applications for suspension of sentence and
conviction pending appeals by the appellant
does not find merit in the submissions made by
the learned counsel for the appellant that he will
suffer irreparable loss if his conviction is not
stayed as he will be disqualified under Section
8(3) of the Representation of Peoples Act for a
period of six years from the date of his
conviction till his release from participating in
elections. The Supreme Court has time and
again observed the need to maintain probity in
public life. This Court cannot countenance the
conduct of the appellant as brought out by the
facts mentioned hereinabove in taking the
Authorities for a ride by submitting fake proof
of identity and residence for procuring an arms
license, and in taking the Courts for a ride in
submitting bail papers and sureties on the basis
of fake residential address and also removing
Court records of criminal case pending against
him.

74. The application under Section 389 (1)
of the Cr.P.C. therefore stands rejected.
----------
(2021)12ILR A74
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.11.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE DINESH PATHAK, J.

Criminal Appeal No. 3879 of 2015

Rinka @ Jitendra ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri
Sudhir
Kr.
Kulshreshtha,
Sri
Noor
Mohammad, Sri Ronak Chaturvedi, Sri Santosh
Tripathi, Sri Umang Srivastava, Zia Naz Zaidi, Sri
Ajay Kumar Pathak, Ms. Alka Upadhyay, Sri
Krishna Deep Singh

Counsel for the Respondent:
Govt. Advocate

Evidence Law - Indian Evidence Act, 1872-
Sections 3 ,101 , 145 & 155(3) - Only
examination of interested witnesses- Major
contradictions - Failure to prove injuries with
weapon alleged - Perverse findings- Just
because the F.I.R had named the accused it
cannot mean that the site plan depicting the
presence of the accused at a particular place is
proved beyond reasonable doubt. There are
several contradictions and these contradictions
are
not
minor
in
nature-
All
interested
witnesses
have
been
examined
by
the
prosecution. Not a single witness who can be
said to be an independent witness has been
examined. The finding of the learned Judge is
not accepting the submission of the accused
goes
to
through
the
perversity
in
the
judgement. The F.I.R never stated that the
accused had any altercation with the deceased
girl, it was juvenile delinquent who had passed
remarks-The accused should be granted what
is known as benefit of doubt. One of the
reasons been the manner in which the injuries
was caused was not with the weapon which
was alleged to be carried by the accused, the
scribe also did not prove the time of the
11 All. Rinka @ Jitendra Vs. State of U.P.
75
incident. The manner of assault is also not been
proved against the accused.

Settled law that the burden of proving its case beyond
all reasonable doubt lies upon the prosecution. Where
the prosecution has examined only interested
witnesses whose testimony has major contradictions,
the time, place and manner of the alleged assault has
not been proved and the judgement of the trial court
is perverse, then the accused is entitled for the
benefit of doubt. (Para 12, 13)

Criminal Appeal Allowed. (E-3)

Judgements/ Case law relied upon:-

1. St. of Guj. Vs. Bhalchandra Laxmishankar Dave,
2021 (0) AIJEL-SC 66983

2. Awadh Ram Vs. St. of U.P, 2004 (48) ACC 365

(Delivered by Hon'ble Dr. Kaushal Jayendra Thaker, J.
&
Hon'ble Dinesh Pathak, J.)

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

2. The instant Criminal Appeal has been
preferred on behalf of the sole appellant-convict
Rinka alias Jitendra against the judgment dated
14.07.2015 passed by the Sessions Court in
Sessions Trial No. 471 of 2013 (State Vs. Rinka
@ Jitendra) arising out of Case Crime No. 342
of 2012, under Sections 376, 511 read with 302
of
Indian
Penal
Code
(I.P.C.),
P.S.
Palimukimpur, District Aligarh whereby the
learned trial court convicted him for the offence
under Section 376/511 of Indian Penal Code and
sentenced appellant to undergo with rigorous
imprisonment of 5 years and a fine of Rs. 5000/-
and also ordered to undergo imprisonment of
two months in default of payment of fine and for
the offence under Section 302 of Indian Penal
Code the appellant further undergo for life
imprisonment and fine of Rs. 20,000/- and in
default of payment of fine six months
imprisonment.

3. The brief facts as culled out from the
paper-book and the record are that Yadram
Sharma has given a written information at police
station Palimukimpur for commission of offence
under Section 376, 302 and 511 I.P.C on the
facts
that
on
27.12.2012
his
daughter
(prosecutrix) was aged about 14 years the
accused wanted to have illicit relation with her
and when she refused, he threatened to kill her
with a knife. This fact was conveyed by
prosecutrix to her mother. On 27.12.2012 at
about 4:30 p.m when the prosecutrix was on the
way to attend the call of nature, accused Gopal
who was declared juvenile later on and whose
case is pending before the Juvenile Justice
Board, Aligarh to the mustard field so as to
support this Gaurav the present accused in the
appeal also came behind him and when the girl
started yelling persons who were near her came
running. At that point of time the accused drew
out his pistol and conveyed that if anybody came
near he would shoot them, on this there was a
commotion. At that point of time as per the F.I.R
version the accused took out a knife and did
away with the prosecutrix and they went away.
The girl was declared dead. On the basis of the
complaint the investigation was started and it
converted into laying of charge-sheet against
both the accused. Lala @ Gaurav being juvenile,
his case was send to Juvenile Justice Board and
the case of present accused was committed to
the court of Sessions.

