# Shrawan Kumar Maurya v. State of U.P

- **Citation:** (2022) 7 ILRA 798
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-07
- **Case number:** Criminal Appeal No. 2422 of 2008
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shrawan-kumar-maurya-v-state-of-u-p-48847
- **Pages:** 10

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Section 3 -Both these two witnesses of
facts have proved the incident committed
by the convict/appellant. In the lengthy
cross-examinations made by the defence
counsel nothing adverse can be brought in
their evidence. The medical evidence is in
corroboration of and consistent with the
ocular evidence. The place of occurrence
has very well been proved by the eye
witnesses P.W.1 & 2 as well as by
Investigating Officer who prepared the
site plan of the spot. The site plan as
Exhibit Ka-5 is on the record, wherein the
place of committing the crime has been
shown and proved by the Investigating
Officer who has prepared the site plan of
the place of occurrence- Mere absence of
blood on the place of incident where the
alleged incident took place will not make
the whole incident untruthful when the
trust-worthy ocular evidence as well as
medical evidence is there, about the
incident.

Where the ocular testimony is consistent,
cogent and trustworthy and the same is
corroborated by the medical evidence and the
place of occurrence has also been established
by the prosecution, then the story of the
prosecution cannot be doubted merely on the
basis of absence of blood on the place of the
occurrence.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 53- A- The mere
non-examination of the accused medically
after the incident cannot create the clouds
of doubts on the evidence of eyewitnesses well supported with medical
evidence specially when the accused was
arrested after two days of the incident.
Further more in Section 53, 53A and
Section 54 of Cr.P.C. related provisions
were amended and made effective on
23.03.2006, while this incident occurred
on 19.03.2006.

Where the accused was taken into custody after
considerable delay then his medical examination
will not serve any purpose- As the provisions u/s
53-A of the Cr.Pc. were incorporated through
amendment subsequent to the occurrence,
hence the same cannot operate retrospectively.
(Para 11, 17, 19, 19, 23)

Criminal Appeal rejected. (E-3)

Case Law/ Judgements relied upon:-

## Text

798 INDIAN LAW REPORTS ALLAHABAD SERIES
R & P to be sent back to the trial court
forthwith."

22. In latest decision in Khokan@
Khokhan Vishwas v. State of Chattisgarh,
2021 LawSuit (SC) 80 where the facts were
similar to this case, the Apex Court has
allowed the appeal of the accused appellant.
The decision of the Apex Court in the case of
Anversinh v. State of Gujarat, (2021) 3
SCC 12 which was related to kidnapping
from legal guardian, wherein it was
established that the Court while respecting
the concerns of both society and victim,
propounded that the twin principle of
deterrence and correction would be served by
reducing the period of incarceration already
undergone by the accused. In our case, this is
not that gruesome matter where the accused
cannot be dealt with in light of all these
judgments. Judgments in Pravat Chandra
Mohanty v. State of Odisha, (2021) 3 SCC
529 & Pardeshiram v. State of M.P., (2021)
3 SCC 238 will also enure for the benefit of
the accused.

23. All others judgments which were
pressed into service by the learned counsel
for the appellant are not discussed as that
would be repetition of what we have decided.

24. We come to the definite conclusion
that the death was due to septicemia. The
judgments cited by the learned counsel for
the appellant would permit us to uphold our
finding which we conclusively hold that the
offence is not under Section 302 of I.P.C. but
is culpable homicide and, therefore, sentence
of the accused- appellants is reduced to the
period of eight years with remission under
Section 304 Part-I of IPC. The fine is reduced
to Rs.2,000/- each. The default sentence
would be six months without remission and
will run after completion of eight years of
incarceration. The accused-appellants are in
jail. They have suffered for eight years
imprisonment and must have repented to his
deed which was out of anger.

25. The accused-appellants in Criminal
Appeal No.1425 of 2017 have been convicted
for the offence under Section 498A IPC.
Looking to the facts and circumstances of the
case, we confirmed the conviction of Bantu
and Smt. Munni Devi to the period already
undergone as they have been convicted under
Section 498A IPC. The fine is maintained.
The default sentence is also maintained. If
they have not paid fine the fine be deposited
within eight weeks from today failing which
they shall surrender for undergoing the
default sentence. If the fine is already paid,
they did not pay the fine.

