# Tariq @ Lohiya v. State of U.P

- **Citation:** (2025) 7 ILRA 991
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-07-24
- **Case number:** Criminal Appeal No. 1323 of 2018
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tariq-lohiya-v-state-of-u-p-53688
- **Pages:** 14

## Headnote

Sections 363, 366, 376 IPC and Section
3/4 POCSO Act could be sustained when
(i) the victim's statements under Sections
161 and 164 Cr.P.C. did not support
allegation
of
rape;
(ii)
medical
and
forensic evidence did not corroborate
sexual assault; (iii) material discrepancies
existed in prosecution evidence; and (iv)
the Investigating Officer and several
witnesses were not examined.

Headnotes
Indian Penal Code, 1860 - ss. 363, 366,
376; POCSO Act, 2012 - ss. 3/4; Criminal
Procedure Code, 1973 - ss. 161, 164, 313,
53-A - Criminal Trial - Appreciation of
Evidence - Victim's inconsistent versions
- Medical evidence not supporting rape -
Non-examination of IO - Benefit of doubt
- Acquittal.

Held:
Victim gave mutually contradictory versions at
every stage - under Section 161 Cr.P.C. she
stated she voluntarily accompanied appellantunder Section 164 Cr.P.C. she confirmed love
relationship and denied rape-before the Court-
for the first time, she alleged forcible sexual
assault-material contradictions strike at the root
of the prosecution case-victim fails the "sterling
witness" test. [Paras 46-49]

FIR contained false statements-involvement of
multiple persons fluctuated between three and
five-recovery of clothes doubtful-recovery memo
not
exhibited-several
cited
prosecution
witnesses were not produced- Investigating
Officer not examined,-causing serious prejudice
since he alone could clarify contradictions and
missing forensic reports.[Paras 39-43, 53-57]

Trial court adopted an erroneous approach-
examining defence before prosecution-by relying
on rhetoric concerning sexual offences rather
than evidence-Prosecution failed to establish
guilt beyond reasonable doubt-appellant entitled
to acquittal-Appeal allowed. [Paras 33, 59-63]
(E-14)

Case Law Cited

Rai Sandeep v. State (NCT of Delhi),
(2012) 8 SCC 21 - applied; Raju v. State
of M.P., (2008) 15 SCC 133 - relied on;
Raj Kishore Jha v. State of Bihar, (2003)
11 SCC 519 - distinguished; Behari
Prasad v. State of Bihar, (1996) 2 SCC 317
- referred to.

List of Acts / Statutes
Indian Penal Code, 1860; Protection of
Children from Sexual Offences Act, 2012;
Code of Criminal Procedure, 1973; Indian
Evidence Act, 1872.

List of Keywords

Rape; Abduction; Minor girl; Contradictory
statements; Victim credibility; Sterling
witness; Medical inconsistency; No DNA
evidence; No spermatozoa; False FIR; IO
not examined; Material discrepancies;
Benefit of doubt; Erroneous approach of
trial court; Acquittal.

Case Arising From
992 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal Appeal under Section 374(2) Cr.P.C.
challenging judgment dated 26 July 2018 of the
Additional Sessions Judge / Special Judge
(POCSO Act), Court No. 8, Sitapur in Special
Sessions Trial No. 1 of 2016 arising out of Case
Crime No. 268 of 2015, P.S. Sadarpur, Sitapur.

Appearance for Parties
For Appellant: Shri Ajay Kumar Singh, Shri
Rajiv Raman Srivastava,
Shri Sarvesh Kumar
For the State: Learned Government Advocate

## Text

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7 All. Tariq @ Lohiya Vs. State of U.P.
991

47.
The
appeal
is,
accordingly,
dismissed.
----------
(2025) 7 ILRA 991
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 24.07.2025

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Appeal No. 1323 of 2018

Tariq @ Lohiya ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Ajay Kumar Singh, Rajiv Raman Srivatava,
Sarvesh Kumar

Counsel for the Respondent:
Govt. Advocate

Issue for Consideration
Whether conviction of the appellant under
Sections 363, 366, 376 IPC and Section
3/4 POCSO Act could be sustained when
(i) the victim's statements under Sections
161 and 164 Cr.P.C. did not support
allegation
of
rape;
(ii)
medical
and
forensic evidence did not corroborate
sexual assault; (iii) material discrepancies
existed in prosecution evidence; and (iv)
the Investigating Officer and several
witnesses were not examined.

Headnotes
Indian Penal Code, 1860 - ss. 363, 366,
376; POCSO Act, 2012 - ss. 3/4; Criminal
Procedure Code, 1973 - ss. 161, 164, 313,
53-A - Criminal Trial - Appreciation of
Evidence - Victim's inconsistent versions
- Medical evidence not supporting rape -
Non-examination of IO - Benefit of doubt
- Acquittal.

