# Sarvjeet @ Shashi Kapoor (In Jail) v. State of U.P

- **Citation:** (2021) 8 ILRA 223
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-03
- **Case number:** Criminal Appeal No. 2823 of 2015
- **Bench:** Anil Kumar Ojha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sarvjeet-shashi-kapoor-in-jail-v-state-of-u-p-47194
- **Pages:** 7

## Headnote

Evidence Law - Indian Evidence Act-
1872- Section 3- On careful examination
of evidence of P.W.-2 Premsheela and
P.W.-3 victim, it is held that their evidence
is reliable and trustworthy. Evidence of
P.W.-2 Premsheela and P.W.-3 victim
cannot be discarded merely on the ground
that they are related to each other and
interested
witnesses-Prosecution
case
cannot be doubted on the ground of non
examination of independent witnessesThere is corroboration of oral evidence of
P.W.-3 victim with medical evidence.

It is settled law that where the evidence of the
witnesses is credible and trustworthy and is
corroborated by the medical evidence, then the
case of the prosecution cannot be doubted
merely on the ground that the witnesses are
related and no independent witnesses have
been examined.

From the evidence on file, it is established
beyond reasonable doubt that appellant
Sarvjeet @ Shashi Kapoor committed rape
with a girl aged about 7 to 8 years by
putting cloth in her mouth. Perpetrator of
such a heinous and gruesome crime
deserves no leniency. Taking lenient view
with such an offender would be miscarriage of justice.

The Court cannot adopt a lenient view on the
question of sentence where the offence is grave
and heinous in nature. ( Para 12, 13, 14, 15,
16, 17)

Criminal Appeal rejected. (E-2)

Judgements/ Case law relied upon:-

## Text

8 All. Sarvjeet @ Shashi Kapoor Vs. State of U.P.
223
which was conducted on the person of the
deceased before he was referred for
treatment
to
the
Medical
College,
Lucknow.

23. On overall consideration of the
entire facts and circumstances of the case as
also in the light of the discussion made herein
above, I do not find it a case fit for granting
bail the appellants, Anil, S/o Satya Prakash
and Sunil Kumar, S/o Satya Prakash. The
prayer for bail is, thus, rejected.

24. However, hearing of the appeals is
expedited. Office is, thus, directed to prepare
the paper book within four weeks.

25. List the appeals for hearing in the
week commencing 13th September, 2021.
----------
(2021)08ILR A223
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.08.2021

BEFORE

THE HON'BLE ANIL KUMAR OJHA, J.

Criminal Appeal No. 2823 of 2015

Sarvjeet @ Shashi Kapoor
 ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Rishi Kant Rai, Sri Neeraj Kumar
Pandey, Sri Shyamu Shukla, Sri Vinod
Kumar Rai

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

Evidence Law - Indian Evidence Act-
1872- Section 3- On careful examination
of evidence of P.W.-2 Premsheela and
P.W.-3 victim, it is held that their evidence
is reliable and trustworthy. Evidence of
P.W.-2 Premsheela and P.W.-3 victim
cannot be discarded merely on the ground
that they are related to each other and
interested
witnesses-Prosecution
case
cannot be doubted on the ground of non
examination of independent witnessesThere is corroboration of oral evidence of
P.W.-3 victim with medical evidence.

It is settled law that where the evidence of the
witnesses is credible and trustworthy and is
corroborated by the medical evidence, then the
case of the prosecution cannot be doubted
merely on the ground that the witnesses are
related and no independent witnesses have
been examined.

From the evidence on file, it is established
beyond reasonable doubt that appellant
Sarvjeet @ Shashi Kapoor committed rape
with a girl aged about 7 to 8 years by
putting cloth in her mouth. Perpetrator of
such a heinous and gruesome crime
deserves no leniency. Taking lenient view
with such an offender would be miscarriage of justice.

The Court cannot adopt a lenient view on the
question of sentence where the offence is grave
and heinous in nature. ( Para 12, 13, 14, 15,
16, 17)

Criminal Appeal rejected. (E-2)

Judgements/ Case law relied upon:-

1. Dahari & ors. Vs St. of U.P. AIR (2012) 10
SCC 256

2. Bhagwan Jagannath Markad Vs St. of Maha.,
(2016) 10 SCC 537

3. Sadhu Saran Singh Vs St. of U.P. & ors.
(2016) 4 SCC 357

4. Mukesh Vs St. for NCT of Dehli & ors. AIR
2017 SC 2161

5. Bhagwan Jagannath Markad Vs St. of Maha.,
(2016) 10 SCC 537
224 INDIAN LAW REPORTS ALLAHABAD SERIES
6. Babu Ram Vs St. of U.P., 2002 (2) JIC 649
(SC)

7. Thaman Kumar Vs St. of U.T. of Chandi. 2003
(3) SCR 1190

(Delivered by Hon'ble Anil Kumar Ojha, J.)

