# Rinku v. State Of U.P

- **Citation:** (2016) 5 ILRA 1979
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-10
- **Bench:** Mrs. Ranjana Pandya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rinku-v-state-of-u-p-43898
- **Pages:** 12

## Headnote

Indian Penal Code, 1860 - Sections 363 (Kidnapping), 366 (Kidnapping/Abduction to Compel
Marriage or Force Illicit Intercourse), 376(2)(g) (Gang Rape), read with Section 34; Code of
Criminal Procedure, 1973 - Sections 53-A, 154, 164, 313, 437-A; Indian Evidence Act, 1872 -
Sections 114-A, 118, 133, 134.

## Text

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5 All. Rinku Vs State Of U.P.

1979
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 10.05.2016

BEFORE

THE HON'BLE MRS. RANJANA PANDYA, J.

Criminal Appeal No.- 3129 Of 2014
&
Criminal Appeal No.- 3435 Of 2014

Rinku ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for the Appellant:
Gaurav Kakkar, Arvind Kumar, Ch. Arvind Kumar.

Counsel for Respondent:
Govt.Advocate, Surendra Kumar Tripathi.

Indian Penal Code, 1860 - Sections 363 (Kidnapping), 366 (Kidnapping/Abduction to Compel
Marriage or Force Illicit Intercourse), 376(2)(g) (Gang Rape), read with Section 34; Code of
Criminal Procedure, 1973 - Sections 53-A, 154, 164, 313, 437-A; Indian Evidence Act, 1872 -
Sections 114-A, 118, 133, 134.

1. Criminal Appeals - Two Appeals Arising from Same Case Crime - Decided by Common Order
- Permissibility:
Where two separate criminal appeals have been preferred by two co-accused against a common judgment of
conviction passed by the trial court arising out of one and the same case crime number and sessions trials
connected thereto, the High Court may decide both appeals by a single common order, it being the most
efficacious and appropriate course. - Both appeals decided by common order.

2. Rape - Testimony of Prosecutrix - Reliability - When Conviction Cannot Be Based Thereon
- Inherent Infirmities and Self-Contradictions - Benefit of Doubt to Accused:
While it is a settled proposition of law that in matters of rape, the testimony of the prosecutrix occupies a
higher pedestal than that of an injured witness and conviction can be based on her sole testimony, such
testimony must inspire confidence and be free from inherent infirmities. Where the statement of the
prosecutrix before the court is riddled with material contradictions and inconsistencies, and is further found to
be inconsistent with her statement recorded under Section 164 Cr.P.C., no plausible explanation having been
offered for such discrepancies, the court cannot base conviction on such testimony. In the present case, the
prosecutrix made contradictory statements in the same breath - stating she raised alarm while
simultaneously claiming she remained unconscious throughout; claiming to know the accused by name yet
stating she could not recognise them; and failing to explain why she sat at the railway station for 10-15
minutes without seeking help or raising alarm, when her house was nearby. Major facts were omitted in the
Section 164 Cr.P.C. statement but surfaced for the first time at trial, casting serious doubt on the veracity of
the deposition. - Conviction set aside; testimony of prosecutrix held wholly unreliable.
1980 INDIAN LAW REPORTS ALLAHABAD SERIES
3. FIR - Inordinate and Unexplained Delay in Lodging - Father Knowing Identity of Accused -
Fatal to Prosecution Case:
The incident was said to have taken place on 07.12.2009, but the FIR was lodged only on 10.12.2009,
despite the police station being within one furlong of the place of occurrence. P.W.2 (Gulab Singh) had
informed the informant on the very date of the incident that he had seen the accused persons taking away
the victim on a motorcycle. In such circumstances, no satisfactory explanation was offered as to what
prevented the father from lodging even a missing report, let alone the FIR, when the names of the accused
were known to him. The informant gave contradictory versions regarding the date of lodging the FIR - first
claiming it was lodged on 10.12.2009 and then suggesting 14.12.2009, which was contrary to the record.
Relying upon Mohd. Ali @ Guddu vs. State of U.P., (2015) 7 SCC 272, the Court held that the inordinate and
unexplained delay in lodging the FIR is fatal to the prosecution case in the facts of this matter. - Delay in
FIR held fatal.

4. Witnesses - Interested and Related Witnesses Concealing Relationship - Credibility
Adversely Affected:
P.W.1 (the informant) and P.W.2 (Gulab Singh), who was the sole witness to the alleged abduction, were
found to be first cousins (both tracing descent from a common grandfather), a fact both initially denied
before the trial court and had to admit only when confronted with the pedigree of their common ancestor.
This deliberate concealment of a close relationship between the two key witnesses of fact adversely affected
their credibility and the reliability of the prosecution case as a whole. - Veracity of prosecution witnesses
found doubtful.

