# Shyam Lal (In Jail) v. State of U.P. Opp. Party

- **Citation:** (2020) 12 ILRA 336
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-10
- **Case number:** Criminal Appeal No. 2919 of 2009
- **Bench:** Ramesh Sinha, Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyam-lal-in-jail-v-state-of-u-p-opp-party-45578
- **Pages:** 19

## Headnote

Criminal Law - Indian Penal Code,1860 -
Section 376(2)(f) -Criminal Appeal has been
filed against conviction U/s 376(2)(f) IPC
Quantum of Sentences : - argument of the
counsel - based on only quantum of sentences.
(Para 31)

Cases are discussed by the counsel for the
appellant is distinguishable from the facts of the
present matter itself.

Defence could not produce any document which
shows enmity with the first informant. (Para 45)

Prosecution has succeeded to prove its case
beyond all reasonable doubts (Para 47)

Appeal dismissed. (E-2)

List of Cases cited: -

## Text

_Characters 0–39,717 of 65,499. This is a partial read: ask again with offset=39717 for what follows._

336 INDIAN LAW REPORTS ALLAHABAD SERIES
brutality with which the crime has been
perpetrated, the enormity of the crime
warranting public abhorrence and it should
"respond to the society's cry for justice
against the criminal.''

44. Looking into the nature and
gravity of the offence, I am of the view that
the punishment awarded by the Trial Court
is just and appropriate and requires no
interference. Appeal is liable to be
dismissed and impugned judgment and
order passed by the learned Trial Court is
liable to be affirmed.

45. In the light of aforesaid
discussion, the appeal lacks merit and is
hereby dismissed. The impugned judgment
and order dated 18.5.1998, passed by
Session Judge, Raebareli in Session Trial
No. 105/1995 (State vs. Lodeshwar and
others), is maintained
and affirmed.

46. The appellant-Shashi Kant is on
bail. His bail bond is cancelled. He is
directed to surrender before the concerned
Court forthwith to serve out the aforesaid
sentence.

47. Let a copy of this judgment along
with lower court record be sent to the
concerned Court for necessary information
and compliance.
----------
(2020)12ILR A336
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.12.2020

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE SAMIT GOPAL, J.

Criminal Appeal No. 2919 of 2009
Shyam Lal ...Appellant (In Jail)
Versus
State of U.P. ...Opp. Party

Counsel for the Appellant:
Sri Neeraj Mishra, Sri A.N. Mishra, Sri Noor
Mohammad

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

Criminal Law - Indian Penal Code,1860 -
Section 376(2)(f) -Criminal Appeal has been
filed against conviction U/s 376(2)(f) IPC
Quantum of Sentences : - argument of the
counsel - based on only quantum of sentences.
(Para 31)

Cases are discussed by the counsel for the
appellant is distinguishable from the facts of the
present matter itself.

Defence could not produce any document which
shows enmity with the first informant. (Para 45)

Prosecution has succeeded to prove its case
beyond all reasonable doubts (Para 47)

Appeal dismissed. (E-2)

List of Cases cited: -

1. Rajendra Datta Zarekar Vs St.of Goa: 2008
(1) All JIC 123 & Bavo @ Manubhai Ambalal
Thakore Vs St.of Guj.: 2012 (1) All JIC 319.

2. Shyam Narain Vs St. of NCT of Delhi: AIR
2013 SC 2209.

3. Jameel Vs St. of U.P. (2010) 12 SCC 532

4. Shailesh Jasvantbhai & anr. Vs St.of Guj. &
ors.: (2006) 2 SCC 359

5. St. of M.P. Vs Babulal: AIR 2008 SC 582
Halsbury's Laws of England, (4th Edition: Vol.II:
para 482)

6. Gopal Singh Vs St. of Uttarak.: 2013 (2)
SCALE 533,

7. Madan Gopal Kakkad Vs Naval Dubey & anr.
12 All. Shyam Lal Vs. State of U.P.
337
(1992) 3 SCC 204

8. St. of Andh. P. Vs Bodem Sundra Rao: AIR
1996 SC 530

9. St. of Punj. Vs Gurmit Singh & ors. : AIR
1996 SC 1393

10. St. of Karn.a Vs Krishnappa: (2000) 4 SCC
75

11. Jugendra Singh Vs St. of U.P.: (2012) 6 SCC
297

(Delivered by Hon'ble Samit Gopal, J.)

1. The present appeal arises out of
judgment and order dated 28.03.2009
passed by the Sessions Judge, Lalitpur in
Session Trial No. 1 of 2008 (State of U.P.
Vs. Shyam Lal) whereby the appellant has
been convicted under Section 376(2)(f) IPC
for life imprisonment and a fine of Rs.
2,000/-. In default of payment of fine, he
has been directed to further undergo one
year imprisonment.