26.
 The
accused
have
already
undergone the punishment under Section
498A IPC and under Section 323 of IPC,
hence, we do not delve into the same.

27. Both the appeals are partly allowed.
Record and proceedings be sent back to the
Court below forthwith.

28. This Court is thankful to learned
Advocates for ably assisting the Court.
----------
(2022)07ILR A798
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.07.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Appeal No. 2422 of 2008

Shrawan Kumar Maurya ...Appellant
Versus
State of U.P. ...Respondent
7 All. Shrawan Kumar Maurya Vs. State of U.P.
799
Counsel for the Appellant:
Mr. Anurag Shukla (Amicus Curiae)

Counsel for the Respondent:
Government Advocate

Criminal Law- Indian Evidence Act, 1872-
Section 3 -Both these two witnesses of
facts have proved the incident committed
by the convict/appellant. In the lengthy
cross-examinations made by the defence
counsel nothing adverse can be brought in
their evidence. The medical evidence is in
corroboration of and consistent with the
ocular evidence. The place of occurrence
has very well been proved by the eye
witnesses P.W.1 & 2 as well as by
Investigating Officer who prepared the
site plan of the spot. The site plan as
Exhibit Ka-5 is on the record, wherein the
place of committing the crime has been
shown and proved by the Investigating
Officer who has prepared the site plan of
the place of occurrence- Mere absence of
blood on the place of incident where the
alleged incident took place will not make
the whole incident untruthful when the
trust-worthy ocular evidence as well as
medical evidence is there, about the
incident.

Where the ocular testimony is consistent,
cogent and trustworthy and the same is
corroborated by the medical evidence and the
place of occurrence has also been established
by the prosecution, then the story of the
prosecution cannot be doubted merely on the
basis of absence of blood on the place of the
occurrence.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 53- A- The mere
non-examination of the accused medically
after the incident cannot create the clouds
of doubts on the evidence of eyewitnesses well supported with medical
evidence specially when the accused was
arrested after two days of the incident.
Further more in Section 53, 53A and
Section 54 of Cr.P.C. related provisions
were amended and made effective on
23.03.2006, while this incident occurred
on 19.03.2006.

Where the accused was taken into custody after
considerable delay then his medical examination
will not serve any purpose- As the provisions u/s
53-A of the Cr.Pc. were incorporated through
amendment subsequent to the occurrence,
hence the same cannot operate retrospectively.
(Para 11, 17, 19, 19, 23)

Criminal Appeal rejected. (E-3)

Case Law/ Judgements relied upon:-

1. Brathi @ Sukhdev Singh Vs St. of Punj. 1991
(1) SCC 519 (cited)

2. Nirmal Singh Kahlon Vs St. of Punj. 2009 (1)
SCC 441 (cited)

3. Shakila Abdul Gafar Khan Vs Vasant Raghunath
Dhoble & anr. 2003 (7) SCC 749 (cited)

4. Bhikari Vs St. of U.P 1966 AIR SC 1(cited)

5. Rahim Beg & anr. Vs St. of U.P. (1972) 3 SCC
759 (cited)

6. St. of Raj. Vs Satya Narain (1998) 8 SCC 404
( relied)

(Delivered by Hon'ble Mrs. Saroj Yadav, J.)

1. This Criminal Appeal has been
filed against the judgment and order dated
16.09.2008 passed in Sessions Trial No.796
of 2006, arising out of Crime No.50 of
2006, under Section 376 of Indian Penal
Code,1860 (in short I.P.C.), Police Station
Machhrehta, District Sitapur passed by by
Additional District and Sessions Judge,
Court
No.8,
Sitapur
whereby
the
convict/appellant was held guilty for the
offence punishable under Section 376 of
I.P.C. and sentenced to life imprisonment.
The
trial
court
also
directed
the
convict/appellant to pay Rs.25,000/- as
compensation to the victim.
800 INDIAN LAW REPORTS ALLAHABAD SERIES