Heard Sri Shyamu Shukla, learned
counsel for the appellant, Sri Rupak
Chaubey, learned A.G.A. for the State and
perused the records.

2. Challenge in this criminal appeal is
the judgment and order dated 19.6.2015
passed by Additional Sessions Judge, Court
No. 5, Ghazipur in Special Criminal Case
No.32 of 2014 (State Vs. Sarvjeet @
Shashi Kapoor) arising out of Case Crime
No. 213 of 2014 under Sections 376, 323
I.P.C. and 3⁄4 P.O.C.S.O. Act, P.S.-
Bhawarkol, District- Ghazipur, whereby
the learned Additional Sessions Judge,
Court No. 5, Ghazipur has convicted
appellant Sarvjeet @ Shashi Kapoor under
Section 376 I.P.C read with Section 4
P.O.C.S.O. Act and sentenced him 10 years
imprisonment and Rs. 10,000/- fine; under
Section 323 I.P.C., one year imprisonment.
In case of default in payment of fine, six
months additional imprisonment has been
awarded.

Above
sentences
have
been
ordered to run concurrently.

3. Tersely put the prosecution case is
that complainant Shailendra Ram lodged an
F.I.R. on 3.5.2014 at 11:15 hours at P.S.-
Bhawarkol,
District-
Ghazipur
stating
therein that on 2.5.2014 at about 7:00 hours
in the evening when complainant had gone
out for labour work and his wife had gone
to answer the nature's call, appellant
Sarvjeet@Shashi Kapoor was committing
rape with the complainant's daughter aged
about 7/8 years by putting cloth in her
mouth. At that time, the mother of victim
entered the house and saw that he was
committing rape with her daughter. Then
victim started crying. Hearing the noise,
witnesses Mahendra Ram S/o Ram Tahal
and Shyam Lal Ram S/o Devanram reached
at the spot. Appellant Sarvjeet @ Shashi
Kapoor S/o Bhikhari Ram escaped from the
spot by pushing the wife of complainant.
Complainant's wife fell down and sustained
injury on her head.

Complainant
Shailendra
Ram
submitted a written report in the police
station Bhawarkol, District- Ghazipur.

4. A case was registered against the
appellant Sarvjeet @ Shashi Kapoor in
Case Crime No. 213 of 2014 under
Sections 376, 323 I.P.C. and 3⁄4 P.O.C.S.O.
Act, P.S.- Bhawarkol, District- Ghazipur.

5. The Investigation Officer took the
one peace of lower (Paijama) of the victim,
which the victim had worn at the time of
incident and prepared recovery memo Ext.
Ka-2. The Investigating Officer took one
underwear, one pant and one shirt of the
appellant and prepared recovery memo Ext.
Ka-9. Statement of the victim under
Section 164 Cr.P.C. was recorded by
Judicial Magistrate, Ghazipur on 8.5.2014.
Injured Premsheela was got medically
examined and injury report Ext. Ka-7 was
prepared. Medical examination of the
injured was done. Victim was also
medically examined and injury report Ext.
Ka-4 was prepared.

Investigating Officer recorded the
statement of victim and other witnesses
under Section 161 Cr.P.C. and after
completion of investigation, submitted
charge sheet against appellant Sarvjeet @
8 All. Sarvjeet @ Shashi Kapoor Vs. State of U.P.
225
Shashi Kapoor in Case Crime No. 213 of
2014 under Section 376, 323 I.P.C. and 3⁄4
P.O.C.S.O. Act.

Learned
lower
court
took
cognizance in the matter on 11.6.2014. The
Additional Sessions Judge, Court No.5,
Ghazipur charged the appellant under
Section 376, 323 I.P.C. and 3⁄4 P.O.C.S.O.
Act.

Appellant denied the charges and
claimed trial.

6. Prosecution was directed to adduce
evidence in support of the prosecution case.
Statements of P.W.-1 Shailendra Ram,
P.W.-2 Premsheela victim's mother, P.W.-3
victim, P.W.-4 Dr. Vinita, P.W.-5 Dr.
Umesh Kumar, P.W.-6 Sub-Inspector Ram
Singh, P.W.-7 Head Constable Anirudh
Rai, P.W.-8 Constable Nawasi Abeeda
Khatoon, P.W.-9 Mansa Yadav X-ray
technician,were recorded.

Prosecution
concluded
the
evidence.