2. In view of the legislative mandate
as contained in Section 228-A of the Indian
Penal Code, 1860 and the observations
made by the Hon'ble Supreme Court in
various judgments the identity of the
prosecutrix/victim is not being disclosed
and she will be referred to as ''R'
hereinafter.

3. The prosecution case as per the
First Information Report lodged by Deepak
Dheemar/PW-1 is that his daughter ''R'
aged about 12 years is mentally deranged,
deaf and dumb since birth. On 01.09.2007
at about 12:00 PM ''R' went to the fields but
did not return till 02:00 PM, on which, the
mother of the first informant namely Smt.
Nanhi Bai wife of Nandlal went towards
the field to search her and during search
when his mother reached at a talab near a
drain to his field, she did not find ''R' there,
to which, she started search near about
wherein at the adjacent field of Harbhajan
Dheemar, in which, maize was sown some
sound was coming from there, to which,
she went inside and saw ''R' lying naked
and Shyam Lal the appellant who is the
caretaker of the fields of Harbhajan
Dheemar was lying over her and was
committing rape on her, wherein the
mother of the first informant raised hue and
cry, consequently, Shyam Lal after wearing
his pant ran away and ''R' was lying there in
an injured condition and blood was oozing
out from her private parts. The incident is
said to be of around 02:30 PM. On the
shrieks of the mother of the first informant,
Kripa Ram PW-4 reached the place of
occurrence who also the saw the incident. It
is further stated in the FIR that then the
mother of the first informant brought ''R'
back to the house and gave information
about the incident to the villagers as a
result of which, the entire village went into
silence. The first informant then states that
he reached the house at about 07:00 PM, on
which, his mother informed him about the
whole incident and then he along with his
mother and ''R' has reached the police
station for lodging of the First Information
Report.

4. The application for lodging of the
First Information Report was given by the
Deepak Dheemar, the father of ''R' which is
marked as Exb: Ka-1 to the records. On the
basis of the said application, a First
Information Report was registered on
01.09.2007 at about 20:30 hrs. (08:30 PM)
at Police Station Bar, District Lalitpur as
Case Crime No. 596 of 2007 under Section
376 IPC against Shyam Lal. The said First
Information Report is marked as Exb: Ka-6
to the records. The prosecutrix/victim ''R'
was medically examined on 02.09.2007 at
338 INDIAN LAW REPORTS ALLAHABAD SERIES
01:00 PM by Doctor Alka Jain/PW-3 at
District Women Hospital, Lalitpur. The
medical examination report is marked as
Exb: Ka-4 to the records. The doctor
conducting the medical examination report
found injuries on the body of the deceased
and also on her private parts. The external
injuries found on the person of the victim
''R' are extracted hereinbelow:-

"1.
Multiple
soft
scabbed
abrasion in an area of 5.0 cms x 4.0 cms on
right side face, 3.0 cms below right ear and
3.0 cms away from right angle of mouth.

2. Multiple soft scabbed abrasion
in an area of 4.0 cms x 3.0 cms on left side
face, 2.0 cms away from left angle of
mouth.

3. Soft multiple scabbed abrasion
in an area of 3.0 cms x 2.0 cms on right
side of neck just below cheek."

The injuries found on the private
parts of the victim are as follows:

"1. A lacerated wound at 6
O'Clock position at post-commissure above
1.0 cm x 1⁄2 cm 1⁄2 cm extending up in
vagina.

2. A lacerated wound of floor of
vagina extending from 5 to 8 O'Clock
position above 2.5 cms x 2.5 cms x 1.0 cm
deep.

3. Annuler tear hymen involving
right 1⁄4 to lower 1⁄2."

The
doctor
conducting
the
medical examination of the victim had put
her on sedation and then had examined her.
The same is specifically mentioned in the
said medical examination report. The
clothes worn by ''R' were found blood
stained by the doctor and as such she took
the underwear, shirt and a wrapped towel
on the waist and sealed them.

5. For the conclusion after medical
examination, the doctor has stated that the
supplementary report will be given after the
reports of vaginal smear and radiology are
seen. Further, she states that the external
injuries are simple in nature caused by hard
and blunt object and the duration of the
injuries is above one day. For the injuries
on her private parts, it is concluded that the
same are simple in nature caused by
friction against hard and blunt object and
the duration is above one day.

