# Thakur @ Umendra Jogi v. State of U.P

- **Citation:** (2016) 4 ILRA 671
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-03-28
- **Bench:** Mrs. Ranjana Pandya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/thakur-umendra-jogi-v-state-of-u-p-43673
- **Pages:** 6

## Headnote

Criminal Appeal Criminal Appeal - Indian Penal Code, 1860 - Section 376 - Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Section 3(1)(xii)- Rape - Delay in lodging F.I.R. -
Explanation for delay found unnatural and improbable - Inordinate delay fatal to prosecution -
Contradictions and inconsistencies in testimony of prosecutrix and witnesses - Medical evidence not
supporting prosecution case - Identity of accused doubtful - Possibility of false implication due to admitted
enmity - Prosecution failed to prove case beyond reasonable doubt - Conviction set aside.

## Text

4 All. Thakur @ Umendra Jogi Vs State Of U.P.

671
33. However, the Impugned judgment and order dated 14.9.1982 is hereby confirmed as
against Appellant No. 2, Ram Niwas, Appellant No. 3 Subhash, Appellant No. 4 Ram Bilas and
Appellant No. 6 Sri Kishun. The Appellant No. 2, Ram Niwas, Appellant No. 3 Subhash, Appellant
No. 4 Ram Bilas and Appellant No. 6 Sri Kishun who are on bail. Their personal and surety bonds
are cancelled and they are directed to surrender before the Chief Judicial Magistrate concerned
immediately to serve out the remaining sentence imposed upon them by the trial court. In case they
fail to surrender, as directed above, the Chief Judicial Magistrate concerned is directed to take
coercive action against them in this regard.

34. Copy of this judgment along with lower court record be sent immediately to the
concerned Sessions Judge and Chief Judicial Magistrate for compliance. Compliance report be also
sent to this Court.
----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.03.2016

BEFORE

THE HON'BLE MRS. RANJANA PANDYA, J.

Criminal Appeal No.- 1567 Of 2012

Thakur @ Umendra Jogi ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Kailash Goyal,Ajay Sengar,Virendra Kumar Yadav

Counsel for the Respondent:
Govt.Advocate

Criminal Appeal Criminal Appeal - Indian Penal Code, 1860 - Section 376 - Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Section 3(1)(xii)- Rape - Delay in lodging F.I.R. -
Explanation for delay found unnatural and improbable - Inordinate delay fatal to prosecution -
Contradictions and inconsistencies in testimony of prosecutrix and witnesses - Medical evidence not
supporting prosecution case - Identity of accused doubtful - Possibility of false implication due to admitted
enmity - Prosecution failed to prove case beyond reasonable doubt - Conviction set aside.

1. That, though in rape cases delay in lodging the F.I.R. by itself may not be of consequence, in the present
case merely asserting that police authorities were approached was not sufficient, and the explanation for
delay of about six days was found unnatural and improbable, which cast a serious doubt on the prosecution
case. (Paras 11-14)
672 INDIAN LAW REPORTS ALLAHABAD SERIES
2. That, the testimony of the prosecutrix suffered from serious infirmities and inconsistencies, and she made
improvements on material points; therefore, no implicit reliance could be placed on her sole testimony. (Paras
15-18)

3. That, the evidence of the eye-witness sister (P.W.3) made the identity of the accused doubtful, as she
stated that neither she nor her family members knew the accused earlier. (Para 17)

4 That, where the victim was allegedly dragged for about 58 paces, absence of any external or internal injury
made the prosecution case doubtful, especially when the medical evidence did not support the allegation of
forcible rape. (Paras 19-20)

5. That, the medical report revealed no injuries, the victim was above 18 years of age, and inconsistencies
among prosecution witnesses coupled with admitted enmity and unexplained delay in F.I.R. showed that the
prosecution
failed
to
prove
its
case
beyond
reasonable
doubt.
(Paras
20-22)

HELD (Paras 22-24): the learned lower court has misled itself in reaching to the conclusion that the
accused-appellant is guilty for the offence charged. Thus, the accused-appellant is entitled to be acquitted and
the appeal is liable to be allowed. Hence the impugned judgement of conviction and sentence dated
29.2.2012 passed by Additional Sessions Judge/Special Judge (SC/ST Act), Fatehpur in S.T. No. 46 of 2009
(State Vs. Thakur @ Umendra Jogi) arising out of Crime No. 26 of 2008, under Sections 376 I.P.C. and
3(1)(xii) SC/ST Act, Police Station-Jafarganj, District-Fatehpur is hereby set aside. Accordingly, the appeal is
allowed. The accused-appellant is in jail. He shall be released forthwith in this case. The provisions of
Section 437A Cr.P.C. shall be complied with.

