# State of U.P v. Bhola & Ors

- **Citation:** (2022) 7 ILRA 894
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-07
- **Case number:** Government Appeal No. 463 of 2021
- **Bench:** Suneet Kumar, Vikram D. Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-bhola-ors-48865
- **Pages:** 14

## Headnote

Sri Vijay Bahadur Shivhare, Sri Vijay
Bahadur Shivhare

Victim used to talk to accused -alleged
kidnapping and rape by the accused and 3
others-Victim is 15 years old-conclusion and
narration of events by victim does not match
with the call details-accused's presence not
proved by the prosecution.

Appeal dismissed. (E-9)

## Text

_Characters 0–39,729 of 47,664. This is a partial read: ask again with offset=39729 for what follows._

894 INDIAN LAW REPORTS ALLAHABAD SERIES

57. All the applications stand
disposed of.

58. The records be sent back to the
court-below.
----------
(2022)07ILR A894
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.03.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE VIKRAM D. CHAUHAN, J.

Government Appeal No. 463 of 2021

State of U.P. ...Appellant
Versus
Bhola & Ors. ...Respondents

Counsel for the Appellant:
G.A.

Counsel for the Respondents:
Sri Vijay Bahadur Shivhare, Sri Vijay
Bahadur Shivhare

Victim used to talk to accused -alleged
kidnapping and rape by the accused and 3
others-Victim is 15 years old-conclusion and
narration of events by victim does not match
with the call details-accused's presence not
proved by the prosecution.

Appeal dismissed. (E-9)

(Delivered by Hon'ble Vikram D. Chauhan, J.)

1. Heard Sri Nagendra Srivastava,
learned AGA for the State and perused the
record.

2. The instant appeal has been filed
against the judgment and order dated 21
December, 2019 passed by learned Special
Judge (POCSO Act)/Additional Sessions
Judge, Court No.1, Hamirpur in Special
Case No. 17 of 2015 (State Vs. Bhola alias
Pramod and others) arising out of Case
Crime No. 403 of 2014, under Sections
363, 366, 376D, 342 and 504 IPC and
Section 6 of the Protection of Children
from Sexual Offences Act, 2012, Police
Station Sisolar, District Hamirpur, whereby
the accused-respondents were acquitted.

3. As per the prosecution case,
informant - Ramcharan lodged one report
that his daughter (victim) who is aged
about 15 years; studying in Class-VII at
Meerut; residing with his brother-in-law
Shyamlal; victim three months prior to
occurance went to her uncle's (Mama) -
Shayamlal residence at Meerut; Bhola alias
Pramod, son of Shrichandra Kori used to
talk from mobile no. 73XXXXX755 with
informant's daughter having mobile no.
80XXXXX493; information was given by
brother-in-law of the informant namely
Shyamlal to the informant; informant
contacted father of Bhola alias Pramod
namely
Shrichandra
and
his
brother
Santosh with the request to ask accused
Bhola alias Pramod to desist from talking
to his daughter; however, aforesaid person
abused the informant; thereafter Bhola alias
Pramod on 2 November, 2014 has abducted
the daughter of the informant and the
informant is afraid that some untoward
incident may happen with the aforesaid
girl.

4. On the basis of the aforesaid, report
dated 9 November, 2014 at 14:20 hours
was lodged under Sections 363 and 366
Indian Penal Code at Police Station Sisolar,
District Hamirpur against Bhola alias
Pramod
and Santosh,
both
sons
of
Shrichandra Kori and Shrichandra Kori,
son of not known, all resident of Gram
Panchayat Bhamai, Police Station Sisolar,
7 All. State of U.P. Vs. Bhola & Ors.
895
District Hamirpur. The aforesaid report was
registered as Case Crime No. 403 of 2014.

5. On 4 December, 2014, statement of
the victim under Section 164 of the Criminal
Procedure Code was recorded. She has
stated that on 22 July, 2014 she was
travelling along with her uncle Shyamlal to
Meerut by train; Santosh and Bhola who are
resident of same village have come
following the victim to Meerut; for two days
the aforesaid persons were harassing and
following the victim; Santosh and Bhola
went back to the village from Meerut; victim
was residing with her Mama; on 2
November, 2014 when the victim was going
to school, Santosh, Bhola, Ramsewak and
Shrichandra were present along with their
vehicle Marshall and when the victim came
close to the aforesaid vehicle, Ramsewak
abused and shouted to catch the victim and
thereafter Shrichandra opened the gate of the
vehicle and Ramsewak, Santosh and Bhola
caught hold and forcefully took her into the
vehicle and gagged the mouth of the victim;
thereafter the victim was locked in room at
Ghaziabad; Ramsewak and Shrichandra left;
Santosh and Bhola residing along with the
victim
at
Ghaziabad;
Bhola
under
intoxication used to come in the night and
Santosh would stay outside the room; Bhola
committed rape in the night; for five days
Bhola committed rape with the victim; on 7
November, 2014 in the afternoon Santosh
also committed rape of the victim; on 7
November, 2014 both the accused took the
victim from the room at Ghaziabad to the
railway station and brought her to Kanpur.
The victim thereafter by catching passenger
train came back; Santosh and Bhola stayed
at Kanpur; when the victim came to
Maudaha then she called her father on
mobile phone and thereafter her father
brought her on 8 November, 2014 to her
house.

