# Shashi v. State Of U.P

- **Citation:** (2016) 5 ILRA 1958
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-10
- **Bench:** Mrs. Ranjana Pandya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shashi-v-state-of-u-p-43894
- **Pages:** 9

## Text

1958 INDIAN LAW REPORTS ALLAHABAD SERIES
में मान्य ि डकया जाये तथ डियमावली का उल्लंघि करके डियुखक्त करिे वाले प्रबन्धक / प्रिािार्ायग के डवरूद्ध कायगवाही सुडिडश्चत की
जाये।

भवदीय

डमत्र लाल, अपर डशक्षा डिदेशक (मा०)।"

27. It is an admitted position of the Counsel for the parties, especially learned Counsel for
the petitioner Mr. Y.K. Mishra that post of Daftari is a promotional post and the petitioner was
appointed on 16.3.1991 without their being creation of any post of Daftari in the institution. It is
also admitted position that post of Daftari in the institution was created vide order dated 21.4.1995,
therefore, no appointment can said to be legally made on the post of Daftari prior to 21.4.1995.
While making appointment on the post of Daftari, procedure was also required to be followed.
Learned Counsel for the petitioner has failed to demonstrate that the procedure was followed. Even
otherwise, as stated hereinabove, the post of Daftari is the promotion post, therefore, no direct
recruitment on the post of Daftari could have been done on the said post.

28. In view of the above, no interference under Article 226 of the Constitution of India is
made out. The writ petition is deserves to be dismissed.

29. Both the writ petitions are, accordingly, dismissed.

30. There is no order as to costs.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.05.2016

BEFORE

THE HON'BLE MRS. RANJANA PANDYA, J.

Criminal Appeal No.- 2788 Of 2015
&
Criminal Appeal No.- 3755 Of 2015

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

Counsel for Appellant:
Rohit Shukla, Deepak Dubey

Counsel for Respondent:
Govt. Advocate
5 All. Shashi Vs State Of U.P.

1959
Held:

The prosecution case suffered from serious inconsistencies and lack of reliable evidence.
There was unexplained delay in lodging the FIR:
Incident alleged on 15.04.2010
FIR lodged on 23.04.2010, despite the police station being only 6 km away.
The informant (PW-1) had no direct knowledge of the incident and lodged the FIR based on what villagers
allegedly told him.
The independent witness Pappu (PW-4), who was cited as having seen the victim going with the
accused, turned hostile and denied seeing the incident.
The prosecutrix (PW-2) gave contradictory and inconsistent statements:
She repeatedly changed her version during examination and cross-examination.
Eventually she stated that the accused did not take her nor rape her.
Her testimony was therefore found wholly unreliable.
Medical evidence also did not support the prosecution:
No injury on the victim.
Hymen old torn.
No semen detected.
Age assessed about 18 years.
Since the prosecution case was based mainly on the testimony of the prosecutrix and her evidence was
wholly unreliable, conviction could not be sustained.
The trial court erred in relying upon the inconsistent testimony of the prosecutrix.
Consequently, the conviction of the appellants under Sections 366 IPC and 376(2)(g) IPC was set aside
and the appellants were acquitted.
However, proceedings initiated by the trial court against the prosecutrix under Section 344 CrPC for giving
false evidence were permitted to continue according to law.

CASE LAW CITED
Prithi v. State of Haryana
Khujji v. State of Madhya Pradesh
Koli Lakhmanbhai Chanabhai v. State of Gujarat
State of Rajasthan v. Babu Meena

(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 08.07.2015 passed by the learned Additional District & Sessions Judge (Fast Track
Court), Mathura in Sessions Trial No. 648 of 2010 (State vs Shashi and others), hence they are
being decided by this common order.

2. Challenge in these appeals is to the judgment and order dated 08.07.2015 passed by the
learned Additional District & Sessions Judge (Fast Track Court), Mathura in Sessions Trial No.
648 of 2010 (State vs Shashi and others) arising out of Case Crime No. 126 of 2010, under sections
363, 366, 376 IPC, Police Station Farah, District Mathura whereby the accused appellants Shashi
and Haresh have been convicted and sentenced to six years' rigorous imprisonment and a fine of
Rs. 2000/- each under section 366 IPC and ten years' rigorous imprisonment and a fine of Rs.
1960 INDIAN LAW REPORTS ALLAHABAD SERIES
5000/- each under section 376(2)(g) IPC with default stipulation. Out of the fine amount so
deposited by the appellants, half of the same was directed to be paid to the victim.

