# Santosh & Anr. (In Jail) v. State of U.P

- **Citation:** (2020) 8 ILRA 526
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-08-06
- **Case number:** Criminal Appeal No. 414 of 1991
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/santosh-anr-in-jail-v-state-of-u-p-46059
- **Pages:** 8

## Headnote

Criminal Law- Indian Penal Code, 1860-
Section 376, 366.- Appeal against
conviction.

Testimony of prosecutrix.
When prosecutrix who was abducted or
kidnapped and she has ample opportunity to
raise protest but neither she protested nor
any alarm raised by victim. It cannot be
believed that she was abducted and raped
against her consent. (Para -22)

Prosecutrix stayed in hotel alongwith the
accused persons for a month but in the FIR
no time and date is clearly mentioned and she
never raised any alarm or protest when she
was accompanying forcibly. (Para - 30)

Testimony
of
the
prosecutrix,
is
not
sustainable. Thus, the finding recorded by
trial court cannot be affirmed. (Para - 32).

The appeal is allowed. (E-2)

List of cases sited:-

## Text

526 INDIAN LAW REPORTS ALLAHABAD SERIES
inflicted on the chest of Ghasita. She
clearly deposes that no stick injury was
found on the body of Ghasita. Entire
perusal of evidence of PW-2 is full of
contradictions
and
imbalances
and
statement of PW-2 did not inspire
confidence.

19. So far, the statement of PW-1 /
Ghasita, injured witness, is concerned he
clearly stated in his chief that both the
accused / appellants were armed with
country-made pistol and both of them
fired upon Ghasita and further stated that
only one fire arm injury occurred in his
head but during cross-examination PW-1
/ Ghasita stated that only single fire was
launched by Gopi Chand and other
appellant Muluwa did not fire upon
Ghasita.
So
on perusal
of
crossexamination of PW-1 this is vital
contradiction on the deposition of injured
witness so in this case section 145 of
Evidence Act is applied. PW-1 makes
contradictory statement in his earlier
statement
deposed
in
his
chiefexamination. Thus we may say that PW1, injured, changed his entire version of
F.I.R. On perusal of F.I.R. it transpires
that gun shot injury inflicted by Shiv
Bahadur Singh but he never stated in his
statement regarding involvement of Shiv
Bahadur Singh.

20. Hon'ble Apex Court in Ramesh
Harijan Vs. State of U.P. (2012) 5 SCC
777 held that "If there are no material
discrepancies or contradiction in the
testimony of the witness, his evidence
cannot be disbelieved merely on the
basis of some normal, natural or minor
contradictions,
inconsistencies,
exaggerations, embellishment etc. The
distinction
between
material
discrepancies and normal discrepancies
are that, minor discrepancies do not
corrode the credibility of a party's case
but material discrepancies so".

21. On perusal of the entire
prosecution evidence, the oral evidence
of injured witness is not corroborated
with medical report. There are several
discrepancies and contradictions which
corrodes the credibility of prosecution
case. So the evidence adduced by these
witnesses are not cogent and reliable
and also does not inspire confidence.
Thus, this court is of the considered
opinion that there is no scope to sustain
conviction of the accused / appellants
for the offences under section 307/34
I.P.C. The accused / appellants are
entitled to benefit of doubt. As the
prosecution has not been able to prove
its case beyond all shadow of doubts.
Resultantly, for the reasons mentioned
above, the appeal stands allowed.

22. The impugned judgment,
conviction order and sentence passed
by learned trial court is hereby
quashed and set aside. The accused /
appellants are acquitted from all the
charges levelled against them.

23. Appellants are on bail. They
need not to surrender.

24. The office is directed to
transmit back the record of the Lower
Court with a copy of judgment and
order of this Court for necessary
compliance.
----------
(2020)08ILR A526
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.08.2020

BEFORE
8 All. Santosh & Anr. Vs. State of U.P.
527
THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Appeal No. 414 of 1991

Santosh & Anr. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Ravindra Singh, Sri Akhilesh Singh, Sri
Shivam Yadav, Sri Anand Kumar Yadav,
Sri Ajay Yadav

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

Criminal Law- Indian Penal Code, 1860-
Section 376, 366.- Appeal against
conviction.

