# Shripal Yadav v. State of U.P

- **Citation:** (2024) 4 ILRA 1155
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-16
- **Case number:** Criminal Appeal No. 843 of 2018
- **Bench:** Ashwani Kumar Mishra, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shripal-yadav-v-state-of-u-p-51778
- **Pages:** 6

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 452 & 376-D - Protection of
Children from Sexual Offences Act, 2012 -
Sections 5-G & 6 - Code of Criminal
Procedure, 1973 - Sections 161, 313, 437A - Criminal Appeal Against Conviction
and Sentence - House Trespass - Gang
Rape - POCSO Offences - Delayed FIR -
Reliability
of
Witnesses
-
Medical
Evidence
-
False
Implication
-
The
appellant,
Shripal
Yadav,
challenged
the
judgment dated 14.12.2017 by the Special
Judge
(POCSO)/Additional
Sessions
Judge,
Court No. 6, Shahjahanpur, in Special Case No.
60 of 2014, convicting him under Section 452
IPC (7 years rigorous imprisonment, Rs. 10,000
fine, 1 month additional imprisonment in
default)
and
Section
376-D
IPC
(life
imprisonment, Rs. 50,000 fine, 2 months
additional
imprisonment
in
default),
with
sentences to run concurrently. The prosecution
alleged that on the intervening night of
17/18.04.2014, Shripal Yadav and Rahul Yadav,
armed with a countrymade pistol, abducted the
informant's minor daughter (aged 12-13 years)
from her home, sexually assaulted her at
Rahul's verandah, and left her at 4:00 AM with
threats. The FIR was lodged on 19.06.2014,
over 60 days after the incident, due to alleged
obstruction by villagers. The victim's medical
examination on 20.06.2014 showed no injuries,
an old torn and healed hymen, and an
estimated age of 18 years, leading to acquittal
under POCSO Act charges. The prosecution
relied on PW-1 (informant-mother), PW-2
1156 INDIAN LAW REPORTS ALLAHABAD SERIES
(victim), and documentary evidence (FIR,
medical reports, chargesheet). The appellant
claimed false implication due to village enmity
(Yadav vs. Thakur communities) and a land sale
dispute. Held: (1) The appeal was allowed,
reversing the conviction and sentence, as the
prosecution failed to prove guilt beyond
reasonable doubt; the appellant was ordered to
be set free, subject to Section 437-A Cr.P.C.
compliance. (2) The 60-day delay in FIR lodging
was inadequately explained, with vague claims
of obstruction by villagers; PW-1's failure to
contact the local MLA, with whom she had ties,
or raise an alarm despite other family members'
presence, rendered her testimony unreliable. (3)
PW-2's testimony lacked credibility due to no
injuries despite alleged forcible abduction, and
her conduct (not informing family or police) was
unnatural. (4) Medical evidence did not support
rape or minor age claims, and no independent
witnesses corroborated the prosecution case.
(5) Enmity due to caste differences and a land
dispute suggested possible false implication. (6)
The trial court failed to critically evaluate
witness testimonies, and the victim's testimony
was not of sterling quality to warrant conviction
without corroboration.

## Text

4 All. Shripal Yadav Vs. State of U.P.
1155
conviction and sentence awarded to the
appellants for charge under Section 148
IPC is hereby affirmed.

55. Other appellants namely
Dhaukal, Bhaiya Lal, Rajendra and
Ramswaroop are sentenced to seven years
rigorous imprisonment and Rs.7,000/-
fine for charge under Section 304 (I) read
with section 149 IPC. In case of default
of payment of fine they are awarded six
months default sentence. The period of
custody undergone by the appellants will
be set-off to sentence awarded in this
modified order. All the sentences will
concurrently. The appeal stands partly
allowed accordingly and conviction and
sentence awarded to the appellants in
impugned judgment will be deserved to
be modified in above manner.

56. Let the copy of the judgment
be sent to Sessions Judge, Fatehpur to
ensure compliance of this appellate
judgment. The appellants who were
enlarged on bail in this appeal are
directed to surrender before the court
concerned to undergo this modified
conviction and sentence.