Held:
Victim gave mutually contradictory versions at
every stage - under Section 161 Cr.P.C. she
stated she voluntarily accompanied appellantunder Section 164 Cr.P.C. she confirmed love
relationship and denied rape-before the Court-
for the first time, she alleged forcible sexual
assault-material contradictions strike at the root
of the prosecution case-victim fails the "sterling
witness" test. [Paras 46-49]

FIR contained false statements-involvement of
multiple persons fluctuated between three and
five-recovery of clothes doubtful-recovery memo
not
exhibited-several
cited
prosecution
witnesses were not produced- Investigating
Officer not examined,-causing serious prejudice
since he alone could clarify contradictions and
missing forensic reports.[Paras 39-43, 53-57]

Trial court adopted an erroneous approach-
examining defence before prosecution-by relying
on rhetoric concerning sexual offences rather
than evidence-Prosecution failed to establish
guilt beyond reasonable doubt-appellant entitled
to acquittal-Appeal allowed. [Paras 33, 59-63]
(E-14)

Case Law Cited

Rai Sandeep v. State (NCT of Delhi),
(2012) 8 SCC 21 - applied; Raju v. State
of M.P., (2008) 15 SCC 133 - relied on;
Raj Kishore Jha v. State of Bihar, (2003)
11 SCC 519 - distinguished; Behari
Prasad v. State of Bihar, (1996) 2 SCC 317
- referred to.

List of Acts / Statutes
Indian Penal Code, 1860; Protection of
Children from Sexual Offences Act, 2012;
Code of Criminal Procedure, 1973; Indian
Evidence Act, 1872.

List of Keywords

Rape; Abduction; Minor girl; Contradictory
statements; Victim credibility; Sterling
witness; Medical inconsistency; No DNA
evidence; No spermatozoa; False FIR; IO
not examined; Material discrepancies;
Benefit of doubt; Erroneous approach of
trial court; Acquittal.

Case Arising From
992 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal Appeal under Section 374(2) Cr.P.C.
challenging judgment dated 26 July 2018 of the
Additional Sessions Judge / Special Judge
(POCSO Act), Court No. 8, Sitapur in Special
Sessions Trial No. 1 of 2016 arising out of Case
Crime No. 268 of 2015, P.S. Sadarpur, Sitapur.

Appearance for Parties
For Appellant: Shri Ajay Kumar Singh, Shri
Rajiv Raman Srivastava,
Shri Sarvesh Kumar
For the State: Learned Government Advocate

(Delivered by Hon'ble Subhash Vidyarthi,
J.)

1. By means of the instant criminal
appeal filed under Section 374(2) Cr.P.C.,
the applicant has challenged the validity of
the judgment and order dated 26.07.2018
passed by Sri Ram Suchit, the learned
Additional Sessions Judge/ Special Judge,
POCSO Act, Court No. 8, Sitapur in
Special Sessions Trial No. 1 of 2016
arising out of Case Crime No. 268 of 2015,
under Sections 363, 366, 376 IPC and
Section 3/4 POCSO Act, Police Station
Sadarpur, District Sitapur.

2. The aforesaid case was instituted on
the basis of a written complaint given by
the informant on 15.11.2015 against three
persons, including the appellant Tariq alias
Lohiya and his two brothers Salim and
Idris, stating that when the informant's
daughter aged 16 years had gone out of her
home at about 10 p.m. in the intervening
night of 12/13.11.2015 for urinating, all the
accused persons enticed her away. He kept
on making enquiries about his daughter but
he could not get any knowledge about her.

3. It is recorded in the case diary that
the informant had come to the police
station along with a written complaint on
15.11.2015 and upon this complaint, an
FIR bearing Case Crime No. 268 of 2018
was lodged in Police Station Sadarpur,
District Sitapur at 13:10 on 15.11.2015,
under Sections 363, 366 IPC.

4. The informant gave a written
application to the Station House Officer
stating that although he had given a
complaint against the appellant and his
brothers but after making enquiries from
his daughter, it transpired that she had gone
away to the house of her maternal
grandfather out of her own free will and
that he had given the complaint containing
false accusations after being mislead by
some person. The informant stated that her
daughter had gone away to her maternal
grandparents' place and had returned out of
her own free will and he did not want any
further action on his complaint. This
application also had thumb impression of
the victim and her mother and it had the
signatures of five other persons.