6. During investigation, investigating
Officer received copy of the admission
register from Principal, Uchh Prathmik
Vidyalaya, Bhamai, Hamirpur wherein the
date of birth of the victim was recorded as
20 April, 1999.

7. Victim was medically examined on
22 November, 2014 at District Women
Hospital, Hamirpur. The doctor who has
examined the victim has recorded in the
medical report dated 22 November, 2014
that the victim has informed that one boy
with his friend has taken her to Ghaziabad
and has locked her in a room and
committed rape. No external injury was
found on the body of the victim. The
hymen was ruptured, old and healed. No
internal injuries were found on the body of
the victim. There was no bleeding from the
private parts. The vaginal smear was taken
from the private part of the victim and Xray was advised.

8. The Investigating Officer has also
prepared memo of recovery of the victim
on 22 November, 2014. The recovery
memo is marked as Exhibit Ka - 7A and
proved by Prosecution Witness No. 8.
According to the recovery memo, the
victim was brought by her father to the
police station on 22 November, 2014 and
was sent for medical examination and Xray along with her father.

9. The Investigating Officer thereafter
prepared the site plan of the incident on 21
February, 2015. The site plan was marked
as Exhibit Ka-6 and was duly proved by
Prosecution Witness No. 7.

10. After the completion of the
investigation, charge sheet was submitted
by the Investigating Officer against Bhola
alias Pramod under Sections 363, 366 and
896 INDIAN LAW REPORTS ALLAHABAD SERIES
376 IPC and Sections 5/16 and 5-8/6 of the
Protection
of
Children
from
Sexual
Offences Act, 2012. The Charge Sheet was
submitted before the Court concerned on
22 February, 2015. The investigating
officer after investigation submitted charge
sheet against accused Bhola alias Pramod.

11. The Court below by order dated
29 July, 2017 summoned under Section 319
Cr.P.C,
accused
namely
Santosh,
Shrichandra, Ramsewak under Section
376D, 342, 504, 363, 366, 120B IPC and
Section 4 POCSO Act.

12. On 4 December, 2017 the court
concerned has framed charges against
Bhola alias Pramod under Sections 363,
366, 376D and Section 6 POCSO Act and
against Santosh under Sections 363, 366,
342, 504 and 376D IPC and Section 6 of
the POCSO Act. The trial court on 4
December, 2017 has also framed charges
against Shrichandra and Ramsewak under
Sections 363, 366, 342, 504, 376D and
120B IPC and Section 6 of the POCSO Act.
Accused persons denied the charges and
claimed to be tried.

13. The prosecution in support of the
case testified eight witnesses, namely, (PW1) Ramcharan, (PW-2) victim, (PW-3)
Constable
Himanshu
Gautam,
(PW-4)
Dhirendra Singh, Principal, (PW-5) Dr.
Asha Sachan, (PW-6) Inspector Abdul
Haleem (I.O.), (PW-7) Inspector Nandlal
Bharti (I.O.) and (PW-8) Inspector Incharge
Bhagwati Prasad Misra (I.O.).

14. The prosecution in support of the
case produced the documentary evidence
i.e. Complaint Exhibit Ka-1, Statement
under Section 164 Cr.P.C. Exhibit Ka-2,
FIR Exhibit Ka-3, General Diary Exhibit
Ka-4, Admission Register Exhibit Ka-5,
Medical Report Exhibit Ka-5A, Site Plan
Exhibit Ka-6, Charge Sheet Exhibit Ka-7
and Fard Baramadgi Exhibit Ka-7A.

15. The statement of accused person
under Section 313 of Cr.P.C. was recorded.
The accused person denied the charges as
false and concocted. The accused person
claimed that they have been falsely
implicated on account of prior enmity. The
accused persons did not produce any
defence witness.

16. As per the prosecution case, the
informant (PW-1) was known to accused
Bhola
alias
Pramod,
Santosh
and
Shrichandra. The daughter of the informant
prior to 3 months of the alleged occurrence
was living with her uncle Shyamlal at
Meerut. Shyamlal informed that informant's
daughter used to talk on phone with
accused Bhola alias Pramod; Informant
thereafter made complaint to the father of
accused Bhola alias Pramod namely,
Shrichandra that his son is harassing his
daughter on phone. On the aforesaid
complaint, Shrichandra and both his sons
namely Bhola alias Pramod and Santosh
started abusing and ran towards the
informant for beating him. Thereafter on 2
November,
2014,
Shyamlal
informed
Ramcharan - informant that his daughter
went to the school to pick up the children
however has not come back. Report about
the aforesaid incident was lodged at Police
Station - Sisolar, District Hamirpur. On 8
November, 2014, daughter/Victim informed
Ramcharan that she was at Kanpur;
Informant went to the railway station
Maudaha; Daughter of the informant was
found at railway station - Maudaha; she
informed that on 2 November, 2014 when
she went to bring children from the school
then accused Bhola alias Pramod, Santosh,
Shrichandra and Ramsewak met her with
7 All. State of U.P. Vs. Bhola & Ors.
897
four wheel vehicle and forcefully took in
the aforesaid vehicle and locked her in the
room; Ramsewak and Shrichandra went
back; In the room Bhola alias Pramod and
Santosh forcefully raped the victim and
kept her in the aforesaid room for 5 to 6
days; thereafter, the victim on getting the
chance ran away and reached railway
station
Maudaha.
Informant
met
his
daughter at railway station. The daughter of
the informant was aged about 15 years at
the time of occurrence.