5. Section 164 Cr.P.C. - Omissions and Contradictions in Statement of Prosecutrix vis-à-vis
Court Deposition - Effect:
Where a prosecutrix, when confronted at trial with her statement recorded under Section 164 Cr.P.C. before
the Magistrate, admits that several material facts deposed to in court were not stated before the Magistrate,
and no plausible explanation is forthcoming for such glaring omissions, the court is entitled to treat the
deposition as an afterthought and embellishment, rendering the testimony unreliable. Relying upon
Musauddin Ahmad vs. State of Assam, (2009) 12 SCC 541 and Rajesh Patel vs. State of Jharkhand, (2013) 2
SCC (Cri) 279, the Court held that serious contradictions between court testimony and the Section 164
statement render the entire prosecution story doubtful and entitle the accused to benefit of doubt. - Benefit
of doubt granted to accused.

6. Section 53-A Cr.P.C. - DNA Test - Failure to Conduct - Adverse Consequence on
Prosecution:
After the insertion of Section 53-A in the Code of Criminal Procedure with effect from 23.06.2006, it has
become necessary for the prosecution to resort to DNA analysis in cases of alleged rape to make out a
conclusive case. In the present case, although vaginal smears were collected and sent to pathology, no DNA
test was conducted, nor was any explanation offered by the prosecution or taken into account by the trial
court as to why such test was not conducted. Relying upon Krishan Kumar Malik vs. State of Haryana, (2011)
3 SCC (Cri) 61, the Court held that failure to conduct the DNA test in such circumstances must result in
adverse consequences for the prosecution. - Failure to conduct DNA test noted adversely against
prosecution.

7. Medical Evidence - Absence of Fresh Injuries - No Definite Opinion of Rape by Doctor -
Evidentiary Value:
The medical examination (Exhibit Ka-6) of the victim conducted at the District Women Hospital, Agra
revealed no external injury on the body. On internal examination, the hymen was found to be old torn (not
freshly torn) and the vagina admitted two fingers easily. No spermatozoa was found in the pathological
report. The doctor (P.W.6) declined to give any definite medical opinion as to rape. The prosecution's claim
5 All. Rinku Vs State Of U.P.

1981
that the victim's clothes were blood-stained was not corroborated, as the Investigating Officer admitted he
did not seize the victim's clothes, and the victim's assertion of vaginal bleeding was not supported by any
medical finding. The absence of medical corroboration, when taken together with other infirmities, further
weakens the prosecution case. - Medical evidence held insufficient to corroborate charge of rape.

8. Investigation - Defective Investigation - Place of Occurrence Not Inspected - Clothes of
Victim Not Seized - Effect:
The Investigating Officer (P.W.7) admitted that despite the place of occurrence being identified by the victim,
he did not inspect it. He also admitted that the clothes of the victim, which were alleged by the victim herself
to be bloodstained as a result of rape, were not seized by him on the ground that they bore no semen stains
- a reason found wholly unsatisfactory. The involvement of some of the accused was found false during
investigation. Defective and casual investigation, when combined with an unreliable prosecutrix and
unexplained delay in the FIR, renders the prosecution case insufficient to sustain conviction. - Defective
investigation noted; conviction set aside.

Held
Both criminal appeals allowed. Judgment and order of conviction and sentence dated
05.08.2014 passed by the Additional Sessions Judge, Court No. 15, Agra in S.T. No. 510 of 2010
and S.T. No. 885 of 2010, under Sections 363/34, 366/34 and 376(2)(g) IPC, set aside.
Appellants Surendra Kushwaha and Rinku acquitted. Appellants being on bail - bail bonds
cancelled, sureties discharged; directed to comply with Section 437-A Cr.P.C.