Testimony of prosecutrix.
When prosecutrix who was abducted or
kidnapped and she has ample opportunity to
raise protest but neither she protested nor
any alarm raised by victim. It cannot be
believed that she was abducted and raped
against her consent. (Para -22)

Prosecutrix stayed in hotel alongwith the
accused persons for a month but in the FIR
no time and date is clearly mentioned and she
never raised any alarm or protest when she
was accompanying forcibly. (Para - 30)

Testimony
of
the
prosecutrix,
is
not
sustainable. Thus, the finding recorded by
trial court cannot be affirmed. (Para - 32).

The appeal is allowed. (E-2)

List of cases sited:-

1. Radhu Vs St. of M.P.(2007) 12 SCC 57.

(Delivered by Hon'ble Suresh Kumar Gupta, J.)

1. This criminal appeal has been
preferred by the appellants-Santosh and
Bhagwan Das against the judgement and
order dated 7th March, 1991 passed by
the learned Special Judge (Dacoity Affected
Area, Mainpuri) in S.T. No. 471 of 1987
whereby the appellants have been convicted
under section 376 IPC for 10 years rigorous
imprisonment and under Section 366 IPC for
7 years rigorous imprisonment. Both the
sentences run concurrently.

2. Brief facts of this case is that PW
1, Ranno Devi lodged the FIR on
28.9.1987 at 11:30 a.m. against the
appellants with allegations that one month
prior to the FIR when the complainant was
going to her paternal home to in-laws
house alongwith her husband, due to being
late from his parental house it was too dark
for him to reach at Jasrana. She stay at the
Garden outside of Jasrana bus stand.
Victim went to the grooves due to urination
where victim was overpowered by three
accused persons namely, Baghwan Das,
Santosh Badhai and Jogendar Lodha had
committed gang rape upon her one by one.
When the victim become unconscious, all
the accused persons took her away to
Aligarh and detained to victim at Aligarh
hotel upto 26.9.1987 for about one month
and she came back to his mother house at
Vangaon
District
Etah
after
getting
opportunity. It is also alleged in the FIR
that the accused persons also taken her
payal, kardhani and kundal. When the
victim have got an opportunity to escape
from the custody of the accused after a
lapse of one month, victim was returned
back to her parental house at Etah and
written report Exhibit Ka 1 typed by victim
and submit the written report to S.S.P. Etah
and under direction of S.S.P. Etah chik FIR
Exhibit Ka-8 was registered against the
appellants under Sections 392, 366 and 376
IPC at P.S. Jasrana.

3. Investigation of this case was
entrusted to Khem Singh (PW 3), Station
528 INDIAN LAW REPORTS ALLAHABAD SERIES
House Officer and during investigation he
recorded the statement of victim and on the
pointing out of the victim prepared site plan,
Exhibit Ka-4. After that victim was
medically examined by (PW-4) Dr. Vimla
Sharma who prepared medical examination
report, Exhibit Ka-7 for determination of the
age of the victim. She was referred to
radiologist for x-ray. Dr. S.C. Dubey (PW 5)
prepared x-ray report, Exhibit Ka-9. After
completing the formalities of investigation,
Investigating Officer submitted the charge
sheet, Exhibit Ka-5 against the appellant
Santosh on 9.11.1987 and against Bhagwan
Das on 4.12.1987 under Sections 366, 376,
392 IPC. Investigating Officer also filed the
charge sheet against co-accused Jugendra as
absconder. On the basis of this charge sheet,
cognizance was taken by the Magistrate and
after committal before the sessions court,
this case was transferred to Special Judge.
(Dacoity Affected Area), Mainpuri for trial
wherein the charges against the appellantsSantosh and Bhagwan Das were framed
under Sections 366, 376 and 392 IPC.
Charges were read over and explained to the
accused in ''hindi'. The appellants denied the
charges levelled against them and claimed
to be tried.