57. Let lower court record be
sent back immediately to session judge,
Fatehpur for necessary action. In case of
non-appearances of appellants before the
Court below, they will be taken into
custody without any delay by court
concerned and sent to jail for undergoing
this modified order and sentence.
----------
(2024) 4 ILRA 1155
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.04.2024

BEFORE
THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 843 of 2018

Shripal Yadav ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Ram Kesh, Sri Saroj Kumar Dubey, Sri
Virendra Pratap Pal

Counsel for the Respondent:
Govt. Advocate

Criminal Law - Indian Penal Code, 1860 -
Sections 452 & 376-D - Protection of
Children from Sexual Offences Act, 2012 -
Sections 5-G & 6 - Code of Criminal
Procedure, 1973 - Sections 161, 313, 437A - Criminal Appeal Against Conviction
and Sentence - House Trespass - Gang
Rape - POCSO Offences - Delayed FIR -
Reliability
of
Witnesses
-
Medical
Evidence
-
False
Implication
-
The
appellant,
Shripal
Yadav,
challenged
the
judgment dated 14.12.2017 by the Special
Judge
(POCSO)/Additional
Sessions
Judge,
Court No. 6, Shahjahanpur, in Special Case No.
60 of 2014, convicting him under Section 452
IPC (7 years rigorous imprisonment, Rs. 10,000
fine, 1 month additional imprisonment in
default)
and
Section
376-D
IPC
(life
imprisonment, Rs. 50,000 fine, 2 months
additional
imprisonment
in
default),
with
sentences to run concurrently. The prosecution
alleged that on the intervening night of
17/18.04.2014, Shripal Yadav and Rahul Yadav,
armed with a countrymade pistol, abducted the
informant's minor daughter (aged 12-13 years)
from her home, sexually assaulted her at
Rahul's verandah, and left her at 4:00 AM with
threats. The FIR was lodged on 19.06.2014,
over 60 days after the incident, due to alleged
obstruction by villagers. The victim's medical
examination on 20.06.2014 showed no injuries,
an old torn and healed hymen, and an
estimated age of 18 years, leading to acquittal
under POCSO Act charges. The prosecution
relied on PW-1 (informant-mother), PW-2
1156 INDIAN LAW REPORTS ALLAHABAD SERIES
(victim), and documentary evidence (FIR,
medical reports, chargesheet). The appellant
claimed false implication due to village enmity
(Yadav vs. Thakur communities) and a land sale
dispute. Held: (1) The appeal was allowed,
reversing the conviction and sentence, as the
prosecution failed to prove guilt beyond
reasonable doubt; the appellant was ordered to
be set free, subject to Section 437-A Cr.P.C.
compliance. (2) The 60-day delay in FIR lodging
was inadequately explained, with vague claims
of obstruction by villagers; PW-1's failure to
contact the local MLA, with whom she had ties,
or raise an alarm despite other family members'
presence, rendered her testimony unreliable. (3)
PW-2's testimony lacked credibility due to no
injuries despite alleged forcible abduction, and
her conduct (not informing family or police) was
unnatural. (4) Medical evidence did not support
rape or minor age claims, and no independent
witnesses corroborated the prosecution case.
(5) Enmity due to caste differences and a land
dispute suggested possible false implication. (6)
The trial court failed to critically evaluate
witness testimonies, and the victim's testimony
was not of sterling quality to warrant conviction
without corroboration.

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.
&
Hon'ble Mohd. Azhar Husain Idrisi, J.)

1. This appeal is directed against
judgment and order of conviction and
sentence dated 14.12.2017, passed by the
Special
Judge
(POCSO)/Additional
Sessions Judge, Court No.6, Shahjahanpur
in Special Case No.60 of 2014 (State Vs.
Shripal Yadav), arising out of Case Crime
No.264 of 2014, Police Station Garhiya
Rangeen, District Shahjahanpur, whereby
the accused appellant Shripal Yadav has
been convicted and sentenced to 7 years
rigorous imprisonment alongwith fine of
Rs.10,000/- under Section 452 IPC and on
failure to deposit fine to undergo additional
simple imprisonment for a month; and life
imprisonment
alongwith
fine
of
Rs.50,000/- under Section 376-D IPC and
on failure to deposit the fine to undergo
additional simple imprisonment for two
months. Sentences are to run concurrently.