2. The facts necessary for disposal of
this appeal, shorn of unnecessary details are
as under:-

(i) A First Information Report (in
short FIR) was registered at Case Crime
No.50 of 2006, under Section 376/452 of
I.P.C. at Police Station Machhrehta District
Sitapur on the basis of written report
presented by the complainant Shyamlal. It
was narrated in the written report that on
19.03.2006 at about 12:30 PM his daughter
(x) aged about one year was playing on the
platform situated infront of his house.
Shrawan Kumar Maurya, resident of the
village of complainant picked up her on the
pretext of giving her toffee. He (convict)
took the victim in his thatched house and
committed rape on her. Upon hearing the
cry of the girl Sharadendu Dixit, resident of
the same village, Suman wife of the
complainant and Ram Kishore, brother-inlaw of the complainant reached on the spot,
then the convict/appellant ran away. The
condition of his daughter was serious.

(ii) The FIR was registered on
19.03.2006 on the date of incident at about
3:15 PM. Investigation started, the girl was
medically examined on the same day at
about 6:30 PM at Dufrin Hospital, Sitapur.
After investigation a chargesheet under
Section 376 of I.P.C. was submitted against
the convict/appellant in the Court of
Magistrate
concerned. The
Magistrate
concerned took cognizance and committed
the case for trial to the Court of sessions.
The Court of Sessions framed charge under
section
376
of
I.P.C.
against
the
convict/appellant. He denied the charge and
claimed to be tried.

(iii) The prosecution in order to
prove its case examined nine witnesses in
toto, which are as under:-

1. P.W.1 Shyamlal, complainant
and father of the victim girl.

2.
P.W.2
Smt.
Suman,
an
eyewitness and the mother of the victim
girl.

3. P.W.3 Sharadendu Dixit an
eyewitness.

4. P.W.4 Head Moharrir Dinesh
Bahadur Singh, who registered FIR and has
proved the chick FIR and concerned G.D.

5. P.W.5 Sub-Inspector, Babau
Upadhyaya, who is the 3rd Investigation
Officer
(in
short
I.O.)
who
finally
submitted the chargesheet against the
convict/ appellant.

6. P.W.6 Dr. Suman Mishra, who
medically examined the victim on the date
of incident itself.

7. P.W.7 Sub-Inspector Abdul
Haleem who initially investigated the case.

8.
P.W.8
Inspector
Harilal
Kardam, who is the second I.O. of the case.

9. P.W.9 Dr. Ashish Wakhlu who
performed surgery on the victim girl.

(iv) Apart from oral evidence, the
relevant documents have also been proved
by the prosecution which are as under:-

a. Exhibit Ka-1 written report.

b. Exhibit Ka-2 Chick FIR.

c. Exhibit Ka-3 Carbon copy of
the concerned G.D.

d. Exhibit Ka-4 Chargesheet.

e. Exhibit Ka-5 Medico Legal
report of the victim girl.

f. Exhibit Ka-6 Site plan of the
place of occurrence.

g. Exhibit Ka-7 Surgical report of
the victim girl.

h.
Exhibit
Ka-8
Letter
to
Superintendent
Gandhi
Memorial
and
Associate Hospital, Lucknow.

(v)
After
completion
of
prosecution evidence statement of the
convict/appellant
was
recorded
under
Section 313 of the Code of Criminal
Procedure, 1973 (in short Cr.P.C.), wherein
he denied the crime and has stated that all
7 All. Shrawan Kumar Maurya Vs. State of U.P.
801
the evidence is false. He also stated that the
case was registered due to the enmity at the
behest
of
Sharadendu
Dixit
because
Sharadendu Dixit wanted him to work, in
his field forcibly, when he denied, some
altercations took place then he (Sharadendu
Dixit) said that he would implicate him
(convict) in a false case. No defence
witness
was
produced
by
the
convict/appellant though opportunity was
given by the trial court.

3. Heard Mr. Anurag Shukla, learned
Amicus Curiae on behalf of appellant and
Mr. Dhananjay Kumar Singh, learned
Additional Government Advocate for the
State-respondent.

4.

