# Surendra Kumar v. State of U.P. Opp. Party

- **Citation:** (2023) 1 ILRA 1043
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-22
- **Case number:** Criminal Appeal No. 4666 of 2014
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surendra-kumar-v-state-of-u-p-opp-party-49298
- **Pages:** 8

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Section 32- Indian Penal Code, 1860-
Section 302 & 304 (Part I)- Death of
deceased was a homicidal death -Dying
declaration on record, in which the
1044 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased
has
stated
that
fire
was
triggered all of sudden. There was no
enmity or quarrel between the appellant
and the deceased. Hence, it can be safely
opined that the appellant did not want to
do away with the deceased. Clearly the
matter hinges on two aspect. One is dying
declaration of the deceased by which it is
not transpired that there was intention of
appellant to murder the deceased as
discussed above. The second aspect is that
there was some quarrel with the son of
the deceased earlier at the gate of the
police
station,
where
informant
and
appellant were posted- Offence would be
punishable under Section 304 (Part I)
because it appears that the death of the
deceased was not premeditated and it is a
case of single gun shot. This case falls
within the purview of culpable homicide
not amounting to murder.

Where, even as per the dying declaration, the
act of the appellant was sudden and not premeditated and was a case of a single shot,
hence there was no intention to commit the
murder of the deceased, the case would fall
within the purview of culpable homicide not
amounting to murder.

Quantum
of
punishment-
Gravity
of
offence, manner of commission of crime,
age and sex of accused should be taken
into account- The judicial trend in the
country has been towards striking a
balance
between
reform
and
punishment-
The
criminal
justice
jurisprudence adopted in the country is
not
retributive
but
reformative
and
corrective. At the same time, undue
harshness
should
also
be
avoided
keeping in view the reformative approach
underlying in our criminal justice system.
As the accused has already served the
sentence of 10 years and 7 months with
remission as per jail report and also he
would have lost his job because he was a
police
constable-
The
conviction
of
appellant u/s 302 IPC is converted into
Section 304 (Part I) IPC and appellant is
sentenced
for
the
period
already
undergone by him with the fine.
As
the
Indian
criminal
jurisprudence
is
reformative
and
not
retributive,
hence
punishment imposed should be proportionate to
the gravity of the offence and should not be
unduly harsh, hence as the offence is culpable
homicide
not
amounting
to
murder,
the
appellant has lost his job and has spent more
than 10 years in prison, hence sentence reduced
to that already undergone by him. (Para 14, 16,
17, 21, 22, 24, 25)

Criminal Appeal partly allowed. (E-3)

Case Law/ Judgements relied upon:-

## Text

1 All. Surendra Kumar Vs. State of U.P.
1043
referred to above, in the prosecution story.
The improbability of prosecution version
regarding the genesis, events and the
manner in which the events unfolded
creates a doubt on the prosecution case
which has not been examined by the court
below in correct perspective. The finding of
the court below that prosecution has
established its case beyond reasonable
doubt, therefore, cannot be sustained,
except in the case of accused Ram Briksha
Yadav in respect of whom the punishment
is being altered to Section 304 (Part-I) as
against Section 302 IPC.

48. For the reasons and discussions
held above, the Criminal Appeal No.4062
of 2008 filed by the accused appellant Ram
Briksha Yadav deserves to succeed and is
therefore allowed in part. The conviction
and sentence of accused appellant Ram
Briksha Yadav vide judgment and order
dated 30.04.2008/02.05.2008, under section
302 IPC, is altered and substituted under
section 304 Part I IPC. Since the accused
appellant has already undergone actual
incarceration of over 17 years, and with
remission the period of incarceration is
more than 20 years, he shall be released on
the sentence already undergone by him,
from jail, forthwith, unless he is wanted in
any other case, subject to compliance of
section 437A Cr.P.C.