5. The victim was taken to District
Women Hospital, Sitapur for her medico
legal examination on 19.11.2015. She told
the doctor that she had gone out of her
home at about 10:00 p.m. for urinating, five
persons caught her, took her to a grove, the
appellant committed the misdeed against
her and the other four persons kept a watch.
They had threatened her with a weapon and
had assaulted on her right leg with a banki.
She had fallen unconscious. The medico
legal examination report mentions that the
victim had not taken bath and she had
changed her undergarments but had not
washed her undergarments and clothes. On
external examination, a stitched wound of 5
c.m. x 1 c.m. was found on her right ankle.
The hymen was opined to be old torn and
healed. It is recorded in the medico legal
examination that the Investigating Officer
had collected the victim's undergarments
and clothes and had sealed the same for
7 All. Tariq @ Lohiya Vs. State of U.P.
993
DNA examination for evidence. The nail
clippings and blood samples of the victim
were taken for DNA examination and
samples of pubic hairs and vaginal swabs
were also collected for examination. On the
basis of the findings of the medico legal
examination, the doctor opined that there
were signs of use of force and sexual
violence could not be ruled out. This report
has been marked as exhibit A-2.

6. As per radiological examination,
age of the victim has been opined to be
about
17
years.
The
pathological
examination report mentions that no
spermatozoa were seen in the vaginal
smear slide.

7. A recovery memo dated 26.11.2015
states that only the victim's salwar suit was
collected on 26.11.2015 but as per it, her
undergarments were not collected. In her
additional statement, she stated that she had
handed over the clothes which she was
wearing at the time when she had slept with
the appellant.

8. The Headmaster of Primary School,
Lalpur, Biswan, Sitapur has given a
certificate dated 23.11.2015 stating that the
victim has studied in the primary school
since 12.06.2006 till 01.07.2010 in classes
1 to 5 and as per school records her date of
birth is 03.02.2000.

9. In the statement of the informant
recorded under Section 161 Cr.P.C., he
stated that his daughter had gone out of her
home for urinating at 10:00 p.m. on
12.11.2015. When she did not return after
quite some time he searched for her and
when he could not find her, he believed that
his daughter had been enticed away by the
three accused persons (the appellant and his
two brothers). He stated that the appellant
used to visit the informant's home and he
was not seen in the village on 13.11.2015.
The accused persons had dropped his
daughter at Dibiyapur crossing at about
09:00 p.m. She had an injury on her leg
which was treated at Biswan. He had gone
to the police station on 15.11.2015, had
lodged the FIR and had obtained its copy.
He further stated that his daughter (the
victim) was not present at his home and she
had gone to the house of some relatives.

10. The statement of the victim was
recorded by the Investigating Officer under
Section 161 Cr.P.C. on 19.11.2015 wherein
she stated that she was aged 20 years (at the
time
of
giving
the
statement).
On
12.11.2015, her mother had beaten her up
badly and had turned her out of her home.
In anger, she had gone with the appellant,
who is a resident of her village, at about
11:00 p.m. She did not know the name of
the village where the appellant had taken
her. The victim stated that she loves the
appellant and it was upon asking of the
appellant that she was returning to her
village on a motorcycle. There was a
pothole on the way due to which her leg got
entangled in the spokes of the motorcycle
wheel and got injured. She stated that her
father had lodged a false report in the
police station as Munna Jadugar keeps on
poisoning the minds of her parents. The
victim categorically stated that she loves
the appellant and has made physical
relations with her out of her own free will
and she had returned home in the evening
on 13.11.2015.

11. In the statement of the victim
recorded under Section 164 Cr.P.C. she
stated that her father had lodged a false FIR
against the appellant whereas she had gone
with the appellant on 12.11.2015 out of her
own free will. She had gone with him to
994 INDIAN LAW REPORTS ALLAHABAD SERIES
some village towards Biswan and had
stayed with him for three days. Whatsoever
the appellant did with her, did with her
consent. She stated that she knows the
appellant since her childhood, she loves
him for the past two years, she wanted to
marry him and to live with him and she did
not want to go with her parents.

12. The Investigating Officer recorded
the statement of Smt. Jagrani, elder sister of
the victim. She stated that she had got
married in the month of May, 2015 but her
gauna had not been performed and she was
living at her parent's home. Her younger
sister had gone out of the house to urinate
at 12:00 in the night on 12.11.2015 but she
did not come back. The enquiry made in
the village revealed nothing. The appellant,
being a neighbor, used to visit her home.
The appellant was also not present at his
home and, therefore, her family members
suspected that the appellant had enticed
away her younger sister and her father
lodged the FIR. She stated that her sister
had returned home.

13. The Investigating Officer recorded
the statement of independent witnesses
Smt. Usha Devi and Sarvesh Chauhan, both
of whom gave statements similar to the
statement of the victim's elder sister and
they stated that victim and the appellant
used to see each other since long and they
used to visit each other's home. They stated
that they did not want any innocent person
to be incarcerated.