A supplementary report dated
06.09.2007 was given by doctor Alka Jain
with the following opinion:

" Opinion- Her injury on private
parts are simple in nature caused by friction
against hard blunt object, probability of
sexual on may be there. Her age by
appearance,
physical
examination
and
radiological examination appeared to be
about twelve years."

6. The clothes of the victim which
sealed by the doctor were sent to the
chemical examiner for analysis. The
chemical examiner gave report dated
05.10.2007 which is Exb: Ka-13 to the
records, in which, in Article No. 1 being
the underwear of the victim spermatozoa
was found. In the Article Nos. 2 and 3
being the t-shirt and an angocha, no
spermatozoa was found. On Article No. 1
human semen was found and on Article
Nos. 1 and 3 human blood was found. On
Article No. 4 being blood stained mud and
blood stained grass along with plain mud,
plain grass disintegrated blood was found
as such it was not possible to opine about
its origin.

7. The investigation concluded and a
Charge Sheet No. 91 of 2007 dated
08.09.2007 was filed under Section 376
IPC against the appellant, the same is Exb:
Ka-10 to the records.
12 All. Shyam Lal Vs. State of U.P.
339

8. The trial court vide its order dated
22.01.2008 framed charges under Section
376(2)(f) IPC against the accused Shyam
Lal. The accused pleaded not guilty and
claimed to be tried. He has led no defence
evidence.

9. The prosecution in order to prove
its case produced Deepak Dheemar as PW1 who is the father of the prosecutrix/victim
and the first informant. PW-2 Smt. Nanni
Bai is the grand mother of ''R' and an eye
witness of the incident. Dr. Smt. Alka
Jain/PW-3 is the doctor who conducted the
medical examination of ''R' on 02.09.2007
at about 01:00 PM and also gave the
supplementary medical examination report
dated 06.09.2007. PW-4/Kripa Ram is a covillager and also claims to have reached the
place of occurrence on hearing the shrieks
and shouts of Smt. Nanni Bai PW-2 as he
was working in the same field. Sant Ram,
Head
Constable/PW-5
took
the
victim/prosecutrix for medical examination
report.
Shiv
Shankar
Tiwari,
Sub
Inspector/PW-6 is the Investigating Officer
of the case who arrested the accused on
02.09.2007 and concluded the investigation
and filed charged sheet. Toran Singh,
Constable PW- 7 took articles in a sealed
condition to the chemical analyst for
analysis.

10. The trial court after considering
the entire evidence on record came to the
conclusion that there is sufficient evidence
against the accused-appellant Shyam Lal
for committing rape on ''R' and thus
convicted the accused as stated above.

11. We have heard Sri Noor
Mohammad, learned counsel for the
appellant and Mrs. Archana Singh, learned
Additional Government Advocate for the
State and perused the record.

12. Learned counsel for the appellant
at the very outset argued that he is not
challenging the conviction as recorded by
the trial court vide the impugned judgment
and order dated 28.03.2009. He argues that
only the quantum of sentence as awarded to
the accused appellant Shyam Lal being life
imprisonment is being challenged by him
as the same is excessive and since the
appellant
accused
is
in
jail
since
02.09.2007 and has served out about 13
years in jail, the sentence be reduced from
life imprisonment. Learned counsel for the
appellant has in support of his argument
relating to the quantum of punishment has
relied upon the judgment of Rajendra
Datta Zarekar Vs. State of Goa: 2008 (1)
All JIC 123 and Bavo @ Manubhai
Ambalal Thakore Vs. State of Gujarat:
2012 (1) All JIC 319.

13. Per contra, learned Additional
Government Advocate for the State of U.P.
opposed the sole submission of the learned
counsel for the appellant on the ground that
the present case is a case which in all
prospects is a barbaric action by the
accused. It is further argued that ''R' was a
mentally deranged, deaf and dumb girl and
also a minor being about 12 years of age
and looking to the injuries received by her
both on her body and private parts along
with the report of the chemical analyst
corroborating the incident. The appellant
does not deserve any sympathy whatsoever.
In support of his submission, she has
placed reliance upon the judmgent of the
Apex Court in the case of Shyam Narain
Vs. State of NCT of Delhi: AIR 2013 SC
2209. It is further argued that the appeal be
dismissed and no sympathy be extended to
the accused-appellant.