Case Law discussed:

Mohd. Ali @ Guddu v. State of U.P., (2015) 7 SCC 272 (Para 12)
Rajesh Patel v. State of Jharkhand, (2013) 3 SCC 791 (Para 14)
Vimal Suresh Kamle v. Chaluverapinake Apal S.P. & Anr., AIR 2003 SC 818 (Para 15)
Rajoo & Others v. State of Madhya Pradesh, AIR 2009 SC 858 (Para 15)

(Delivered by Hon'ble Mrs. Ranjana Pandya, J.)

1. Challenge in this appeal is to the judgement and order dated 29.2.2012 passed by
Additional Sessions Judge/Special Judge (SC/ST Act), Fatehpur in S.T. No. 46 of 2009 (State Vs.
Thakur @ Umendra Jogi) arising out of Crime No. 26 of 2008, under Sections 376 I.P.C. and
3(1)(xii) SC/ST Act, Police Station-Jafarganj, District-Fatehpur, whereby the accused was found
guilty under Section 376 I.P.C. and 3(1)(xii) SC/ST Act and was sentenced to 7 years rigorous
imprisonment and Rs. 7,000/- fine, under Section 376 I.P.C. and was sentenced to 1 year rigorous
imprisonment and Rs. 1,000/- fine under Section 3(1)(xii) SC/ST Act with default stipulation.

2. The prosecution case in brief is that the mother of the victim filed a written report before
the S.O., Police StationJafarganj, District-Fatehpur stating that she belongs to Khatik caste. On
9.11.2008, her daughter at about 9:00 p.m. had gone to attend the call of nature. She was
accompanied by younger sister Rani @ Soni. As soon as the victim ease herself, appellant Thakur
Jogi dragged her into the field of Pooni and raped the victim. The younger daughter raised alarm
and ran home, at which the informant, her son, her brother-in-law, her sister-in-law and other
4 All. Thakur @ Umendra Jogi Vs State Of U.P.

673
neighbour reached the spot, at which the appellant left his underwear and slipper there and fled
away after threatening the informant. When the informant reached the police station, she was
driven away by police personnel of the police station, then she approached the S.P. concerned, who
directed the police to lodge her report.

3. On the basis of written report Constable 701 C.P. Ashok Kumar P.W. 8 proved the chik
report scribed by Head Moharir Amar Singh. This witness proved the chik report as Exhibit Ka-9
and the copy of the G.D. as Exhibit Ka-10.

4. Investigation of the matter was entrusted to Deputy S.P. Arun Kumar Singh, P.W. 3. He
recorded the statements of the victim, Head Constable Amar Singh, Somwati, Rani (sister of the
victim), Shyam Babu, Kalideen, Kiran and Ramwati. On the same day, he inspected the spot at the
pointing out of the victim and proved it as Exhibit Ka-7. He prepared the recovery memo of pair of
slipper and under garments of the accused and copied it in the C.D. This witness further sent the
victim for medical examination. After receipt of the medical report and X-ray report coupled with
the supplementary report, they were copied in the C.D. and after completing necessary formalities,
this witness submitted the chargesheet, which was proved as Exhibit Ka-8.

5. The victim was medically examined by Dr. Shikha Bhardwaj, P.W. 6, who did not find
any mark of injury on the external or internal parts of the body. The vagina was admitting one
finger. The hymen was torn. There was no bleeding or discharge. There was no swelling. This
witness proved the medical report as Exhibit Ka-5. P.W. 5 is Dr. B.C. Budhani, who proved the
slide report as Exhibit Ka-4. Dr. K.C. Gupta, P.W. 4 conducted the ossification test to determine
the age of the victim and proved the supplementary report as Exhibit Ka-2.

6. The prosecution examined as many as six witnesses. P.W. 1 is the victim. P.W. 2 is
Somwati, mother of the victim. P.W. 3 is Rani, sister of the victim, who is also the eye-witness of
the rape. The evidence of P.W. 4 Dr. K.C. Gupta, P.W. 5 Dr. B.C. Budhani, P.W. 6 Dr. Shikha
Bhardwaj have been discussed by me above.

