# Soran & Ors. (In Jail) v. State of U.P

- **Citation:** (2021) 11 ILRA 625
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-22
- **Case number:** Criminal Appeal No. 2320 of 1981
- **Bench:** Anil Kumar Ojha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/soran-ors-in-jail-v-state-of-u-p-46669
- **Pages:** 6

## Headnote

(A) Criminal Law - The Indian Penal Code, 1860
- Sections 148, 450, 376 & 376 read with
Section 149 - The Code of criminal procedure,
626 INDIAN LAW REPORTS ALLAHABAD SERIES
1973 - Sections 161 & 313 - appeal against
conviction - there cannot be implicit reliance on
the evidence of victim of rape, it should be
subject to judicial scrutiny - prosecution cannot
seek to prove a fact during trial through a
witness which such witness had not stated to
police during investigation, evidence of that
witness
regarding
the
said
improvement
cannot be relied upon . (Para - 14,18)

Appeal against five appellants abated - appeal of only
surviving appellant i.e. appellant no. 2 to be
considered - informant lodged an F.I.R. - appellants
armed with guns and country made pistol entered
into his house - caught hold the informant -
committed gang rape with the wife of informant and
his sister-in-law (Bhabhi) - appellants convicted -
hence appeal.(Para - 4)

HELD:- Evidence of PW2 (appellant no.2) not
consistent and therefore, unreliable. The fact of light
of lantern at the time of alleged incident was
introduced for the first time before the court, which
comes in the category of improvement, hence, it
cannot be relied upon as a source of light . Incident
allegedly took place in the night and there was no
source of light at the time of alleged incident. Victim
is a married lady. No corroborative medical evidence
with regard to rape. Appellant no. 2 entitled to benefit
of doubt. (Para - 15,18,22,23)

Criminal Appeal allowed. (E-7)

List of Cases cited:-

## Text

11 All. Soran & Ors. Vs. State of U.P.
625
of the Article 243-Q(2) has been made available
to the State in determining as to which category
of the Municipality is to be constituted for an
area, under the Act. The parameters within
which the Governor is to notify an area as a
Municipality under Article 243-Q refers to
various factors including the population density
and
income/revenue
generated
by
the
Municipality, which are the subject matter of
dispute in the present petition.

17. As has been noted above, the "Nagar
Panchayat" under the scheme of the Constitution is
a transitional area, an area which is in transition
from a rural area to an urban area. There cannot be
a dispute or doubt that the population density of
the concerned area is increasing day by day. The
"revenue generated for the local administration" is
also variable depending upon the income which
also include the income generated from the State
funds under the schemes floated in the concerned
area. The percentage of employment in nonagricultural activities and the economic importance
are also the important factors which have to be
taken into consideration by the Governor for
upgradation of the transitional area to an urban
area (small urban area as in this case). From the
material on record and even from the stand of the
petitioners herein, it cannot be said that the Nagar
Panchayat Bharwari which was a transitional area
had not seen changes/increase in the population,
revenue generation, employment opportunities and
economic activities during the course of time.

18. The contention of the learned Advocates
for the petitioners that the transition of the Nagar
Panchayat Bharwari to a smaller urban area
(Municipal Council), i.e. Nagar Palika Parishad
would run against the spirit of the constitution is,
thus, found wholly misconceived.

19. We may note that there is no basis of the
contention of the petitioners that the upgradation of
the Nagar Panchayat Bharwari will affect the lives
and livelihood of its denizens rather the stand of
the respondent that the creation of the Nagar Palika
Parishad, Bharwari would provide better prospects
for development as the scope of implementation of
the Government scheme in a Nagar Palika
Parishad would be expanded. There cannot be a
doubt that the upgradation is for the public benefit.

20. Considering the above, we do not find it
a fit case for exercise of judicial review within the
scope of Article 226 of the Constitution of India,
as for any alternative view taken by this Court, the
decision of the State for the upgradation of the
Nagar Panchayat Bharwari to Nagar Palika
Parishad, Bharwari cannot be upset on the plea of
it being against the Constitutional scheme. The
notification dated 26.10.2016 cannot be held
unconstitutional on the plea of the petitioners
herein and the material on record.

The writ petitions are, thus, found
devoid of merits and hence dismissed.
----------
(2021)11ILR A625
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.10.2021

BEFORE

THE HON'BLE ANIL KUMAR OJHA, J.