Thereafter, statement of appellant
Sarvjeet @ Shashi Kapoor under Section
313 Cr.P.C. was recorded. Appellant
denied the evidence and said that he has
been falsely implicated owing to the
enmity. He further submitted that police
has submitted forged report.

After hearing the prosecution and
defence,
learned
Additional
Sessions
Judge, Court No. 5, Ghazipur convicted
and sentence the appellant Sarvjeet @
Shashi Kapoor on 19.6.2015 as stated
above in the aforesaid case crime.

7. Learned counsel for the appellant
submitted that witnesses named in the first
information report Mahendra Ram S/o Ram
Tahal and Shyam Lal Ram S/o Devanram
have not been examined. There is no
independent witness of the alleged incident.
P.W.-1
Shailendra
Ram,
P.W.-2
Premsheela
and
P.W.-3
victim,
are
interested and partisan witnesses. There is
contradiction between medical and oral
evidence with regard to injury of victim's
mother Premsheela. Delay in lodging the
F.I.R. has not been explained. Prosecution
has not been able to establish its case
beyond reasonable doubt. Appellant has
been falsely implicated in the present case
owing to the village factionalism and
political rivalry. Appellant is entitled to
benefit of doubt. Appellant be acquitted of
charges under Sections 376, 323 I.P.C. and
3⁄4 P.O.C.S.O. Act. Learned counsel for the
appellant further submitted that appellant is
in jail since 04.05.2014 his detention is
more than 7 years. He lastly submitted that
lenient view should be taken while
awarding sentence. Appellant should be
released
from
jail
considering
him
undergone.

8. Per contra, learned A.G.A.
countered
the
above
arguments
and
submitted that there is no contradiction
between medical and oral evidence. The
evidence
of
victim
is
reliable
and
consistent. Evidence of witnesses P.W.-1
Shailendra Ram and P.W.-2 Premsheela are
natural and trustworthy. Any fact can be
proved by a solitary evidence. There was
no need to examine the witnesses named in
the F.I.R. The prosecution has fully
established its case beyond reasonable
doubt. Appeal has no merits and should be
dismissed.

9. Incident is said to have taken place
on 2.5.2014 at about 7 hours in the evening.
The distance of police station from the
place of occurrence is 13 kilometres north
east. The F.I.R. of the incident was lodged
on 3.5.2014 at 11:50 hours. Thus, F.I.R. of
the incident was lodged nearly after 16
226 INDIAN LAW REPORTS ALLAHABAD SERIES
hours delay of the incident at the police
station Bhawarkol which is 13 Kilometres
away from the place of occurrence. The
complainant
belongs
to
the
village
background and labour class.

In the facts and circumstances,
the veracity of the F.I.R. cannot be
doubted. Accordingly, it is held that F.I.R.
is genuine.

10.

P.W.-1
Shailendra
Ram,
informant of the case, has lodged the F.I.R.
of the incident at police station Bhawarkol.
P.W.-1 Shailendra Ram has proved Ext.
Ka-1. P.W.-1 Shailendra Ram is not the
eye-witness.

11. P.W.-2 Premsheela is the eyewitness of alleged incident. She has
supported the prosecution case. She has
categorically stated in her examination-inchief that while she was coming back to her
house after answering the nature's call, she
witnessed that the appellant Sarvjeet @
Shashi Kapoor was committing rape with
her daughter. She started crying and tried to
catch him. But, appellant fled by pushing
her. She fell down and sustained injuries on
her head. Defence cross-examined this
witness extensively but there is no material
contradiction in her statement.

Coming back to ones own house after
answering the nature's call in the evening,
is the natural and probable conduct of the
witness. On careful consideration, it is held
that evidence of P.W.-2 is natural and
probable.

12. P.W.-3 is the star witness of this
case. P.W.-3 is the victim. She has stated in
her evidence/examination-in-chief, at page
6 & 7 of the paper book that the appellant
Sarvjeet @ Shashi Kapoor belongs to her
village and had committed wrongful act
with her. Time was 7:00 in the evening. At
that time, her mother and father were not in
the house. She was alone in the house, at
the time of committing wrongful act,
Sarvjeet @ Shashi Kapoor put cloth in her
mouth due to which, she could not cry.
When her mother arrived in the house,
appellant Sarvjeet @ Shashi Kapoor was
committing wrongful act with her. When
her mother cried and tried to catch him, he
pushed her mother and fled from there. Her
mother fell down due to push given by
Sarvjeet @ Shashi Kapoor. In the incident,
her mother sustained injury on her head.
Defense cross-examined this witness at
length. But could not shake the credibility
of the evidence.