Case listed
1. Mohd. Ali @ Guddu vs. State of U.P., (2015) 7 SCC 272 - Duty of parent to lodge FIR when victim is
missing and accused are known.
2. Musauddin Ahmad vs. State of Assam, (2009) 12 SCC 541 - Serious contradictions between court
deposition and statement u/s 164 Cr.P.C. render prosecution case doubtful.
3. Rajesh Patel vs. State of Jharkhand, (2013) 2 SCC (Cri) 279 - Contradictions, inconsistencies,
exaggerations and unexplained delay in FIR - benefit to accused.
4. Lalliram and Anr. vs. State of Madhya Pradesh, (2008) 10 SCC 69 - Conviction cannot be based on
unreliable, self-contradictory testimony of prosecutrix.
5. Krishan Kumar Malik vs. State of Haryana, (2011) 3 SCC (Cri) 61 - Failure to conduct DNA test under
Section 53-A Cr.P.C. - consequence on prosecution case.
6. State of Maharashtra vs. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 - Approach of court in
evaluating testimony of prosecutrix in sex offences - corroboration.
7. State of Rajasthan vs. Babu Meena, (2013) 4 SCC 206 - Conviction cannot be based on testimony that
does not inspire confidence.

(Delivered by Hon'ble Mrs. Ranjana Pandya, J.)

1. Since both the afore-captioned criminal appeals have been filed against the judgment
and order dated 05.08.2014 passed by the learned Additional Sessions Judge, Court No. 15, Agra in
Sessions Trial No. 510 of 2010 (State vs Surendra Kushwaha) and Sessions Trial No. 885 of 2010
(State vs Rinku), hence they are being decided by this common order.

2. Challenge in these appeals is to the judgment and order dated 05.08.2014 passed by the
learned Additional Sessions Judge, Court No. 15, Agra in Sessions Trial No. 510 of 2010 (State vs
Surendra Kushwaha) and Sessions Trial No. 885 of 2010 (State vs Rinku) arising out of Case
1982 INDIAN LAW REPORTS ALLAHABAD SERIES
Crime No. 387 of 2009, under Sections 363, 366, 376 IPC, Police Station Barhan, District Agra,
whereby the accused appellants Surendra Kushwaha and Rinku have been convicted and sentenced
to four years' rigorous imprisonment and a fine of Rs. 5000/- each under Section 363/34 IPC; five
years' rigorous imprisonment and a fine of Rs. 5000/- each under Section 366/34 IPC and ten years'
rigorous imprisonment and a fine of Rs. 20,000/- each under Section 376(2)(g) IPC with default
stipulation. Out of the fine amount so deposited by the accused-appellants, 60% of the same was
directed to be paid to the victim. The accused Pramod was declared juvenile.

3. Filtering out the unnecessary details, the case of the prosecution in short compass is that
the informant Ramesh Kumar has given a written report, Ext. Ka-1 at 11.30 a.m., to the police
station Barhan, district Agra scribed by Suresh Chandra to the effect that his daughter, the victim
aged 14 years had gone to Government Intermediate College, Barhan on 7.12.2009 where she was
studying in Class-X. She used to come back home at 4.00 p.m., but on that date, she did not return.
A hectic search was made, but she could not be traced out. An acquaintance of the informant Gulab
Singh, PW 2, resident of Barhan told him that on Monday, he saw the accused Surendra, Narottam
Singh, Neeraj, Rinku and Praveen all resident of Barhan and Triloki, resident of Nagla Maddey
talking each other at Gobal crossing. The victim was also standing near them fearfully. When the
informant went to their houses, they were not present. Their family members did not provide any
information to him and rather started quarreling with him.

4. On the basis of the aforesaid written report, the then Constable-Clerk Bhagwan Singh,
PW 8 prepared the chik FIR, which was proved as Ext. Ka-11 and report was lodged against the
accused at case crime No. 387 of 2009, under Sections 363, 366 IPC, which was entered in the
G.D. at serial No. 20 at 11.30 AM on 10.12.2009, copy whereof has been proved as Ext. Ka-12.

5. After registration of the case, primary investigation of the case was entrusted to S.I.,
Satpal Singh. Thereafter, the investigation of the case was transferred to S.I., Vijay Singh, PW-7,
who recovered the victim from Railway Station, Barhan and prepared its recovery memo as Ext.
Ka-3 and prepared the site plan of the recovery and proved the same as Ext. Ka-8. After recovery,
the victim was sent to the District Women Hospital, Agra. The Investigating Officer, after
collecting the medical report, requested the Magistrate concerned for recording the statement of the
victim under section 164 Cr. P.C. which was proved as Ext. Ka-4. He inspected the place on the
pointing of the victim and prepared site plan and proved as Ext. Ka-9. After giving the victim in the
custody of her father, he prepared Supurdginama and proved it as Ext. Ka-2.

6. To bring home the guilt of the accused, the prosecution has examined as many as 11
witnesses.

7. PW-1 is Ramesh Kumar, the informant of the case. He reiterated the versions given in
the written report. He produced the photocopy of the certificate of High School of the victim. He
further stated that when he was searching his daughter, he came to know that the victim had been
recovered by the police from the Railway Station. On being asked, the victim told that Surendra,
Rinku and Promod alias Triloki had left her and ran away.
5 All. Rinku Vs State Of U.P.