2. As per the prosecution case,
informant (PW-1) was sleeping alongwith
her daughter, aged 12-13 years, in the
intervening night of 17/18.4.2014 at about
1.00 in the night, when the accused Rahul
Yadav and Shripal Yadav came armed with
countrymade pistol and forcibly abducted
her minor daughter, who was later
subjected to sexual assault by them. The
victim was left in the village with threats
that mother would not be allowed to live in
the village. The informant tried to lodge a
report but the villagers surrounded her and
did not allow her to go to police station. No
medical examination was held either.
Repeated attempts to reach out to police
personnel also failed. Ultimately the FIR
was registered at 9.30 am on 19.6.2014.
Written report on the basis of which FIR
got registered is Ex.Ka-1 and has been
proved by PW-1. The victim has been
medically examined on 20.6.2014, in which
no external or internal injuries have been
found. Age of the victim has been
determined medically as 18 years. Her
hymen was found old torn and healed. The
statement of victim was also got recorded
on 25.6.2014, as per which the incident
occurred on the date of elections. The
accused came, gagged her mouth and
forcibly abducted her on gun point.
Thereafter, victim was allegedly subjected
to sexual assault in the Verandah of accused
Rahul and the victim was later left at her
house at about 4.00 in the morning. Threats
were extended to the victim. Though the
victim claims to have informed of the
incident to her mother but they were not
allowed to go to police station. It is alleged
that only when a complaint was made to
4 All. Shripal Yadav Vs. State of U.P.
1157
higher authorities that the FIR was
registered. Statement of victim was also
recorded under Section 161 Cr.P.C. On the
basis
of
evidence
collected
during
investigation the chargesheet was submitted
against the accused appellant on 11.7.2014.

3. The Magistrate took cognizance
of the aforesaid chargesheet and committed
the case to the court of sessions, where
charges were framed on 13.5.2015 against
the accused appellant under Sections 452,
376-D IPC and 5-G/6 of POCSO Act. The
accused denied the charges and demanded
trial.

4. During the course of trial,
documentary evidence have been adduced
by the prosecution in the form of FIR as
Ex.Ka-8;
written
report
as
Ex.Ka-1;
medical report as Ex.Ka-3; supplementary
medico legal report as Ex.Ka-4; X-Ray
report as Ex.Ka-5; chargesheet as Ex.Ka-7;
and site plan with Index as Ex.Ka-6.

5. The prosecution has produced
two witnesses namely PW-1 and PW-2.
PW-1 is the mother, who has supported the
prosecution case, as per which 12-13 year
old victim was abducted on gun point and
was subjected to sexual assault between
1.00 am to 4.00 am on the date of incident.
In the cross-examination PW-1 has stated
that she has two sons and three daughters.
The victim is her second daughter. There
were other family members also in the
house alongwith the victim. PW-1 has also
admitted that she is on visiting terms with
one Munna Vidhayak, who has been an
MLA for 5-6 terms. She used to serve in his
house. She has denied the suggestion that
there was earlier an agreement to sell the
land of her brother-in-law to the accused,
whereafter the land was sold to someone
else on a higher consideration. It is,
however, admitted that the person to whom
land has been sold lives adjacent to the
house of the informant. She has admitted
that accused Shripal Yadav has been
working outside the village for the last 5-6
years. On the date of incident, there was
election and she had voted. She has
admitted that report has been lodged two
months after the incident. In her statement
under Section 161 Cr.P.C., PW-1 has
admitted that the victim was sleeping next
to her and when she woke up at about 2.00
a.m., in the night, she did not find her
daughter nor saw anyone else abducting
her. She has denied the suggestion that her
daughter was in relation with accused
Rahul, and on account of village enmity
she has falsely implicated the accused
persons.

6. The victim has been examined
as
PW-2,
who
has
supported
the
prosecution case. She has also verified her
statement under Section 161 Cr.P.C. In her
cross-examination, she has denied her
friendly relations with accused Rahul or
that she was caught with Rahul in the
Sugarcane Field. She has alleged that force
was used while abducting her but no injury
was caused. As per the victim, her mother
was sleeping next to her but she could not
know of the incident. She has admitted that
she knew Munna Vidhayak and her mother
was cooking food in the school run by him.
Victim has also denied the suggestion that
on account of village enmity she has falsely
implicated the accused.

7. The doctor, who had medically
examined the victim has been produced as
PW-3. In her opinion, age of the victim was
around 18 years and no definite opinion
with regard to rape could be given. She
found no existence of any external or
internal injury on the victim and her hymen
1158 INDIAN LAW REPORTS ALLAHABAD SERIES
was found old torn and healed. PW-4 is SubInspector, who has proved the police papers.