14. In the additional statement of the
informant, he stated that he had not seen his
daughter going away with the appellant and
his family members but when his daughter
and the appellant both could not be traced
after the incident, he suspected that the
appellant had enticed away his daughter.

15. The Investigating Officer recorded
statement of the victim's mother, she
reiterated the FIR version and she further
stated that her daughter came back home
and at about 10:00 p.m. on 13.11.2015
along with her father (the informant) and a
relative Lal Bahadur on a motorcycle. She
had told that the appellant had enticed her
away. They did not go to lodge an FIR
immediately because of fear of public
shame and her husband went to the police
station 3-4 days after the incident and
registered the FIR.

16. Lal Bahadur Chauhan told the
Investigating Officer that he had taken the
informant to Dibiyapur crossing at about
09:00 p.m. on 13.11.2015, the victim was
standing at the crossing and he had brought
the informant and the victim back on his
motorcycle at about 10:00 p.m.

17. The Investigating Officer had
recorded statements of the appellant who
stated that he loved the informant's
daughter and she also loved him. Both of
them had gone away from the village on
12.11.2015.
The
Investigating
Officer
recorded the statements of the appellant's
brothers co-accused persons Salim and
Idrish both of whom stated that they were
innocent.

18. The Investigating Officer has
recorded that he had talked to several
villagers, all of whom had told him on the
condition of unanimity that the appellant
and the victim were in a relationship since
long. Possibly their parents were not aware
about it, but no one wanted to speak
anything in this regard as whosoever would
speak, would be portrayed evil. The
Investigating Officer further recorded that
no credible material could be collected
against the appellant's brothers co-accused
7 All. Tariq @ Lohiya Vs. State of U.P.
995
persons Salim and Idrish and they were
exonerated.

19.
The
Investigating
Officer
submitted a charge-sheet on 22.12.2015
against the appellant for commission of
offences under Sections 363, 366 and 376
IPC and 3/4 POCSO Act. The charge-sheet
mentions the name of the informant, the
victim, the victim's mother and 5 other
persons as witnesses, besides the doctor,
the headmaster of school and three police
persons (13 persons in all) as prosecution
witnesses.

20. The trial court framed charges
against the appellant for commission of
offences under Sections 363, 366, 376 IPC
and Section 4 of the POCSO Act on
27.01.2016.

21. The informant was examined as
PW-1. In his examination-in-chief he
reiterated the FIR version and he proved
the written complaint given by him to the
police on 15.11.2015, which was marked as
exhibit A-1. During his cross-examination,
PW-1 denied the suggestion that he had
falsely implicated the appellant due to
political rivalry. He stated that his daughter
had gone out of his home at about 10:00
p.m. while they were asleep. He woke up
between 12:00 to 01:00 in the night and
saw that his daughter was not on her bed.
He searched for his daughter in the village
but when he could not find her, he came
back home and slept. In the morning he
started searching for his daughter in the
house of his relative but could not find her.
In the evening of 13.11.2015, he came to
know that his daughter was present at the
police chowki at Debiyapur crossing and he
went there and brought his daughter back.
He did not talk to his daughter and his
daughter did not told him anything. On
15.11.2015 he went to the police station,
gave a written complaint and lodged the
FIR. He stated that the subsequent letter
given to the police stating that his daughter
had gone to her maternal grandparent's
home out of her own free will and he did
not want any proceedings in the matter,
does not bear his signature or thumb
impression and this application is wrong.

22. The victim was examined by the
trial court as PW-2 and she stated that
when she had gone out of her house to
urinate, the appellant and his brothers
Salim and Idris had caught hold of her,
gagged her mouth with a cloth, tied her
face with a cloth, picked her up and took
her away to a grove situated far away
where the other accused persons Salim and
Idrish held her hand and legs and the
appellant raped her. They kept her there for
the entire night and the next day and they
dropped her near the police chowki in the
following night. The police persons had
telephonically informed her parents and her
parents had come to the police chowki. Her
father had taken her to the police station
and had lodged the FIR and thereafter she
was taken for medico legal examination
and her statement was recorded by the
Magistrate. She alleged that she had given
the statement before the Magistrate under
threat extended by the police. Thereafter
she was handed over to her parents. The
Investigating Officer had taken the clothes
worn by her at the time of the incident and
his father had given her transfer certificate
to the Investigating Officer.