So far as the Criminal Appeal Nos.
3081 of 2008 (filed by accused appellant
Prem Singh), 3082 of 2008 (filed by
accused appellants Subhash Yadav, Ram
Poojan Yadav & Virendra Yadav), 3083 of
2008 (filed by accused appellant Manoj
Gupta) and 3274 of 2008 (filed by accused
appellant Hanuman Yadav) are concerned,
it is observed that none of these accused
appellants have been specifically assigned
any weapon of assault nor have been
assigned the role of causing injuries to
deceased Mahatam Yadav or the injured
Rakesh Kumar Yadav, Janardan Yadav and
Jai
Prakash
Yadav.
Their
appeals
accordingly succeed and are allowed and
conviction and sentence of accused Prem
Singh, Subhash Yadav, Ram Poojan Yadav,
Virendra
Yadav,
Manoj
Gupta
and
Hanuman Yadav vide judgment and order
dated 30.04.2008/02.05.2008 is set aside. If
the abovenoted appellants are in jail, they
shall be released forthwith or if they are on
bail their sureties and bail bonds shall stand
discharged and they shall be set at liberty,
unless wanted in any other case, subject to
compliance of section 437A Cr.P.C.

49. No order is passed as to costs.
----------
(2023) 1 ILRA 1043
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.12.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 4666 of 2014

Surendra Kumar ...Appellant
Versus
State of U.P. ...Opp. Party

Counsel for the Appellant:
Sri S.P. Sharma, Sri Ajay Kumar Pandey, Sri
Gaurav Kakkar, Sri Kartikey Saran, Sri Satish
Trivedi(Senior Advocate), Sri Sheshadri Trivedi

Counsel for the Opp. Party:
Govt. Advocate, Km. Rachna Tiwari

Criminal Law- Indian Evidence Act, 1872-
Section 32- Indian Penal Code, 1860-
Section 302 & 304 (Part I)- Death of
deceased was a homicidal death -Dying
declaration on record, in which the
1044 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased
has
stated
that
fire
was
triggered all of sudden. There was no
enmity or quarrel between the appellant
and the deceased. Hence, it can be safely
opined that the appellant did not want to
do away with the deceased. Clearly the
matter hinges on two aspect. One is dying
declaration of the deceased by which it is
not transpired that there was intention of
appellant to murder the deceased as
discussed above. The second aspect is that
there was some quarrel with the son of
the deceased earlier at the gate of the
police
station,
where
informant
and
appellant were posted- Offence would be
punishable under Section 304 (Part I)
because it appears that the death of the
deceased was not premeditated and it is a
case of single gun shot. This case falls
within the purview of culpable homicide
not amounting to murder.

Where, even as per the dying declaration, the
act of the appellant was sudden and not premeditated and was a case of a single shot,
hence there was no intention to commit the
murder of the deceased, the case would fall
within the purview of culpable homicide not
amounting to murder.

Quantum
of
punishment-
Gravity
of
offence, manner of commission of crime,
age and sex of accused should be taken
into account- The judicial trend in the
country has been towards striking a
balance
between
reform
and
punishment-
The
criminal
justice
jurisprudence adopted in the country is
not
retributive
but
reformative
and
corrective. At the same time, undue
harshness
should
also
be
avoided
keeping in view the reformative approach
underlying in our criminal justice system.
As the accused has already served the
sentence of 10 years and 7 months with
remission as per jail report and also he
would have lost his job because he was a
police
constable-
The
conviction
of
appellant u/s 302 IPC is converted into
Section 304 (Part I) IPC and appellant is
sentenced
for
the
period
already
undergone by him with the fine.
As
the
Indian
criminal
jurisprudence
is
reformative
and
not
retributive,
hence
punishment imposed should be proportionate to
the gravity of the offence and should not be
unduly harsh, hence as the offence is culpable
homicide
not
amounting
to
murder,
the
appellant has lost his job and has spent more
than 10 years in prison, hence sentence reduced
to that already undergone by him. (Para 14, 16,
17, 21, 22, 24, 25)

Criminal Appeal partly allowed. (E-3)

Case Law/ Judgements relied upon:-

1. St. of U.P. Vs Mohd. Iqram & anr, (2011) 8
SCC 80

2. Mohd. Giasuddin Vs St. of A.P., AIR 1977 SC
1926

3. Deo Narain Mandal Vs St. of U.P., (2004) 7
SCC 257

4. Ravada Sasikala Vs St. of A.P. AIR 2017 SC
1166
(Delivered by Hon'ble Ajai Tyagi, J.)

1. This appeal has been preferred
against the judgement and order dated
27.11.2014 Sessions Judge, Hamirpur in
Session Trial No.9 of 2009 (State Vs.
Surendra Kumar) arising out of Case Crime
No.02 of 2008 under Section 302, 323 IPC,
Police Station- Chikasi, District- Hamirpur,
whereby the accused-appellant was convicted
under Section 302 IPC and sentenced to
imprisonment for life with fine of Rs.20,000/-
and in case of default of payment of fine, to
undergo further imprisonment for two year
and under Section 323 and sentenced to one
year with fine of Rs.1,000/- and in case of
default of payment of fine, to undergo further
imprisonment of three months.