1983
8. PW-2, is Gulab Singh. He deposed that on 07.12.2009 at 8.00 in the morning when he
was returning to Barhan via Gobal crossing, he saw Surendra Kushwaha, Promod and Rinku
Thakur on two motorcycles. The victim was sitting on the motorcycle of Surendra. She became
fearful after seeing him. Surendra, Pramod and Rinku were talking to each other. He knew all the
three from before. He also knows the victim from before. On the third day, he came to knew that
Ramesh Kumar and his family members were searching the victim. Thereafter, he told Ramesh
what he had seen.

9. PW-3 is Suresh Chandra. He is the brother of the informant. He deposed that the incident
took place on 07.12.2009. He was not present at the place of occurrence. On 09.12.2009 at about
mid-night, he came back village from service. On the next day, his brother asked him to write the
first information report. He wrote the report on the dictation of his brother. This witness has further
stated that the victim was recovered in his presence from the railway station and handed over to the
informant. This witness has proved Supurdginama and recovery memo.

10. PW-4 is the victim of the case. She deposed that on 07.12.2009 she was going to
Gandhi Ashram Coaching Institute from her house. There, she saw Surendra, Rinku and Promod.
Pramod caught her hand and got her to sit on the motorcycle. Accused Rinku and Surendra sat on
another motorcycle. When she cried, accused Surendra put a cloth on her mouth, consequently, she
became unconscious. When she regained consciousness, she saw that accused Surendra, Rinku and
Promod were taking her off from a Maruti car. When she cried, accused Surendra slapped her.
Thereafter, the accused kept her in a closed room. Thereafter, all the three raped her one by one.
The victim was got confined for seven days. Sometimes accused gave her tea and biscuit. On
14.12.2009, accused left her at the railway station near her house. After sometime, police reached
at the spot.

11. PW-5 is Dr. S.K. Kulshrestha. He deposed that on 15.12.2009, he was posted at District
Women Hospital, Agra in the pathology department. On that date, he received semen smear from
Constable 1348 Ramesh Chandra, PS Barhan. After examination, no spermatozoa was found.

12. PW-6 is Dr. Sunita Sagar. She deposed that on 14.12.2009, she was posted at District
Women Hospital, Agra. On that date, she examined the victim at 1.30 PM, who was brought by
Homeguard 1910 Primila Dubey. This witness has stated that on external examination, she found
no mark of injury on her body. On internal examination, this witness noticed that there was no
injury on her private part. Hymen was old torn. The vagina was admitting two fingers easily. After
taking the vaginal smear, the same was sent to the pathologist. For ascertaining the age of the
victim, she was referred to the Chief Medical Officer, Agra. After receiving the pathological report
and x-ray report, she prepared the supplementary report and proved it as Ext. Ka-7. As per
supplementary report, no spermatozoa was found and the age of the victim was found 16 years.
However, no definite opinion about rape was given. The medical report of the victim has been
proved by this witness as Ext. Ka-6.

13. The evidence of PW 7 and 8 have already been discussed above.
1984 INDIAN LAW REPORTS ALLAHABAD SERIES
14. PW-9 is S.I., Laxman Singh. He deposed that after the transfer of S.I., Vijay Singh,
further investigation of case crime No. 387 of 2009 was done by him. Accused Rinku surrendered
before the court and his statement was recorded by this witness while he was in jail. This witness
has proved the charge sheet as Ext. Ka-13.

15. PW-10 is Dr. Shri Ram. He deposed that on 10.12.2009 he was posted as Additional
Chief Medical Officer, Agra. On that date, the victim was produced before him by the police of
police station Barhan. For ascertaining her age, x-rays of wrist, elbow and clavicle were done. As
per x-ray report, epiphysis of elbow joint was fused, whereas epiphysis of wrist and clavicle was
not fused. The age of the victim was found to be 16 years. He proved the X-ray report as Ext. Ka14.

16. PW-11 is Santosh Kumar Sharma, the principal of Government Intermediate College,
Barhan, Agra. He deposed that victim has taken admission in class IX on 15.7.2008 and till 30th
June, 2010 she was the student of his school.

17. After close of the prosecution evidence, statements of accused persons were recorded
under section 313 Cr.P.C., in which they denied the occurrence.

18. After hearing the learned counsel for the parties, the learned lower court convicted and
sentenced the accused as stated in para 2 of the judgement.