23. During cross-examination, the
victim stated that she had gone out of her
home for urinating while her parents were
asleep. While she was urinating, the
appellant caught hold of her and took her
away to a grove. She did not know the
996 INDIAN LAW REPORTS ALLAHABAD SERIES
distance of the grove from the village or the
direction in which it is situated. She was
kept in the grove during the night and
during the following day and the appellant
brought her to the Police Chowki at
Debiyapur Crossing at about 09;00 p.m.,
handed her to the police and went away.
The police had called her father by making
a phone call and had asked him to take
away his daughter and thereafter her father
brought her back home. She further stated
that her father does not have any phone and
she couldn't tell as to how did the police
call her father by making a phone call. She
stated that she had leveled allegation of
commission of rape for the first time in the
court and she did not tell it to the police or
to the Magistrate. She stated that the
appellant had brought her to the police
chowki at Debiyapur crossing on a
motorcycle and she had not made any
complaint to the police at that time. The
victim denied her statement recorded by the
Investigating Officer.

24. The victim admitted the statement
given by her before the Magistrate wherein
she had stated that the appellant had been
falsely implicated whereas she had gone
with him out of her own free will and she
wanted to marry him and to live with him.
She knew him since childhood and she
loved with him for the past two years. She
also admitted that she had stated that she
had given this statement out of her own
free will without any pressure. Thereafter
she stated on her own that she had given
the statement upon being threatened by
Chaurasia. The victim did not specify as to
who this person 'Chaurasia' was. The
victim further stated that after reaching her
village, she had not gone to any relatives
place and she was staying at her home only.

25. The doctor who had medically
examined the victim, was examined as PW3 and she proved the medico legal
examination
report.
During
crossexamination, the doctor stated that the
hymen takes a month's time in healing after
it is torn. No injury was found on any
private part of the victim and there was a
stitched wound of size 5 c.m. x 1 c.m. on
her right ankle joint from which she opined
that force was used against the victim. She
stated that the vaginal smear examination
did not reveal presence of sperms. She
stated that no definite opinion could be
given regarding rape.

26. No other prosecution witness was
produced before the trial court.

27. In the statement of the appellant
recorded under Section 313 Cr.P.C., he
denied all the allegations and he stated that
he had been falsely implicated because of
animosity. The appellant stated that he
would produce his defence but he did not
do so.

28. The trial court has held the
accused-appellant guilty of commission of
offences under Section 363, 366 and 376
IPC and Section 3/4 of POCSO Act and has
sentenced
him
to
undergo
rigorous
imprisonment for 7 years and pay Rs.
2,000/- fine and to undergo two months'
additional imprisonment in case of failure
to pay fine for the offence under Section
363 IPC. For the offence under Section 366
IPC, the appellant has been sentenced to
undergo 7 years' rigorous imprisonment
and to pay Rs. 2,000/- as fine and to
undergo
two
months'
additional
imprisonment in case of failure to pay fine.
For the offence under Section 376 IPC, the
appellant has been sentenced to undergo 10
years rigorous imprisonment and to pay Rs.
5,000/- fine and to undergo five months'
additional imprisonment in case of failure
7 All. Tariq @ Lohiya Vs. State of U.P.
997
to pay fine. For the offence under section
3/4 POCSO Act, the appellant has been
sentenced to undergo 10 years' rigorous
imprisonment and to pay Rs. 5,000/- as fine
and to undergo five months' additional
imprisonment in case of failure to pay fine.

29. The trial court has recorded in its
judgment that it was contended on behalf of
the accused-appellant that the victim had
returned home on 13.11.2015 itself and the
FIR has been lodged after a delay on
15.11.2015. Rejecting this contention, the
trial court held that although some delay
has occurred in lodging of the FIR,
generally the police avoids registering FIRs
and for any irregularity committed by the
police, the informant cannot be made
responsible. The trial Court held that the
matter related to enticing away a minor, the
informant tried to look for her and he had
lodged the FIR after finding her out. In
these circumstances, it cannot be said that
the delay in lodging the FIR is fatal for the
prosecution case.

30. The second submission on behalf
of the accused-appellant was that the
Investigating
Officer
has
not
been
examined which raises a suspicion against
the prosecution case. The trial court
rejected this submission by referring to the
decision of the Hon'ble Supreme Court in
the case of Raj Kishore Jha v. State of
Bihar: (2003) 11 SCC 519, wherein it has
been held that if the prosecution witnesses
have proved the incident beyond reasonable
doubt, the prosecution case does not
become suspicious merely because of nonexamination of the Investigating Officer.

31. The third submission on behalf of
the
accused-appellant
was
that
the
informant had alleged that the victim was
aged 16 years whereas there was no
documentary
evidence
to
prove
this
contention. The victim herself stated in her
statement under Section 161 Cr.P.C. that
she was aged 20 years and even as per the
entries made in the voter list and parivar
register, she was major. It was further
contended that although the medico legal
examination report opines that the victim
was aged 17 years, there is an error margin
of two years on either side. The trial court
rejected this contention on the ground that
the transfer certificate mentions the date of
birth of the victim to be 03.02.2000 and the
medico legal examination report opines her
age to be 17 years. It proves that the victim
was minor at the time of the incident.