2. The brief facts as cull out from the
record are that a first information report
1 All. Surendra Kumar Vs. State of U.P.
1045
was lodged by informant Sanjay Kumar at
Police
Station-
Chikasi,
District-
Hameerpur on 02.01.2008. At about 7:15
pm, the informant was going to his quarter
after having the tea at the gate of police
station. At that time constable Surendra
Kumar of the same police station- Chikasi
came with the rifle in his hand and started
abusing him. When he was stopped from
abusing then he beat the informant with the
butt of the refile. He ran inside the police
station and fell down. His mother Maya
Dubey came there and asked who has
beaten him. At that very moment constable
Surendra Kumar cake there and fired at the
mother
of
the
informant
with
his
government rifle, which hit in the leg of his
mother.

3. I.O. tookup the investigation, visited
the spot, prepared site plan and mother of the
informant was taken to the Government
Hospital, Rath and got admitted there. Her
dying declaration was recorded by NaibTehshildar on the same day. I.O. recorded the
statements of witnesses u/s 161 and 164
Cr.P.C. Recovery memo of refile and live as
well as empty cartridges were prepared.
During the course of treatment the injured
mother of the informant passed and the case
was converted into Section 302 of IPC. Post
mortem of the deceased was conducted and
post mortem report was prepared by the
doctor after inquest proceedings. After
completion of investigation, charge sheet was
submitted by I.O. against the appellant
Surendra Kumar u/s 307/302, 323 and 409
IPC and under Section 29 Police Act.

4. The case being exclusively triable by
court of sessions was committed to the
sessions court.

5. The learned trial court framed
charges against the appellant u/s 302 and
323 of IPC. The accused denied the charge
and claimed to be tried. The prosecution so
as to bring home the charge, examined five
witnesses, who are as under:-

1
Sanjay Kumar Dwivedi
P.W.1
2.
Archana Dwivedi
P.W.2
3.
Deen Dayal
P.W.3
4.
Km. Parul
P.W. 4
5.
Dr. Arvind Kumar Jain
P.W. 5
6.
Umesh Kumar
P.W.6
7.
Asharam Verma
P.W.7
8.
Vivek Singh
P.W.8
9.
Salikram
P.W.9
10.
Dr. R.K. Verma
P.W.1
0

6. In support of the ocular version of
the witnesses, following documents were
produced and contents were proved by
leading evidence:

1.
F.I.R.
Ext. Ka2
2.
Written report
Ext. Ka1
3.
Dying declaration
Ext.Ka16
4.
Recovery memo of rifle,
live cartridges & empty
cartridge
Ext. Ka5
5.
Recovery
memo
of
blood stained and plain
earth
Ext. Ka7
6.
Injury report
Ext.Ka17
7.
P.M. report
Ext. Ka4
8.
Report
of
Forensic
Science Laboratory
Ext.Ka18
9.
Report
of
Forensic
Science Laboratory
Ext.Ka19
1046 INDIAN LAW REPORTS ALLAHABAD SERIES
10.
Report
of
Forensic
Science Laboratory
Ext.Ka20
11.
Panchayatnama
Ext.Ka10
12.
Charge sheet
Ext. Ka8
13.
Site plan with Index
Ext. Ka6
14.
Site plan with Index
Ext. Ka9

7. After completion of prosecution
evidence, the accused was examined under
Section 313 Cr.P.C. The accused examined
one witness in his defence.

8. Learned trial court after hearing
both the sides convicted the accused
appellant u/s 302, 323 IPC and sentenced
accordingly. Hence this appeal.

9. Heard Shri Satish Trivedi, learned
Senior
Advocate,
assisted
by
Shri
Sheshadri Trivedi, learned counsel for the
appellant and Shri Patanjali Mishra assisted
by Shri N.K. Srivastava, learned AGA as
well as perused the record.

10. Learned counsel for the appellant
submitted that there is major contradictions
in this matter, which goes to the root of this
case because in first information report, the
informant himself alleges that the bullet hit
the leg of his mother while the post mortem
report shows that the bullet was inserted in
the stomach of the injured/deceased. The
evidence of doctor PW5, who conducted
the post mortem, also goes to show that
injury No.1 is entry wound of gun shot in
the stomach and injury No.2 is exit wound
of the same entry wound. Hence, informant
is not the eye witness. It is next submitted
that there was no enmity between the
appellant and the deceased.