7. After closure of the prosecution evidence, the statement of the accused was recorded
under Section 313 Cr.P.C., in which he denied the occurrence and stated that the informant had
contested the Election for Gram Pradhan and he opposed her, due to which the informant was
defeated. Hence, he has been falsely implicated. The accused produced D.W. 1 Ram Bahadur in
defence.

8. After hearing counsel for the parties, learned lower court found the accused guilty and
sentence him as has been specified in Para 1 of the judgement.

9. Feeling aggrieved, the accused-appellant has come in appeal.

10. I have heard the learned counsel for the parties and perused the trial court record.
674 INDIAN LAW REPORTS ALLAHABAD SERIES
11. As far as delay in lodging the F.I.R. is concerned, it is opt to mention here that in rape
cases the delay in lodging the F.I.R. by the prosecutrix or by the parents in all circumstances is not
of consequence. The Courts have granted adequate protection/allowance in that aspect regard being
had to the trauma suffered, the agony and anguish that creates the turbulence in the mind of the
victim, to muster the courage to expose herself.

12. In (2015) 7 SCC page 272 Mohd. Ali @ Guddu Vs. State of U.P. the Hon'ble Apex
Court has held that, if the delay in lodging the F.I.R. is explained, it would not be fatal for the
prosecution. As per chik report, the occurrence took place on 9.11.2008 at about 9:00 p.m. The
report was lodged on 15.11.2008 at about 6:20 a.m. The distance of the police station from the
place of the occurrence being 1 k.m. As far as delay in lodging the F.I.R. is concerned, the
informant has stated that after the occurrence, she went to the police station, but the police
personnel present at police station drove her away, when she went to the S.P. and C.O. with her
daughter, they directed her to the police station, then her report was lodged. The victim P.W. 1 has
also stated that she went to the police station to her mother, but the report was not lodged. They ran
from pillar to post continuously for 3-4 days, but their report was not lodged. Ultimately due to
intervention of the Senior Officers, report was lodged. Thus, there is a delay of more than 5 days in
lodging the F.I.R. Mere assertion on the part of the informant and the victim that she approached
the police authorities will not suffice.

13. Something more ought to have been done in the matter. The explanation given by the
prosecution about the delay is not only unnatural but also improbable. Therefore, the inordinate
delay of 6 days in lodging the F.I.R. against the appellant is fatal to the prosecution case. The vital
aspect regarding inordinate delay in lodging the F.I.R. against the appellant not only makes the
prosecution improbable to accept, but infact cast a shadow of doubt on the whole prosecution case.

14. The Hon'ble Apex Court in (2013) 3 SCC 791 Rajesh Patel Vs. State of Jharkhand
has laid down that the Court should not accept delay in lodging the F.I.R. by assigning own
satisfactory reasons. Thus, the whole prosecution story becomes untrustworthy.

15. As far as the testimony of the prosecutrix is concerned in A.I.R. 2003 SC 818 Vimal
Suresh Kamle Vs. Chaluverapinake Apal S.P. and Another, the Court has laid down that if the
court finds it difficult to accept the version of the prosecutrix on its face value it may search for
evidence direct or substantial which may lend assurance to his testimony. Further the Hon'ble Apex
Court in AIR 2009 SC Page 858 Rajoo and Others Vs. State of Madhya Pradesh has held as
under :

"It cannot be lost sight of that rape causes the greatest distress and humiliation to
the victim but at the same time a false allegation of rape can cause equal distress,
humiliation and damage to the accused as well. The accused must also be protected
against the possibility of false implication. There is no presumption of any basis for
assuming that the statement of such a witness is always correct or without any
embellishment or
4 All. Thakur @ Umendra Jogi Vs State Of U.P.

675
exaggeration."

16. Coming to the statement of the victim, P.W. 1 in the examination-in-chief, she has supported
the F.I.R. version, but in cross-examination she has shattered the whole prosecution story by stating that
since the accused had caught hold of her, she cannot raise alarm. She has further stated that when the
accused was raping her, her family members came suddenly, changing version in the next breath, she
stated that her family members came five minutes after the occurrence. She has further admitted that when
the accused was taking all of his clothes, her mouth was freed at which she raised alarm, she was raped for
10 minutes and since her mouth was pressed, she could not bite the accused. She sustained the injuries on
her head. Further, she has stated that the accused left his slipper and underwear on the spot, which was
brought by her mother. The mother of the victim was examined, who stated that the victim and her sister
had gone to attend the call of nature, after sometime Soni returned home weeping and raising alarm, who
told her mother that the accused was catching hold of the victim and both are in the field. At this the
mother, brother-in-law, sisterin-law proceeded towards the field. In cross-examination she has stated that
the victim told her about the occurrence, when she returned home and they had also witnesses the
occurrence themselves. She has admitted that she contested the Pradhani Election previously also.