4. During trial following witnesses
were examined:-

(PW-1) is the victim-Ranno
Devi. (PW-2) is Om Prakash who is
reported to be the brother in law and eyewitness (PW-3) is the Investigating Officer
Khem Singh and (PW-4) Doctor Vimla
Sharma and (PW-5) Doctor S.C. Dubey
and (PW-6) is constable Tahir Singh who
proved the chik FIR as Exhibit Ka-8.

5. After examination of all the
witnesses, statement of accused persons
were recorded, in which, appellants
denied the charges and submitted that the
false evidence adduced by the witnesses
and further stated that they have
previously used to visit the house of the
complainant's father and appellants have
been implicated due to suspicion and old
enmity.

6. After hearing both the parties
learned sessions judge convicted the
appellants under Sections 366, 376 IPC
and exonerated the appellants under
Sections 392 IPC.

7. Being aggrieved with the order
of the learned trial court, this appeal has
been preferred by the appellants.

8. I have heard the learned counsel
for the appellants and learned AGA Sri
J.P. Tripathi and perused the record.

9.

Learned
counsel
for
the
appellants submitted that no time and
date has been mentioned in the first
information report and it is further
submitted that the FIR lodged against the
appellants is after one month of the
incident. But there is no plausible
explanation on behalf of prosecution. As
per prosecution, during one month she
remained with the appellants but during
this period, she never raised any alarm at
any place. In this period victim travels
from bus and nowhere, she has made the
protest against the accused persons
whereas she had ample opportunity to
raise the alarm against the accused which
shows that the victim was consenting
party, she was major at the time of
incident and she visited several places on
her own volition. It is next submitted that
this occurrence was happened when
husband of the victim-Kunwar Pal left
the victim in Jasrana bus stop but neither
8 All. Santosh & Anr. Vs. State of U.P.
529
Kunwar Pal lodged any FIR regarding
kidnapping or abduction nor prosecution
did examine Kunwar Pal. It is also
submitted by the learned counsel for the
appellants that PW 1-victim has also
specifically stated in her statement that
her cloths i.e. patikot, blouse and dhoti
were stained with blood when the alleged
incident was taken place. But the same
was
neither
handed
over
to
the
Investigating Officer during the course of
investigation nor any recovery memo
was prepared which shows that the whole
concocted and fabricated story was
narrated by the victim.

10. Learned counsel or the
appellants further contended that PW-2
Om Prakash has stated in his statement
that the husband of the victim-Kunwar
Pal met him and he clearly stated that his
wife has gone elsewhere and he saw all
the accused with his wife, so, he should
made the protest in query but it is
surprising that he did not made any
protest, which shows that the PW-2 has
not seen the occurrence. It is further
submitted that the Investigating Officer
PW-3 Khem Singh in his statement stated
that husband of the victim-Kunwar Pal
has lodged simple NCR under Section
498 regarding the incident which shows
that the entire prosecution story is highly
doubtful. It is also submitted that the
conduct of the victim is highly doubtful
which shows that she was voluntarily
entered into the relationship with the
accused-appellants and when the victim
has returned back to her parental house
then on the behest of parents she lodged
the false and frivolous FIR against the
appellants
in
order
to
show
his
innocence. It is also submitted that PW-4
Doctor Vimla Sharma who has medically
examined the victim she clearly stated
that the victim was pregnant of 12 weeks
and she was also found habitual of sexual
intercourse. As per statement, it clearly
shows that no force or fraud or coercion
was used against the victim which shows
that
prosecution
story
of
rape
is
absolutely false, frivolous and baseless. It
is also submitted that neither the victim
nor PW-2 Om Prakash has mentioned in
his statement, the date and time of the
incident.

