# Surendra (In Jail) v. State of U.P. 796 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2020) 1 ILRA 795
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-18
- **Case number:** Criminal Appeal No. 5375 of 2010
- **Bench:** Naheed Ara Moonis, Anil Kumar-Ix
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surendra-in-jail-v-state-of-u-p-796-indian-law-reports-allahabad-series-45286
- **Pages:** 15

## Headnote

Criminal Law - Indian Penal Code -
Section 376 - Appeal against conviction.

The witnesses are chance witnesses and their
testimonies are not reliable. As regards, their
being chance witnesses there is no doubt, but
it is not rule of law that the chance witnesses
cannot be believed. (para 19)

Medical examination report of the victim thus
fully supported the ocular testimonies of PW 1
and PW2. (para 22)

We are considering whether the maximum
punishment was warranted in this case or in the
circumstances of the case appellant is entitled for
some leniency. In case before us the age of the
victim at the time of incident was about 2-1⁄2 to 3
years, she was not even able to speak properly as
has been mentioned by the trial Court in impugned
judgement. (para 26)

Appeal is dismissed. (E-2)

List of cases cited: -

## Text

_Characters 0–39,813 of 50,319. This is a partial read: ask again with offset=39813 for what follows._

1 All. Surendra Vs. State of U.P.
795
neck. Gurdev Singh after receiving the
kirpan-blow fell down....................."

25. This Court in Paragraph
No.16 of the judgment held that both the
appellants had committed the murder of
Gurdev Singh. It was held that it is not
material to bring the case under Section
34, as to who inflicted the fatal blow,
following was laid down in Paragraph
No.16:-

"16. ...............Both the appellants
committed the murder of Gurdev Singh,
Granthi in furtherance of their common
intention. It was submitted by Mr Gupta that
Narinder Singh could not have been convicted
with the aid of Section 34 as this section is
nowhere mentioned in the impugned judgment.
Mention of the section in the judgment is not
the requirement of law to convict a person. If
the ingredients of the offence are present,
conviction can be made. It is not material to
bring the case under Section 34 IPC as to who,
in fact, inflicted the fatal blow. The High Court
has rightly interfered in the matter and
sentenced the appellants accordingly."

60. Learned trial court considering that
P.W. 1 and P.W. 2, namely, Khalik Ahmad
and Irshad have stated that deceased was
caught hold by the accused Tanvir, Dilshad
and Jamshed and both have stated that they
reached the spot after hearing the noise and
after the injury was caused, has held that their
witnessing of catching hold of the deceased by
accused Tanvir, Dilshad and Jamshed is
doubtful. In view of the facts already discussed
above and the settled legal position the finding
of the trial court is wholly perverse.

61. In view of the aforesaid, we are
of the view that the accused respondents
had wrongly been acquitted by the trial
court for the ultimate criminal act done by
all the respondents in furtherance of the
common intention of all.

62. For the reasons stated above, the
Government Appeal no. 5496 of 2005 is
allowed and the judgement and order of the
trial court dated 30.8.2005 in so far as it relates
to the acquittal of the accused-respondents
Jamshed, Tanveer and Dilshad is set aside. We
hold the respondents 1, 2 and 3, namely,
Jamshed, Tanveer and Dilshad guilty of the
offences punishable under section 302/34
I.P.C. and sentence each of them to
imprisonment for life with fine of Rs. 5000/-
and in case of default of payment of fine, they
shall undergo further simple imprisonment for
a period of six months.

63. The CJM, Jyotiba Phule Nagar is
directed to take the accused-respondents,
namely, Jamshed, Tanveer and Dilshad in
custody forthwith and send them to jail to serve
out the sentences awarded by us as above.

64. Office is directed to send a copy
of this order to the court concerned within
a week for
compliance. The CJM
concerned shall send his report with regard
to the accused-respondents within one
month thereafter, which shall be kept on
record of this case.

65. The lower court record shall be
returned to the court concerned.
----------
(2020)1ILR 795

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.12.2019

BEFORE
THE HON'BLE NAHEED ARA MOONIS, J.
THE HON'BLE ANIL KUMAR-IX, J.

Criminal Appeal No. 5375 of 2010

Surendra ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party
796 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Sanjiv Singh, Sri Animesh Chatterjee,
Sri Apul Mishra, Sri Ashok Kumar Tripathi,
Sri Chetan Chatterjee, Sri Namwar Singh,
Sri Yogesh Kumar Srivastava, Sri P.N.
Mishra

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

Criminal Law - Indian Penal Code -
Section 376 - Appeal against conviction.