32. It was next submitted on behalf of
the appellant that the FIR alleges that the
offence was committed by three brothers
and it is highly unnatural that three brothers
would commit a sexual offence together.
The accused appellant relied upon the
statement of the victim recorded under
Section 164 Cr.P.C., which does not
support
the
prosecution
case.
These
contentions have not been dealt with by the
trial court.

33. Every person is presumed to be
innocent unless proved guilty and it is a
duty of the prosecution to establish the guilt
of the accused person. Therefore, the trial
court should deal with the prosecution case
first to ascertain whether the prosecution
has established the guilty of the accused
and only then the Court is required to deal
with the defence case. In case the
prosecution fails to establish its case, the
accused has to be acquitted without dealing
with his evidence. Strangely, in the present
case, the trial court has first dealt with the
defence case indicating that it was
labouring under a misconception that the
accused has to establish his innocence and
998 INDIAN LAW REPORTS ALLAHABAD SERIES
not that the prosecution has to establish the
guilt of the accused.

34. The trial court held that although
PW-1 has stated that the appellant alone
had committed sexual offence against the
victim, the victim has stated in her
examination-in-chief that the appellant and
his two brothers had taken her away, they
had gagged her mouth and tied her face, the
appellant's brother Salim was catching hold
of her hands and his other brother Idris was
catching hold of her legs and the appellant
raped her. The trial Court referred to the
cross-examination of PW-2 wherein she
had admitted that she had not leveled the
allegation of rape before the police or the
magistrate and she had leveled this
allegation for the first time before the trial
court.

35. The trial court has stated that in
her examination in chief, PW-2 has
'admitted' that she had given the statement
before the Magistrate under threat of the
police whereas this was not an 'admission'
made by the victim rather it was an
allegation leveled by her. The trial court
has mentioned in the judgment that the
victim has 'admitted' that she had given the
statement before the Magistrate that she
loves the appellant for the past two years
and wants to live with her and this
statement had been given under threat of
Chaurasia. This is also not an 'admission'
made by the victim, rather it is an
allegation leveled by her. The victim has
not
disclosed
any
particulars
of
'Chaurasia', who had threatened her.

36. Assailing validity of the aforesaid
order, the learned counsel for the appellant
has submitted that the trial court has
committed a patent error in brushing aside
the statement of the victim given before the
Magistrate wherein she has categorically
stated that her father had falsely implicated
the appellant whereas she had gone away
with him out of her own free will, she loves
him, wants to marry him and to live with
him only and whatever the appellant did,
did with her consent.

37. Per contra, Sri Rajesh Kumar
Singh, the learned AGA-I has submitted
that in the examination-in-chief of the
victim, she has categorically stated that the
appellant had committed rape against her.
The injury found on the right ankle of the
victim establishes use of force against her.

38. When we examine the facts of the
present case, it becomes evident that the
FIR was lodged on 15.11.2015 against the
appellant and his two brothers Salim and
Idris, stating that when the informant's
daughter aged 16 years had gone out of her
home at about 10 p.m. in the intervening
night of 12/13.11.2015 for urinating, all the
accused persons enticed her away. The
complainant kept on making enquiries
about his daughter but he could not get any
information about her. However, in his
statement recorded under Section 161
Cr.P.C., the complainant stated that the
accused persons had dropped his daughter
at Dibiyapur crossing at about 09:00 p.m.
In her statement recorded under Section
161 Cr.P.C. on 19.11.2015 the victim stated
that she had returned home in the evening
on 13.11.2015. The victim's mother also
stated that her daughter had come back
home at about 10:00 p.m. on 13.11.2015
along with her father (the informant) and a
relative Lal Bahadur on a motorcycle. Lal
Bahadur
Chauhan
also
told
the
Investigating Officer that he had taken the
informant to Dibiyapur crossing at about
09:00 p.m. on 13.11.2015, the victim was
standing at the crossing and he had brought
7 All. Tariq @ Lohiya Vs. State of U.P.
999
the informant and the victim back on his
motorcycle at about 10:00 p.m. During his
cross-examination, the complainant stated
that in the evening of 13.11.2015, he came
to know that his daughter was present at the
police chowki at Debiyapur crossing and he
went there and brought his daughter back.

39. The aforesaid statements make it
clear that the informant had made a false
statement in the FIR that when the
appellant and his brothers had enticed away
his daughter and he could not get any
information about her till lodging of the
FIR on 15.11.2015.