Learned
counsel
for
the
convict/appellant argued that the trial court
has erred in convicting and sentencing the
convict/appellant, because the place of
occurrence has not been proved. The FIR is
ante -time as the alleged time of occurrence
is 12:30 PM on 19.03.2006 and the FIR
was lodged on the same day at 3:15 PM
and victim was medically examined at 6:30
PM.. The conduct of family members of the
victim was unnatural because no person
shall leave her 10 months old child
unattended
at
the
platform. As per
prosecution story the child was seriously
injured, but she was not taken to the
hospital first. She was taken to the hospital
for medical aid after six hours. The victim
who is so seriously injured would not
survive for such a longtime. Injury report
shows that there was fresh bleeding at 6:30
PM with clotted blood. In six hours blood
would dry after coagulation. There is no
whisper, how and when informant did
receive information about the incident
when he was on his field. He further argued
that allegedly the rape was committed on
earth, but not a single bruise or redness was
found on the back of the child. The offence
as has been alleged cannot possibly be
committed by a man on such a small child.
He further argued that in the FIR there is
nothing
that
anybody
saw
the
convict/appellant committing the crime, but
subsequently the witnesses have improved
their versions before the trial court. No
evidence is there on the record about giving
the medical aid to the victim after six
hours. The compliance of section 53 and 54
of
Cr.P.C.
was
not
made
by
the
Investigating Officer. In fact the girl got
injured after falling on a picket of roof of
"Arhar Plant" and the convict was falsely
implicated at the behest of Sharadendu
Dixit. Hence the impugned judgment and
order should be set-aside.

5. Learned Amicus Curiae, relied
upon the following case laws:-

1. Brathi alias Sukhdev Singh
Vs. State of Punjab 1991 (1) SCc 519.

2. Nirmal Singh Kahlon Vs.
State of Punjab 2009 (1) SCC 441.

3. Shakila Abdul Gafar Khan Vs.
Vasant Raghunath Dhoble and another
2003 (7) SCC 749.

4. Bhikari Vs. State of Uttar
Pradesh 1966 AIR SC 1.

5. Rahim Beg and another Vs.
State of U.P. (1972) 3 SCC 759.

6. Contrary to it, learned A.G.A.
argued that the prosecution has proved its
case beyond all reasonable doubts. The
incident was witnessed by the mother of the
victim girl, an independent eye witness
Sharadendu Dixit who reached at the place
after hearing the cry of the victim girl. The
ocular account given about the incident is
consistent with the medical evidence.
Medical examination of the victim girl was
done on the same day and serious injuries
802 INDIAN LAW REPORTS ALLAHABAD SERIES
were found on the private parts of the
victim girl. The lady doctor who conducted
the medical examination of the victim girl
has been examined as P.W.6 and she has
proved all the injuries found on the private
parts of the victim girl and has also said in
cross-examination that in her opinion the
injuries found on the body of the victim girl
would only be possible due to the rape
committed on her and such injury cannot
occur by fall on any article or sharp-edged
object. The girl was so seriously injured
due to the alleged criminal act of the
convict that she was subjected to surgery
and that has been proved by P.W.9 Dr.
Ashish Wakhlu . Hence there is no error in
the impugned judgment and order and the
appeal should be dismissed.

7. Considered the rival submissions,
perused the original record of trial court and gone
through the case laws cited. The facts as well as
the evidence available on record show that this
unfortunate incident occurred with a girl aged
about 11 months, who is unable to understand and
speak anything about the crime. Allegedly the
incident occurred on 19.03.2006 at about 12:30
PM. The victim girl was playing at the platform
situated in front of her house and she was picked
up by the convict from there. The convict took her
in his thatched house and committed rape on her.
Hearing the cry of the innocent and helpless child
the mother of the child P.W.2 and one independent
witness Sharadendu Dixit, resident of the same
village reached at the spot and witnessed the
incident. An FIR of the crime was lodged on the
same day at about 03:15 PM and the girl was
medically examined on the same day at about
6:30 PM. In the medical report of the victim
Exhibit Ka-5, the following observation has been
made by the doctor:-

"Physical exam. 77 cm length, wt
9 kg. Teeth 4/4 No marks of injury present
anywhere in body.

Local
exam-
Hymen
torn
bleeding out. Post vag wall tear present at
8 O'clock position complete P teat at 6
O'clock position.