The witnesses are chance witnesses and their
testimonies are not reliable. As regards, their
being chance witnesses there is no doubt, but
it is not rule of law that the chance witnesses
cannot be believed. (para 19)

Medical examination report of the victim thus
fully supported the ocular testimonies of PW 1
and PW2. (para 22)

We are considering whether the maximum
punishment was warranted in this case or in the
circumstances of the case appellant is entitled for
some leniency. In case before us the age of the
victim at the time of incident was about 2-1⁄2 to 3
years, she was not even able to speak properly as
has been mentioned by the trial Court in impugned
judgement. (para 26)

Appeal is dismissed. (E-2)

List of cases cited: -

1. Sachchey Lal Tiwari Vs. St. of U.P. (2004) 11 SCC 410

2. Sarvesh Narain Shukla Vs. Daroga Singh And
Others (2007) 13 SCC 360

3. Khujji @ Surendra Tiwari Vs. St. of M.P.
(1991)13 SCC 627

4. Anil Rai Vs. St. of Bihar (2001) 7 SCC 318

5. Maqbul @ Zubir & ors. Vs. St. of U.P., A.I.R.
(2010) SC 762

6. St. of M. P. Vs. Santosh Kumar, AIR 2006 SC
2648
7. Kamal Kishore & ors. Vs. St. of H. P., AIR
2000 SC 1920

8. Mukesh and Anr. Vs. St. for NCT of Delhi &
ors., 2018 (8) SCC 149

9. St. of M.P. Vs. Bala @ Balaram, AIR 2005,
SC 3567

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

1. This criminal appeal has been filed
against the judgement and order dated
20.09.2003 passed by Additional Session
Judge (Fast Track) Court No. 14, Mathura
in Session Trial No. 972 of 2002, (State
Vs. Surendra) arising out of Case Crime
No. 223 of 2002, under Section 376 I.P.C.,
Police Station Raya, District Mathura,
whereby sole appellant Surendra has been
convicted
and
sentenced
to
life
imprisonment with fine of Rs. 5,000/-
under Section 376 I.P.C., with default
stipulation.

2. Prosecution case in brief is that the
informant Chandra Pal has lodged first
information report on 05.02.2002 at 01.15
P.M. at P.S. Raya, District Mathura
alleging therein that on 05.02.2002 at
about 12.00 noon he was going towards
Raya from his village Gonga. At about
12.30 P.M. when he reached near the field
of Charan Singh, on hearing the shrieks of
a child from the field of Charan Singh, he
stopped there and went to that field. When
he
reached
there,
he
saw
that
appellant/accused was committing rape on
an innocent girl child of about 2-1⁄2 to 3
years. There was blood on the spot and the
child was lying in a pool of blood. At that
moment, Murari s/o Masi, Pappu s/o
Bagari both resident of village Gonga and
Jagveer s/o of Nekse resident of Dhaku
also reached there. Seeing them, the
accused/appellant tried to escape from
1 All. Surendra Vs. State of U.P.
797
there but they caught him on the spot after
applying some force. The victim was in
very serious condition. There were injuries
with blood on private part of the victim.
On being asked accused/appellant told his
name as Surendra s/o Shanker Singh Bhat
@ Sunil Bhati resident of Gokleshwar,
District Dharchula (Nepal). Some persons
living on the side of the road near the
railway station told them the name and
father's name of the victim and also told
them that her parents were searching her
for a long time. The informant Chandra
Pal along with other persons brought the
victim and the accused/appellant to the
Police Station Raya and lodged the first
information report by giving his written
report Ext. Ka-1 which was scribed by
Rakesh Bansal s/o Kishan Lal Bansal
resident of Hathras road Raya, Mathura.
The entry was made in general diary
(G.D.) of Police Station vide Report No.20
at 13.15 hours on 05.02.2002 by Sri Vijay
Singh (PW 4) and investigation was
handed over to PW 5, Sub-Inspector Indra
Pal Singh Tomar.

3. After registration of the first
information report at Police Station the
victim was sent to the government hospital
with lady Constable Sushma of P.S. Raya
for her treatment and medical examination.
She
was
medically
examined
on
05.02.2002 by Dr. Sunita Majumdar
Medical Officer Women Hospital, Agra
and prepared injury report (Ext. Ka-6).

According to the injury report
Ext. Ka-6 she was of average built, weak
condition pulse 110 per minute, there was
no mark of injury anywhere on the
external
body
surface.
In
internal
examination, vagina admits little finger
easily. Vagina smear prepared and sent for
pathological examination.

Injuries noted are as follows:

(i) Left lateral vaginal tear at 5
o' clock position 1cm in length, breath 0.3
MM,muscle deep bleeding present. This
tear was stitched bleeding on this side was
controlled.

(ii) Right lateral vaginal tear at
7 o' clock position

(a) Skin tear externally 1.5cm x
0.3cm

(b)
muscle
deep
extending
internally (apex could not traced) bleeding
present
tight
vaginal
packing
done
duration of injuries 1 and 2 about 6 hours.