14. PW-1 Deepak Dheemar is the first
informant and the father of ''R'. He states
340 INDIAN LAW REPORTS ALLAHABAD SERIES
that his daughter is aged about 12 years.
She is deaf, dumb and mentally deranged
and does not understand anything since
birth. He further states about the said
incident as narrated by him in the First
Information
Report
which
was
got
registered by him by moving an application
which is marked as Exb: No. Ka-1 to the
records. He further states that he had given
an application to the Constable Clerk at the
Police Station and had received the chik
and copy of the same. He further states that
his daughter along with his mother were
taken to P.H.C., Bar for treatment, who
were accompanied by Constable from
where they were taken to District Hospital,
Lalitpur and from there they were sent to
Jhansi
and
even
there
the
medical
examination was not done and they were
sent back to Lalitpur and then on the next
day, the medical examination was done. He
further states that on the next day of the
incident, the Investigating Officer inspected
the place of occurrence and took blood
stained mud and grass and also plain mud
and grass and kept them in different boxes
and sealed it. A memo about the said
recovery was prepared which was read out
to them and then his mother affixed her
thumb impression and put her signature.
The recovery memo is marked as Exb: Ka2 to the records. The clothes of ''R' which
was taken into custody were got identified
by him in court which were marked as
material Exb: Ka-1, 2 and 3 being the
underwear,
t-shirt
and
an
angocha
respectively. The blood stained mud and
grass and plain mud and grass were also
identified by him in court which were
marked as material Exb: Ka-4 and 5
respectively.

15. In his cross examination, he stated
that he is not an eye witness to the
occurrence on the day of the incident. He
had gone Teekamgarh and he had returned
about 07:00 PM. When he returned, it was
dark and the lights were on. He further
states that the police station is at a distance
of about one furlong from his house. His
father is working in the Health Department
and goes on his duty at about 08-09 AM
and returns at about 07-08 PM. He works in
the Health Center, Bar. He states that he is
working as a labour and has failed in class
10th . He further states that his mother
informed him about the incident and then
he went to the police station. He states that
when he went from his house to the police
station uptil that time, his father had not
come back. His mother had told him that
there was a lot of resentment about the
incident amongst his neighbours. He states
that he did not state in the FIR lodged by
him that his girl was bleeding from her
private parts. He states that when he went
to the hospital then his father had come.
The field of Harbhajan Dheemar is situated
at a distance of about two furlongs from his
house. He states that there is a talab
between the field of Harbhajan and his
field. To go to the field of Harbhajan, talab
will not come in between. He further states
that he has done his sowing on his own. His
daughter used to go to the field daily. To a
suggestion that Shyam Lal did not commit
rape on his daughter, he denies. Further to
the suggestion that Shyam Lal did not go to
his field to work as a labour, as a result of
which, he was annoyed, he states that the
same to be incorrect. He states that Kripa
Ram is of his caste but is not his relative.
He states that the field of Kripa Ram is in
village Dhamna and his field is in village
Bar. The distance between the field of
Kripa Ram and his field about 1.5 furlong.
To a suggestion that Kripa Ram who is his
relative and due to said reason, he has been
made as a witness, he denies the same. He
further denies the suggestion that due to
12 All. Shyam Lal Vs. State of U.P.
341
village party bandi, false case has been got
registered.

16. Smt. Nanni Bai PW-2 is the grand
mother of ''R' and is an eye witness to the
incident. She states that ''R' was aged about
13 years, she was mentally deranged, deaf
and dumb since birth. She is the daughter
of Deepak Dheemar. She further states that
''R' went to the fields at around 12 PM but
did not return upto 02:00 PM, to which, she
went to search her and did not find her in
her field. She then proceeded towards the
drain and from the field of Harbhajan near
the medh/divider in which maize was sown
and from there, some sound was coming, to
which, she proceeded to that place and saw
''R' was lying on the field and Shyam Lal
was above her and committing rape on her.
''R' was naked. Her underwear was pulled
down. On seeing, this she raised hue and
cry, on which, Kripa Ram reached there.
On seeing of her and Kripa Ram, Shyam
Lal pulled up his pant and ran towards the
field of Dhruva Maharaj. She went to ''R'
and saw blood was oozing out from her
private parts. She then went near ''R'
dressed her, wrapped an angocha around
her. The incident is of about 02:30 PM.
Then she, Kripa Ram and ''R' came back to
the house. She then informed the persons of
Mohalla about the incident. Deepak her son
was not at home. Her husband had gone to
the village on his duty. Her son had gone
Teekamgarh, Madhya Pradesh and he
returned back at 07:00PM, on which, she
narrated him the entire story. Then, her son
took her and ''R' to Bar, where he got a
report registered. She states that after
lodging of the First Information Report ''R'
was sent along with the Police Constable to
Primary Health Centre, Bar where the
doctor was not present and hence her
medical examination could not be done.
Then, she was taken to District Women
Hospital
where
also
her
medical
examination was not done and she was
taken to Jhansi. As the condition of the
victim was not good, she was taken to
Jhansi where her treatment was done. In
Jhansi, they were asked as to where the
incident had taken place, to which, they
informed that it was in Lalitpur, on which,
they were instructed to go back to Lalitpur
and get the medical examination certificate.
Then they came back to Lalitpur along with
the police personnel and on the next day,
''R' was medically examined at Lalitpur,
District Women Hospital.