Inernal
Examination-
(1)
Complete P tear size 3 cm x 1 cm x
communicating with rectum clotted blood
present with fresh bleeding at 6 O'clock
position.

(2) Post Vag. wall torn extending
up to post. fornix x 4 cm x 1 cm x muscle
deep situated at 8 O'clock. Vag smear
prepared. sent to pathologist for evidence
of spermatozoa. Above examination done in
presence of Surgeon Dr. Bhardwaj, a
paediatrician,
Dr.
S.P.
Singh
and
anaesthestist Dr. V.P. Singh.

Adv. She is referred to KGMC for
further manggement adv X-ray elbow wrist
with both hands for age determination.

Supplementary
report
is
awaited."

8. P.W.1 father of the victim girl and
the complainant has proved his written
report as Exhibit Ka-1. He stated before the
trial court that incident occurred about ten
and half months ahead at about 12:30 PM
during day. His daughter was about one
year old at the time and she was playing
outside the house on the platform. His wife
and brother-in-law Ram Kishore were
present in the house. The convict took her
daughter and committed rape on her. Upon
hearing the cry of the girl, his wife Suman,
brother-in-law
Ram
Kishore
and
independent witness Sharadendu Dixit
reached at the spot, then Shrawan Kumar
Maurya, convict ran away leaving his
daughter in injured condition. His wife,
bother-in-law and independent witness
Sharadendu Dixit had told him the whole
incident. Thereafter he got written the
report Exhibit Ka-1 by Sharadendu Dixit,
who wrote the report on his (complainant's)
7 All. Shrawan Kumar Maurya Vs. State of U.P.
803
dictation and read-over the same to the
complainant, then he affixed his thumb
impression on that and lodged the FIR in
the police station.

9. He has further stated that after
registering the FIR his injured daughter
was sent to hospital alongwith police
personnel, whereupon medical examination
of the girl was conducted in the presence of
his wife at female Hospital Sitapur. He has
further stated that at the time of incident he
was working in the field alongwith other
family members and neighbours. He and
other persons also reached at the spot and
saw that his wife was weeping keeping the
victim girl in her lap. When he asked, she
told him about the incident and he saw that
the blood was oozing out from the private
parts of the girl. This witness is not the eye
witness of the incident, he lodged the FIR
of the crime upon the narrations made by
the eye witnesses i.e. his wife, Sharadendu
Dixit and his brother-in-law who reached at
the spot after hearing the cry of the girl.
Smt. Suman is the mother of the victim.
She has stated in the Court as P.W.2 that at
the time of incident her daughter was 11
months old, she could not speak. The
incident occurred about 11 months ahead at
about 12:00 O'clock in the day, her
daughter was playing at the platform in
front of the house and she (witness) was
brooming in the courtyard of her house.
The accused Shrawan Kumar Maurya,
present in the Court took her daughter on
the pretext of giving toffee and committed
rape on her. The girl cried and when she
heard the cry of the girl she came out of the
house, at the same time Sharadendu Dixit
and her brother-in-law was also reached at
the spot after hearing the cry of the girl. All
the three persons reached the spot and saw
that accused Shrawan Kumar Maurya was
committing rape on her daughter. They all
saw the accused committing the rape on her
daughter and recognized him very well.
When they reached at the spot, accused
Shrawan Kumar Maurya ran away towards
south, leaving the girl there. The condition
of the girl was serious and she was
unconscious. Thereafter she went to Police
Station about after one to two hours
alongwith her husband. Her husband
presented an application at the police
station and lodged the FIR. Her daughter
was medically examined at female hospital
Sitapur. Thereafter her daughter was
referred to Medical College as her
condition was serious. She remained
admitted for eight days there. Thereafter
her treatment continued for about 7 months.
Her (witness') statement was recorded by
the Investigating Officer. In the crossexamination of this witness no major
contradiction has occurred. Witness has
proved the incident and denied the
suggestion that accused was implicated
falsely at the behest of Sharadendu Dixit.