Victim was advised to admit in
district female hospital for examination of
injuries and primary T/T Sedation, X-ray
of right wrist including carpels and right
elbow for age determination, vaginal
smear for pathological examination to
ascertain the presence of spermatozoa and
spermatic fluid, victim was referred to
S.N. Medical College, Agra for the repair
and further T/T of injury no.2 which could
not be stitched due to lack of proper
pediatric anesthesia. There was no other
medical examination report or x-ray report
of the victim on record as was advised by
the doctor.

4. On request letter dated 05.02.2002
of Station Officer P.S. Raya, accused
appellant was also medically examined by
Dr. B.P. Sarswat Medical Officer District
Hospital Mathura on the same day at 3:00
PM. The medical examination report
exhibited as Ext. Kha-6.

According
to
the
medical
examination
report
Ext.
Ka-6
accused/appellant Surendra was brought
by Constable Santosh Kumar and Sahadat
Police Station Raya. He was examined on
05.02.2002 at 3:00 P.M. According to the
report he was young healthy man of about
798 INDIAN LAW REPORTS ALLAHABAD SERIES
25 years well built and well nourished.
The following injuries were found on his
body.

(i) multiple abrasion in an area
of 16 cm x 6 cm in front of left knee and
upper front of left leg size varying from 2
cm x 1 cm to 1 cm x 0.5 cm.

(ii) Abrasion 2 cm x 1 cm on
medial aspect of right knee joint.

(iii) Abrasion 2 cm x 1 cm on
front of right leg middle part.

(iv) External clothes pant and
shirt were not teared except on the cuff of
the shirt was having blood stained, under
garments also having blood stains on both
underwear. His clothes were sealed and
handed
over
to
the
Constable
for
examination
by
forensic
expert
for
necessary examination including blood
group.

(v) Finger nails scrapped also
collected and preserved sealed along with
clothes for examination by forensic expert.

(vi) He was not under influence
of alcohal or any other thing.

(vii) There was no wetting of
pubic hairs but pubic hairs sample taken
and sent to forensic expert.

(viii) There were no female hair
on his body.

(ix) There was slight redness on
glans and prepuce but no external injury
on penis.

(x)
Genital
part
was
fully
developed and he was a young person and
can do sexual acts.

(xi) There was no smacma (white
layer) around the glans penis and there
was no gonorrheal discharge on genital
organs.

In the opinion of doctor injury
nos. 1, 2 and 3 were fresh, simple and
caused by friction.

Two underwears, one cuff of
shirt and finger nails scrapping and pubic
hair
sealed
and
handed
over
to
accompanying
Police
Constable
for
examination by forensic expert.

5. After the registration of F.I.R. at
the police station, Investigating Officer
Indrapal Singh Tomar started investigation
on 05.02.2002. He recorded statement of
Head Constable Vijay Singh, who had
registered the F.I.R. on the basis of written
report of the informant. He has recorded
statement of informant Chandra Pal on
05.02.2002
and
he
copied
medical
examination reports of the victim and the
accused in the case diary on 06.02.2002.
He inspected the spot on the pointing out
of the informant and prepared site plan
Ext. Ka-4. He had recorded statement of
Kallu, father of the victim and statement of
Murari one of the eye witnesses of the
incident. On 28.03.2002 Investigating
Officer had recorded statement under
Section 161 Cr.P.C. of eye witness Pappu.
On 10.04.2002 he recorded statement of
eye witness Jagveer and after completion
of investigation he submitted charge sheet
Ext. Ka-5 against accused Surendra under
Section 376 I.P.C.

6. As the case was exclusively
Triable by the Court of sessions, hence it
was committed to the Court of Sessions
and numbered as Session Trial No. 972 of
2002. After that, this session trial was
made over to the Court of Additional
Sessions Judge (Fast Track) Court No. 14
Mathura for final trial and disposal of the
case. After hearing of the learned counsel
for the appellant as well as Public
Prosecutor, learned Trial Judge has framed
the charge under Section 376 I.P.C.,
against accused/appellant on 15.01.2003,
which was read over and explained to the
accused in Hindi, who pleaded not guilty
and claimed to be tried.
1 All. Surendra Vs. State of U.P.
799

7.