17.

The
Investigating
Officer
inspected the place of occurrence on the
next day and took in possession blood
stained mud and blood stained grass and
plain mud and plain grass and sealed it. She
further states to have affixed her thumb
impression on the recovery memo and also
states that her son had signed on the same.
She was read over the recovery memo, to
which, she states that it is the same which
was marked as Exb: Ka-2 to the records.
She identifies the accused present in court
as the same person.

18. In her cross examination, she
states that ''R' is age aged about 13 years.
She went at about 02:00 PM to search her.
She states that she reached near ''R' at about
02:30 PM. She then states that the distance
between her house and the field is about
250 steps. The field is not visible from her
house. There are 2-3 houses in between her
house and the field. He further states that
the crop of maize was standing in the field
at the time of occurrence. She went alone.
She found her grand daughter in the field of
Harbhajan. Her field is at a distance of
about 50-60 steps from the field of
Harbhajan. She further states that when one
goes from her house then her field will
342 INDIAN LAW REPORTS ALLAHABAD SERIES
come first and then field of Harbhajan will
come. After conducting search in her field,
she went to the field of Harbhajan. She
states that she did not stay in her field. She
further states that she did not ask anyone
en-route about her grand daughter and
neither did she meet anyone while going
for the search. She had searched her grand
daughter in the temple and in her field but
she could not found her. When she reached
the field of Harbhajan, there also she did
not see anyone. When she proceeded
further 10 steps inside, then she saw that
Shyam Lal was over her grand daughter
and was committing rape on her. She
further states to have seen the incident from
a distance of 3-4 steps. She states that as
the field was sown with maize as such she
could not see it from before but could see
after reaching near to the place. She saw
the incident alone, after which, she raised a
hue and cry and tried to catch Shyam Lal
but he ran away. Kripa Ram also had
reached there who was also tried to catch
Shyam Lal. Kripa Ram had reached there
on the hearing shouts raised by the her.
Kripa Ram was cutting grass on the other
side of the field. She states that when Kripa
Ram reached the place of occurrence, then
Shyam Lal had started running Kripa Ram
ran for about 15 steps to catch Shyam Lal.
She further states that then she took ''R' and
saw blood was oozing from her private
parts and blood was present on the grass
also. She states that prior to the present
incident, there was no enmity with Shyam
Lal. She states to have narrated the incident
to the persons of her Mohalla. No medical
examination was conducted of ''R' prior to
the lodging for the report. She and her son
had gone for lodging of the report at about
08:00 pm. Her son had got the report
lodged and she had dictated report, which
her son had transcribed, the same was
written outside the Police Station. When
they had gone to lodge the report, a
Constable was there and Sub-Inspector was
inside the room. The incident was not told
to the Inspector but report was given. The
victim was also taken to the Police Station.
She and ''R' were sitting outside the Police
Station. Then, she states that they had
started for getting the medical examination
done, on the same day for which, they
reached P.H.C Bar where they did not meet
the doctor and then at about 09:00 PM they
went to Lalitpur. In Lalitpur on seeing the
condition being critical, she was referred to
Jhansi where her treatment was done and
medicines were given. Then, they were sent
back for Lalitpur and then at Lalitpur
District Women Hospital the medical
examination
was
done. The
medical
examination was done on the next day. The
Investigating Officer interrogated her on
the day of medical examination. She did
not give any statement to any one. She gave
her statement to Inspector at the place of
occurrence. To a suggestion that no such
incident took place with the girl, she
denies. To a further suggestion that due to
village party bandi, she has given a false
statement, she denies.

19. PW-3 Smt. Alka Jain was a
Medical
Officer
at
District
Women
Hospital, Lalitpur. She states that she had
conducted the medical examination of ''R'
on 02.09.2007 at 01:00 PM. She had
examined ''R' both externally and internally
and had drawn the medical examination
report which is marked as Exb: Ka-4 to the
records. The injuries received both on the
body and private parts of ''R' were noted by
her in report. The said injuries have already
been quoted above and as such are not
being mentioned herein as being repetitive.
She further states to have given a
supplementary medical examination report
dated 06.09.2007 which is marked as Exb:
12 All. Shyam Lal Vs. State of U.P.
343
Ka-5 to the records. The opinion as drawn
there has also been reproduced above and is
not being mentioned herein again. She
states to have taken the clothes of ''R' which
were sealed by her and handed over to the
police Constable.