3. Filtering out the unnecessary details, the prosecution case is that on 23.04.2010,
informant Gajraj Singh has given a written report stating that he is the resident of village Daulatpur,
police station Baldev. In the morning of 15.04.2010, his daughter, the victim aged about 15 years
went to attend the call of nature, when she did not return back for sometimes, his wife told him that
the victim had gone to attend the call of nature, but she did not return. Then he started searching his
daughter. On the way, he met Pappu son of Heera lal and Deep Chand, son of Bhuri Singh, who
told him that at 6.00 a.m.,the victim was going with Shashi, son of Soran Pandit and Haresh, son of
Pratap Singh, resident of police station Jhudawai on motorcycle. On this information, he along with
Banwari, Purshottam, Rohan Singh and Satyaveer went to village Jhudawai and had a talk with
Niranjan, uncle of Haresh, Maya, mother of Haresh and Chhotalli, brother of Shashi, who gave
assurance that they shall make endeavour to get the victim returned. When he was searching his
daughter, he came to know that Shashi along with Haresh had come to village after taking the
motorcycle of his brother-in-law, who is the resident of Chhadgaon. He went to Chhadgaon, where
Haresh and Shashi and the victim were present at the house of Shashi's brother-in-law. They
reprimanded him. Shashi's brother-in-law told him that he will not handover the victim to him.

4. On the basis of the aforesaid report, a case was registered at case crime No. 126 of 2010,
under sections 363, 366, 367 IPC, police station Baldev, district Mathura

5. After the registration of the case, the case was entrusted to SI Mahendra Singh Chahar,
PW 6. He copied the chik FIR and recorded the statements of chik writer and the complainant and
inspected the spot on 24.4.2010 and prepared site plan, in his hand writing, which he proved as Ext.
Ka-6. He also recorded the statements of witnesses Pappu and Deep Chand and that of the victim
and also recovered the victim. On 27.4.2010, he prepared the recovery memo under his handwriting
and signature, which he proved as Ext. Ka-7. He also got the statement of the victim recorded
under section 164 Cr.P.C. After the statement of the victim under section 164 Cr.P.C., section 376
IPC was also added.

6. After the transfer of the case, further investigation was carried out by SI Rajendra Singh,
PW-7, who perused the case diary and recorded the statements of the informant, victim and her
mother. He also recorded the statement of the witnesses Pappu and Deep Chand, all of them
supported their earlier statements and told the investigating officer that the name of brother-in-law
of Shashi was Deen Dayal and the name of person who was driving the car was Chhotali, the
brother of the accused Shashi. On 27.5.2010, he also recorded the statements of witnesses of
recovery, Constable Chandrapal and Mahaveer and submitted the charge sheet against the accused,
which he proved as Exts. Ka-11 and 12.

7. To bring home the guilt of the accused-appellants, the prosecution has examined as
many as seven witnesses. PW-1 is Gajraj Singh, the informant and father of the victim. PW-2 is the
victim of the case. PW-3 is Smt. Roopa, the mother of the victim. PW-4 is Pappu. PW-5 is Dr.
5 All. Shashi Vs State Of U.P.

1961
Vinita Singh, who medically examined the victim. PW-6 is SI Mahendra Singh Chahar. PW-7 is SI
Rajendra Singh, the second investigating officer of the case.

8. PW-1 Gajraj Singh is the informant of the case. He reiterated the versions given in the
FIR, which he proved as Ext. Ka-1.

9. PW 2 is the victim of the case. She deposed that when she had gone to attend the call of
nature, accused Shashi and Haresh were present there. They stuffed her mouth and tied her hand
behind and got her to sit on the middle of the motorcycle. Shashi was driving the motorcycle while
Haresh was sitting behind her. They took her to village Chhadgaon in the house of their brother-inlaw where both of them committed rape on her.

10. PW 3 is Smt. Roopa, the mother of the victim. She deposed that her daughter had gone
to attend the call of nature. She did not return. She tried to trace her, but she could not be traced
out. Shashi and Haresh did not take her on motorcycle. She does not know as to where she had
gone and when she returned. She further deposed that Niranjan, Chhotali and Maya have no hands
in taking away of her daughter nor anyone has told her about this fact till date. On the basis of her
deposition, this witness has been declared hostile and the prosecution was permitted to cross
examine her.

11. PW 4 is Pappu. He deposed that he knows the informant and his daughter. He heard
that the victim has gone somewhere. He had not seen the victim going with Haresh and Shashi on
motorcycle. On that day, he was not in the village. On the date of occurrence neither Gajraj met
him nor he had a talk with him. He never told Gajraj that Haresh and Shashi took the victim. He
does not know Haresh and Shashi. As this witness did not support the prosecution and has been
declared hostile.