Criminal Appeal No. 2320 of 1981

Soran & Ors. ...Appellants (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri D.K. Singh, Sri Pushpendra Singh Yadav, Sri
Anshuman Singh, Sri Rajesh Kumar Singh

Counsel for the Respondents:
A.G.A.

(A) Criminal Law - The Indian Penal Code, 1860
- Sections 148, 450, 376 & 376 read with
Section 149 - The Code of criminal procedure,
626 INDIAN LAW REPORTS ALLAHABAD SERIES
1973 - Sections 161 & 313 - appeal against
conviction - there cannot be implicit reliance on
the evidence of victim of rape, it should be
subject to judicial scrutiny - prosecution cannot
seek to prove a fact during trial through a
witness which such witness had not stated to
police during investigation, evidence of that
witness
regarding
the
said
improvement
cannot be relied upon . (Para - 14,18)

Appeal against five appellants abated - appeal of only
surviving appellant i.e. appellant no. 2 to be
considered - informant lodged an F.I.R. - appellants
armed with guns and country made pistol entered
into his house - caught hold the informant -
committed gang rape with the wife of informant and
his sister-in-law (Bhabhi) - appellants convicted -
hence appeal.(Para - 4)

HELD:- Evidence of PW2 (appellant no.2) not
consistent and therefore, unreliable. The fact of light
of lantern at the time of alleged incident was
introduced for the first time before the court, which
comes in the category of improvement, hence, it
cannot be relied upon as a source of light . Incident
allegedly took place in the night and there was no
source of light at the time of alleged incident. Victim
is a married lady. No corroborative medical evidence
with regard to rape. Appellant no. 2 entitled to benefit
of doubt. (Para - 15,18,22,23)

Criminal Appeal allowed. (E-7)

List of Cases cited:-

1. Raja & ors. Vs St. of Karn., (2016) 10 SCC 506

2. Rohtas Vs St. of Har. (2016) 6 SCC 589

3. RudrappaRamappaJainpur Vs St. of Karn., (2004) 7
SCC 422

4. Vimal Suresh Kamble Vs Chaluverapinake, (2003) 3
SCC 175

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

1. Heard Sri Rajesh Kumar Singh, Advocate,
holding brief of Sri D. K. Singh, learned counsel
for the appellant, Sri Ashish Mani Tripathi, learned
A.G.A. for the State and perused the record.

2. This appeal relates to year 1981 and
the same is 40 years old. During the pendency
of the appeal, the appellant no. 1 Soran,
appellant no. 3 Sudhar Singh, appellant no. 4
Ganesh, appellant no. 5 Shyam Lal &
appellant no. 6 Ajai Pal have died. Hence,
appeal against the aforesaid five appellants
was abated vide order dated 06.07.2020
passed by this Court.

Thus, the appeal of only surviving
appellant i.e. appellant no. 2 Bhoorey is to be
considered.

3. Challenge in this appeal is the judgment
and order dated 22.09.1981 passed by IV
Additional Sessions Judge, Etah in S.T. No. 232
of 1981 (State v. Soran and 5 others), arising out
of Case Crime No. 174 of 1980, under Section
148, 450, 376 and 376 read with 149 of I.P.C.,
P.S. Jaithara, District Etah whereby learned IV
Additional Sessions Judge, Etah has convicted
and sentenced the appellants Soran, Bhoorey,
Sughar Singh, Ganesh, Shyam Lal and Ajai Pal
to undergo rigorous imprisonment of one year,
four years, seven years, and seven years under
Section 148, 450, 376 & 376 read with Section
149 of I.P.C. respectively with the direction that
all the sentences shall run concurrently.

4. Shorn of unnecessary details, the case of
the prosecution is that informant Ajay Pal
lodged an F.I.R. at P.S. Jaithara, District Etah on
01.07.1980 at 12:05PM, stating therein that on
30.06.1980 or 01.07.1980, at about 09:00 hours
in the night, appellants Soran, Bhorey, Ganesh,
Sughar Singh, Ajai Pal and Shyam Lal armed
with guns and country made pistol entered into
his house and caught hold the informant and
committed gang rape with the wife of informant
and his sister-in-law (Bhabhi). On hue and cry,
witnesses Bhaw Singh, Mahavir, Shaitan and
several other villagers came on the spot, then the
appellants fled from there leaving the victims
and informant.
11 All. Soran & Ors. Vs. State of U.P.
627

5. On the written statement, submitted by
the informant, a case was registered against the
appellants under Section 376 I.P.C., P.S.
Jaithara, District Etah.