40. The FIR alleged that the appellant
and his two brothers had enticed away the
victim
whereas
during
medico-legal
examination, the victim told the doctor that
five persons had caught her, took her to a
grove, the appellant had committed the
misdeed against her and the other four
persons kept a watch. The involvement of
any other person in commission of the
offence could not be established and the
charge-sheet was submitted against the
appellant
only.
The
informant
was
examined as PW-1 and he has not stated
about involvement of any other person in
commission of the offence. PW-2 stated
that the appellant's brothers were also
involved in commission of the offence as
they had caught hold of her hands and legs
while
the
appellant
raped
her,
no
application was filed under Section 319
Cr.P.C. for summoning them to face the
trial. The victim has told the doctor that
five persons were involved in the incident.

41. The medico legal examination
report mentions that the victim had not
taken a bath and she had changed her
undergarments but had not washed her
undergarments and clothes. It is recorded in
the medico legal examination held on
19.11.2015 that the Investigating Officer
had collected the victim's undergarments
and clothes and had sealed the same for
DNA examination for evidence, but the
recovery memo mentions that the victim's
salwar suit was collected on 26.11.2015
and it does not make a mention of her
undergarments having been collected. In
her additional statement, she stated that she
had handed over the clothes which she was
wearing at the time when she had slept with
the appellant.

42. The recovery memo of the clothes
has not been made an exhibit.

43. Nowadays this court is observing a
trend where the trial courts first deal with
the defence case and thereafter the
prosecution case and held the accused
persons guilty. This shows a basic flaw in
the approach of the trial courts while
deciding criminal cases.

44. The medico legal examination
report mentions that the nail clippings and
blood samples of the victim were taken for
DNA examination and samples of pubic
hairs and vaginal swabs were also collected
for examination. However, no test report
regarding the same is available on record.
The
pathological
examination
report
mentions that no spermatozoa were seen in
the vaginal smear slide.

45. Section 53-A of the Cr.P.C.
provides that when a person is arrested on a
charge of committing an offence of rape
and there are reasonable grounds for
believing that an examination of his person
will afford evidence as to the commission
of such offence, it shall be lawful to make
an examination of the arrested person to
find out the marks of injury, if any, on the
1000 INDIAN LAW REPORTS ALLAHABAD SERIES
person of the accused and material may be
taken from the person of the accused for
DNA profiling. In the present case, DNA
examination of samples taken from the
body and the clothes of the victim and that
of the accused-appellant has not been
conducted.

46. In the statement of the victim
recorded under Section 161 Cr.P.C. she
stated that her father had lodged a false
report in the police station; that she loves
the appellant and has made physical
relations with her out of her own free will
and she had returned home in the evening
on 13.11.2015. During her medico-legal
examination, the victim told the doctor that
the appellant had committed the misdeed
against her while the other four persons
kept a watch. However, in the statement
recorded under Section 164 Cr.P.C., she
stated that her father had lodged a false FIR
against the appellant whereas she had gone
with the appellant on 12.11.2015 out of her
own free will. Whatsoever the appellant did
with her, did with her consent. She stated
that she knows the appellant since her
childhood, she loves him for the past two
years, she wanted to marry him and to live
with him and she did not want to go with
her parents. The allegation of rape is not
there is the statement of the victim recorded
under Section 164 Cr.P.C. and it is not
supported
by
the
findings
of
the
pathological examination report of the
victim's vaginal smear.

47. In the statements recorded under
Sections 161 and 164 Cr.P.C., the victim
did not level any allegation against the
accused-appellant. Before the doctor, she
stated that five persons had forcibly taken
her away, the appellant raped her in a grove
and the other four persons kept a watch.
During her examination-in-chief, the victim
stated that the appellant and his brothers
Salim and Idris had taken her away to a
grove where the appellant's brothers Salim
and Idrish held her hand and legs and the
appellant raped her. During her crossexamination, the victim stated that only the
appellant had caught hold of her and had
taken her away.

48. During cross-examination, the
victim stated that she had leveled allegation
of commission of rape for the first time in
the court and she did not tell it to the police
or to the Magistrate. The victim admitted
the statement given by her before the
Magistrate wherein she had stated that the
appellant had been falsely implicated
whereas she had gone with him out of her
own free will and she wanted to marry him
and to live with him. She knew him since
childhood and she loved with him for the
past two years. She also admitted that she
had stated that she had given this statement
out of her own free will without any
pressure. Thereafter she stated on her own
that she had given the statement upon being
threatened by Chaurasia. The victim did not
specify as to who this person 'Chaurasia'
was.