8. The accused was confronted with
the evidence led by the prosecution in order
to record his statement under Section 313
Cr.P.C. He has alleged to have been falsely
implicated on account of village enmity. It is
alleged that there was enmity between the
Yadavs and Thakurs and as accused was from
Yadav Community, while informant was
working with local MLA, who was from the
Thakur
Community,
therefore,
false
complaint has been lodged against him.

9. Defence has also produced its
evidence in order to show that on account of
sale of landed property, there was an enmity
between the parties. The defence witness
DW-1 is a 60 year old resident of the same
village.

10. Trial court on the basis of
evidence on record has convicted the accused
appellant and sentenced him as per law.

11. Learned counsel for the
appellant states that accused appellant has
been falsely implicated, inasmuch as the
prosecution story is wholly unbelievable and
is not supported by any evidence on record.

12. Learned AGA, on the other
hand, has supported the judgment of
conviction and sentence, on the basis of
reasons assigned therein.

13. We have heard Sri Virendra
Pratap Pal, holding brief of Sri Ram Kesh,
learned counsel for the appellant and learned
AGA for the State and have perused the
material on record.

14. The incident in the present case
is alleged to have occurred in the
intervening night between 17/18.4.2014, on
which date there was an election in the
locality for the office of local member of
Legislative Assembly. According to the
prosecution the two accused came with
arms and on gun point physically abducted
the minor victim and subjected her to
sexual assault.

15. First and foremost, it is to be
noticed that though the incident occurred
on 17/18.4.2014, but no report in the matter
was lodged immediately after the incident.
The report has been lodged only on
19.6.2014, which is after more than 60
days. Although delay in itself would not be
fatal in a case of sexual offence, but the
court
will
have
to
examine
the
circumstances, which may have led to the
delayed reporting of the offence. PW-1 has
stated that she tried to go to police station
but the villages surrounded her and did not
let her go. In the testimony of PW-1, it is,
however, not disclosed as to when she
attempted to go to the police station or who
stopped her from reporting the incident to
the police. Discussion in this regard is
absolutely vague. We suspect the testimony
of PW-1 and do found her to be credible in
this regard for the simple reason that PW-1,
admittedly was known to local MLA and
was working as a Cook in the school run by
the concerned MLA. In the event the
incident of the kind, as is alleged, had taken
place, it would be expected that PW-1
would try to reach out to influential persons
of the village, who are known to her,
including
the
MLA.
There
is
no
explanation in the testimony of PW-1 as to
why she made no attempt to reach out the
local MLA, who admittedly was known to
her. Even otherwise, we find that election
was held on the date of incident, and
generally, it is expected that there would be
greater vigil maintained in the area to
4 All. Shripal Yadav Vs. State of U.P.
1159
secure law and order. Easy access to police
personnel during the election would be
expected.

16. We have examined the
testimony of PW-1 and PW-2 carefully,
who have not furnished any detail as to
when they tried to go to the police station
and what attempt was made to inform the
authorities or the villagers in that regard. 60
days is not a small time and the fact that
during this period no attempt was made to
reach out to anyone for lodging the report
has to be viewed with suspicious.

17. We have also perused the
statement of PW-1 and PW-2, as per whom
the victim was abducted on the day of the
election. As per PW-1, she was sleeping
next to the victim. PW-2 has admitted that
when she woke up at 2.00 in the night, she
found her daughter missing. There is no
explanation forthcoming from the PW-1 as
to what she did, when her daughter was
found missing. PW-1 has stated that she
had never gone out from the house. The
fact that PW-1 did not raise any alarm
regarding disappearance of her daughter or
make any attempt either to inform the
family members or to inform police raises
doubt on the prosecution version. We are
reluctant to rely upon testimony of PW-1
that having found her daughter missing at
2.00 in the night, she did nothing. PW-2,
moreover, has stated that on gun point she
was abducted despite resistance by her.
However, there was no mark of injury or
even old injury on the victim. We further
find from the testimony of PW-1 that the
family composition of the informant
included other members also. Informant
has two sons and another daughter apart
from the victim and the eldest daughter,
who was already married. In normal
circumstances, an incident of the kind
where a young girl goes missing at 2.00 in
the night, the mother is expected to make
immediate endeavours to trace out her
daughter or to at least inform other family
members, who could either inform police
or attempt to trace out the victim. The
prosecution evidence is absolutely silent
and shoddy on this aspect.