After
framing
of
charge
prosecution was directed to adduced its
evidence by which it proposes to prove
guilt of the accused. The prosecution has
examined as many as five witnesses. The
brief sketch of the witnesses examined by
the prosecution is as hereinunder:-

(I) PW 1, Chandra Pal is the
informant and eye witness of the case, he
has deposed that on the date of occurrence
at about 12.00 noon he was going to Raya
town from his village 'Gonga' and at about
12.30 PM when he reached near the field
of Charan Singh, he heard shriek of a
female child and rushed towards that field.
When he reached in the field of Charan
Singh, he saw that a man was committing
rape on innocent child aged about 2-1/2 to
3 years. There was blood on the spot and
all over body of the victim. There were
injuries and blood on her private part.
Murari and Pappu, who belonged to the
village of this witness also reached on the
spot. When the culprit saw them, he tried
to escape but was caught by them on the
spot. He disclosed his name as Surendra
s/o Sunil Bhati, resident of District
Gokleshwar (Nepal). The accused was
identified by this witness in the Court
room. He further deposed that he along
with other persons brought the victim and
the accused to the police station Raya.
When he reached with victim on the road
before the Railway station, the persons
living on the side of the road told him the
name of the victim and her father's name
and also told that her parents were
searching her since very long time. They
also told that the accused carried her in the
field in his lap and committed rape on her.
He got the F.I.R. Scribed by Rakesh
Bansal s/o Kishan Lal Bansal resident of
Raya and lodged the F.I.R. on the basis of
aforesaid written report which has been
proved by PW 1 as Ext. Ka-1.

PW 1, Chandra Pal was put to a
lengthy cross-examination but nothing
adverse could be elicited from him in his
cross examination. He has told the purpose
for going from ''Gonga' to Raya for
marketing at 12.30 P.M. He was going to
Raya town on foot and Murari (PW2) was
also with him.

(ii) PW 2, Murari is an
independent eye witness. His statement
has been recorded before the Trial Court
on 03.07.2003. He has deposed in his
examination in chief that about 1-1⁄2 years
ago at about 12 to 12.30 hour he was going
to Raya town from the village ''Gonga'
along with Chandrapal (PW 1). Behind
them Pappu (not examined) was also
coming towards Raya town, when they
reached near the field of Charan Singh
situated near Southern cabin of Railways,
they heard a loud cry of a child. On
hearing the shriek of the child, they went
into the field of Charan Singh. When they
reached there, they saw that accused of the
case Surendra was committing rape on the
child. The child was about 2 1⁄2 to 3 years
old. There was blood on all over her body.
Chandrapal
(PW1)
and
Pappu
(not
examined) had also witnessed the incident.
The accused tried to run away from there
but was caught by them on the spot. The
accused disclosed his name as Surendra.
He was identified by this witness in the
court room. When they were going to the
police station along with the victim and
accused for lodging the F.I.R., they saw
that some persons who were residing on
the road side were searching the victim,
they identified the victim. Victim and
accused were brought to the police station
by Chandra Pal (PW1), Pappu and this
witness. The F.I.R. was lodged by Chandra
800 INDIAN LAW REPORTS ALLAHABAD SERIES
Pal (PW1), the condition of the victim was
serious, there were injuries on her thigh.

In
his
detailed
cross
examination, he has fully supported the
contents of the F.I.R. and statement of PW
1 Chandra Pal.

(iii) PW 3, Kallu is father of the
victim. In his examination-in-chief he has
deposed that the occurrence is of about 11⁄2 years ago. The age of the victim was 21/2 to 3 years. The victim disappeared
while
playing.
He
along
with
his
neighbours were searching her. At about
12.30 PM victim was brought there (police
station) by some person of village ''Gonga'
P.S. Raya, then he reached there and came
to know that the accused Surendra who
was apprehended and brought there by
them had committed rape on her daughter
(victim). Those persons told him that
accused was caught by them while he was
committing rape on the victim in the field
of Charan Singh. He further deposed that
victim sustained injuries in her private part
due to commission of rape on her. Her
condition was very serious and there was
blood on all over her clothes. After
registration of F.I.R. victim was sent to
District Hospital Mathura for medical
treatment. The victim was brought in the
Court below by this witness at the time of
recording his statement. At the time of
recording of the statement of this witness
in the Court, the victim was about 4 years
old but was unable to speak properly,
some questions were asked by the Court
but the victim could not speak.

(iv) PW 4, Constable Vijay
Singh was posted as Head Constable in
the concerned police station at the time of
alleged incident. He has registered this
case on the basis of written report and has
also made entry in General Diary (G.D.).
In his statement, he has proved concerned
G.D. report No.20 dated 05.02.2002 at
13.15 hour Ext. Ka-3 and chik F.I.R. Ext.
Ka-2. In his cross examination he has
admitted that at some places in chik F.I.R.
there were overwritings and whitenings.
He has also stated that at the time of
registration of F.I.R. scribe Rakesh Bansal
s/o Kishan Lal Bansal, witnesses Murari
and Pappu, resident of village ''Gonga',
Jagveer resident of Dhaku, Mohan Singh
Punia resident of Bisawali along with the
victim and accused Surendra were present
there. He had not seen any member of the
family of the victim there. Chik F.I.R. was
sent to the Court on next day. There is
overwriting at the top of the chik F.I.R.
Ext. Ka-2 and G.D. Ext. Ka-3.