19. Feeling aggrieved, the accused have come up in appeal.

20. Heard Shri Gaurav Kakkar and Shri A.N. Tripathi, learned counsel for the appellants,
learned Additional Government Advocate for the State respondent and perused the lower court
record.

21. Learned counsel for the appellants have vehemently argued that the charges framed
against the appellants have not been proved beyond all reasonable doubt. The conviction is based
on inadmissible evidence and the appeals are liable to be allowed.

22. On the other hand, learned Additional Government Advocate has submitted that the
findings of fact recorded by the trial court is based on evidence, which is clear, cogent and
convincing. Hence, the appeals deserve rejection.

23. A submission has been advanced on behalf of the appellants that the occurrence is said
to have been taken place on 07.12.2009, whereas report of the incident was lodged on 10.12.2009
at 11.30 a.m., the police station being 1 furlong away from the place of occurrence. This inordinate
delay in lodging the FIR has not been explained, hence it casts a shadow of doubt on the whole
prosecution case. No doubt, delay in cases of rape would not be fatal for the prosecution case, but it
is expected that some explanation should definitely come forth for the delay. No doubt, delay in
lodging the FIR by the victim or her parents in all circumstances is not significant, but the delay in
5 All. Rinku Vs State Of U.P.

1985
lodging the FIR in the case under section 376 IPC would depend upon the facts of each case and
the court should generally give immense allowance to such delay, regard being had to the trauma
suffered by the prosecutrix and various other factors of the case. In the present case, the victim was
missing from her house since 07.12.2009. In the usual course, she used to return by 4:00 p.m., but
on the date of incident when she did not return, the informant made extensive search for his
daughter, but she could not be traced. PW-2 Gulab Singh told him that he had seen the victim being
taking away by Surendra, Narottam Singh, Neeraj, Rinku and Praveen. They were accompanied by
Triloki. According the the FIR, there is no iota of evidence to state that to save the family from
disrepute or since the reputation of the family was at stake, hence report was not lodged, but there
is no reason why missing report was also not lodged by the father.

24. In Mohd. Ali @ Guddu vs State of U.P., (2015) 7 Supreme Court Cases 272, it has
been laid down by the Hon'ble Apex Court that if the victim is missing from the house, generally
the father or the mother, as the case may be, would rush to the police station to lodge the FIR,
which has not been done in the present case. Although, the father has tried to show his anxious by
averting that he went in search of his daughter, but what prevented him from lodging the report at
the police station when he had come to know the names of the accused is a question which remains
unanswered.

25. PW-1 Ramesh Kumar is the informant. According to him, the victim was a minor. Even
in the examination-in-chief, he has not stated a word why he did not lodge the report on the same
day when the girl did not return home, specially when he was told that the girl was seen with
Surendra, Narottam Singh, Rinku, Triloki and Praveen and the informant had gone to the house of
the accused to trace out his daughter. In cross-examination, the informant PW-1, Ramesh Kumar
has stated that when his daughter did not return on the date of incident, he was suspicious. When
the girl did not return home from school, he went to school first, the school was closed and kept on
searching his daughter in vein on the roads. Although, this witness has stated that on 7, 8 and 9, the
incident was not narrated to anybody due to repute of the family, but in the next breath, he has
stated that on the date of incident itself, he had told his relatives about the missing of the girl. He
has further stated that at the police station also an oral information was given on the date of
incident. He has stated that he lodged a report on 14.12.2009. This statement is in contradiction of
the record, according to which, the FIR was lodged on 10.12.2009. PW-2, Gulab Singh, who has
stated that on 07.12.2009, he told the informant that he has seen the accused taking away the
victim. Thus, this inordinate delay in lodging the FIR is fatal for the prosecution case.