17. The prosecution further produced
Prosecution Witness No. 2 - victim who has
stated that she knew Santosh, Bhola alias
Pramod, Ramsewak and Shrichandra who
belong to her village; she was going along
with her uncle Shyamlal by train to Meerut;
on the same train accused Santosh and
Bhola alias Pramod were following her and
reached Meerut. Accused for two days was
harassing the victim; on 2 November, 2014,
victim went to pick up children from
school; near the school, Santosh, Bhola
alias Pramod, Ramsewak and Shrichandra
were present along with four wheel vehicle
namely, Marshall; after abusing victim
forcefully took her in the aforesaid vehicle;
Shrichandra opened the door of the vehicle
and Ramsewak, Santosh and Bhola alias
Pramod caught the victim. When victim
shouted they gagged the mouth of the
victim. They took the victim to Ghaziabad;
locked her in one room; Bhola alias
Pramod and Santosh were also staying
there. Ramsewak and Shrichandra went
back; at night Bhola alias Pramod used to
come intoxicated in her room and Santosh
used to stay outside the room; Bhola alias
Pramod raped the victim; Bhola alias
Pramod raped victim for five days; on 7
November, 2014 in the afternoon Santosh
raped the victim; thereafter they took the
victim to the railway station Ghaziabad and
went to Kanpur; when Santosh and Bhola
alias Pramod were having tea, she boarded
the passenger train and came to railway
station - Maudaha. Thereafter, she called
her father who took her home. She has
stated that her date of birth is 20 April,
1999; she has also stated that she had given
statement to the Investigating Officer and
she was also medically examined. She has
also testified that her statement under
Section 164 Cr.P.C. was recorded before
the Magistrate. The victim has proved the
statement made before the Magistrate under
Section 164 Cr.P.C and the same was
marked as Exhibit Ka-2.

18. The prosecution has further
examined Constable Himanshu Gautam as
Prosecution Witness No. 3 who has stated
that on 9 November, 2014, he was posted at
Police Station Sisolar on the post of
Constable Moharir. On the said date on the
report lodged by the informant he had
lodged the First Information Report against
Bhola alias Pramod and others under
Sections 363 and 366 of the Indian Penal
Code. The aforesaid witness has proved the
First Information Report and the General
Diary and the same are marked as Exhibits
Ka-3 and Ka-4 before the trial court.

19. Prosecution in support of the case
has further examined Shri Dhirendra Singh
as Prosecution Witness No. 4. The said
witness was on the relevant date posted as
Principal, Poorv Madhyamik Vidyalaya,
Bhamai, District Hamirpur for two years
and from 1999 was posted as teacher in the
aforesaid institution. He has stated that
according to the records of the institution
the date of birth of the victim is 20 April,
1999. The admission register with the
relevant entry being S.R. No. 3002 was
filed before the trial court and was marked
as Exhibit Ka - 5.
898 INDIAN LAW REPORTS ALLAHABAD SERIES

20. Prosecution has further examined
Dr. Smt. Asha Sachan as Prosecution
Witness No. 5. She has stated that on 22
November, 2014 she was posted at District
Women Hospital, Hamirpur as Medical
Officer. She had conducted the medical
examination of the victim on the said date;
victim
had
informed
her
that
one
neighbourhood boy with another person
had forcefully taken her; they took her to
Ghaziabad in the room and thereafter
committed rape; hymen was ruptured, old
and healed. Vaginal Smear was sent for
pathological examination. She has proved
the medical examination report and the
same was marked as Exhibit Ka - 5 before
the trial court.

21. The prosecution has further
examined retired Inspector Sri Abdul
Haleem as Prosecution Witness No. 6. The
said witness has stated that on 9 November,
2014 he was posted as Incharge Inspector
at Police Station Sisolar. In his presence, on
the
basis
of
written
application
of
informant First Information Report was
lodged under Sections 363 and 366 IPC.
Investigation of the aforesaid crime was
entrusted to Sub Inspector Purshottam
Narayan Tiwari. The First Information
Report was also entered in the General
Diary and thereafter abovenamed Sub
Inspector
was
transferred
and
the
investigation was handed over to then
Police Station Incharge Bhagwati Prasad
Mishra. He has stated that on 22 November,
2014 he had recorded the statement of the
victim under Section 161 Cr.P.C. On 28
November, 2014 he has recorded the
statement of the accused Bhola alias
Pramod
in
the
Case
Diary.
During
investigation
Section
376D
IPC
and
Section 5 (6/6) of the POCSO Act was
added; on 4 December, 2014 statement of
the victim under Section 164 Cr.P.C. was
recorded. On 16 December, 2014 statement
of Smt. Sushila was recorded.