(v) PW 5, Indra Pal Singh
Tomar has deposed that on the date of
incident i.e. 05.02.2002, he was posted as
Sub-inspector in police station Raya,
F.I.R. was lodged in his presence. He was
handed over the investigation of this case
on 05.02.2002 and on that day recorded
the statement of Head Constable Vijay
Singh, who had registered F.I.R. of this
case, besides him statement of informant
Chandra Pal (PW1) was also recorded and
medical reports were copied in case diary
by him. On 06.02.2002, he prepared site
plan at the pointing out of the complainant
vide Ext. Ka-4. He recorded the statement
of father of the victim Kallu and witness
Murari on the same day, i.e. 28.03.2002.
He recorded the statements of Pappu and
Jagveer
on
10.04.2002.
After
investigation, he has submitted charge
sheet in Case Crime No. 223 of 2002,
under Section 376 I.P.C. against the
accused Surendra. He has proved the
charge sheet paper no. 4A/2 which is Ext.
Ka-5
in
the
record.
In
his
cross
examination he has stated that victim was
not produced before the Court by him. He
had not seen the clothes of the victim,
which were worn by her at the time of
1 All. Surendra Vs. State of U.P.
801
incident. He had not taken sample of blood
stained and plain earth from the spot. He
had not recorded statement of the doctor.
Statement of father of the victim Kallu
was recorded by him on 06.02.2002.

(vi)
PW
6,
Dr.
Sunita
Mazumdar
has
conducted
medical
examination of the victim on 05.02.2002 at
about 3 PM and has prepared medical
examination report. She has proved injury
report of the victim which is Ext. Ka-6 on
the record. She has also stated that she
could not count the teeth of the victim as
she was uncooperative and was weeping
bitterly. She had referred the victim to
S.N. Medical College, Agra for her further
treatment as the injuries to her were
grievious in nature, but not mentioned in
the report. In her cross examination PW 6,
Dr. Sunita Mazumdar has stated that report
of the pathology and radiologist was not
brought before her, therefore, she has not
prepared
supplementary
medical
examination report.

8. After the closure of prosecution
evidence
the
statement
of
the
accused/appellant Surendra under Section
313 Cr.P.C. was recorded on 01.09.2003.
Accused stated that he had been falsely
implicated in this case on the basis of false
and fabricated evidence. He further stated
that he had come to Raya in search of
work of watchman for himself. The
complainant and his companions assaulted
him and falsely implicated in this case
after snatching his money and luggage
from him. He demanded opportunity for
adducing evidence in defence.

9. In defence Dr. B.P. Sarswat, who
was posted as emergency Medical Officer
in District Hospital Mathura at the time of
occurrence was examined as DW 1. He
had conducted medical examination of the
accused-appellant Surendra on 05.02.2002
on request of Station Officer of concerned
police station. In his statement, he has
proved medical examination report Ext.
Kha-1 of the accused Surendra.

10. After hearing learned counsel for
the parties, scrutinizing and evaluating the
evidence, the learned Trial Court has
recorded
conviction
of
the
accused
Surendra under Section 376 I.P.C. and
passed sentence as already mentioned in
Para 1 of this judgement.

11.

Being
aggrieved
by
the
judgement and order of the learned Trial
Court, this appeal has been preferred by
the accused appellant.

12. We have heard Sri A.K. Tripathi,
learned counsel for the appellant and Sri
Ajit Ray, learned A.G.A. appearing on
behalf of the State and perused the entire
material on record.

13. Learned counsel for the appellant
has mainly raised following points:-

(i) Both the eye witnesses PW 1,
Chandra Pal and PW 2, Murari are the
chance witnesses, they are resident of
different village "Gonga". There are
material contradictions and inconsistencies
in the statements of both the aforesaid
witnesses; their testimonies inspire no
confidence. PW 3 Kallu, father of the
victim is not an eye witness. He happened
to reach there after the alleged incident. In
fact the accused/appellant had come to
Raya in search of work of watchman. The
complainant and others snatched his
money and luggage and falsely implicated
him in this case.

(ii)
There
are
overwritings,
cuttings in chik F.I.R., and it was sent to
802 INDIAN LAW REPORTS ALLAHABAD SERIES
the concerned Magistrate on next day. The
F.I.R., has not been lodged by the father of
the
victim.
It
was
prepared
after
consultation with Police which creates
serious doubt on prosecution version.

(iii) Testimonies of aforesaid
witnesses of fact Chandra Pal and Murari
are not supported by the medical evidence.
The doctor has not given any opinion
about commission of rape on the victim.

(iv) Bloodstained clothes of the
victim and the appellant were not taken by
the I.O., and were not sent to expert for its
examination.