It is pertinent to note that victim is
a child witness. Her age at the time of
incident was 7 to 8 years. Evidence of P.W.-3
is probable and credible.

13. Learned counsel for the appellant
submitted that P.W.-1 Shailendra Ram, P.W.-
2 Premsheela and P.W.-3 victim all the three
witnesses are related to each other. P.W.-1
Shailendra Ram is father of victim whereas
P.W.-2 is the mother of victim.

Learned counsel for the appellant
submitted that all the above three witnesses
are interested and partisan witnesses.
Relying on their testimony, it would be
unsafe to convict the appellant.

The above contention of learned
counsel for the appellant is not legally
sustainable.

In Dahari and others Vs. State
of U.P. AIR (2012) 10 SCC 256, the Hon.
Apex Court has held as follows:

"It is settled legal proposition
that the evidence of closely related
8 All. Sarvjeet @ Shashi Kapoor Vs. State of U.P.
227
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. In case the evidence has a ring of
truth to it, is cogent, credible and
trustworthy, it can, and certainly should, be
relied upon."

In Bhagwan Jagannath Markad
Vs. State of Maharashtra, (2016) 10 SCC
537, the Hon. Apex Court has held as
follows:

"We may also refer to the
judgment of this Court in Masalti versus
State of U.P. [26] to the effect that the
evidence of interested partisan witnesses
though required to be carefully weighted,
the
same
could
not
be
discredited
mechanically. When a crowd of unlawful
assembly commits an offence, it is often not
possible to accurately describe the part
played by each of the assailants. Though
the appreciation of evidence in such cases
may be a difficult task, the court has to
perform its duty of sifting the evidence
carefully."

So far as facts of the present case
are concerned, the evidence of P.W.-2
Premsheela and evidence of P.W.-3 victim is
trustworthy and reliable.

On
careful
examination
of
evidence of P.W.-2 Premsheela and P.W.-3
victim, it is held that their evidence is reliable
and
trustworthy.
Evidence
of
P.W.-2
Premsheela and P.W.-3 victim cannot be
discarded merely on the ground that they are
related to each other and interested witnesses.

Accordingly, the contention of
learned counsel for the appellant is
rejected.

14. Learned counsel for the appellant
submitted that witnesses Mahendra Ram &
Shyam Lal who have been named in the
F.I.R., have not been examined by the
prosecution.
Moreover,
there
is
no
independent witness to corroborate the
prosecution story.

I do not agree with the above
contention of learned counsel for the
appellant.

Non
examination
of
eyewitnesses cannot be ground to reject the
testimony of victim and witnesses.

The Hon. Apex has held that
prosecution case cannot be doubted on the
ground of non examination of independent
witnesses.

In Sadhu Saran Singh Vs. State
of U.P. & Ors. (2016) 4 SCC 357, the
Hon. Apex Court has held as follows:

"As far as the non-examination of
any
other
independent
witness
is
concerned, there is no doubt that the
prosecution has not been able to produce
any
independent
witness.
But,
the
prosecution case cannot be doubted on this
ground alone. In these days, civilized
people are generally insensitive to come
forward to give any statement in respect of
any
criminal
offence.
Unless
it
is
inevitable, people normally keep away from
the Court as they feel it distressing and
stressful. Though this kind of human
behaviour is indeed unfortunate, but it is a
normal phenomena. We cannot ignore this
handicap of the investigating agency in
discharging their duty. We cannot derail
the entire case on the mere ground of
absence of independent witness as long as
the evidence of the eyewitness, though
interested, is trustworthy."
228 INDIAN LAW REPORTS ALLAHABAD SERIES

In Mukesh Vs. State for NCT of
Dehli & Ors. AIR 2017 SC 2161, Bhagwan
Jagannath Markad Vs. State of Maharashtra,
(2016) 10 SCC 537, Babu Ram Vs. State of
U.P., 2002 (2) JIC 649 (SC) , may also be cited
on the above point.

15. Learned counsel for the appellant
submitted that there is contradiction between
medical and oral evidence. So appellant is
entitled to benefit of doubt.

I do not agree with the above
contention of learned counsel for the appellant.

In Thaman Kumar Vs. State of
Union Territory of Chandigarh 2003 (3)
SCR 1190, the Hon. Apex Court has held as
follows:

"The
conflict
between
oral
testimony and medical evidence can be of
varied dimensions and shapes. There may
be a case where there is total absence of
injuries which are normally caused by a
particular
person.
There
is
another
category where though the injuries found
on the victim are of the type which are
possible by the weapon of assault, but the
size and dimension of the injuries do not
exactly tally with the size and dimension of
the weapon. The third category can be
where the injuries found on the victim are
such which are normally caused by the
weapon of assault but they are not found on
that portion of the body where they are
deposed to have been caused by the eyewitnesses. The same kind of inference
cannot be drawn in the three categories of
apparent conflict in oral and medical
evidence enumerated above. In the first
category it may legitimately be inferred
that the oral evidence regarding assault
having been made from a particular
weapon is not truthful. However, in the
second and third category no such
inference can straightway be drawn.