49. In Rai Sandeep v. State (NCT of
Delhi): (2012) 8 SCC 21, the Hon'ble
Supreme Court held that: -

"22. In our considered opinion,
the "sterling witness" should be of a very
high quality and calibre whose version
should, therefore, be unassailable. The
court considering the version of such
witness should be in a position to accept it
for its face value without any hesitation. To
test the quality of such a witness, the status
of the witness would be immaterial and
what would be relevant is the truthfulness
of the statement made by such a witness.
7 All. Tariq @ Lohiya Vs. State of U.P.
1001
What would be more relevant would be the
consistency of the statement right from the
starting point till the end, namely, at the
time when the witness makes the initial
statement and ultimately before the court. It
should be natural and consistent with the
case of the prosecution qua the accused.
There should not be any prevarication in
the version of such a witness. The witness
should be in a position to withstand the
cross-examination of any length and
howsoever strenuous it may be and under
no circumstance should give room for any
doubt as to the factum of the occurrence,
the persons involved, as well as the
sequence of it. Such a version should have
co-relation with each and every one of
other supporting material such as the
recoveries made, the weapons used, the
manner of offence committed, the scientific
evidence and the expert opinion. The said
version should consistently match with the
version of every other witness. It can even
be stated that it should be akin to the test
applied in the case of circumstantial
evidence where there should not be any
missing link in the chain of circumstances
to hold the accused guilty of the offence
alleged against him. Only if the version of
such a witness qualifies the above test as
well as all other such similar tests to be
applied, can it be held that such a witness
can be called as a "sterling witness" whose
version can be accepted by the court
without any corroboration and based on
which the guilty can be punished. To be
more precise, the version of the said
witness on the core spectrum of the crime
should remain intact while all other
attendant
materials,
namely,
oral,
documentary and material objects should
match the said version in material
particulars in order to enable the court
trying the offence to rely on the core
version to sieve the other supporting
materials for holding the offender guilty of
the charge alleged."

50. The aforesaid discrepancies are
also not minor discrepancies, which could
have been ignored by the trial Court and no
conviction
can
be
based
on
such
statements.

51. The medico-legal report of the
victim does not mention any injury on the
private parts of the victim's body. The
hymen was reported to be old torn and
healed. The doctor who had medically
examined the victim was examined as PW3 and she stated that the hymen takes a
month's time in healing after it is torn. She
stated that the vaginal smear examination
did not reveal presence of sperms.

52. Regarding the stitched injury on
the ankle, the victim had stated in her
statement recorded under Section 161
Cr.P.C. that she had suffered it while riding
a motorcycle on the way back to
Debiyapur.
During
her
medico-legal
examination, the victim stated that the
appellant had caused the injury with a
banki, but this allegation was not leveled
during her examination in the Court and no
banki has been recovered from the
appellant.

53. The Investigating Officer had
recorded the statements of the victim's
mother, two sisters, a relative Lal Bahadur
and of some other persons and the chargesheet mentioned as many as 13 witnesses,
but only the informant and the victim have
been examined. No other prosecution
witness has been examined and no
explanation has been given for their nonproduction as prosecution witnesses.

54. In Raj Kishore Jha v. State of
Bihar: (2003) 11 SCC 519 relied upon by
1002 INDIAN LAW REPORTS ALLAHABAD SERIES
the trial Court, it was held that mere nonexamination of the Investigating Officer
does not in every case cause prejudice to
the accused or affects the creditability of
the prosecution version, but it was so held
when after examination-in-chief and partial
cross-examination,
the
Investigating
Officer had died and obviously, crossexamination of a dead person could not be
completed. Further, the Court held that
non-completion of the examination of the
Investigation Officer had not caused any
prejudice to the accused. The prosecution
could not be attributed with any lapse or
ulterior motive in such circumstances.

55. In Behari Prasad v. State of
Bihar: (1996) 2 SCC 317 it was held that a
case of prejudice likely to be suffered
mostly depends upon facts of each case and
no universal straitjacket formula should be
laid down that non-examination of the
Investigating Officer per se vitiates the
criminal trial.

56. In the present case, when the
victim had not leveled any allegation
against
the
accused-appellant
in
her
statements recorded under Sections 161 and
164
Cr.P.C.
and
there
are
serious
discrepancies in the statements of the
informant and the victim recorded at
different
stages
regarding
material
particulars
regarding
the
offence
in
question,
non-examination
of
the
Investigating Officer has caused a serious
prejudice to the trial.

57.
In
view
of
the
foregoing
discussion, I am of the considered view that
there were serious discrepancies in the
statements of the informant and the victim,
the allegation of rape is not supported by
the findings of the medico-legal report and
the pathological examination report of the
vaginal smear slide of the victim and the
DNA examination has not been conducted
to collect evidence of commission of rape.
Several
other
prosecution
witnesses
mentioned in the charge-sheet have not
been produced in the Court. Thus the
prosecution has miserably failed to prove
the
allegations
leveled
against
the
appellant.

58. The trial court held that in a case
relating to sexual offences, mere absence of
injury cannot lead to an inference that the
sexual offence has not been committed.
Sexual offences are heinous offences which
are against the entire humanity.