20. In her cross examination, she
states in categorical terms that the injuries
received by ''R' cannot be as a result of her
bumping with a bush with thorns while
running. She further states that even the
said injuries cannot be received as a result
of fall from a tree. She states that there can
be a difference six hours either ways
regarding time during of injuries. To a
suggestion that ''R' was habitual to sexual
intercourse as her vaginal permitted two
fingers, she denies the same and states that
the condition of the organ was such
because the patient was to be under
sedation. She states that no definite opinion
about the intercourse can be given. She
further states that as per the Expert Report
and
Radiology
Report
and
general
appearance of ''R', she was aged about 12
years. She states that from her opinion, she
cannot be said 16 years old. To a
suggestion that the injury report is a false
report, she denies.

21. Kripa Ram PW-4 is a co-villager
who is stated to have reached the place of
occurrence on the shouts raised by Smt.
Nanni Bai. He states that at about 02:30
PM on the day of occurrence, he was
cutting grass in the field of Harbhajan. He
heard the shouts of Nanni Bai and
immediately went to her and saw Shyam
Lal wearing his pant, on which, he chased
him and tried to catch him but could not do
so. He further states that to have seen ''R' in
a naked condition and blood was oozing
out from her private parts, on which, he
asked Nanni Bai as to what Shyam Lal was
doing, to which, Nanni Bai told him that
Shyam Lal had climbed over ''R' and was
committing rape on her. He states that ''R'
was aged about 13 years. He further states
that ''R' was mentally deranged, deaf and
dumb girl. He states that then Nanni Bai
got ''R' wrapped with towel and took her to
the house. He also came with them to the
house. He states that there was no male
member in the house of Nanni Bai at that
time. He identifies the accused who is
present in court.

22. In his cross examination, he states
that he had left his house on the day of
occurrence at about 01:30 PM, and on his
way, met certain people and spent around
15 minutes with them and then had gone at
around 01:45 PM from that place and
reached the field of Harbhajan in 5-7
minutes. He further states that he had cut
grass for about 30 minutes, when he heard
the shrieks of Nanni Bai. He states that
when he started from his house, he did not
meet Nanni Bai, ''R' and Shyam Lal the
accused on the way. When he heard the
shrieks of Nanni Bai, he was cutting grass
at a distance of about 100 steps from the
place from where Nanni Bai had raised the
shouts. He could not see Nanni Bai from
where he was, neither could have Nanni
Bai seen him where he was. He states that
there was no other person near about, he
had seen Shyam Lal from a distance of
about 15-20 steps. When he had reached
the place of occurrence, he saw Shyam Lal
pulling his pant which was upto the knee
and he was semi naked. Shyam Lal started
running after seeing him, he ran to catch
Shyam Lal for some distance. He ran about
20-25 steps. Shyam Lal ran towards field of
Dhruva Maharaj. He further states to have
known Shyam Lal since his birth as he was
also a resident of the same village. He
states that when he reached there, it was
344 INDIAN LAW REPORTS ALLAHABAD SERIES
about 02:35 PM. He states that Nanni Bai
belongs to his same caste as his. He states
that he has no relationship with Nanni Bai.
He states that his acquittance is with Nanni
Bai as because of caste reasons. He states
to have not gone to the police station. He
states that his statement was recorded by
the Investigating Officer after about a week
of the incident near the shop of Hari Kishan
in Qasba Bar. Apart from him other
persons were also interrogated. He then
went to his house. He was then never called
and never taken any where. At the place
where his statement was taken, the same
was transcribed therein only. His signature
was not taken, he is illiterate and cannot
read what is written. To a suggestion that
he did not see any such incident and was
not present at the place of occurrence, he
states to be false. To a further suggestion
that he is only stating what he has heard, he
states to be incorrect. To a further
suggestion that he is giving a false
statement at the behest of Nanni Bai, he
states to be false.

23. Constable Sant Ram PW-5 states
that at the time of occurrence, he was
posted as a Constable at Police Station,
Bar. On 01.09.2007 at about 08:30 PM, he
took ''R' for medical examination and at
first went to Primary Health Centre, Bar
where the doctor was not available and
from there they went to District Women
Hospital,
Lalitpur
where
they
were
referred. On reaching District Women
Hospital, Lalitpur since there was excessive
bleeding from the private parts of ''R' she
was referred to Jhansi and then she was
taken to Jhansi. In Jhansi, Medical College,
the treatment was done and the doctor said
that since it is a case of Lalitpur, the
medical examination report may be got
prepared
from
Lalitpur.
They
gave
treatment to ''R' but did not prepare any
medical report about which he informed the
S.H.O concerned who instructed him to
take her Lalitpur. In consequence of which
they reached Lalitpur at about 01:00 PM
and her medical examination was done on
02.09.2007.