10. Sharadendu Dixit has been
examined as P.W.3, who is an independent
eye witness and resident of the same village.
He has stated before the Court that on
19.03.2006 at about 12:30 PM during the day
he heard a cry of the victim-girl. At that time
he was coming back from his grove to his
house. The cry was coming from the house of
Shrawan Kumar Maurya, the accused. After
hearing the cry, he reached at the spot and
saw that accused Shrawan Kumar Maurya
was committing rape on the victim girl under
the thatch of his house. At the same time,
Suman mother of the girl and Ram Kishore
the brother of Suman also reached there and
they all witnessed Shrawan Kumar Maurya
committing rape on the victim girl. When
accused Shrawan Kumar Maurya saw them,
he left the girl and ran away. The blood was
oozing out from the private parts of the girl
804 INDIAN LAW REPORTS ALLAHABAD SERIES
and she was in unconscious state. He has
further stated that he scribed the report of the
incident at the dictation of wife of Shyamlal.
He wrote whatever was dictated to him by the
wife of Shyamlal. Thereafter he read over the
same to Shyamlal, thereafter Shyamlal
affixed his thumb impression on that.
Thereafter Shyamlal and his wife alongwith
their girl went to police station. This witness
has proved the written report Exhibit Ka-1 as
written in his own handwriting. This witness
has further stated that the I.O. recorded his
statement about the incident. This witness has
also been cross-examined at length by the
learned counsel for the convict / appellant,
but nothing adverse has come out in his
cross-examination. This witness has also
denied the suggestion put by defence counsel
that he has deposed in the case due to enmity
with the accused. He has also denied the
suggestion that the girl was injured by falling
on a picket of root 'Arhar plant'.

11. Both these two witnesses of facts
have proved the incident committed by the
convict/appellant. In the lengthy crossexaminations made by the defence counsel
nothing adverse can be brought in their
evidence. The medical evidence is in
corroboration of and consistent with the
ocular evidence.

12. P.W.6, the lady doctor who
medically examined the victim girl has
proved its medical report as Exhibit Ka-5. In
the cross-examination she has denied the
suggestion that girl got injured by falling on
some hard and sharp edged object. This
witness has clearly stated that such type of
injury could occur due to rape.

13. P.W.4 Head Moharir Dinesh
Bahadur Singh has proved the chick FIR
and concerned GD and stated before the
Court that the case was registered by him
on the basis of the written report presented
by the complainant who came there to
lodge the FIR. This witness has proved
chick FIR as Exhibit Ka-2 and concerned
GD as Exhibit Ka-3 written in his own
hand writing. This witness has further
stated that after lodging the FIR he gave the
copy of the same to the complainant and
sent the victim girl alongwith Constable
453 Shiv Sharma to Sitapur Hospital for
medical examination and thereafter handed
over the 'Nakal Chick' and carbon copy of
'Nakal Rapat' to Sub Inspector Abdul
Haleem for investigation who recorded his
statement.

14. Sub Inspector Abdul Haleem who
initially investigated the case has been
examined as P.W.7. He has proved the part
of the investigation conducted by him. He
has stated in examination-in-chief that on
19.03.2006 he was posted at Police Station
Machhrehta as Sub Inspector. On that day
the Case Crime No.50 of 2006 under
Section 376 and 452 of I.P.C. was entrusted
to him for investigation. 'Nakal Chick' and
carbon copy of 'Nakal Rapat' was given to
him. The case was registered in his
presence. The girl was sent for medical
examination and treatment. He recorded the
statement of Head Moharir Dinesh Bahadur
Singh on the same day at the Police Station,
thereafter he reached at the spot where the
incident occurred.

15. Thereafter S.O. Harilal Kardam
reached the spot alongwith force and he
took over the investigation. Inspector
Harilal Kardam has been examined as
P.W.8. He has stated before the trial court
that the case was registered in his absence
for that reason Sub Inspector Abdul
Haleem
was
entrusted
with
the
investigation. When he came back at Police
Station and took over the investigation. He
7 All. Shrawan Kumar Maurya Vs. State of U.P.
805
got the medical report of the victim girl on
20.03.2006. He made an entry of the same
in the case diary. Inspected the place of
occurrence and prepared the site plan in his
own hand writing and signature, which is
correct. This witness has proved the site
plan as Exhibit Ka-6. He has further stated
that he arrested accused Shrawan Kumar
Maurya on 21.03.2006 and recorded his
statement and he confessed the crime. After
this
stage
of
investigation
he
was
transferred from the police station.