(v) Place of occurrence has not
been proved, sample of bloodstained and
plain earth has not been collected by the
I.O., from the spot.

(vi) Learned counsel for the
appellant further contended that learned
Trial court has convicted and sentenced
the appellant against the settled principle
of law, hence not sustainable in the eyes
law. Learned counsel for the defence lastly
argued that sentence awarded to the
appellant is too severe and harsh. He is
already in custody in this offence for about
17-1⁄2 years. He is a very poor person. A
lenient view be taken keeping the long
detention and background of the appellant.

14. Sri Ajit Ray, learned A.G.A.
appearing on behalf of the State has
refuted the arguments advanced by the
learned counsel for the appellant that the
first information report is prompt; PW 2
Chandra Pal and PW 3 Murari are
independent eye witnesses and they have
fully supported the prosecution version.
The appellant was caught by them on the
spot. PW 3 Kallu has also supported the
prosecution version. Ocular testimonies
are fully corroborated by the medical
evidence. He has further contended that
minor contradictions in the statements of
witnesses will not affect the prosecution
case. There will be no adverse effect on
the prosecution version by overwriting and
whitening
as
shown
in
the
F.I.R.
Prosecution case is fully proved by cogent
evidence of the independent eye witnesses
supported
with
medical
evidence,
therefore, mere defect in investigation will
not be a ground to discard the testimony of
the eye witnesses.

15. Now, we have to scrutinize and
consider the reliability of witnesses of fact
examined
by
the
prosecution.
The
prosecution has examined PW 1, Chandra
Pal, PW 2, Murari and PW 3, Kallu as
witnesses of fact.

16. PW 1, Chandra Pal stated the
purpose of his going to Raya town from
his village ''Gonga' and how he reached
the spot at the time of incident he has
stated that he himself has seen the accused
committing rape on the victim..

PW 1 is not related to the victim
or his father Kallu. He was not even
knowing the father's name of the victim
which was told him by the persons living
on the side of the road before railway
station. He is not inimical to the accused.
He along with other persons caught the
accused on the spot and handed over to the
Police. There is no material contradiction
on any point in his statement. In his
lengthy cross-examination this witness
remained firm and reiterated again and
again that he had seen the entire
occurrence.

17. PW 2, Murari has deposed in his
examination-in-chief and reiterated in his
cross examination that at the time of
incident, he has also reached the spot with
Chandrapal (PW1) and had seen that
1 All. Surendra Vs. State of U.P.
803
accused of this case Surendra was
committing rape on the victim and he was
apprehended on the spot by them.

PW 2, Murari is not related to
the victim or his family members, he has
seen the victim and accused for the first
time on the spot. In prompt F.I.R. Ext. Ka2 and in statement of PW 1, Chandra Pal
his name has been mentioned as an eye
witness of the occurrence. In his statement
he has stated the purpose for going to Raya
on that day. PW 4, Constable Vijay Singh
has also stated that this witness was
present with the informant at the time of
registration of F.I.R.

18. PW 3, Kallu is father of the
victim. He was not an eye witness but he
reached to the Police Station after the
occurrence. He has stated that victim is his
daughter and at the time of occurrence her
age was 2-1/2 to 3 years. He has also
stated that there was injury on her private
part, there was blood on her body and
clothes. Her condition was very critical.
After lodging of F.I.R., victim was sent to
District Hospital, Mathura for treatment.
He has also stated that accused was caught
and brought to the Police Station by PW 1,
Chandra Pal and PW 2, Murari.

At the time of recording of the statement
of PW 3, Kallu in the Court, the victim
was also in his lap. PW 3, Kallu stated that
she could not speak. Some questions were
also asked by the Trial Court, but she did
not speak.

19. Learned counsel for the appellant
submitted that both the eye witnesses PW
1, Chandra Pal and PW 2, Murari are of
different village "Gonga" which is about
one kilometer from the spot. It is further
submitted that both the aforesaid witnesses
are chance witnesses and their testimonies
are not reliable. As regards, their being
chance witnesses there is no doubt, but it
is not rule of law that the chance witnesses
cannot be believed. The reason for a
chance witnesses being present on the spot
and his testimony requires close scrutiny
and if same is otherwise found reliable, his
testimony cannot be discarded merely on
the ground of his being chance witness.