11. It is further submitted that
prosecution has failed to establish the
prosecution story and version of the
prosecution
is
not
supported
with
documentary
evidence.
It
is
also
submitted
that
there
are
material
contradictions in the statement of victim.
Prosecution has failed to prove the case
beyond the shadow of doubt. The version
narrated
by
the
victim
is
highly
improbable, false and frivolous. So the
appeal of the appellants is liable to be
allowed.

12. Learned AGA vehemently
opposed the prayer of appellants counsel
and submitted that the learned trial court
properly appreciated the evidence. Delay
of lodging the FIR in rape cases is not
unnatural. The victim was sexually
harassed by the appellants and the
appellants committed gang rape upon the
victim without her consent and against
her will. Main argument on behalf of the
State is that it is matter of committing
gang rape and prosecutrix cannot be
consenting party to several persons
simultaneously.

13. Submission of learned AGA is
that absence of injuries on private parts
cannot be ground to hold that the
appellants cannot be convicted.
530 INDIAN LAW REPORTS ALLAHABAD SERIES

14. It is also submitted by the
learned AGA that investigating agency
not conducting investigation properly or
was negligent cannot be mere ground to
discredit the testimony of victim.

15. It is also submitted that as per
Section 114 of Evidence Act, "where
sexual
intercourse
by
the
accused/appellant is proved and the
question is whether it was without the
consent of the woman-victim alleged to
have been raped and she states in her
evidence before the Court that she did
not consent, the Court shall presume that
she did not consent," so there is irrebuttal
presumption
against
the
appellants.
Hence, the appeal of the appellants
deserves to be dismissed.

16. Having considered the rival
submission advanced by learned counsel
for the appellants as well as learned
AGA, this Court clearly proceed to
examine the evidence as adduced by the
prosecution.

17. First of all, I discussed the
medical examination of the victim.
Medical Examination of the victim was
conducted by PW-4 Doctor Vimla
Sharma at Female Hospital, Shekohabad,
Mainpuri. In the external examination, no
external injury had been found by P.W.-4
except one contusion on the right thigh of
the
victim.
In
internal
genital
examination,
she
found
hymen
membrane absent. No other injury was
found on the private part of the victim
and besides this, she had also detached
12 weeks pregnancy. On the opinion of
this witness that she was usual to
intercourse and for determination of age,
she had referred the victim for x-ray of
the elbow and wrist joint. On the basis of
x-ray report Exhibit Ka-9, PW-4 Dr.
Vimla Sharma have determined the age
of victim about 20-21 years. Thus at the
time of alleged incident, victim was
major.

18. One of the argument of the
learned AGA is that presumption under
Section 114 A of the Evidence Act is that
the Court shall presume that the victim
did not give her consent to commit
sexual intercourse. The standard and
onus of proof in the case of rape has been
changed by insertion of Section 114 A of
the Evidence Act. It has only created a
presumption qua the consent of victim.
Section 114 A provided that in a
prosecution for rape under sub Section
(2) of Section 376 IPC when there is an
allegation of rape, the question whether it
was without consent of the victim, the
Court shall presume that she did not give
her consent, in case of rape where it is
established
that
there
has
been
intercourse and if victim states in her
evidence before the Court that she did
not consent then the Court shall presume
that she did not consent.

19. The Evidence Act nowhere say
that the victim's evidence cannot be
accepted unless it is corroborated in
material
particulars.
The
victim
is
undoubtedly a competent witness under
Section 118 of Indian Evidence Act and
her evidence must receive the same
weight as attached to an injured witness
in case of physical violence. The same
degree of care and caution must attached
in the evaluation of her evidence as in the
case of an injured complainant or witness
what is necessary that the Court must be
alive to and conscious of the fact that it is
dealing with the evidence of a person
who is interested in the outcome of
8 All. Santosh & Anr. Vs. State of U.P.
531
charge levelled by her. If the Court keep
this mind and feels satisfied that it can
act on the evidence of the victim there is
no Rule of Law or practice incorporated
in Evidence Act which it requires it to
look for corroboration of evidence. If for
some reason, the Court is hesitant to
place implicit reliance on the testimony
of the prosecutrix, it may look for
evidence which may lend assurance to
her testimony short of corroboration
required in the case of an accomplice.