4. On this written information case crime
no. 342 of 2012 was registered under Sections
376/511 read with 302 I.P.C against Rinka @
Jitendra with the Police Station Palimukimpur,
District Aligarh.

5.

The
I.O.
after concluding the
investigation filed charge sheet against the
accused Rinka @ Jitendra and the concerned
court took cognizance of the same. The trial
court framed charges against the accused Rinka
@ Jitendra under sections 376/511 read with 302
76 INDIAN LAW REPORTS ALLAHABAD SERIES
I.P.C. and the charges were read over and
explained to the accused which was denied by
him and claimed for trial.

6. The prosecution so as to bring home the
charges examined seven witnesses, who are as
under:-

1.
Yadram Sharma
P.W.
2.
Nannu
P.W.
3.
Dharmendra Singh
P.W.
4.
Satyawati
P.W.
5.
Dr. Sayeed Mohammad
P.W.
6.
S.I/I.O Udal Singh
P.W.
7.
Dr. Anil Kumar Purwani
P.W.

7. In support of the ocular version of the
witnesses, following documents were produced
and contents were proved by leading evidence:

1.
Written report

2.
Panchayatnama

3.
Recovery memo of 'Lota'

4.
Recovery memo of blood stained & plain earth

5.
F.I.R

6.
Letter to the C.M.O

7.
Site plan

8.
Site plan with index

9.
Charge Sheet Mool

10.
P.M Report

8. We have heard submissions made by the
learned counsel for the appellant and also learned
A.G.A. for the State, and perused the materials brought
on record.

9. Shri Ajay Kumar Pathak, the learned counsel
for the appellant has submitted written argument that the
F.I.R was against two accused and it was Gaurav who
has threatened the victim even before four days of the
incident, there was no mention of the present appellant.
It is submitted that the appellant had a country made
pistol with him which was never used, how the persons
saw him giving blow to the deceased is silent. It is
submitted that the presence of the father is absolutely
doubtful, the scarf was tied around the neck and there
was bleeding of the victim which was never attributed to
the accused. The site plan was prepared but neither
pistol nor the knife was recovered. In postmortem report
two injuries were found on the body namely injury no. 1
was a lacerated wound on the neck and injury no. 2 was
abrasion on the face. The doctor who examined and
conducted the postmortem opined that injuries were
possible by a blunt object. The learned counsel further
submits that entire evidence of all the seven people do
not show that the accused was in any way attributed to
have committed rape. It is submitted that leave apart of
committing rape there was not a discussion even by the
learned judge about how the accused can be said to have
committed rape even there is no mention of attempt to
commit rape. The oral testimony of P.W.-7 does not
support prosecution story as far as it relates to
commission of offence under Section 376 read with 511
read with 302 I.P.C. Grounds of the appeal is as
follows:-

(i) There is no evidence against the
appellant for using of country made pistol;

(ii) It is not believable that in presence
of witnesses any person can kill the deceased
and can cover the injury with dupatta;

(iii) The father of the deceased work at
Delhi and Investigating Officer had also not
shown his presence in the site plan and
otherwise also P.W.-1 and P.W.-2 is 100 mtrs
away from the place of incident;

(iv) Accused persons were not seen
going towards the place of incident by the
alleged witnesses but it is alleged that accused
persons were seen while giving threat and
running from the place of incident;

(v) There is no evidence of resistance
or attempt of rape, in as much neither the clothes
of the deceased was torn nor any injury was
there on the whole body of the deceased;

(vi)
None
has
corroborated
the
prosecution version other than P.W-1, father of
11 All. Rinka @ Jitendra Vs. State of U.P.
77
the deceased and P.W.-2, cousin of the
deceased;

(vii) Both the alleged eye witnesses
could not even told the name of any single
witness who have reached the place of incident
and Investigating Officer also did not mention
the place in the site plan from where P.W.-1 and
P.W.-2 have seen the incident;

(viii) The doctor who conducted the
postmortem specifically stated that injury was
caused by a blunt object while the appellant was
alleged to have been armed with country made
pistol, there is huge conflict between oral and
medical evidence;

(ix) The appellant cannot be attributed
the role of killing the deceased as stated by
P.W.-1 himself that when he reached near the
spot he seen appellant Rinka @ Jitendra
showing country made pistol to the witnesses.
The co-accused had shown armed with knife;

(x) The manner in which injury was
caused was not proved by P.W.-7- the doctor
and as per suggestion and also P.W.-7, doctor
has accepted that incident took place in the
night;

(xi) The conviction of the appellant
under Section 376,511 and 302 I.P.C is against
the weight of evidence on record;

(xii) Even the court below did not look
into the contradiction in the prosecution
evidence which makes the prosecution story
doubtfu;