6. Investigating officer, investigated the
case, recorded the statement of witnesses,
prepared the site plan, fard of two petticoats,
fard of lantern, got the medico-legal of victims
done and after collection of evidence, filed
charge sheet against the appellants Soran,
Bhoorey, Sughar Singh, Ganesh, Shyam Lal and
Ajai Pal.

7. The then III Additional Munsif
Magistrate took cognizance on 29.10.1980 and
on 05.06.1981 III Additional Munsif Magistrate,
Etah committed the case of appellants to the
court of Sessions for trial. The then IV
Additional Sessions Judge, Etah on 25.07.1981
framed the charges against the appellants Soran,
Bhoorey, Sughar Singh, Ganesh, Shyam Lal and
Ajai Pal under Section 148 and 450 of I.P.C. He
further separately framed charges against Soran,
Ganesh and Shyam Lal under Section 376 I.P.C.
and 376 of I.P.C. read with Section 149 I.P.C.
He further separately framed charges against the
appellant Ajai Pal, Bhoorey and Sughar Singh
under Section 376 I.P.C. and 376 read with 149
I.P.C.

8. Prosecution was directed to adduced
evidence against the appellants, to prove the
charges against them. Prosecution produced
PW1 Ajay Pal, informant of the case, he
supported the prosecution story. PW2 and PW3
are the victims of the alleged incident, they have
also supported the prosecution case. PW4 I.O.
Bhurey Singh Tyagi has proved site plan Ex.
Ka-3, charge sheet Ex. Ka-4 and Fard Lantern
Ex. Ka-5. PW5 Dr. Sabira Goyal has proved the
medico legal report of victims as Ex. Ka-6 & Ex.
Ka-7. PW6 CP. Prabhu Dayal has proved written
report Ex. Ka-1, Rapat No. 15 Ex. Ka-9.

9. After conclusion of evidence, statement
of appellant under Section 313 was recorded.
Appellant Bhoorey denied the evidence and
stated that he has been implicated owning to
enmity. Further stated that appellant Soran is his
brother. Soran is cultivating the field of Sharda.
He further stated that they have been falsely
implicated because Soran is witness against the
informant Ajay Pal in the case of Sharda.

10. After hearing the learned counsel for
the prosecution and defence, learned IV
Additional Sessions Judge, Etah convicted and
sentenced the appellants as above.

11. Aggrieved by the aforesaid judgment
passed by learned IV Additional Sessions Judge,
Etah the appellants preferred this appeal before
this Court.

12. Submission of the learned counsel for
the appellant is that the prosecution has made
improvements with regard to source of light at
the time of alleged incident. It is a case of gang
rape but there is no mark of injury either
external or internal on the person of both the
victims, which falsifies the allegation of gang
rape by the appellants. Statement of victim
(PW2)
against
appellant
Bhoorey
is
contradictory. There is no report on file with
regard to stains on the petticoat of the victims.
Whole prosecution story is improbable and
appellant Bhoorey is entitled to benefit of doubt.

13. Per contra, learned A.G.A. opposed the
above submission and contended that the
prosecution has been able to establish its case
beyond reasonable doubt against the appellant
Bhoorey. There is no merit in the appeal and the
same deserves dismissal.

14. In Raja and others v. State of
Karnataka (2016) 10 SCC 506, Hon'ble Apex
Court has held as follows:
628 INDIAN LAW REPORTS ALLAHABAD SERIES

"..........It was exposited that insofar as
the allegation of rape is concerned, the evidence
of the prosecutrix must be examined as that of a
injured witness whose presence at the spot is
probable but it can never be presumed that her
statement should always without exception, be
taken as gospel truth.

The essence of this verdict which has
stood the test of time proclaims that though
generally the testimony of a victim of rape or
non- consensual physical assault ought to be
accepted as true and unblemished, it would still
be subject to judicial scrutiny lest a casual,
routine and automatic acceptance thereof results
in unwarranted conviction of the person
charged."

Thus, law on the point is that there
cannot be implicit reliance on the evidence of
victim of rape, it should be subject to judicial
scrutiny. In view of the law laid down in above
citation, evidence of PW2 Victim is being
examined and evaluated.