20. Now the following questions
arise-

(i)
whether
the
testimony
adduced by victim is cogent and credible.

(ii)
whether
the
evidence
adduced by victim inspire confidence.

(iii)
whether
the
sexual
intercourse done by appellants without
her consent.

21. Victim-PW 1 in her statement
stated that she reached at Jasrana at about
5:30 in the month of August so there is no
question of darkness in the evening of 5:30
pm. As per evidence that the victim
reached Jasrana bus stand alongwith her
husband but in this case neither the missing
report nor the abduction report lodged by
husband; only the NCR under section 498
IPC lodged by husband-Kuwarpal against
the accused-appellant Santosh. In this case,
Kunwarpal-husband of PW-1 (victim) is
the star witness but neither the statement of
victim was record under Section 161
Cr.P.C. nor Kunwarpal examined during
trial by the prosecution.

22. As per testimony of the
proseuctrix,
she
was
abducted
or
kidnapped
from
Jasrana
bus
stand
afterwards she forcibly taken by the
appellants to Aligarh where she was
stayed in an hotel near the Aligarh bus
stand for about a month. During stay at
hotel, she had ample opportunity to raise
the protest or alarm but neither the
protest nor any alarm raised by the victim
so it cannot be attributed that she was
abducted and raped against her consent.
Her silence in the opinion of this Court,
amount to consent on her behalf.

23. This Court is quiet conscious of
the legal position that normally the
Courts should not discard the version of
prosecutrix because she did not gain
anything in putting her own honour.
Stake by false implication of appellants
but at the some time, the Courts should
also bear in minds that in changed values
of our society, false charges of rape also
cannot be ruled out.

24. There have also been rare
instances where a parent has persuaded a
gullible or obedient daughter to make a
false charge of rape either to take
revenge or extort money or to get rid of
financial liability. Whether there was
rape or not would depend ultimately on
the facts and circumstances of each case
as has been laid down by Hon'ble Apex
Court in the case of Radhu Vs. Sate of
Madhya Pradesh reported in [(2007) 12
SCC 57.

25. There are two places where the
rape is alleged to have been committed,
first is the junri field near Jasrana town
bus stop where alleged gang rape
committed by the appellants and where
she was abducted by appellants and
second place of occurrence is the hotel
situated near Aligarh bus stand where
532 INDIAN LAW REPORTS ALLAHABAD SERIES
victim is said to have been kept for one
month and during this period, gang raped
by the appellants but no investigation
regarding this place has been done by the
Investigating
Officer.
Neither
the
Investigating Officer visited the hotel in
Aligarh nor recorded the statement of
said hotel employees. No site plan was
prepared regarding second place of
occurrence. In this case, Investigating
Officer conducted the investigation in a
very cursory manner and submitted the
charge
sheet
without
proper
investigation.

26. Prosecutrix specifically stated in
her statement that during alleged gang rape
her cloths i.e. patikot, blouse and dhoti were
stained with blood when the alleged incident
was taken place. But the same was neither
handed over to the Investigating Officer
during the course of investigation nor any
recovery memo was prepared which shows
that the prosecution version is not supported
by corroborative piece of documentary
evidence.

27. In this case PW-2 Om Prakash
(Nandoi of the victim) was also examined in
his statement and has stated that the husband
of the victim-Kunwar Pal met him and has
stated that his wife was gone elsewhere.
Thereafter, Kunwar Pal thought that his wife
was gone alongwith Santosh and other
persons and he has also sated that he has seen
his wife alongwith three accused persons
while going on by bus but PW-2 neither
make any resist against the appellants nor
victim told to PW 2 that she was abducted by
the appellants which shows that eyewitness
account of PW-2 is highly doubtful.