17. Rani @ Soni, P.W. 3 is the star witness of the prosecution case, who stated that when she had
gone with the victim to attend the call of nature, the accused came there and dragged the victim in the
fields of Pooni. Both were in the fields, where the victim was raped by the accused. She ran to home and
called her family members. This witness has further stated that the victim did not know the accused from
before. She has gone to the extend to say that prior to the occurrence none of these people were known to
the accusedappellant. Even her family members did not know the accused appellant. Thus, the identity of
the accused becomes doubtful. Thus, the evidence of the prosecutrix is found suffering from serious
infirmities and inconsistencies with other material. The prosecutrix is making deliberate improvement on
material points with a view to rule out consent on her part and there being no injury on her person. Hence,
no reliance can be placed upon her evidence.

18. It is trite law that the prosecution has to prove its case beyond reasonable doubt and cannot
support from the weakness of the defence case. There must be proper legal evidence and material on
record to record the conviction of the accused. Although, conviction can be based on the sole testimony of
the prosecutrix provided it lends assurance of her testimony.

19. The defence proceeded to examine D.W. 1 Raj Bahadur. The defence witness commands the
same as a prosecution witness. He has stated that the victim is the step daughter of the informant. He
resides in the same village. He lives away from the house of the victim. The informant has lodged a false
report and the accused is the married man. As far as the place of occurrence is concerned rape is said to
have been committed at 'C' place shown in the site plan Exhibit Ka-7. As per the site plan, the victim was
dragged for about 58 paces, no doubt injury is not a must in convicting a person for the offence of rape, but
in this particular case, if a lady is dragged for about 60 paces, the court would search for some injuries on the
person of the victim. Besides since the F.I.R. is delayed the statements of the witnesses are contradictory.
676 INDIAN LAW REPORTS ALLAHABAD SERIES
20. It is the case of the prosecution that the accused was armed with any weapon. He is said to have
committed rape alone on the victim. Forcefully rape on a young girl is definitely result in swelling on the
private parts of the victim of rape. Thus, the medical evidence does not support the commission of rape.
Medical report Exhibit Ka-5 proved by P.W. 6 Dr. Shikha Bhardwaj reveals that no external or internal
injury was found on the person of the victim. As per age of the victim is concerned, she was found to be
above 18 years of age as is evidence from Exhibit Ka-6. Thus, it appears that the victim was a consenting
party and to safe herself from shame, she built up this story, which is neither probable nor trustworthy. As per
the victim and her sister and her mother, the victim had sustained injuries and she was bleeding badly. There
are inconsistencies among all the three witnesses, whose statement are not supported by the medical
evidence. Even enmity of the accused with the mother of the victim i.e. the informant is admitted that when
she was contesting the Pradhani Election, the accused used to oppose her during the election. Thus, the
concealment of both the girls about knowing the accused from before and the admitted fact of enmity
coupled with the delay in lodging the F.I.R., the prosecution has miserably failed to prove its case beyond
reasonable doubt against the accused. The evidence of the victim is shaky, unreliable and not worthy of
credence.

21. Thus, on the basis what has been stated above, I find that the learned lower court has misled
itself in reaching to the conclusion that the accused-appellant is guilty for the offence charged. Thus, the
accused-appellant is entitled to be acquitted and the appeal is liable to be allowed. Hence the impugned
judgement of conviction and sentence dated 29.2.2012 passed by Additional Sessions Judge/Special Judge
(SC/ST Act), Fatehpur in S.T. No. 46 of 2009 (State Vs. Thakur @ Umendra Jogi) arising out of Crime No.
26 of 2008, under Sections 376 I.P.C. and 3(1)(xii) SC/ST Act, Police Station-Jafarganj, District-Fatehpur is
hereby set aside.

22. Accordingly, the appeal is allowed.

23. The accused-appellant is in jail. He shall be released forthwith in this case. The provisions of
Section 437A Cr.P.C. shall be complied with.

24. Let a copy of this order be sent to the trial court concerned.
----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.03.2016

BEFORE

THE HON'BLE MRS. RANJANA PANDYA, J.

Criminal Appeal No.- 2589 Of 2013

Alok Lodhi ...Appellant
Versus
State of U.P. ...Respondent