11. After some length of arguments,
learned counsel for the appellant submitted
that he is not asking for clean acquittal but
there is important aspect in this case that
this is not the case of murder because there
was no intention of appellant to do away
with the deceased. The act was not
premeditated nor there was any enmity
between the deceased and the appellant.
Moreover, in her dying-declaration also, the
deceased has stated that fire was triggered
all of sudden. Hence, if the prosecution
case is admitted as true even then it does
not travel beyond the scope of Section 304
of IPC. Learned counsel relied on the
judgements of this Court in Criminal
Appeal No.890 of 2002 (Javed Vs. State of
U.P.) delivered on 02.08.2022 and Criminal
Appeal No.4718 of 2018 (Niranjan Singh
Vs. State of U.P.) delivered on 16.12.2021.

12. The finding of fact regarding the
presence of witnesses at the place of
occurrence cannot be faulted with. Death of
deceased was a homicidal death. The fact
that it was a homicidal death takes this
Court to most vexed question whether it
would fall within the four-corners of
murder
or
culpable
homicide
not
amounting to murder. Therefore, we are
considering the question whether it would
be a murder or culpable homicide not
amounting to murder and punishable under
Section 304 IPC.

13. In State of Uttar Pradesh vs.
Mohd. Iqram and another, [(2011) 8 SCC
80], the Apex Court has made the following
observations in paragraph 26, therein:

"26. Once the prosecution has brought
home the evidence of the presence of the
accused at the scene of the crime, then the
onus stood shifted on the defence to have
brought-forth suggestions as to what could
have brought them to the spot in the dead of
night. The accused were apprehended and,
1 All. Surendra Kumar Vs. State of U.P.
1047
therefore, they were under an obligation to
rebut this burden discharged by the
prosecution and having failed to do so, the
trial-court was justified in recording its
findings on this issue. The High Court
committed an error by concluding that the
prosecution had failed to discharge its
burden. Thus, the judgment proceeds on a
surmise that renders it unsustainable."

14. Considering the evidence of the
witnesses and also considering the medical
evidence including post mortem report,
there is no doubt left in our mind about the
guilt of the present appellants. However,
the
question
which
falls
for
our
consideration is whether, on reappraisal of
the peculiar facts and circumstances of the
case, the conviction of the appellant under
Section 302 of I.P.C. of the Indian Penal
Code should be upheld or the conviction
deserves to be converted under Section 304
Part-I or Part-II of the Indian Penal Code. It
would be relevant to refer Section 299 of
the Indian Penal Code, which read as
under:

"299. Culpable homicide: Whoever
causes death by doing an act with the
intention of causing death, or with the
intention of causing such bodily injury as is
likely to cause death, or with the knowledge
that he is likely by such act to cause death,
commits the offence of culpable homicide."

15. The academic distinction between
''murder' and ''culpable homicide not
amounting to murder' has always vexed the
Courts. The confusion is caused, if Courts
losing sight of the true scope and meaning
of the terms used by the legislature in these
sections, allow themselves to be drawn into
minute abstractions. The safest way of
approach
to
the
interpretation
and
application of these provisions seems to be
to keep in focus the keywords used in the
various clauses of Section 299 and 300 of
I.P.Code. The following comparative table
will be helpful in appreciating the points of
distinction between the two offences.

Section 299
Section 300
A person commits
culpable homicide if
the act by which the
death is caused is
done-
Subject to certain
exceptions
culpable homicide
is murder if the act
by which the death
is caused is done.

INTENTION

(a) with the intention
of causing death; or
(1)
with
the
intention
of
causing death; or
(b) with the intention
of
causing
such
bodily injury as is
likely to
cause death; or
(2)
with
the
intention
of
causing
such
bodily injury as the
offender knows to
be likely to
cause the death of
the
person
to
whom the harm is
caused;

KNOWLEDGE
KNOWLEDGE
(c)
with
the
knowledge that the
act is likely to cause
death.
(4)
with
the
knowledge that the
act
is
so
immediately
dangerous
that it must in all
probability
cause
death
or
such
bodily injury as is
likely
to
cause
death, and without
1048 INDIAN LAW REPORTS ALLAHABAD SERIES
any
excuse
for
incurring the risk
of causing death or
such injury as is
mentioned above.