24. In his cross examination, he states
that
the
grand-mother
of
the
girl
accompanied them upto P.H.C, Bar and at
PHC Bar, the grandfather of the girl met
them and he was accompanying them upto
Lalitpur and taken to Jhansi and then back
to Lalitpur. He states that there was no
other female Constable accompanying
them.

25. Shiv Shankar, Sub-Inspector/PW6 was posted as the Sub-Inspector at Police
Station, Bar at the date and time time of the
occurrence. He is the Investigating Officer
of the case. He initially identifies the
handwriting of Constable Bhagwat Narain
Nayak who was working with him but had
died who had transcribed the chik First
Information Report, the same was marked
as Exb: Ka-6 to the records. He further
identifies the handwriting of the said
Constable who had transcribed the GD No.
36 at 20:30 hrs on 01.09.2007 at the said
Police Station as the kayami GD. He
identifies the handwriting of the said
person from the original and produces its
copy, thus the same is numbered as a true
copy to the original and is marked as Exb:
Ka-7 to the records. He further identifies
the handwriting and signature of the S.H.O
Baljeet Singh and proved GD No. 12
transcribed at 09:45 PM at the said Police
Station, the same is marked as Exb: Ka-8 to
the records. He further states that he took
up the investigation of the matter on
01.09.2007 and after recording the chik
FIR recorded the statement of the first
informant and proceeded towards the place
12 All. Shyam Lal Vs. State of U.P.
345
of occurrence in the night. He states that as
it was night the spot inspection could not
done and then he got involved in tracing
the accused on 02.09.2007. He recorded the
statement Smt. Nanni Bai, the eye witness
to the occurrence and in her presence and
on her pointing out inspected the place of
occurrence and prepared the site plan
which is Exb: Ka- 9 to the records.

26. He further states to have
recovered the blood stained mud and grass
and plain mud and grass in presence of
Smt. Nanni Bai and Deepak Dheemar and
sealed the same. The recovery memo was
marked as Exb: Ka-12 to the records. On
02.09.2007 at about 05:00 PM, he arrested
the accused Shyam Lal from Pulwara
Tirahey on the information of police
informer and then he was lodged at lock up
at the Police Station and his statement was
recorded. He asked about the clothes which
were worn by the accused at the time of the
incident, to which, he stated that the
underwear had sustained blood stains, he
had burnt it. He further states that
04.09.2007 he transcribed the medical
examination report of ''R' in the case diary
and then records the statement of Head
Constable Bhagwat Narain and Constable
Sant
Ram
on
08.09.2007.
The
supplementary medical examination report
and pathological report was received by him
and he transcribed them in the case diary.
On the same day, he tried to interrogate ''R'
and gives his opinion that as she is mentally
deranged and unable to give any statement.
She was tried to ask by gesture but she could
not give any reply to do. He then records the
statement of Kripa Ram and then submitted
charge sheet no. 91 of 2007 which is marked
as Exb: Ka- 10 to the records. He further
states that the material exhibits of the case
were sent to the chemical analyst through
Constable on 27.09.2007.

27. In his cross examination, he states
that he tried to interrogate ''R' at her house
but since she was mentally deranged she
could not give any statement. He states that
he has mentioned in the case diary about
his efforts regarding interrogation of ''R'.
He states that she was unable to talk,
unable to understand gestures but still she
gave some gestures and was not able to
speak a word. He states that he had
examined Kripa Ram and Smt. Nanni Bai
at her house. He further states that the
statement of Deepak was recorded at the
Police Station. He states that at the time of
preparation of site plan, Inspector Parashu
Ram Pandey, Nanni Bai and Deepak were
present there, the same was prepared on
02.09.2007. In the last, to a suggestion that
he had done the entire paper work while
being at the Police Station, he denies the
same. To a further suggestion that as the
prosecutrix/victim not being able to give
any statement, a false charge sheet has been
filed by him, he denies the same.