22.

Thereafter
prosecution
has
testified retired Inspector Nand Lal Bharti
as Prosecution Witness No. 7. The said
witness has stated that on 27 January, 2015
he was posted as Prabhari Nirikshak at the
Police Station and he had taken the charge
of the investigation of Case Crime No. 403
of 2014; on 5 February, 2015, the accused
was taken on remand; on 21 February, 2015
after reaching Meerut on the pointing out of
Shyamlal, who is the brother-in-law of the
informant, the site map was prepared of the
place of occurrence and the same was
marked as Exhibit Ka-6. On 22 February,
2015 charge sheet was filed against accused
Bhola alias Pramod under Sections 363,
366, 376 (2) IPC and 5(1/6) and 5/11
POCSO Act and the same was marked as
Exhibit Ka-7.

23. Further the prosecution has
examined Prabhari Nirikshak Bhagwati
Prasad Mishra as Prosecution Witness No.
8. The said witness has stated that when he
was posted on 22 November, 2014 at the
concerned police station, the informant -
Ramcharan came with his daughter to the
police station. He had prepared the
recovery memo of the victim and the same
was marked as Exhibit Ka-7A.

24. As per the prosecution case, the
accused persons have abducted the victim
while she was going to school to pick up
the children and thereafter committed rape.
The accused Bhola alias Pramod is
prosecuted under Sections 363, 366 and
376(D) IPC and Section 6 of the POCSO
Act.
Similarly,
accused
Santosh
is
prosecuted under Sections 363, 366, 342,
504 and 376D IPC and Section 6 of the
POCSO Act. Further, Shrichandra and
7 All. State of U.P. Vs. Bhola & Ors.
899
Ramsewak were prosecuted under Sections
363, 366, 342, 504, 376D and 120B IPC
and Section 6 of the POCSO Act.

25. Objection was raised on behalf of
the accused before trial court that as per
FIR, the occurrence took place on 2
November, 2014 and FIR has been
registered on 9 November, 2014 after the
coming back of the victim and prosecution
has failed to give any reason regarding
delay in lodging of the FIR. Accused had
also raised objection that the recovery of
the victim on 22 November, 2014 is false
and concocted.

26. In this respect, it is to be noted
that as per the FIR (Exhibit Ka-3) the
informant has stated that his daughter use
to talk to accused Bhola alias Pramod on
mobile phone; his daughter/victim was
staying with her uncle Shyamlal at Meerut;
on 2 November, 2014, the accused has
taken away her daughter and the informant
was under fear that some untoward incident
may happen with his daughter. The FIR
was lodged on 9 November, 2014 at Entry
No. 13/14 at 20:00 hours at the G.D. and
the same was marked as Exhibit Ka-4.
From the aforesaid, it is evident that the
First Information Report was given on 9
November, 2014 and on the aforesaid basis,
the Chik FIR was lodged being Exhibit Ka3 at 14:20 hours. The First Information
Report was lodged after 7 days of the
occurrence and no reason has been given
by the prosecution for the delay. PW-1 -
informant has testified before the Court in
which he has stated that on 2 November,
2014 his brother-in-law Shyamlal had
informed that his daughter went to the
school to pick up the children, however, she
had not come back. On 3 November, 2014
he had given the information to the Police
Station Sisolar by means of an application
which is Exhibit Ka-1. The Chik FIR being
Exhibit Ka-3. The report was lodged on 9
November, 2014 and the G.D. Entry No.
13/14 at 20:00 hours was lodged. The
Prosecution Witness No. 3 - Constable
Himanshu Gautam has also in his statement
before the trial court has stated that the
informant - Ramcharan on 9 November,
2014 had written complaint and on the
aforesaid basis Chik FIR being Exhibit Ka3 was lodged and the GD Entry being
Exhibit
Ka-4
was
prepared.
The
Prosecution Witness No. 1 in his statement
has stated that on 8 November, 2014 he had
received information from his daughter that
she is at Kanpur and when he had reached
the railway station Maudaha at 11:00 hours
and thereafter on the next date he had taken
the daughter to the police station and after
lodging the report he had brought his
daughter back. He has also stated that he
had brought his daughter to his house on 8
November, 2014. On the aforesaid basis, it
is evident that the PW-1 - informant went
to the police station along with his daughter
and lodged the FIR on 9 November, 2014.
PW-1 has further stated that before coming
to the police station his daughter had
informed all the facts to the informant and
the report was lodged on the basis of the
information received from his daughter. He
has also stated that the Inspector Incharge
had enquired from the informant and the
victim prior to lodging of the FIR and he
had signed the FIR after reading the same.
He has also stated that the place where the
application was prepared his daughter and
his brother-in-law were also present. On the
aforesaid basis, the trial court came to the
conclusion that the FIR was lodged after
the victim was recovered and after
receiving the information from the victim
about the alleged incident and on account
of the aforesaid fact in respect of the
alleged occurrence on 2 November, 2014
900 INDIAN LAW REPORTS ALLAHABAD SERIES
the FIR was lodged on 9 November, 2014
without explaining the delay. The victim -
PW-2 was also examined before the trial
court who has stated that after reaching the
home she had given all information to her
father and mother and on the information
provided by her, the informant had lodged
the FIR on 9 November, 2014 at Police
Station Sisolar; on the aforesaid date she
did not went to the police station. On the
basis of the statement of the victim, it is
evident that the FIR was lodged after she
had come back to her home and on the
information received from the victim on 9
November, 2014 the FIR was lodged.