15. PW2 Victim in her examination in chief
has stated that appellant Bhoorey along with other
appellants Ganeshh and Shyam Lal committed
rape with her. She in her cross-examination at page
22 of the paper book again stated that the appellant
Bhoorey committed rape. She was specifically
asked in para no. 9 whether appellant Soran
committed rape or appellant Bhoorey, then this
witness explicitly replied that appellant Soran
committed rape, thus, the statement of PW2 victim
is inconsistent with regard to appellant Bhoorey.
The relevant portion of evidence of victim PW2 is
quoted hereinbelow:

"...अगर दरोगा ने बयान में लिखा है की
सोरन गनेश व श्याम िाि ने मेरे साथ बुरा काम लकया
तो आज मैं सोरन के स्थान पर भूरे का नाम भूि कर िे
रही होगी क्योलक साि भर हो गया। छः मुिलजमान थे।
तीन तीन एक साथ बुरा काम लकया।

लिर पूछने पर लक श्याम िाि व गनेश के
अिावा तुम्हारे साथ सोरन ने बुरा काम या भूरे ने तो
गवाह ने कहा सोरन ने।

Thus, the evidence of PW2 victim is
self contradictory as at one place she says that
appellant Bhoorey committed rape upon her
when she was specifically asked whether Soran
committed rape or Bhoorey committed rape, she
categorically stated that Soran committed rape
upon her.

In view of the above discussion, I am
of the considered opinion that the evidence of
PW2 qua the appellant Bhoorey is not consistent
and therefore, unreliable.

16. Learned counsel for the appellant
submitted that the evidence of victim is not
supported by medical evidence. PW2 Victim has
stated in her cross-examination at page no. 21 of
the paper book, that while committing rape her
bangles were broken but the bangles could not
be produced before the court.

PW2 has specifically deposed before
the court that three persons committed rape upon
her but there is no injury either external or
internal, on the person of victim.

17. PW5 Dr. Sabira Goyal has stated in her
evidence that hymen was old torn, there was no
mark of injury on external or internal part of the
body. No opinion about rape can be given as she
is habitual to sexual intercourse.

18. Learned counsel for the appellant
further submitted that the incident took place in
the night at 09:00PM, source of light was neither
stated in the F.I.R. nor in statement of
complainant under Section 161 Cr.P.C. For the
first time lantern was introduced in the court.
PW1 Ajai Pal in his examination in chief has
stated that there was light of lantern. He
recognized the accused persons in the aforesaid
11 All. Soran & Ors. Vs. State of U.P.
629
light. In his cross-examination, this witness has
stated that he told about light to the scribe but he
cannot tell the reason why light of lantern was
not written in the F.I.R. This witness has further
stated that he told the investigating officer about
lantern but why the investigating officer has not
mentioned about the lantern in the statement, he
cannot tell the reason. This fact was confronted
to investigating officer PW4 who specifically
stated in his statement at page 29 of the paper
book, that the complainant did not told him
about the light of lantern at the time of incident.

The fact which is introduced for the
first time in the court cannot be relied upon, it
comes in the category of improvement and
consequently contradiction, so presence of
lantern at the time of alleged incident as source
of light cannot be accepted.

Hon'ble Apex Court in Rohtas v. State
of Haryana (2016) 6 SCC 589, has held that the
prosecution cannot seek to prove a fact during
trial through a witness which such witness had
not stated to police during investigation,
evidence of that witness regarding the said
improvement cannot be relied upon.

Following other authorities can be
cited on the above point: Rudrappa Ramappa
Jainpur v. State of Karnataka, (2004) 7 SCC
422
and
Vimal
Suresh
Kamble
v.
Chaluverapinake, (2003) 3 SCC 175.

Evidence of PW1, mentioned at page
16 of the paper book with regard to introduction
of lantern for the first time before the court, is
quoted hereinbelow:

"यह सही है लक सोरन भूरे का सागा भाई
है। सुघर लसिंह सोरन का खानदानी भाई है। घटना के
समय िािटेन जि रही थी। यह बात मैंने ररपोटट में
लिखायी थी। लिखायी मैंने जरूर थी अगर ररपोटट में
यह बात िािटेन वािी नहीिं लिखी है तो कारण नहीिं
बता सकता। ररपोटट पढ़कर मुझे सुनाई थी। उसमें
िािटेन जिने की बात पढ़कर सुनाई थी या नहीिं
ध्यान नहीिं है। एक साि की बात हो गयी।