28. Toran Singh PW-7 was working
as a Constable Police at Police Station Bar.
He states that on 27.09.2007, he was given
two bundles from the maalkhana of Police
Station which he received for chemical
analyst, Agra from which one bundle
related to the present case. The other was of
Case Crime No. 631 of 2007. He states that
his ravangi was recorded in the GD No. 8
at 06:10 AM by Constable Bhagwat
Narain, he identifies the handwriting and
signature. The photocopy of the same was
produced by him which was marked as
Exb: Ka-11. He further states that the said
material in a sealed condition was taken by
him and delivered by him at the Forensic
Science Laboratory, Agra. He states that
during the intervening period, the said
material was in his supurtagi and he did not
let any one see and touch the same. He then
346 INDIAN LAW REPORTS ALLAHABAD SERIES
identifies proves the return GD dated
29.09.2007 being GD No. 21 transcribed at
10:30 PM by Constable Moharrir, Mathura
Prasad, on which, his signature was also
there and identifies it, the photocopy of the
same was filed by him which was marked
as Exb: Ka-12 to the records. He further
states that the docket dated 10.09.2007 for
the said material was prepared in the name
of Constable Umesh Chandra Sharma
which was taken by him to Agra but as
there were three bundles, to which, an
objection was raised there and the material
was sent back, then Constable Umesh
Chandra Sharma was sent on some other
duty by the orders of the DIG and as such a
new docket dated 29.06.2007 was prepared
in his name. In his cross examination, to a
suggestion that the material was not sealed,
he denies the same.

29. The accused in his statement
recorded under Section 313 Cr.P.C. states
that the present case has been instituted due
to an old enmity. He states that he had a
fight with Deepak Dheeman and due to the
said enmity, he has been falsely implicated.
He further states that to give no defence
evidence.

30. The trial court from the material
on record came to the conclusion that the
prosecutrix/victim was aged about 12 years
on the date of the occurrence. The accused
did not challenge the age of the prosecutrix
and even no suggestion has been put on
behalf of the accused regarding the age of
the prosecutrix/victim nor he has been able
to prove by any oral or documentary
evidence that the prosecutrix/victim was
above 12 years of age on the day of the
occurrence and as such the age of the
prosecutrix/victim was about 12 years and
the accused who was charged under the
tried sections is found guilty and the
prosecution has succeeded in proving the
charge against the accused beyond any
reasonable
doubt
and
convicted
and
sentenced him.

31. Learned counsel for the appellant
at the very outset argued that he is not
challenging the conviction but his argument
is only on the quantum of sentence as
provided to the appellant which he argues
is excessive. Section 376 IPC is as follows:

"Section 376 IPC. Punishment
for rape.--

(1) Whoever, except in the cases
provided for by sub-section (2), commits
rape shall be punished with imprisonment
of either description for a term which shall
not be less than seven years but which may
be for life or for a term which may extend
to ten years and shall also be liable to fine
unless the women raped is his own wife
and is not under twelve years of age, in
which cases, he shall be punished with
imprisonment of either description for a
term which may extend to two years or
with fine or with both: Provided that the
court may, for adequate and special reasons
to be mentioned in the judgment, impose a
sentence of imprisonment for a term of less
than seven years.

(2) Whoever,--

(a) being a police officer commits
rape--

(i) within the limits of the police
station to which he is appointed; or

(ii) in the premises of any station
house whether or not situated in the police
station to which he is appointed; or

(iii) on a woman in his custody or
in the custody of a police officer
subordinate to him; or

(b) being a public servant, takes
advantage of his official position and
commits rape on a woman in his custody as
12 All. Shyam Lal Vs. State of U.P.
347
such public servant or in the custody of a
public servant subordinate to him; or

(c) being on the management or
on the staff of a jail, remand home or other
place of custody established by or under
any law for the time being in force or of a
woman's or children's institution takes
advantage of his official position and
commits rape on any inmate of such jail,
remand home, place or institution; or

(d) being on the management or
on the staff of a hospital, takes advantage
of his official position and commits rape on
a woman in that hospital; or

(e) commits rape on a woman
knowing her to be pregnant; or

(f) commits rape on a woman
when she is under twelve years of age; or

(g) commits gang rape, shall be
punished with rigorous imprisonment for a
term which shall not be less than ten years
but which may be for life and shall also be
liable to fine: Provided that the Court may,
for adequate and special reasons to be
mentioned in the judgment, impose a
sentence
of
imprisonment
of
either
description for a term of less than ten years.
Explanation

1.--Where a woman is raped by
one or more in a group of persons acting in
furtherance of their common intention,
each of the persons shall be deemed to have
committed gang rape within the meaning of
this sub-section. Explanation

2.--"Women's
or
children's
institution" means an institution, whether
called an orphanage or a home for
neglected woman or children or a widows'
home or by any other name, which is
established
and
maintained
for
the
reception and care of woman or children.
Explanation
3.--"Hospital"
means
the
precincts of the hospital and includes the
precincts of any institution for the reception
and
treatment
of
persons
during
convalescence or of persons requiring
medical attention or rehabilitation"

32.