27. The Investigating Officer has also
prepared the recovery memo showing
recovery of the victim on 22 November,
2014 despite the fact that the informant
who is the father of the victim and the
victim herself has stated that she has
reached the house on 8 November, 2014.
On the aforesaid basis, the trial court came
to the conclusion that the recovery of the
victim on 22 November, 2014 is suspicious
and cannot be relied upon. The trial court
has also recorded that the recovery memo
and the statement of the PW-1 and PW-2
are contrary and if the recovery memo is
treated to be correct then the statement of
PW-1 and PW-2 that the victim was
recovered on 8 November, 2014 was false.

28. The prosecution has further
examined Inspector Nandlal Bharti (PW-7)
who has stated that on 22 November, 2014
he had reached Meerut and had contacted
Shyamlal who is brother-in-law of the
informant - Ramcharan. He has also stated
that on the pointing out of the Shyamlal,
investigating Officer reached the place of
occurrence and has prepared the site plan
which is Exhibit Ka-6. The aforesaid
witness has further stated that he had not
prepared the site plan on the pointing out of
the victim or the informant and has stated
that he had tried to take the victim and his
father to the place of occurrence but they
did not come to the place of occurrence. In
this respect, it is to be noted that Shyamlal
is not the eye witness of the alleged
occurrence and the site plan was prepared
in the presence of Shyamlal and as per the
description given by the Shyamlal. The
Prosecution Witness No. 1 in his statement
before the trial court has stated that the
police had never taken him or his daughter
to Meerut. He has also stated that PW-2 had
not shown the place of occurrence to the
Investigating Officer. The aforesaid witness
has further stated that the Investigating
Officer never came to take the witness to
Meerut. On the aforesaid basis, it is evident
that the site plan that has been prepared
was prepared on the basis of information
and pointing out of the Shyamlal who is not
the witness of the alleged occurrence and
the site plan was not prepared on the
pointing out of the victim. The victim never
went to the Meerut along with the
Investigating Officer. The Investigating
Officer PW-6 Abdul Haleem in his
statement has stated that when he asked the
informant to come to Meerut for inspection
of the place of occurrence then he replied
that he will talk to his lawyer and will
respond. The actual place of occurrence
could have only be identified by the victim.
Further the site plan prepared does not
disclose the place at Ghaziabad where the
alleged rape is said to have been committed
nor the prosecution has led any evidence to
show the place of occurrence of rape.

29. Prosecution Witness No. 1 -
informant has stated that the accused Bhola
alias Pramod use to talk on phone with her
daughter and the aforesaid fact was
informed by Shyamlal and thereafter he
7 All. State of U.P. Vs. Bhola & Ors.
901
went to the house of the accused Bhola
alias Pramod and met with his father
Shrichandra. Shrichandra and his two sons,
namely, Bhola alias Pramod and Santosh
started abusing and beating. Thereafter, his
brother-in-law Shyamlal on 2 November,
2014 informed that his daughter went to the
school to pick up the children, however, she
did not come back and on the aforesaid
basis the FIR was lodged. The aforesaid
witness has further stated that on 8
November, 2014 daughter/victim had called
him and informed that she was in Kanpur.
Victim was recovered at Railway Station -
Maudaha. The said witness has further
stated that after recovery of the daughter,
she had informed about the alleged
occurrence. On the aforesaid basis, the
Prosecution Witness No. 1 came to know
about the alleged incident. The Prosecution
Witness No. 1 is not the eyewitness of the
alleged occurrence. The said witness has
given statement on the basis of the
information given by Shyamlal and victim.
In the cross-examination the said witness
has stated that prior to the information
received from his daughter, no person had
informed him about the alleged occurrence.
The said witness has further stated that his
brother-in-law - Shayamlal did not come to
his house and that, as per as informant, his
daughter did not have any mobile phone
prior to alleged incident. The mobile
number being 80XXXXX493 was written
in the FIR on the basis of the information
given by Shyamlal. It is to be noted that the
aforesaid witness on one hand has stated
that his brother-in-law Shyamlal did not
visit his house and on the other hand he has
stated that he had given the mobile number
in the FIR on the basis of the information
given by Shyamlal. It is further to be noted
that the witness has further stated that his
daughter did not have any phone prior to
the alleged incident. The witness has
further testified that he does not keep any
mobile phone and has not given any mobile
number of his daughter in the FIR. He has
further stated that the mobile number given
in the FIR has not been given by the
informant but the same has been inserted
by some other person or his brother-in-law.