16. In the case in hand, there was
quarrel between the informant and the
appellant at the gate of police station.
Appellant and informant both are constable
posted at the same police station. When the
informant was beaten up by the appellant,
the deceased, who was mother of the
informant, came in between. Then the fire
was triggered by the appellant, which hit
the body of the deceased, there was dying
declaration on record, in which the
deceased has stated that fire was triggered
all of sudden. There was no enmity or
quarrel between the appellant and the
deceased. Hence, it can be safely opined
that the appellant did not want to do away
with the deceased. Clearly the matter
hinges on two aspect. One is dying
declaration of the deceased by which it is
not transpired that there was intention of
appellant to murder the deceased as
discussed above. The second aspect is that
there was some quarrel with the son of the
deceased earlier at the gate of the police
station, where informant and appellant
were posted. It is evident that the
occurrence had taken place on the spur of
the moment. Hence, the judgements relied
by the appellant in Criminal Appeal
No.4781 of 2018 and Criminal Appeal
No.890 of 2002 (supra) apply in full force
to the facts of this case. It is submitted by
Shri Mishra, learned AGA that the accused
is in jail since 27.01.2017.

17. On overall scrutiny of the facts and
circumstances of this case coupled with dying
declaration and other evidence on record, we
are of the considered opinion that offence
would be punishable under Section 304 (Part
I) because it appears that the death of the
deceased was not premeditated and it is a
case of single gun shot. This case falls within
the purview of culpable homicide not
amounting to murder.

18. As far as the quantum of
punishment is concerned, the period of
sentence should be in conformity with the
gravity of the offence.

19. In Mohd. Giasuddin Vs. State of
AP, [AIR 1977 SC 1926], explaining
rehabilitary
&
reformative
aspects
in
sentencing it has been observed by the
Supreme Court:

"Crime is a pathological aberration.
The criminal can ordinarily be redeemed and
the state has to rehabilitate rather than
avenge. The sub-culture that leads to antesocial behaviour has to be countered not by
undue
cruelty
but
by
reculturization.
Therefore, the focus of interest in penology in
the individual and the goal is salvaging him
for the society. The infliction of harsh and
savage punishment is thus a relic of past and
regressive times. The human today vies
sentencing as a process of reshaping a person
who has deteriorated into criminality and the
modern community has a primary stake in the
rehabilitation of the offender as a means of a
social defence. Hence a therapeutic, rather
than an 'in terrorem' outlook should prevail in
our
criminal
courts,
since
brutal
incarceration of the person merely produces
laceration of his mind. If you are to punish a
man retributively, you must injure him. If you
are to reform him, you must improve him and,
men are not improved by injuries."

20. 'Proper Sentence' was explained in
Deo Narain Mandal Vs. State of UP
[(2004) 7 SCC 257] by observing that
1 All. Surendra Kumar Vs. State of U.P.
1049
Sentence should not be either excessively
harsh
or
ridiculously
low.
While
determining the quantum of sentence, the
court should bear in mind the 'principle of
proportionality'. Sentence should be based
on facts of a given case. Gravity of offence,
manner of commission of crime, age and
sex of accused should be taken into
account. Discretion of Court in awarding
sentence cannot be exercised arbitrarily or
whimsically.

21. In Ravada Sasikala vs. State of
A.P. AIR 2017 SC 1166, the Supreme
Court referred the judgments in Jameel vs
State of UP [(2010) 12 SCC 532], Guru
Basavraj vs State of Karnatak, [(2012) 8
SCC 734], Sumer Singh vs Surajbhan
Singh, [(2014) 7 SCC 323], State of
Punjab vs Bawa Singh, [(2015) 3 SCC
441], and Raj Bala vs State of Haryana,
[(2016) 1 SCC 463] and has reiterated that,
in operating the sentencing system, law
should adopt corrective machinery or
deterrence based on factual matrix. Facts
and given circumstances in each case,
nature of crime, manner in which it was
planned
and
committed,
motive
for
commission of crime, conduct of accused,
nature of weapons used and all other
attending circumstances are relevant facts
which
would
enter
into
area
of
consideration. Further, undue sympathy in
sentencing would do more harm to justice
dispensations and would undermine the
public confidence in the efficacy of law. It
is the duty of every court to award proper
sentence having regard to nature of offence
and manner of its commission. The
supreme court further said that courts must
not only keep in view the right of victim of
crime but also society at large. While
considering
imposition
of
appropriate
punishment, the impact of crime on the
society as a whole and rule of law needs to
be balanced. The judicial trend in the
country has been towards striking a balance
between reform and punishment. The
protection of society and stamping out
criminal proclivity must be the object of
law which can be achieved by imposing
appropriate sentence on criminals and
wrongdoers. Law, as a tool to maintain
order and peace, should effectively meet
challenges confronting the society, as
society could not long endure and develop
under
serious
threats
of
crime
and
disharmony. It is therefore, necessary to
avoid undue leniency in imposition of
sentence.
Thus,
the
criminal
justice
jurisprudence adopted in the country is not
retributive but reformative and corrective.
At the same time, undue harshness should
also be avoided keeping in view the
reformative approach underlying in our
criminal justice system.