26. Learned counsel for the appellants has submitted that the recovery of the victim is
doubtful.

27. On the other hand, learned AGA while supporting the judgment of the trial court has
submitted that there is no doubt about the recovery, which has been supported by the evidence on
record. PW-1, Ramesh Kumar, the informant has not stated as to when the victim returned home,
but he has stated that when they were tracing the girl, the victim was recovered by the police in his
presence from the stairs of Barhan railway station.
1986 INDIAN LAW REPORTS ALLAHABAD SERIES
28. The victim is PW-4, who has stated that on 14.12.2009, the accused persons left her
near her house near the railway station and they fled away from there. After sometime, the police
personnel came there and her father Ramesh Kumar and uncle Suresh Chandra were also present
with the police personnel. She has also stated that when the accused brought her to the Barhan
railway station, she was not in her sense. She was sitting on the stairs at the Barhan railway station
30 paces away from the ticket window. The recovery of the victim is said to have been effected by
PW-7 S.O., Vijay Singh, who has stated that on 14.12.2009, the victim was recovered from the
railway station Barhan on the basis of information of the informant. He also prepared the site plan
relating to her recovery, which was proved as Ext. Ka-8. A perusal of the site plan, Ext. Ka-8
shows that the victim was recovered from point 'X', which is outside the railway station and the
railway platform towards the open space, towards the north. The recovery memo prepared by the
Investigating Officer is Ext.Ka-3, which was proved by PW-7 S.O., Vijay Singh. The recovery
shows that the girl was sitting on the stairs, who was left there by Surendra, Rinku and Pramod. If
this was the actual position and the house of the victim was from near the railway station, what was
the reason why the victim kept on sitting on the stairs outside the railway station and did not rush to
police or to her house.

29. PW-1 Ramesh Kumar has stated that the police did not done the likha-padhi at the
railway station, whereas PW-4, the victim has stated that no likha-padhi was done at the railway
station from where she was recovered. The informant, PW-1 Ramesh has stated that the police did
not assist him in searching his daughter, whereas Gulab Singh, PW-2 has stated that on 14.12.2009,
the police came to his house took him, his brother, the informant in the police jeep and took them to
the surrounding villages. The police went along with the informant and the scribe to village
Maddey ka Nagla, Nagla Chhabila and other villages, but this witness did not know the names of
those villagers. Neither sub-inspector told him why they were taking the informant and this witness
to those particular villagers.

30. As far as the evidence of the prosecutrix is concerned, generally in matters of rape,
courts can specially rely upon the statement of the prosecutrix, it being placed on a higher pedestal
than the injured witness, but it cannot be loose sight of that, if the evidence of the prosecutrix is
shaky, improbable and unreliable, corroboration is sought for by the courts. The victim has stated
that when she left her house at 7.30 a.m. on the way, she met Surendra, Rinku, Purushottam and
Pramod caught her hand, pulled her and made her sit on his motorcycle. The accused Rinku and
Surendra were sitting on another motorcycle. When the motorcycle was started by Pramod, the
victim raised alarm, but Surendra made her smell some cloth, due to which she became
unconscious. When she regained consciousness, Surendra, Rinku and Pramod were taking her out
by a maruti car. Again she raised alarm, at which Surendra slapped her. When this witness was
asked as to why she did not raise alarm, she said that Surendra and Rinku, who were following
Pramod on a motorcycle were pointing out a rifle again and again towards her and they were
threatening her. On the way, she tried to jump from the motorcycle, but the other motorcycle came
beside her. She has stated that she did not raise alarm at the station also because the accused had
threatened to kill her and her family members. When she was asked as to when she was threatened,
how she raised alarm on the way, she could not give any reply to this question. She has tried to
5 All. Rinku Vs State Of U.P.

1987
mislead the court while answering every question, inasmuch as she has stated that when she tried to
raise alarm, the accused made her smell something. She knew the accused by name since the
incident, but could not recognise them. It is not digestible that an unconscious girl would be made
to sit on a motorcycle and she would travel for hours without following. She has dared to admit that
"बेहोशी की अवस्था में मैं मोर्रसाईडकल पर बैठी रही रास्ते में कहीं मैं डगरी िहीं।" Again contradicting herself, she has
stated that when she was being made seated on the motorcycle, she raised alarm, but nobody came
to save her. While she was being taken on a motorcycle, she did not meet any known person.
Although, her uncle Gulab Singh, PW-2 has stated that he saw the victim being taken away by the
accused on a motorcycle. Again changing her statement, the victim has stated that she did not raise
alarm on the way because she was unconscious. As far as the recovery is concerned, she has stated
that the accused Surendra left her at Barhan railway station. When the statement of this witness
recorded under section 164 Cr.P.C. was put to her, she admitted that she did not state all these facts
before the Magistrate, but she could not give any plausible reason why she did not state all these
relevant facts before the Magistrate. This witness has further stated that when she had returned
back and she had a talk with her father. Only afterthought the FIR was lodged. She has also stated
that she used to come from Barhan railway station to her house, she had no fear. When the accused
had left at the railway station, she kept on sitting there for 10-15 minutes, nobody has seen her in
platform at that time, but still she did not raise alarm.