30. PW-1 - informant has stated that
he does not keep mobile phone. The victim
in her statement has stated that her
father/informant has mobile phone bearing
mobile number 96XXXXX314. On the
aforesaid basis, it is not known as to why
the Prosecution

31. The Prosecution Witness No. 1
further in his statement has stated that the
victim did not accompany him to the police
station when the FIR was lodged. He has
further stated that he never took the victim to
the police station; Shyamlal on 2 November,
2014 on phone informed that his daughter
went to the school to pick up the children,
however, has not returned; on 3 November,
2014, the informant informed the Police
Station - Sisolar and the report was marked as
Exhibit Ka-1 before the trial court; on the
other hand, the Prosecution Witness No. 1 in
cross-examination has stated that after the
recovery of the victim on 8 November, 2014,
the FIR was lodged on the basis of the
information received from the victim. The
informant has made contradictory statement
that the FIR was lodged on 3 November,
2014 on the information received from
Shyamlal whereas on the other hand he has
stated that the FIR was lodged after the
victim was recovered on 8 November, 2014
and on the basis of information received from
the victim, the FIR was lodged on 9
November, 2014.

32. The Prosecution Witness No. 1
has further stated that on 8 November,
902 INDIAN LAW REPORTS ALLAHABAD SERIES
2014, victim was recovered and thereafter
the FIR was lodged, however, the recovery
memo in respect of the victim being
Exhibit Ka-7A which is prepared by
Prosecution Witness No. 8 shows that the
victim was brought to the police station by
the informant on 22 November, 2014.
Thereafter, the statement of the victim
under Sections 161 and 164 Cr.P.C. and
medical examination was effected. Victim
was recovered on 8 November, 2014 and
the FIR was lodged on 9 November, 2014,
however, the victim was brought to the
Police Station on 22 November, 2014.
There is no explanation offered by the
prosecution with regard to the period from
8 November, 2014 to 22 November, 2014
during which the victim was not produced
before the Police/Investigating Officer. On
the aforesaid basis, the trial court came to
the conclusion that the statement of the
Prosecution Witness No. 1 are not reliable
and trustworthy.

33. In the present case, the only
eyewitness to the alleged occurrence is the
victim and on the basis of the statement of
the victim, it is to be seen whether the
offence alleged is made out against the
accused person. It is trite of law that
conviction can be founded on the sole
testimony of the prosecutrix where the
statement of the prosecutrix inspires
confidence and is accepted by the court.
The conviction can be founded on the
solitary evidence of the prosecutrix and no
corroboration would be required unless
there are compelling reasons which are
necessary for the court for corroboration of
the statement of the prosecutrix. The
corroboration is required as a matter of
prudence under the given facts and
circumstances of the case. The court while
acquitting the accused on the benefit of
doubt should be cautious to see that the
doubt be a reasonable doubt and it should
not reverse the finding on the basis of
irrelevant
circumstances
or
mere
technicalities.

34. On the aforesaid basis, it is first to
be seen whether the statement of the
prosecutrix is believable. It is to be noted
that the FIR was lodged on 9 November,
2014 at 4:20 pm. The informant was
present at the police station at the time of
lodging of the FIR and the victim was not
present along with the informant. The
victim was said to have been recovered on
8 November, 2014. The victim in her
statement has stated that she had reached
Maudaha at 11:30 AM and had made a
phone call to the informant (father of the
victim) and thereafter on reaching the home
narrated the incident to the informant and
her mother. On the basis of the information
received from the victim, the FIR was
lodged on 9 November, 2014. On the
aforesaid
date,
the
victim
did
not
accompany the informant to the police
station. The medical examination of the
victim was held 10 to 15 days after the FIR
was lodged. The statement of the victim
before the Chief Judicial Magistrate under
Section 164 Cr.P.C. was held on 4
December, 2014. As per the prosecution
case, the informant lodged the FIR on 9
November, 2014 after the victim was
recovered on 8 November, 2014 with the
allegation that on 2 November, 2014, the
accused Bhola alias Pramod has enticed his
daughter. When the victim was recovered
on 8 November, 2014 thereafter the FIR
was lodged by the informant after receiving
information from the victim. FIR was
lodged on 9 November, 2014, however,
despite the fact that the details of the
alleged occurrence were in the knowledge
of the informant on the basis of the
information received from the victim.
7 All. State of U.P. Vs. Bhola & Ors.
903
Informant in the FIR did not submitted any
request for search of the victim. Further, as
per the recovery memo being Exhibit Ka-7,
it is evident that on 22 November, 2014,
victim was brought by the informant to the
police station and on the basis of the
aforesaid, recovery memo was prepared by
the Investigating Officer. The prosecution
has failed to explain the delay as the victim
was recovered on 8 November, 2014 then
why
she
was
produced
before
the
Investigating Officer on 22 November,
2014 and why the aforesaid fact was not
disclosed to the Investigating Officer. The
trial court on the aforesaid basis came to
the conclusion that the informant is trying
to hide facts and have not brought on
record all the facts before the court.