दरोगा जी ने मेरा बयान थाने पर लिया था।
दरोगा को बता लदया था की िािटेन जि रही थी।
दरोगा ने अगर नही लिखा तो कारण नही बता
सकता।"

Factum of light of lantern at the time
of incident was also asked to Investigating
Officer, who stated that complainant did not tell
him about the light of lantern at the time of
allged incident. Relevant portion of PW4 I.O. is
also quoted hereinbelow:

"वादी ने मुझे नही बताया था लक घटना के
समय मौके पर िािटेन जि रही थी"

Thus, in view of the above law laid
down by Hon?ble Apex Court in Rohtas v. State
of Haryana (Supra) the fact of light of lantern at
the time of alleged incident was introduced for
the first time before the court, which comes in
the category of improvement, hence, it cannot be
relied upon as a source of light.

19. The next submission of the learned
counsel for the appellant is that the fard was
prepared of petticoat of the victim but no report
regarding stain of semen or spermatozoa is
available on record.

20. Learned counsel for the appellant next
submitted that the appellant Soran and Bhoorey
are real brothers and it is highly improbable that
a brother will commit rape in front of his real
brother. They are not beasts and can't commit
rape one after another with one victim.
Therefore, the statement of PW2 victim is highly
improbable.

21. From the perusal of record it is clear
that six persons were convicted in the present
630 INDIAN LAW REPORTS ALLAHABAD SERIES
case. All the six persons filed appeal before this
Court.
During
pendency
of
appeal
five
appellants i.e. appellant no. 1 Soran, appellant
no. 3 Sudhar Singh, appellant no. 4 Ganesh,
appellant no. 5 Shyam Lal & appellant no. 6
Ajai Pal have died and appeal against the
aforesaid five appellants was abated vide order
dated 06.07.2020 by this Court. Thus, the appeal
of only surviving appellant i.e. appellant no. 2
Bhoorey has been considered.

22. There is allegation of rape against
appellant Bhoorey. The evidence of PW2 against
the appellant Bhoorey is unreliable because when
she was categorically asked whether Soran
committed rape or Bhoorey, she replied that Soran
committed rape upon her. Soran and Bhoorey are
the real brothers. Incident allegedly took place in
the night and there was no source of light at the
time of alleged incident. Victim is a married lady.
There is no corroborative medical evidence with
regard to rape.

23. In view of the above facts and
circumstances, I am of the considered opinion that
appellant no. 2 is entitled to benefit of doubt,
accordingly the appeal of the appellant no. 2
Bhoorey succeeds and deserves to be allowed.

24. Appeal is accordingly, allowed.

25. The judgment and order dated order
dated 22.09.1981 passed by IV Additional
Sessions Judge, Etah in S.T. No. 232 of 1981
(State v. Soran and 5 others), arising out of Case
Crime No. 174 of 1980, under Section 148, 450,
376 and 376 read with 149 of I.P.C., P.S. Jaithara,
District Etah, qua the appellant no. 2 Bhoorey is
set-aside. Appellant no. 2 Bhoorey is acquitted of
the charges leveled against him. His bail bonds are
canceled and sureties are discharged.

26. Copy of this judgment be certified to
the court below for compliance. Lower court
record be transmitted to the District Court,
concerned.
----------
(2021)11ILR A630
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.11.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

Service Single No. 26228 of 2021
connected with
Service Single 26204 of 2021

Chandani Devi & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Vinay Misra, Nazmul Hasan

Counsel for the Respondents:
C.S.C.

A. Service Law - Deployment of teachers for
non-educational purposes - The Right of
Children to Free and Compulsory Education Act,
2009 - Section 27 - The rule and the exception
both in Section 27 of the Act of 2009 are very
clear. The provisions of Section 27 generally
puts in place a strict prohibition on deployment
of teachers on non-teaching duties and then
carves out exceptions in favour of certain
classes of duties to which the rule prohibiting
their deployment would not apply. Election to
local authorities, the State Legislature and the
Parliament are one of those exceptions. The
exception, prima facie, is not couched in words
that would limit the exception coming alive
only after an election notification is issued, and
not earlier. (Para 13)

The literal rule or the golden rule of construction is
the preferred rule and where the language of the
statute is unambiguous, the rule is always a safe
guide. The statute is to be read as it is, and not what
it ought to be. It is in cases of ambiguities or a literal
reading, leading to an absurd conclusion, that one