(xiii) Nothing has been recovered from
the possession of the appellant;

10. Learned counsel for the appellant in his
written submission has submitted that there was
no evidence against the appellant of having used
a country made pistol. There is no evidence that
an attempt of rape with the deceased was made
by the accused. It is submitted that the story put
forth by the prosecution that in presence of
appellant and co-accused the minor was done to
death and then the injury was covered by a
dupatta and had submitted that the timing of the
accident is not properly mentioned. The site plan
also belies the theories put forth by the
prosecution. It is submitted that P.W.-1 and
P.W.-2 are interested witnesses and there is no
corroboration by any independent witnesses. It is
submitted that the appellant had no motive. It is
further submitted that accused had been alleged
to have had pistol and not knife even if presence
is proved even then it cannot be said that the
appellant had committed the murder of the
victim. The manner of assault and entangling the
neck with dupatta is also going to show that it
was not the accused but either the juvenile
accused or any other person who had committed
this offence.

11. The learned counsel for the State has
submitted that the decision of the learned Judge
cannot be interfered with as the evidence against
the accused has been discussed in such a way
that there is no other view which can be taken
just because there was no recovery from the
accused, it cannot be said that he was not
involved in the incident. It is further submitted
that the judgment of the court below goes to
show that the death occurred of the girl and the
accused was found present. The eye witness
P.W.-2 has testified to the said effect. The
injuries are two in number and there is no
question of the accused not being involved in the
said crime his statement under Section 313
Cr.P.C is also silent. He has not examined any
witness so as to testify that he was not present. It
is submitted that learned lower court has rightly
not believed the decision cited by the accused.

12. Having heard the learned advocates
the recent decision of the Apex Court in
"State
of
Gujrat
Vs.
Bhalchandra
Laxmishankar Dave, 2021 (0) AIJEL-SC
66983 decided on 02.02.2021. Having heard
learned counsel for the parties, three things
emerge for our consideration, one the death
occurred due to knife injury and not by
injuries cause due to any gun fire. There is no
78 INDIAN LAW REPORTS ALLAHABAD SERIES
recovery of pistol from the present accused.
The site plan also does not inspire confidence
that the accused was present at the spot where
the crime was committed. The decision of the
Allahabad High Court in Awadh Ram Vs.
State of U.P, 2004 (48) ACC 365 will also
come to the aid of the accused which has been
misinterpreted by the learned Judge. Just
because the F.I.R had named the accused it
cannot mean that the site plan depicting the
presence of the accused at a particular place is
proved beyond reasonable doubt. There are
several contradictions and these contradictions
are not minor in nature. We have considered
thread bear the facts. All interested witnesses
have been examined by the prosecution. Not a
single witness who can be said to be an
independent witness has been examined. The
finding of the learned Judge is not accepting
the submission of the accused goes to through
the perversity in the judgement. The F.I.R
never stated that the accused had any
altercation with the deceased girl, it was
juvenile delinquent who had passed remarks.

13. We are convinced that this is a case
where the accused should be granted what is
known as benefit of doubt. One of the reasons
been the manner in which the injuries was
caused was not with the weapon which was
alleged to be carried by the accused, the scribe
also did not prove the time of the incident.
The manner of assault is also not been proved
against the accused.

14. In view of the facts and evidence on
record, we are convinced that the accused has
been wrongly convicted, hence, the judgment
and order impugned is reversed and the
accused is acquitted of charges levelled. The
accused appellant Rinka alias Jitendra in
case crime no. 342 of 2012 , if not wanted in
any other case, be set free forthwith.

15. Appeal is allowed accordingly.

16. Record be sent to the trial court.

17. We are thankful to learned counsel for
appellant and learned AGA for the State who
has ably assisted the Court.
----------
(2021)12ILR A78
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.10.2021

BEFORE

THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 4138 of 2018

Jasveer & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Santosh Tripathi, Sri Adesh Kumar, Sri
Mandvi Tripathi, Pradeep Kumar, Sri Ram Suphal
Shukla, Sri Vindeshwari Prasad

Counsel for the Opposite Party:
A.G.A., Sri Narendra Singh Chahar, Sri Ashutosh
Singh

Criminal Law - Indian Penal Code , 1860 -
Section 307- Allegation of use of firearm found
to be false- All injuries simple and not
dangerous to life- From the evidence of PW-1,
PW-2 and also from the perusal of injury
reports, it is crystal clear that no injured
sustained any firearm injury and prosecution
has failed to prove that any firearm was used in
the occurrence. Informant/injured Prakashwati
has
tried
to
make
exaggeration
in
her
statement and use of firearm is brought into
the picture just to exaggerate the case and for
bringing it within the ambit of offence under
Section 307 I.P.C. Dr. Azadveer Singh PW-3 has
also
given
opinion
that
no
injury
was
dangerous to life. Injured Pradeep sustained
12 injuries in all and out of these 12 injuries,
11 injuries were found simple in nature and
only one injury i.e. injury no. 8 was found
grievous in nature due to fracture in forearm of