16. Thereafter the investigation was
taken
over
by
Sub-Inspector
Babau
Upadhyay who completed the investigation
and submitted the chargesheet against the
accused under Section 376 of I.P.C. and has
proved the same as Exhibit Ka-4. SubInspector Babau Upadhyay has been
examined as P.W.5.

17. By the evidence of P.W.2 and 3
who are the eye witnesses of the incident
and evidence of formal witnesses, the
charge framed against the accused has been
proved beyond reasonable doubt. The
medical evidence is in corroboration of the
ocular account given by the eye witnesses.

18. The argument raised by learned
Amicus
Curiae
on
behalf
of
the
convict/appellant
that
the
place
of
occurrence has not been proved is not
tenable at all. The place of occurrence has
very well been proved by the eye witnesses
P.W.1 & 2 as well as by Investigating
Officer who prepared the site plan of the
spot. The site plan as Exhibit Ka-5 is on the
record, wherein the place of committing the
crime has been shown and proved by the
Investigating Officer who has prepared the
site plan of the place of occurrence.

19. Learned counsel for the defence
submitted that not a single drop of blood
was found at the spot where the rape was
allegedly committed. Mere absence of
blood on the place of incident where the
alleged incident took place will not make
the whole incident untruthful when the
trust-worthy ocular evidence as well as
medical evidence is there, about the
incident.

20. In the case State of Rajasthan Vs.
Satya Narain (1998) 8 SCC 404 the
Hon'ble Apex Court has held that merely
because of absence of blood at the place of
occurrence, the occurrence of the incident
itself cannot be doubted.

21. The contention of the learned
Amicus Curiae that FIR is ante -time is also
not tenable because as per the evidence
available on record the incident occurred
on 19.03.2006 at about 12:30 PM and the
FIR was lodged on the same day at about
3:15 PM. The FIR was well within a
reasonable time and cannot be termed as
ante- timed.

22. Learned counsel for the Amicus
Curiae submitted that conduct of the family
members of the child was unnatural and unbelievable because they did not take the
injured girl to the hospital whose condition
was serious instead they first went to the
police station, this creates a serious doubt.
This contention of the learned Amicus Curiae
have no force, because generally in the cases
where the injury has been received as a result
of crime the person goes first to inform the
police or lodge the FIR. So the conduct of the
family members of the victim cannot be
termed as unnatural, specially when they are
of village and illiterate persons.
806 INDIAN LAW REPORTS ALLAHABAD SERIES

23. The argument of the learned
Amicus Curiae that convict was not
medically examined as is mandatory under
Section 53 and 54 of Cr.P.C. and this goes
against the prosecution. The mere nonexamination of the accused medically after
the incident cannot create the clouds of
doubts on the evidence of eye-witnesses
well supported with medical evidence
specially when the accused was arrested
after two days of the incident. Further more
in Section 53, 53A and Section 54 of
Cr.P.C. related provisions were amended
and made effective on 23.03.2006, while
this incident occurred on 19.03.2006.

24. The case law cited by the learned
Amicus Curiae in Nirmal Singh Kahlon
Vs. State of Punjab (supra), wherein in
paragraph 28 on which the amicus relied
upon the following law has been laid down
by the Hon'ble Apex Court, which reads as
under:-

"28. An accused is entitled to a
fair investigation. Fair investigation and
fair trial are concomitant to preservation of
fundamental right of an accused under
Article 21 of the Constitution of India. But
the State has a larger obligation i.e. to
maintain law and order, public order and
preservation of peace and harmony in the
society. A victim of a crime, thus, is equally
entitled to a fair investigation. When
serious allegations were made against a
former Minister of the State, save and
except the cases of political revenge
amounting to malice, it is for the State to
entrust one or the other agency for the
purpose of investigating into the matter.
The State for achieving the said object at
any point of time may consider handing
over of investigation to any other agency
including a central agency which has
acquired specialization in such cases."