12. PW-5 is Dr. Vinita Singh, who has medically examined the victim. She deposed that on
27.4.2010 she was posted as Medical Officer at District Women Hospital, Mathura. On that date
she has medically examined the victim, who was brought by Constable 518 Sunita Devi. She did
not find any injury on her person. The vagina admitted two finger easily. The hymen was old torn.
There was no injury on her private part. After taking the vaginal smear, the same was sent to the
pathologist. For ascertaining the age, x-rays of wrist and elbow were advised. This witness has
proved the medical report as Ext. Ka 3, reference slip as Ext. Ka-4. As per the report of the
Pathologist, no semen was found. This witness has further stated that no definite opinion about rape
can be given. As per x-ray report, the age of the victim was found to be 18 years. On the basis of
the pathologist and x-ray reports, this witness has prepared supplementary medical report and
proved it as Ext. ka 5.

13. The evidence of PW 6, SI Mahendra Singh Chahar and PW-7 SI Rajendra Singh has
already been discussed above.
1962 INDIAN LAW REPORTS ALLAHABAD SERIES
14. After close of the prosecution evidence, statements of accused persons were recorded
under section 313 Cr.P.C., in which they denied the occurrence. They have stated that they have
been falsely implicated in the case due to village party-bandi.

15. 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.

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

17. Heard Shri Deepak Dubey, learned counsel for the appellants, learned Additional
Government Advocate for the State respondent and perused the lower court record.

18. 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.

19. On the other hand, learned A.G.A. 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 are
liable to be dismissed.

20. A submission has been advanced on behalf of the appellants that there is inordinate
delay in lodging the FIR, inasmuch as the occurrence is said to have been taken place on
15.04.2010, whereas the report was lodged on 23.04.2010 at 11:15 a.m. the police station being 6
kms away from the place of occurrence. Since, the delay in lodging the FIR has not been explained,
hence it would definitely cause a dent in the prosecution case. In this regard, perusal of the FIR Ext.
Ka-1 would be necessary, in which the informant has stated that on 15.04.2010, in the morning the
victim had gone to attend the call of nature and when she did not return for quite sometime, he
went to search her, at which Pappu and Deep Chand told him that they had seen the victim going at
6:00 a.m. with Shashi and Haresh on motorcycle. At this, Banwari, Purshottam, Rohan Singh and
Satyaveer accompanied by the informant went to village Jhudawai and conversed there, at which
Niranjan, uncle of Haresh and Maya, mother of Haresh and Chhotalli, brother of Shashi promised
to return back the girl. They came to know that Shashi had brought the girl on his brother-in-law
motorcycle with Haresh. When these people went to Chhadgaon, Haresh, Shashi and the victim
were in the house of Shashi's brother-in-law, but they were removed from there and the brother-inlaw of Shashi told them that they would not hand-over the girl back. They assured that the girl will
return back, but did not return back her. Hence, the report was lodged. If the averments in the FIR
are taken to be correct, then how it can be believed that the father of the victim found the accused
and the victim in the house of Shashi's brother-in-law, but in spite of fact that these were five
accused, the victim and the accused-appellants were removed from that place. The informant
neither saw the accused taking away the girl nor he saw anybody raping her. Although, the
informant has tried to explain that when the accused persons saw the informant and other villagers,
they removed the girl from that house and said that they would not return the girl. What prevented
this witness from lodging the missing report from 15.04.2010 to 23.04.2010 is a question which
5 All. Shashi Vs State Of U.P.

1963
remained unexplained throughout the trial. According to the informant Gajraj Singh PW-1, Pappu
and Deep Chand told him that they had seen Shashi and Haresh taking away the victim.

21. Pappu was examined as PW-4, who specifically stated that he did not meet the
informant nor he saw Haresh and Shashi taking away the girl on motorcycle. This witness was
declared hostile by the prosecution and cross-examined, but nothing could be illustrated from this
witness by the prosecution.

22. Father of the victim PW-1 Gajraj Singh has further stated that he does not know
whether Niranjan is accused in the case or not. Since his brother was roaming around with him, he
did not think it proper to dictate the report. He knew all these facts. This witness was further crossexamined, in which he stated that the report given by him was lodged on the basis of what people
told him. The accused Shashi and Haresh were not known to him from before. Their names were
also told to him by the villagers and according to narration of the villagers, he named them in the
first information report. He has further stated that the report was got lodged as per the version of
the witnesses, who lodged the report from outside. He also stated that the age of the victim was 18
years at the time of occurrence.