28. It has also mentioned that the
appellants Santosh and Bhagwan Das
were also resident of the same village
which
was
the
parental
home of
prosecutrix and further also she visited
the parental house of the victim prior to
the incident. So this possibility cannot be
led that the appellants falsely and
illegally implicated in the present case on
account of village enmity and party
bandi.

29. In the present case, defence of
the appellants through out had been
showed that he has been falsely roped by
the victim in the present crime. Defence
has not adduced any evidence in his
defence. In the opinion of this Court the
appellants, if not entitled to clear
acquittal on charge of kidnapping,
abduction as well as gang rape are at
least
entitled
to
benefit
of
doubt
considering the nature of evidence
adduced by victim. Hence, the contention
of the appellants even for offence under
Section 366 and 376 (2)(g) cannot be
sustained.

30. On perusal of the entire
evidence produced by prosecution neither
FIR lodged by the victim herself with the
allegation that all the accused persons
have committed rape upon her while she
was going alongwith her husband and
reached at bus stop Jasrana while she was
attending the natural call near Jasarana
bus stop thereafter she has gone Etah by
bus alongwith all the accused persons.
Subsequently, she went to Aligarh by bus
and stayed in hotel alongwith the accused
persons for a month but in the FIR no
time and date is clearly mentioned and
she never raised any alarm or protest
when she was accompanying forcibly
with the accused persons and travelled in
bus. She never made any alarm at the bus
stop where the first incident was taken
place. It shows that she has visited
8 All. Ram Swaroop & Ors. Vs. State of U.P.
533
several places alongwith the accused
persons, according to her own sweet will.

31. Though the whole prosecution
story is unreliable, belies logic and the
learned trial court misled, itself, in
relying upon the prosecution witnesses
which are contrary to each other which
do not inspire confidence. The complete
testimony of the victim being unworthy
of credence, unreliable and bundle of lies
could not have formed the basis for the
conviction of the appellants, on the basis
of illegal and inadmissible evidences.

32. Therefore in the facts and
circumstances of the case, the conviction of
the accused on the basis of solitary testimony
of the prosecutrix, is not sustainable for the
reasons discussed above. Thus, the finding
recorded by trial court cannot be affirmed.
Thus, this Court is of considered opinion that
there is no scope to sustain the conviction of
the accused appellants for commission of
offence under Section 376 IPC or under
Section 366 IPC and as a result, the accused
appellants are entitled to the benefit of doubt
as the prosecution has not been able to prove
its case, beyond all reasonable doubts.
Resultantly, for the reasons mentioned above,
the appeal stands ''allowed'.

33. The impugned judgement and
order of conviction and sentence passed by
learned trial court is, hereby, quashed and set
aside. The accused appellants is acquitted of
the charges levelled against them.

34. Since, the appellants are on bail,
they need not to surrender.

35. Office is directed to transmit
lower court record to the court below
alongwith a copy of this order.
----------
(2020)08ILR A533
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.07.2020

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Appeal No. 884 of 1991

Ram Swaroop & Ors.
 ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri K.K. Singh, Sri Kaushal Kishore
Mishra, Sri Shyam Sunder Mishra, Sri Brij
Raj Singh.

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

Criminal Law- Indian Penal Code, 1860-
Section 364 304/34, 325/34.- Appeal
against conviction.

Delay in lodging F.I.R.-
Neither fatal nor illegal.

Testimony
of
interested/
relative
witnesses -
The prosecution case cannot be rejected only
on the ground that witnesses are relatives of
deceased but their evidence should be
subjected to a close scrutiny. (Para-30)

Delay in lodging F.I.R.-
Delay is not at all fatal for prosecution case.
(Para- 29)

Minor contradiction -
Can be ignored if does not affect the core of
prosecution version. (Para- 35)

Applicants are very old person and more than
31 years has already elapsed and two named
appellants died during pendency of appeal.
Conviction upheld sentences reduced to the