22. Keeping in view the facts and
circumstances of the case and also keeping
in view criminal jurisprudence in our
country which is reformative and corrective
and not retributive, this Court considers
that no accused person is incapable of
being reformed and therefore, all measures
should be applied to give them an
opportunity of reformation in order to bring
them in the social stream.

23. Since the learned counsel for the
appellant has not pressed the appeal on its
merit, however, after perusal of entire
evidence on record and judgment of the
trial court, we consider that the appeal is
devoid of merit and is liable to be
dismissed. Hence, the conviction of the
appellant is upheld.

24. As discussed above, 'reformative
theory of punishment' is to be adopted and
for that reason, it is necessary to impose
1050 INDIAN LAW REPORTS ALLAHABAD SERIES
punishment keeping in view the 'doctrine of
proportionality'. It appears from perusal of
impugned judgment that sentence awarded
by learned trial court for life term is very
harsh keeping in view the entirety of facts
and circumstances of the case and gravity
of offence. Hon'ble Apex Court, as
discussed above, has held that undue
harshness should be avoided taking into
account
the
reformative
approach
underlying in criminal justice system.

25. As the accused has already
served the sentence of 10 years and 7
months with remission as per jail report
and also he would have lost his job
because he was a police constable, we
deem it proper to award the punishment of
sentence
already
undergone
by
the
appellant.

26. The conviction of appellant u/s
302 IPC is converted into Section 304
(Part I) IPC and appellant is sentenced for
the period already undergone by him with
the fine of Rs.5,000/-. The appellant shall
undergo
three
months
simple
imprisonment in case of default of fine.
Conviction and sentence for the offence
u/s 323 of IPC has already been undergone
by the appellant. Fine for the offence u/s
323 IPC and default sentence in the same
shall remain intact.

27. Accordingly, the appeal is partly
allowed with the modification of the
sentence, as above.

28. Record and proceedings be sent
back to the court below for compliance.
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(2023) 1 ILRA 1050
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.01.2023

BEFORE

THE HON'BLE MAYANK KUMAR JAIN, J.

Crl. Appeal No. 6929 of 2017

Aslam & Anr. ...Appellants
Versus
State of U.P. ...Opp. Party

Counsel for the Appellants:
Sri V.P. Singh Kashyap, Sri Durvesh Kumar, Sri
Manish Kumar Kashyap, Sri Sanjay Singh

Counsel for the Opp. Party:
G.A.

Criminal Law- Indian Penal Code, 1860-
Sections 313 & 452 - Section 366- Section
376 D- The entire evidence adduced by
PW-1 Victim with regard to the occurrence
is full of contradictions and is not reliable
because firstly no documentary evidence
is available on record concerning the
alleged miscarriage. Acquaintance with
the accused Aslam indicates that there
was no occasion for the appellants to
commit house-trespass and abduction of
the victim on 12.06.2014, when both the
witnesses admitted that Aslam, the victim
and the mother of the victim, all were well
acquainted with each other.The medical
report also does not corroborate the
factum of rape with the prosecutrix-The
evidence of PW-1, the victim does not
inspire confidence since it is full of
material contradictions and ignorance
relating to material facts with regard to
the incident of forceful miscarriage caused
by the appellants/accused as well the
incident of abduction and gang rape
alleged to have happened on 12.06.2014.
PW-1 the victim does not appear to be a
sterling
witness
since
her
evidence
conclusively does not corroborate the
story of the prosecution.

Where the testimony of the prosecutrix has
material contradictions and is uncorroborated by
either the medical or any other evidence, then
the same cannot be relied upon for the