18. Medical evidence on record
also belies the prosecution claim that
victim is a minor. No documentary
evidence in the form of school record or
birth certificate etc. has been produced to
prove the age of the victim. The only
material in that regard is the medical
opinion, as per which the victim was 18
years of age. It is for this reason that
accused persons have been exonerated of
charges under the POSCO Act. The medical
examination otherwise does not depict any
external or internal injury on the victim.
The doctor has also not expressed any
opinion with regard to occurrence of rape
upon the victim.

19. In the facts of the present case,
no independent witness has come forward
to support the prosecution case. The
medical opinion on record also does not
support the claim of prosecutrix. The
testimony of PW-1 and PW-2 are also not
found convincing, inasmuch as their
conduct in not reporting the incident or
raising an alarm etc. is questionable. It is
otherwise specifically asserted that there
existed enmity on account of alleged sale of
immovable property as well as village
enmity, as the accused and the informant
belong to two separate castes and there was
cordiality missing between these two
communities.

20. Upon overall evaluation of
evidence on record, we find that the
1160 INDIAN LAW REPORTS ALLAHABAD SERIES
testimony of PW-1 and PW-2 cannot be
termed to be wholly reliable. The testimony
of victim cannot be treated as that of a
sterling witness, which alone can be
relied upon to convict the accused
persons. The fact that no protest was
made for almost two months nor anyone
in the family raised any alarm are factors,
which persuade us to doubt the testimony
of injured witness. There are no other
incriminating material adduced by the
prosecution against the accused persons.
Possibility
of
false
implication
on
account of enmity between the two sides
cannot be ruled out. One of the accused
namely Rahul has been declared juvenile
and his trial has been segregated.
Accused appellant Shripal Yadav is in jail
since
the
date
of
judgment
i.e.
14.12.2017.
He
was
also
remained
incarcerated for about 11 months during
the trial.

21. Considering the totality of
circumstances placed on record and for
the reasons recorded above, we are of the
considered opinion that prosecution has
failed to establish the guilt of the accused
appellant beyond reasonable doubt. The
trial court has also not examined the
testimony
of
witnesses
in
correct
perspective.

22. In that view of the matter,
this appeal succeeds and is allowed. The
judgment and order of conviction and
sentence dated 14.12.2017, passed by the
Special
Judge
(POCSO)/
Additional
Sessions
Judge,
Court
No.6,
Shahjahanpur in Special Case No.60 of
2014 is reversed. The appellant Shripal
Yadav shall be set free, unless he is
wanted in any other cases, subject to
compliance of Section 437-A Cr.P.C.
----------
(2024) 4 ILRA 1160
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.04.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 1731 of 2004

Shankar Yadav ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Jagdish Singh Sengar, Sri Babu Lal Ram, Sri
Prem Chandra Patel, Sri Ram Babu Sharma, Sri
Vindhyachal Singh, Sri Muktesh Kumar Singh, Sri
Ashok Kumar Singh Yadav, Sri Sanjay Kumar
Yadav, Sri Rajesh Yadav, Sri V.P. Srivastava (Sr.
Adv.)

Counsel for the Respondent:
Govt. Advocate, Sri Dhirendra Kumar Srivastava,
Sri Ram Ji Yadav, Sri Saroj Kumar Dubey, Sri
Vineet Kumar Yadav, Sri Virendra Pratap Pal, Sri
Siddhartha Shukla, Sri Rajiv Lochan Shukla

Criminal Law - Indian Penal Code, 1860 -
Sections 148, 149 & 302 - Code of
Criminal Procedure, 1973 - Sections 161,
313 & 437-A - Criminal Appeal Against
Conviction and Sentence - Rioting - Murder -
Unlawful Assembly - Dying Declaration -
Reliability of Witnesses - Delay in FIR -
Contradictions in Testimonies - False Implication
- The appellant, Shanker Yadav, challenged the
judgment dated 25.03.2004 by the Additional
Sessions Judge/F.T.C.-IV, Jaunpur, in Sessions
Trial No. 41 of 1990, convicting him and four coaccused (Jwala Prasad, Bankey Lal, Shyam
Bahadur, Mithai Lal) under Section 148 IPC (1
year simple imprisonment) and Section 302/149
IPC (life imprisonment, Rs. 20,000 fine each, 1
year additional imprisonment in default) for the
murder of Rambali Yadav on 26.08.1989 at 6:00
PM near an unpaved road in Jaunpur. The
prosecution case, based on a written report by
PW-1 (Lalji Yadav, deceased's brother), alleged
that the accused, armed with gandasas and a