Regarding reliable testimony of
chance witnesses, in Sachchey Lal Tiwari
Vs. State of U.P. (2004) 11 Supreme
Court Cases 410 Hon'ble Apex Court has
held as under:

"Coming to the plea of the
accused that PW 2 was a ''chance witness''
who has not explained how he happened to
be at the alleged place of occurrence it has
to be noted that the said witness was
independent witness. There was not even a
suggestion to the witness that he had any
animosity towards any of the accused. In a
murder trial by describing an independent
witness as ''chance witness'' it cannot be
implied thereby that his evidence is
suspicious and his presence at the scene
doubtful. Murders are not committed with
previous notice to witnesses - soliciting
their presence. If murder is committed in a
dwelling house, the inmates of the house
are natural witnesses. If murder is
committed in a street, only passers-by will
be witnesses. Their evidence cannot be
brushed aside or viewed with suspicion on
the ground that they are mere ''chance
witnesses''.
The
expression
''chance
witness'' is borrowed from countries where
every man's home is considered his castle
and everyone must have an explanation for
his presence elsewhere or in another
man's castle. It is quite unsuitable an
expression in a country where people are
less formal and more casual, at any rate in
804 INDIAN LAW REPORTS ALLAHABAD SERIES
the matter of explaining their presence.
The courts below have scanned the
evidence of PW 2 in great detail and found
it to be reliable. We find no reason to
differ".

In Sarvesh Narain Shukla Vs.
Daroga Singh And Others (2007) 13
Supreme Court Cases 360; it was held by
Hon'ble Apex Court that if the chance
witness has explained his presence by
stating that he had gone for 'Darshan' and
was on his way back home and Court
comes to the conclusion that testimony of
such a chance witness is credible, the
evidence cannot be thrown out merely on
the ground that the witness happened to be
present by chance.

In Khujji @ Surendra Tiwari
Vs. State of Madhya Pradesh (1991) 13
SCC 627; it was held by Hon'ble Apex
Court that the witness being a resident of
the locality in the vicinity where the
occurrence had taken place, his presence at
the market place could not be considered
to be unnatural.

In the instant case PW 1,
Chandra Pal and PW 2, Murari, both have
explained their presence on the spot at the
time of incident. In his cross-examination
PW 1, Chandra Pal has deposed that he
was going from his village "Gonga" to
Raya town for marketing purpose as and
he had to purchase sugar, oil, chillies etc.
PW 2 Murari has deposed that he is a
driver by profession and used to drive
Jeep, he was going from his village to Jeep
Stand Raya for driving work. Both the
aforesaid witnesses are of nearby village
"Gonga" and for their personal work they
were going to Raya town on foot on the
fateful day and when they reached near the
field of Charan Singh, they heard cries of
the victim and reached on the spot. Thus,
both the above witnesses have given
proper explanation of their presence on the
spot
at
the
time
of
incident.
Accused/appellant was also caught and
handed over to the police by both the
aforesaid
witnesses.
Therefore,
their
presence on the spot at the time of incident
is natural and believable. There is no
material contradictions in the evidence of
the witnesses to doubt their testimony.
They were totally independent witnesses,
who had no cause to give false evidence
against the appellant and their evidence is
acceptable regarding the time, place and
manner of incident as well as the identity
of the accused/appellant.

20. Learned counsel for the appellant
submitted that appellant is resident of
'Nepal' and on the date of occurrence he
had come Raya in search of work of
watchman. He further submitted that both
the said eye witnesses PW 1 and PW 2
snatched his money and luggage from him
and implicated him in this false case. The
above submission of learned counsel for
the appellant is unbelievable because it has
not been specified anywhere that what
luggage and how much money was with
the appellant which was snatched by the
witnesses. There is no evidence of any
such kind in support of above submission.

21. PW 1, Chandra Pal and PW 2,
Murari are the eye witnesses of the
incident, there is no inconsistency in their
statements, they have fully supported
prosecution version, they are not related to
the victim, they had no animus against the
accused, hence their testimonies are
cogent, credible and trustworthy.

22. As regards corroboration of
ocular testimony with medical evidence,
the victim was medically examined on the
same day at 3.00 PM at Government
Hospital, Mathura. Medical examination
1 All. Surendra Vs. State of U.P.
805
report is Ext. Ka-6, which has been proved by
PW 6, Dr. Sunita Mazumdar. On private part
of victim left lateral vaginal tear and right
lateral vaginal tear were found. Bleeding was
also present there. Medical examination report
of the victim thus fully supported the ocular
testimonies of PW 1 and PW2. Learned
counsel for the defence raised two objections
on medical examination report of the victim.
First objection was raised about inconsistency
regarding period of injury and second
objection was raised about the absence of
opinion of doctor regarding commission of
rape.

As regards first objection, the
occurrence of the incident was at 12.30
PM and victim was medically examined at
3 PM. According to it, duration of injury
was
of
2-1/2
hours,
in
medical
examination report duration of injury is
mentioned as 6 hours. Thus, there is
difference of 3-1/2 hours between the two
but in this regard opinion of the doctor
cannot be specified and there may be
variation. In examination-in-chief, PW 6
Dr. Sunita Mazumdar has herself stated
that the injury of the victim may also be of
about 12.00 noon on 05.02.2002. It is also
established legal position that if there is
difference
between
reliable
ocular
testimony and medical report, ocular
testimony shall prevail.