31. Learned counsel for the appellants has placed reliance upon the decision in Musauddin
Ahmad vs State of Assam, (2009) 12 Supreme Court Cases 541 the Hon'ble Apex Court has laid
down that if there are serious contradictions in the deposition of the victim before the court and her
statement recorded under section 164 Cr.P.C., then the whole prosecution story becomes doubtful.

31. In (2013)2 Supreme Court Case (Criminal) 279, Rajesh Patel vs State of Jharkhand, it
has been laid down that if there are contradictions, inconsistencies, exaggerations or
embellishments in the testimony of the prosecutrix, which is unnatural and improbable and the
delay in filing the FIR is not properly explained, then the benefit should go to the accused.

32. Learned counsel for the appellants has submitted that since the statements of all the
three witnesses, namely, PW-1, Ramesh Kumar, PW-2, Gulab Singh and PW-4, the victim are
inconsistent to each other. The statements of the witnesses are also self-contradictory. Hence, the
accused cannot be convicted on the basis of version of the prosecutrix as has been held in Lalliram
and another vs State of Madhya Pradesh, (2008) 10 Supreme Court Cases 69.

33. Even the father of the victim PW-1, Ramesh Kumar and PW-2 Gulab Singh do not
appear to be reliable witnesses, inasmuch as PW-1, Ramesh Kumar has stated that witness Gulab
Singh is not related to him, but in the next breath, he had to admit that Gulab Singh was his real
cousin. Confronted with this statement, Gulab Singh, PW-2 has stated that Ramesh Kumar was not
his first cousin, but he was his cousin due to both belong to the same locality. To test the veracity
of this witness, pedigree was put to this witness, in which he admitted that his grand-father was
Bihari Lal, who had five other sons besides Pyarey Lal and Budh Singh. Pyarey Lal is the father of
this witness Gulab Singh, whereas Budh Singh is the father of PW-1 Ramesh Kumar, meaning
1988 INDIAN LAW REPORTS ALLAHABAD SERIES
thereby that PW-1 Ramesh Kumar and PW-2 Gulab Singh was first cousin, but both PW-1 and
PW-2 denied this relationship initially and at the time of trial, but ultimately had to admit the
relationship.

34. Learned counsel for the appellants while placing reliance upon the provisions of section
53-A Cr.P.C. has submitted that as per the law laid down by the Hon'ble Apex Court in the case of
Krishan Kumar Malik vs State of Haryana, (2011)3 Supreme Court Cases (Criminal) 61:

"Now, after the incorporation of Section 53 -A in the Criminal Procedure Code,
w.e.f. 23.06.2006, brought to our notice by learned counsel for the respondent-State, it has become
necessary for the prosecution to go in for DNA test in such type of cases, facilitating the
prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific
provision in Cr.P.C. the prosecution could have still resorted to this procedure of getting the DNA
test or analysis and matching of semen of the appellant with that found on the undergarments of the
prosecutrix to make it a foolproof case, but they did not do so, thus they ust face the
consequences."

35. Why the DNA test was not conducted in this case was neither explained by the
prosecution nor taken into account by the trial court while trying this case.

36. As per the medical report, no injury was found on the body of the victim.

37. In State of Maharashtra vs Chandraprakash Kewalchand Jain, (1990) 1 SCC 550,
the Hon'ble Apex Court has held as under:

"15. It is necessary at the outset to state what the approach of the court should be
while evaluating the prosecution evidence, particularly the evidence of the prosecutrix, in sex
offences. Is it essential that the evidence of the prosecutrix should be corroborated in material
particulars before the court bases a conviction on her testimony ? Does the rule of prudence
demand that in all cases save the rarest of rare the court should look for corroboration before acting
on the evidence of the prosecutrix ? Let us see if the Evidence Act provides the clue. Under the said
statute 'Evidence' means and includes all statements which the court permits or requires to be made
before it by witnesses, in relation to the matters of fact under inquiry. Under Section 59 all facts,
except the contents of documents, may be proved by oral evidence. Section 118 then tells us who
may give oral evidence. According to that section all persons are competent to testify unless the
court considers that they are prevented from understanding the questions put to them, or from
giving rational answers to those questions, by tender years, extreme old age, disease, whether of
body or mind, or any other cause of the same kind. Even in the case of an accomplice Section 133
provides that he shall be a competent witness against an accused person; and a conviction is not
illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However,
illustration (b) to Section 114, which lays down a rule of practice, says that the court 'may' presume
that an accomplice is [pic]unworthy of credit, unless he is corroborated in material particulars.
Thus under Section 133, which lays down a rule of law, an accomplice is a competent witness and
5 All. Rinku Vs State Of U.P.