35. As per the FIR, the accused used
to call on the mobile number of the victim.
The first information report was lodged by
the father of the victim. The victim in her
statement before the trial court has stated
that she did not had any mobile phone at
the time of alleged occurrence. She has also
stated that when she was at Meerut at her
uncle's house she did not personally had
any mobile phone. She has also stated that
she did not remember the number of the
mobile phone which was at the house at
Meerut which was being used by all the
family members. The Investigating Officer
on the basis of the mobile number stated in
the FIR has taken call details of the mobile
number. The victim is denying having the
mobile number as stated in the FIR which
is indicative of the fact that the victim is
hiding the truth from the court despite the
fact that there is material indicating the call
details of the mobile number.

36. The prosecution case as per the
FIR is that the victim was residing at my
right along with her uncle. The accused
used to call the victim from mobile number
737XXXXX55 on the mobile number of
the
victim
805XXXXX93.
Shyamlal
informed that the victim was talking on
phone to the accused. Thereafter, the
informant went to the father of the accused
asking him to instruct the accused to desist
from talking with the victim. In this respect
the call details of the victim are to be noted
which are detailed in trial court judgment.
The details of the call are as under :

"दिनाांि 03.07.2014 िो अदियुक्त द्वारा पीदडता िो िो
बार िाल दिया गया।

दिनाांि 03.07.2014 िो पीदडता द्वारा अदियुक्त िो एि
बार िाल दिया गया।

दिनाांि 03.07.2014 िो पुनः अदियुक्त द्वारा पीदडता
िो एि बार िाल दिया गया।

दिनाांि 04.07.2014 िो अदियुक्त द्वारा पीदडता िो
सात बार िाल दिया गया।

दिनाांि 05.07.2014 िो अदियुक्त द्वारा पीदडता िो तीन
बार िाल दिया गया।

दिनाांि 06.07.2014 िो अदियुक्त द्वारा पीदडता िो िो
बार िाल दिया गया।

दिनाांि 07.07.2014 िो अदियुक्त द्वारा पीदडता िो
आठ बार िाल दिया गया।

दिनाांि 08.07.2014 िो अदियुक्त द्वारा पीदडता िो
पाांच बार िाल दिया गया।

दिनाांि 09.07.2014 िो अदियुक्त द्वारा पीदडता िो
पाांच बार िाल दिया गया।

दिनाांि 10.07.2014 िो अदियुक्त द्वारा पीद डता िो
सात बार िाल दिया गया।

दिनाांि 11.07.2014 िो अदियुक्त द्वारा पीदडता िो िस
बार िाल दिया गया।

दिनाांि 12.07.2014 िो अदियुक्त द्वारा पीदडता िो तीन
बार िाल दिया गया।

दिनाांि 13.07.2014 िो अदियुक्त द्वारा पीदडता िो िो
बार िाल दिया गया।

दिनाांि 14.07.2014 िो अदियुक्त द्वारा पीदडता िो
ग्यारह बार िाल दिया गया।

दिनाांि 15.07.2014 िो अदियुक्त द्वारा पीदडता िो िः
बार िाल दिया गया।
904 INDIAN LAW REPORTS ALLAHABAD SERIES