This case law is of no help to the
convict/appellant as there is nothing on
record to show that fair investigation was
not made or the accused was not afforded
fair opportunity to defend himself or fair
trial was not made. Rest of the case law
cited by learned Amicus Curiae is not
applicable in the matter due to the
difference of facts and circumstances of the
case.

25. To sum up, in the present matter
the incident has been proved by the eyewitnesses P.W.1 and P.W.-2 supported
with
medical
evidence
beyond
all
reasonable
doubt
against
the
convict/appellant. The trial court has
committed no error in holding the
accused guilty and sentencing him to
imprisonment for life, coupled with a
direction to give Rs.25,000/- to the victim
girl as compensation. There appears no
reason to interfere with the judgment and
order passed by the learned trial court.

26. The appellant Shrawan Kumar
Maurya is stated to be in jail, accordingly
he shall serve out the sentence awarded by
the trial Court.

27.

The
appeal
is
dismissed,
accordingly.

28. Mr. Anurag Shukla, learned
Amicus Curiae for the appellant shall be
paid his remuneration from Legal Services
Sub-Committee of this Court as permissible
under the Rules.

29. Office is directed to send a copy
of this order along with the lower Court
record to the trial Court concerned for
necessary information and compliance
forthwith.
----------
7 All. Pankaj Mohan Srivastava & Anr. Vs. State of U.P.
807
(2022)07ILR A807
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.07.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Criminal Appeal No. 2585 of 2007
&
Criminal Appeal No. 2809 of 2007
&
Criminal Appeal No. 2366 of 2007

Pankaj Mohan Srivastava & Anr.
 ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Anand Kumar Srivastava, Alakshyendra
Goel, Ankit Kumar, Arun Kumar, Durga
Prasad Verma, Manoj Kumar Srivastava,
Ram Kushal Tiwari, S.K. Upadhyay, S.M.
Nasir, Shiv Nath Goshwami, Shobhit Mohan
Shukla, Vivek Srivastava

Counsel for the Respondent:
Govt. Advocate

Criminal Law - Code of Criminal Procedure,
1973- Sections 231 & 311 - Indian Evidence
Act, 1872- Section 114- Section 131-The
victim, Udit alias Vasu was not examined by
the prosecution- The prosecution need not
examine all its witnesses and that discretion
lies with the prosecution whether to tender
or not any particular witness to prove its
case- Adverse inference against prosecution
can be drawn only if withholding of witness
was with oblique motive- No oblique motive
found for which the victim was not
produced by the prosecution as a witness
before the trial Court. There is nothing in
law which compels the prosecution to
examine all such witnesses whose names
find mention in the charge sheet to produce
them before the trial Court and on this
ground,
nothing
adverse
against
prosecution can be inferred.

It is not mandatory for the prosecution to
examine all
its witnesses
but adverse
inference
can
be
drawn
where
the
prosecution withholds a witness out of
oblique motives.

Criminal Law - Indian Penal Code, 1860-
Section 364-A - There is nothing on record
to show and establish that any demand of
ransom was made or communicated to the
first informant- The victim as discussed
above, was not examined before the trial
court. Therefore, the fact that any such
demand of ransom was made to the victim,
has also not been established. Cumulative
reading of the testimonies of prosecution
witnesses of fact leads only to one
irresistible inference that the case against
the appellants falls within the ambit of
section 364 I.P.C. only rather than one
under sections 363, 364A and 368 I.P.C.-
The appellants are, thus, liable to be
convicted under section 364 I.P.C., for
which, they are liable to be sentenced to
undergo ten years' rigorous imprisonment
and a fine of Rs. 10,000/- each.

Where the prosecution fails to establish the
demand for ransom and the victim has been
withheld from testifying, then instead of the
offence u/s 363,364A and 368 of the IPC the
offence would be of Section 364 IPC. (Para 28,
33, 35, 36, 37)

Criminal Appeal partly allowed. (E-3)

Case Law/Judgements relied upon:-

1. Crl. Appl. No.533 of 2021 @ SLP (Crl.) No.308
of 2021, Shaik Ahmed Vs St. of Telan.

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

3. Nand Kumar Vs St. of Chhattis, (2015) 1 SCC
776

4. Vishwanath Gupta Vs St. of U.K, (2007) 11
SCC 633