1989
a conviction based solely on his uncorroborated evidence is not illegal although in view of Section
114, illustration (b), courts do not as a matter of practice do so and look for corroboration in
material particulars. This is the conjoint effect of Sections 133 and 114, illustration (b).

38. Although, absence of injuries or absence of raising alarm or delay in lodging the FIR
may not by itself be enough to disbelieve the version of the prosecutrix in view of the statutory
presumption under section 114-A of the Indian Evidence Act, but if such statement has inherent
infirmities, creating doubt about its veracity, the same may not be acted upon. I am conscious of the
sensitivity with which heinous offence under section 376 IPC has to be treated but in the present
case the circumstances taken as a whole create doubt about the correctness of the prosecution
version.

39. Although, the prosecution has produced PW-11, Santosh Kumar Sharma, the principal
of Government Intermediate College, Barhan, Agra to prove her date of birth. Even the radiological
report shows that the age of the victim was about 16 years, but calculation of the age of the victim
will be of no significance because I have earlier found that her statement does not inspire
confidence and she is a wholly unreliable witness, on whose testimony conviction cannot be based
as has been laid down by the Hon'ble Apex Court in State of Rajasthan vs Babu Meena, (2013) 4
Supreme Court Cases 206.

40. The Investigating Officer, PW-7, S.O., Vijay Singh has admitted that in spite of the
place of occurrence being identified, he did not inspect the place of occurrence. He has further
stated that he did not take into the possession the clothes of the victim because there were no
semen, whereas PW-4 has specifically stated that she was wearing her same school uniform
throughout the time the accused detained her. When she was raped, there was bleeding from her
vagina. Her clothes were also bloodstained. She also showed the doctor her bleeding vagina, but it
appears all these averments were stated by the victim just to try to save her skin. The Investigating
Officer has admitted that the involvement of some of the accused was found false.

41. Thus, what has been stated and discussed above, I conclude that the prosecution case is
bundle of false allegations and improbable facts, due to which the learned trial court misled itself
and has incorrectly convicted the accused, such conviction cannot be sustained in the eyes of law,
as such the accused is entitled to be acquitted and the appeal is liable to be allowed.

42. Hence, the impugned judgement and order of conviction and sentence dated 05.08.2014
passed by the learned Additional Sessions Judge, Court No. 15, Agra in Sessions Trial No. 510 of
2010 (State vs Surendra Kushwaha) and Sessions Trial No. 885 of 2010 (State vs Rinku) arising
out of Case Crime No. 387 of 2009, under Sections 363/34, 366/34, 376(2)(g) IPC, Police Station
Barhan, District Agra as against the present appellants, is hereby set-aside.

43. Accordingly, the appeal is allowed.
1990 INDIAN LAW REPORTS ALLAHABAD SERIES
44. The appellants-Rinku and Surendra Kushwaha are on bail. Their bail bonds are
cancelled and the sureties are discharged. However, the appellants Rinku and Surendra Kushwaha
are directed to comply with the provision of Section 437-A Cr.P.C.

45. Let a copy of this order be sent to the Trial court concerned.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.05.2016

BEFORE

THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE ATTAU RAHMAN MASOODI, J.

Misc. Bench No.- 4992 Of 2016

M/S Shahanshah Brick Field through Prop. Neeraj Raheja & Ors. ...Petitioners
Versus
Union of India & Ors. ...Respondents

Counsel for Petitioners:
Lalta Prasad Misra, Jayshanker Shukla

Counsel for Respondents: -
C.S.C, A.S.G, Shanker Lal Verma

Headnote:
Environment Protection Act, 1986 - Environmental clearance - Brick kilns - Earth extraction permit - Nonconstitution of District Environment Impact Assessment Authority (DEIAA) and District Expert Appraisal
Committee (DEAC) - Mandamus - Scope -

Petitioners, owners of brick kilns in districts Faizabad and Ambedkar Nagar, sought mandamus directing
authorities to entertain their applications for earth extraction permits and to permit operation of brick kilns.
Their grievance was that due to non-constitution/non-functioning of the statutory committees under
notifications dated 15.01.2016 and 20.01.2016, their business had come to a standstill.
Held, assessment of environmental impact and grant of clearance are matters governed by statutory
notifications issued under the Environment Protection Act, 1986. A writ of mandamus can issue only to
enforce compliance with law and not to permit activities in violation of statutory provisions. However, where
delay occurs due to non-constitution of statutory bodies, authorities are obliged to act expeditiously.