दिनाांि 17.07.2014 िो अदियुक्त द्वारा पीदडता िो
चौिह बार िाल दिया गया।

दिनाांि 18.07.2014 िो अदियुक्त द्वारा पीदडता िो
सात बार िाल दिया गया।

दिनाांि 19.07.2014 िो अदियुक्त द्वारा पीदडता िो िस
बार िाल दिया गया।

दिनाांि 20.07.2014 िो अदियुक्त द्वारा पीदडता िो
बारह बार िाल दिया गया।

दिनाांि 21.07.2014 िो अदियुक्त द्वारा पीदडता िो
बारह बार िाल दिया गया।

दिनाांि 22.07.2014 िो अदियुक्त द्वारा पीदडता िो चार
बार िाल दिया गया।

दिनाांि 23.07.2014 िो अदियुक्त द्वारा पीदडता िो
चौबीस बार िाल दिया गया।

दिनाांि 24.07.2014 िो अदियुक्त द्वारा पीदडता िो
पाांच बार िाल दिया गया।

दिनाांि 25.07.2014 िो अदियुक्त द्वारा पीदडता िो तीन
बार िाल दिये गये है।

दिनाांि 25.07.2014 िो पीदडता द्वारा अदियुक्त िो एि
बार िाल दिया गया।

दिनाांि 25.07.2014 िो पनः अदियुक्त द्वारा
पीदडता िो एि बार िाल दिया

गया।

दिनाांि 26.07.2014 िो पीदडता द्वारा अदियुक्त
िो एि बार िाल दिया गया।

दिनाांि 27.07.2014 िो पीदडता द्वारा अदियुक्त
िो िः बार िाल दिया गया।

दिनाांि 28.07.2014 िो अदियुक्त द्वारा पीदडता
िो िः बार िाल दिया गया।

दिनाांि 29.07.2014 िो पीदडता द्वारा अदियुक्त
िो पाांच बार िाल दिया गया।

दिनाांि 30.07.2014 िो पीदडता द्वारा अदियुक्त
िो आठ बार िाल दिया गया।

दिनाांि 31.07.2014 िो पीदडता द्वारा अदियुक्त
िो सात बार िाल दिया गया।

दिनाांि 31.07.2014 िो अदियुक्त द्वारा पीदडता
िो एि बार िाल दिया गया।

दिनाांि 31.07.2014 से दि० 10.11.2014
पीदडता िे इस मोबाईल पर िोई िाल

नही आई है ,
न ही िी गयी है। दिससे स्पष्ट है दि दिनाांि 31.07.2014 से

10.11.2014 ति पीदडता िा मोबाईल स्िीच
आफ िर दिया गया है।"

37. On the basis of aforesaid call
details, it is evident that between the victim
and the accused there were talks going on
for a substantial period of time. In case the
accused was talking to the victim without
her consent then the FIR should have been
lodged at the earlier point of time. There
was a regular communication between the
victim and the accused for a substantial
period of time is indicative that the victim
was taking interest in talking to the accused
and the aforesaid fact was not disclosed by
the victim before the trial court which
creates doubt on the testimony of the
victim.

38. The PW-2 (victim) in her
statement has stated that on 22 July, 2014
she went to her uncle's home. When she
was proceeding for Meerut then accused
Santosh and Bhola alias Pramod were also
travelling in the same compartment; on
reaching Meerut they met on the next date;
when she was going to school to bring the
children of her uncle, she met the accused;
for the first time when she went to Meerut
she had seen the Bhola alias Pramod in the
train; accused Bhola alias Pramod did not
come to the house of the victim at Meerut;
on 22 July, 2014, the mobile location of the
victim at 6:12 am was at Village Sisolar
Ajay Kumar Oamar Gate 259 Tehsil
Maudaha Near Hospital Hamirpur and on
22 July, 2014 at 20:59 hours, the mobile
location was at Shivnarayan, son of Late
Bhairam Singh, Village Post Chichara,
Tehsil Sadar, District Hamirpur.

39. On the aforesaid basis, it can be
said that the victim on 22 July, 2014 was in
Hamirpur and Mahoba area; on 23 July,
2014, the mobile location at 17:48 hours of
the victim was at Poorvi Taraus Mahboob
Ahmad Gate No. 2762/2, Village Tehsil
Maudaha, Near Masjid Hamirpur; on 23
7 All. State of U.P. Vs. Bhola & Ors.
905
July, 2014 at 19:8 hours, the mobile
location of the victim was Patara Abhinath
Singh Kushwaha 2759 Patara Ghatampur
Kanpur; on 23 July, 2014 at 21:25 hours,
mobile location was at Anil Kumar Gupta
Sataghar, Tehsil and District Hamirpur; on
24 July, 2014 at 7:40 hours, the mobile
location of the victim was at Aligarh and on
24 July, 2014 at 16:57 hours, the mobile
location was at Meerut. The victim on 22
July, 2014 was in Hamirpur area and
thereafter on 23 July, 2014 was at
Ghatampur Kanpur and thereafter at
Aligarh and she reached Meerut at 16:57
hours.

40. On the aforesaid basis, the trial
court came to the finding that on 22 July,
2014 the victim was not at Meerut whereas
she went to Meerut on 23 July, 2014 and
reached
Meerut
on
24
July,
2014.
Thereafter, the mobile location of the
victim was at Meerut.

41. So far as on 22 July, 2014, mobile
location of accused Bhola alias Pramod
was at Sisolar Ajay Kumar Oamar, Tehsil
Maudaha Near Hospital Hamirpur; on 23
July, 2014 at 8:51 hours, the accused was in
the same location. Thereafter on 23 July,
2014 at 21:25 hours, the location of the
accused
was
at
Hamirpur.
In
the
intervening period, the accused had made
50 calls and received the same; out of
which 24 calls were made to the victim and
all the locations were of Maudaha.

42. On the aforesaid basis when the
victim on 23 July, 2014 reached Kanpur via
Ghatampur, at that point of time, accused
Bhola alias Pramod mobile location was at
Maudaha. On 24 July, 2014 the victim
reached Meerut and at 16:57 hours SMS
was received at Meerut. On 24 July, 2014
the location of mobile phone of accused
was at Maudaha and thereafter at Banda
and further thereafter at Maudaha at 16:54
hours. Further, in the night at 22:30 hours,
the mobile location of the accused was at
Maudaha. On 25 July, 2014 the mobile
location of the accused was at Maudaha; on
26 July, 2014, 27 July, 2014, 28 July, 2014
and 29 July, 2014, the mobile location of all
the accused was at Maudaha.

43.