As regards second objection
raised by learned counsel for the defence,
though PW 6 Dr. Sunita Mazumdar has
not
given
any
opinion
about
the
commission of rape, but she has proved
the injuries on the private part of the
victim, which itself supports the ocular
version regarding commission of rape on
the victim.

23. Accused/appellant was also
medically examined by the DW 1 Dr. B.P.
Sarswat on 05.02.2002 at 4.25 PM in
Government
Hospital,
Mathura.
The
medical examination report is Ext. kha-1
which has been proved by DW 1, Dr. B.P.
Sarswat. According to the injury report
Ext. kha-1, injury nos. 1, 2 and 3 were
abrasions on leg and injury no.9 was slight
redness on glans penis of the accused.
According to the doctor (DW 1) above
injuries of the accused were due to friction
and may be caused by falling on earth and
also by committing rape on hard surface.
Besides above injuries of the appellant,
blood stains were also found on the cuff of
the shirt of the accused and also on both
the under garments of the appellant which
was handed over to Police Constable by
doctor (DW 1) for examination by the
expert but examination report is not
available on record, injury report of the
appellant and his blood stained clothes
also corroborate the prosecution version.

24. Learned counsel for the defence
submitted that there are whitenings and
overwriting at several places in chik F.I.R.,
and
F.I.R.
was
sent
to
concerned
Magistrate after two days from the date of
incident which creates a strong doubt
about prosecution version in respect of the
alleged incident. We have perused the
original records of this case. According to
the F.I.R., incident occurred at 12.30 PM
on 05.02.2002 and F.I.R. was registered at
the concerned Police Station at 01.15 PM,
distance of Police Station from the place
of occurrence is 1.5 furlong. From the
above, it emerges that F.I.R. of this case is
a prompt F.I.R. In chik F.I.R. there are
whitenings at three places and overwriting
figure '6' of Section '376' I.P.C. but there is
no such overwriting or whitening on
carbon copy of the concerned G.D., Report
No.20, time 13.15 of 05.02.2002, time of
occurrence, time of registration and copy
806 INDIAN LAW REPORTS ALLAHABAD SERIES
of
written
report
of
the
informant
transcribed on back of the chik F.I.R. The
place where whitenings or overwriting are
made on chik F.I.R. will have no adverse
effect on prosecution version which has
been proved by the cogent testimony of
eye witnesses supported by medical
evidence.

25. As regards the second objection
raised regarding sending the F.I.R. after
two days, the F.I.R. was registered on
05.02.2002, signature of the Magistrate on
it was of 07.02.2002 i.e. after about two
days. In this case F.I.R. was lodged
promptly, accused was caught on the spot,
victim
and
accused
were
medically
examined in government hospital on the
same day. After a few hours of the
occurrence on the same day the statement
of the informant was recorded by I.O.,
therefore, there would not be any adverse
effect in sending the copy of F.I.R. to the
concerned Magistrate after two days. It has
been held by Hon'ble Apex Court in Anil
Rai Vs. State of Bihar (2001) 7 SCC 318
that delay in sending the copy of F.I.R. to
the area Magistrate is not material where
the F.I.R., is shown to have been lodged
promptly and investigation was started on
that basis.

26.

As
regards,
omission
of
Investigating Officer to take sample of
bloodstained earth from the spot and
bloodstained clothes of the victim and
accused and to send them for forensic
examination by expert is concerned, it is
mere slackness, carelessness and fault on
the part of I.O. which stands completely
covered by the cogent credible ocular
testimony
corroborated
by
medical
evidence and the prosecution version
cannot be disbelieved only on this ground
as held by Hon'ble Apex Court in
Maqbul @ Zubir & others Vs. State of
U.P., A.I.R. (2010) SC 762. In the case at
hand, in the F.I.R. place of occurrence was
the
field
of
Charan
Singh,
the
Investigating Officer has inspected the
place of occurrence on the next day i.e. on
06.02.2002 at the pointing of the informant
and has prepared site plan Ex ka-4 in
which place of occurrence has been shown
at Southern east of field of Charan Singh.
PW1 Chandra Pal and PW 2 Murari, both
the eye witnesses have deposed that the
incident occurred in the field of Charan
Singh. PW 2 Murari has made it more
specific by saying that incident occurred
near Southern Cabin of Railway Station in
the field of Charan Singh. Thus, there is no
doubt about the place of occurrence which
is at South East part of the field of Charan
Singh.

On the basis of discussion made
herein above and also considering material
evidence on record, we are of the
considered
opinion
that
findings
of
conviction for the offence punishable
under Section 376 I.P.C. recorded by the
learned Trial Court are well substantiated
by the evidence on record. The learned
Trial Court has appreciated the evidence in
right perspective.