23. The victim was examined as PW-2, who has stated that when she went to attend the call
of nature, she met Haresh and Shashi, who kept a handkerchief on her nose, tied her hands back
and they made her to sit between them on the motorcycle. Shashi was driving the motorcycle while
Haresh was sitting behind her. They took her to the brother-in-law's house at village Chhadgaon,
where Haresh and Shashi tied her hand and feet and both raped her many times. After that Shashi,
Haresh and Chhotalli took the victim to Jhudawai, where she was kept for 1-1/2 day and she was
raped by Haresh and Shashi, when she tried to raise alarm, she was threatened. In Jhudawai, when
she was being raped, the mother, father, sister and uncle of Haresh and Shashi used to push her in
the room and used to lock her inside and used to ask the accused to rape her. Both her feet were
widen and tied and her hands were tied back and she was raped. From there she was taken by
Haresh, Chhotalli and Shashi to Jaipur, where her hands and feet were tied and she was raped for
about six days. She was also beaten there and she was compelled to apply lip-stick and wear sari
etc. She was compelled to do court marriage against her wishes. From there these accused brought
her to the township near Gokul Bairaj, where she met police and police took her back.

24. This witness was put to the test of cross-examination, in which she has stated that both
Haresh and Shashi caught her, they dragged her sit on the motorcycle and put a handkerchief,
whereby she became unconscious. I do not think that a sister, mother, uncle and brother would ask
the accused to rape the victim because in India moral values still survive. Although, the victim has
stated that after Jhadawai, they took her by jeep, but she did not know what a jeep is. They took her
after making her unconscious. From Jhadawai to Jaipur they did not permit her to gain conscious,
but she regained consciousness, she was in hotel at Jaipur. She stayed in the hotel for 5-6 days,
where she was made unconscious. Now, this is a story which is not digestible. It is very improbable
as to how she would come to a hotel in an unconscious state, nobody from the hotel could notice
this fact. Nobody would raise any alarm.
1964 INDIAN LAW REPORTS ALLAHABAD SERIES
25. A new story has been introduced by the victim before the court during the trial, in
which she has stated that one man was standing with a pistol threatened to kill her if she raised
alarm, but she did not know whether the pistol was loaded or was empty. She did not know whether
the hotel staff came to clean the room or not. From Jaipur, all the three came by motorcycle. She
was made unconscious and brought by motorcycle and her hands were tied backwards. When she
was being taken to the court from Jaipur all along she remained unconscious. This is also not
believable because bringing an unconscious girl in the court premises without anybody noticing
cannot be believed. When statement of this witness under section 164 Cr.P.C. was put to her, she
stated that she had told the Magistrate that her hands and feet were tied, but perusal of the statement
of the victim under section 164 Cr.P.C. reveals that this fact is wanting in her statement under
section 164 Cr.P.C. This witness was again recalled, in which she stated that Haresh and Shashi
tied her hands and feet and raped her. Again on the next day, this witness was produced in court, in
which she has stated that she is uneducated and she does not know her date of birth. She was put to
the test of cross-examination, in which she has stated that the accused Haresh and Shashi present in
court did not take her by motorcycle neither the accused appellants Haresh and Shashi raped her. In
the initial statement, she had named them because they were calling each other by these names.
When she had seen both the accused in court, she specified that both the accused had not raped
neither they assaulted nor they took her anywhere. This witness was declared hostile and the
prosecution was permitted to cross-examine this witness.

26. Learned AGA has submitted that there is no bar in relying upon the testimony of the
hostile witness.

27. As far as the testimony of a hostile witness is concerned, in Prithi vs State of Haryana,
2011 (72) ACC 338, it has been laid down that section 154 of the Evidence Act enables the court in
its discretion to permit the person who calls a witness to put any questions to him which might be
put in cross-examination by the adverse party.

28. In Khujji alias Surnedra Tiwari vs State of M.P., 2010 (8) Supreme Court Cases 536,
the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution
chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be
treated as effaced or washed off the record altogether, but the same can be accepted to the extent
their version is found to be dependable on a careful scrutiny thereof.

29. In Koli Lakhmanbhai Chanabhai vs State of Gujarat, (1999) 8 Supreme Court
Cases 624, it has been held that it is settled that evidence of hostile witness can also be relied upon
to the extent to which it supports the prosecution version. Evidence of such witness cannot be
treated as washed off the record. It remains admissible in the trial and there is no legal bar to base
his conviction upon his testimony if corroborated by other reliable evidence.

30. I have gone through the judgment of the trial court and the trial court has specifically
stated that since the victim had supported the prosecution version in her examination-in-Chief, but
5 All. Shashi Vs State Of U.P.