The manner and method of
assault, the position of the victim, the
resistance offered by him, the opportunity
available to the witnesses to see the
occurrence like their distance, presence of
light and many other similar factors will
have to be taken into consideration in
judging the reliability of ocular testimony."

So far as facts of the present case
are concerned, there is no contradiction
between oral and medical evidence because
Dr. Umesh Kumar P.W.-5 in his statement
has stated that injury of injured Premsheela
may be caused due to fall on the ground.
P.W.-2 Premsheela has deposed before the
Court that appellant Sarvjeet @ Shashi
Kapoor pushed her and fled from there.
Due to which, she fell on the ground.

P.W.-5 Umesh Kumar conducted
the medico-legal examination of P.W.-2
Premsheela and found following injuries on
her person:-

(i) A Reddish Blue contusion,
3cm X 1cm, own left side of skull, 7 cm
above left-ear.

P.W.-5 Dr. Umesh Kumar has
given opinion that injury was simple in
nature, caused by hard & blunt object. This
injury maybe caused due to fall on the
ground.

Thus, there is no contradiction or
inconsistency between medical and oral
evidence
rather
medical
evidence
corroborates the oral evidence of P.W.-2
Premsheela.

16. Learned counsel for the appellant
drew attention of the Court towards the
medico-legal report of the victim Ext. Ka6, wherein it is written that there is no sign
of recent vaginal intercourse as slide is
8 All. Rahul Rajbhar Vs. State of U.P.
229
negative for spermatozoa. Hence, rape with
the victim is not proved.

I am unable to agree with the
above contention of learned counsel for the
appellant because at page 12 of the paper
book in the examination report of victim, it
is written that hymen was torn at 6:00
O'clock, swollen red colour. At page 16 of
the paper book, it has been mentioned that,
according
to
physical
examination
radiological report of the radiologist, the
victim is about 7 years. There is sign of
vaginal penetration because hymen is torn.

P.W.-4 Dr. Vinita Jaiswal has
proved the medical examination report of
the victim. She has given evidence that
there is sign of vaginal penetration because
hymen was torn. P.W.-3 victim has
tendered evidence that appellant Sarvjeet
@ Shashi Kapoor committed rape with her.

From the above analysis, it is
clear that there is corroboration of oral
evidence of P.W.-3 victim with medical
evidence.
There
is
no
contradiction
between oral evidence of P.W.3 victim and
P.W.-4 Dr. Vinita Jaiswal.

Accordingly, the contention of
learned counsel for the appellant with
regard to contradiction between oral and
medical evidence is rejected.

17. Learned counsel for the appellant
lastly submitted that appellant is detained
since 4.5.2014 and is languishing in jail
since more than 7 years. Keeping in view
his detention period, lenient view should be
taken. Appellant should be released from
jail considering him undergone.

From the evidence on file, it is
established beyond reasonable doubt that
appellant Sarvjeet @ Shashi Kapoor
committed rape with a girl aged about 7 to
8 years by putting cloth in her mouth.
Perpetrator of such a heinous and gruesome
crime deserves no leniency. Taking lenient
view with such an offender would be miscarriage of justice.

Learned
Additional
Sessions
Judge, Court No.5, Ghazipur has awarded
appellant Sarvjeet @ Shashi Kapoor 10
years rigorous imprisonment and Rs.
10,000/-
fine
which
appears
to
be
appropriate punishment.

The
upshot
of
the
above
discussion
is
that
prosecution
has
established its case beyond reasonable
doubt against appellant Sarvjeet @ Shashi
Kapoor by cogent, credible and trustworthy
evidence.

Appeal lacks merit and is liable to
be dismissed.

Appeal
is,
accordingly,
dismissed.

Judgment be certified to the
lower court for compliance.
----------
(2021)08ILR A229
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.08.2021

BEFORE

THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 3872 of 2015

Rahul Rajbhar ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Shiv Dayal Tiwari, Sri Deepak Kumar
Srivastava, Sri Ganesh Shanker Srivastava,
Sri Sabhapati Tiwar, Sri Santosh Kumar
Pandey, Sri Saurabh Tripathi, Smt. Usha
Srivastava

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