1965
had back out from her examination-in-Chief in her cross-examination, hence in spite of being
hostile her evidence could be relied upon.

31. I am afraid that the learned lower court lost sight of the law laid down by the Hon'ble
Apex Court in State of Rajasthan vs Babu Meena (2013) 4 Supreme Court Cases 206, in which
the Hon'ble Apex Court has laid down as follows:

"We do not have the slightest hesitation in accepting the broad submission of Mr
Jain that the conviction can be based on the sole testimony of the prosecutrix, if found to be worthy
of credence and reliable and for that no corroboration is required. It has often been said that oral
testimony can be classified into three categories, namely, (i) wholly reliable, (ii) wholly unreliable,
and (iii) neither wholly reliable nor wholly unreliable. In case of wholly reliable testimony of a
single witness, the conviction can be founded without corroboration. This principle applies with
greater vigour in case the nature of offence is such that it is committed in seclusion. In case
prosecution is based on wholly unreliable testimony of a single witness, the court has no option
than to acquit the accused."

32. Thus, as is evident from the record and the statement of the prosecutrix, she has been
changing her versions again and again. Thus, she is wholly unreliable witness and in case the
prosecution is based on wholly unreliable testimony of a single witness, the court has no option but
to acquit the accused. Thus, the court could not at all have relied upon the statement of the victim
and more so could not have convicted the accused-appellants on the basis of the statement of the
victim, which was being changed in every breath. She often changed her statement as regards her
age. The doctor opined her age to be above 18 years as per Ext. Ka-5, but since the statement of the
prosecutrix was not reliable, hence I do not think there is any necessity to determine her age.

33. Thus, the learned lower court committed grave illegality in passing its conviction on
the statement of the victim, who was wholly unreliable witness.

34. Consequently, the judgment as regards conviction of the accused-appellants Shashi and
Haresh is liable to be set aside.

35. The learned lower court has given a finding that the victim PW-2 has given false
statement before the courts. It has yet to be decided which of the statements is false so that part of
the judgment need not be interfered that the proceedings drawn by the trial court under section 344
Cr.P.C. shall proceed in accordance with law, but so far as the conviction of the accused persons is
concerned, it is liable to be set aside.

36. Hence, the impugned judgement and order of conviction and sentence dated 08.07.2015
passed by the learned Additional District & Sessions Judge (Fast Track Court), Mathura in Sessions
Trial No. 648 of 2010 (State vs Shashi and others) arising out of Case Crime No. 126 of 2010,
under sections 366, 376(2)(g) IPC, Police Station Farah, District Mathura as againt the present
appellants is hereby set-aside.
1966 INDIAN LAW REPORTS ALLAHABAD SERIES
37. Accordingly, the appeal is allowed.

38. The appellants-Shashi and Haresh are on bail. Their bail bonds are cancelled and the
sureties are discharged. However, the appellants Shashi and Haresh are directed to comply with the
provisions of Section 437-A Cr.P.C.

39. The proceedings under section 344 Cr.P.C. against the victim PW-2 shall proceed in
accordance with law as directed by the trial court.

40. Let a copy of this order be sent to the Trial court concerned.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.05.2016

BEFORE

THE HON'BLE SHASHI KANT GUPTA, J.
THE HON'BLE KAUSHAL JAYENDRA THAKER, J.

Criminal Appeal No.- 2886 Of 1985

Phool Singh & Ors. ...Appellants
Versus
State Of U.P. ...Respondent

Counsel for Appellants:
Gajendra Pratap

Counsel for Respondent:
A.G.A.

Penal Code, 1860 - Sections 302/34 - Evidence Act, 1872 - Section 106 - Murder by
strangulation - Circumstantial evidence - Dowry demand as motive - False plea of accidental
burning - Scope of common intention.
Deceased wife was found with about 80% burn injuries inside matrimonial home. Medical evidence revealed a
clear ligature mark on neck and internal injuries showing death due to asphyxia by strangulation, not burns.
Prosecution case was that accused persons, dissatisfied with dowry, murdered the deceased and thereafter
burnt the body to create appearance of accidental death.
Trial court convicted accused under Sections 302/34 IPC. During pendency of appeal, three appellants died
and appeal abated qua them; surviving appellant (husband) challenged conviction.

Headnote:
Where death occurs in the house of the accused and medical evidence clearly establishes homicidal death by
strangulation, the burden under Section 106 Evidence Act shifts on the inmates to explain the circumstances.
The prosecution successfully established motive of dowry demand through letters of the deceased and
testimony of witnesses. Minor discrepancies in witness statements do not demolish otherwise reliable