# Vijay Singh (In Jail) v. State of U.P. 392 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2021) 1 ILRA 391
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-05
- **Case number:** Criminal Appeal No. 7704 of 2007
- **Bench:** Ramesh Sinha, Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-singh-in-jail-v-state-of-u-p-392-indian-law-reports-allahabad-series-46773
- **Pages:** 14

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Section 376 (2) (g) - commits
gang rape , Section 342 - punishment
for wrongful confinement , Section
506
-
punishment
for
criminal
intimidation
,
Section
228-A
-
Disclosure of identity of the victim of
certain offences - The Scheduled
Castes
and
Scheduled
Tribes
(Prevention of Atrocities) Act, 1989 -
Section 3 (2) (v) - while appreciating
evidence the number of counts of
witnesses is not an important aspect
in a matter - important is the quality
of evidence given by the witness(s).
(Para - 34)

P.W.-2 (First informant) - along with his
wife,
his
two
daughters
namely
"V"
(prosecutrix/victim)(P.W.-1) and Thanwati
and his son reached the brick kilns of Ram
Chandra Mukhiya - allegation - first
informant, his wife and his daughter were
tied to a tree and about 8 meters away
from the place and his elder daughter "V"
aged about 16 years was then raped by the
said three persons, which was witnessed by
them helplessly as they were tied to the
tree
-
accused/appellants
have
been
convicted and sentenced under Section 342
of the Indian Penal Code, 1860. (Para - 3)

HELD:-
Although
"V"
P.W.-1
is
the
prosecutrix/victim of the present case and
P.W.-2 is the first informant and her father
who claims himself to be an eye witness of
the incident and both the witnesses have
tried to narrate a version for implicating the
accused appellants but the same is a
concocted
version
is
termed
as
a
"concocted uniformity" and is thus not safe
to be relied upon. The said two witnesses
fall in the category of unreliable witnesses.
Conviction of the appellants by the trial
court is not sustainable in the eyes of law.
The trial court committed an error in
recording the conviction and sentence of
the appellants. (Para - 42,43)

Criminal appeal allowed. (E - 6)

List of Cases cited :-

## Text

_Characters 0–39,860 of 47,752. This is a partial read: ask again with offset=39860 for what follows._

1 All. Vijay Singh Vs. State of U.P.
391
December 2011 Phoolbadan worked at
Benglore with him. For a period of one
year Phoolbadan lived with him in a room
thereafter Phoolbadan took his family and
began to live in adjacent room. They, both,
worked together. He got Phoolbadan
admitted in hospital when he fell ill. At the
time of coming home Phoolbadan fell ill
and doctor advised him to take rest. He
came back home in the last of month
January,
2011.
The
hospital
where
Phoolbadan got admitted was called
Municipal Hospital.

53. DW-2 Chhangur Rajbhar who was
Village Pradhan of the village Pahdeva Jeet
stated that on 06.11.2011 Phoolbadan was
not in the Village Kharka. He had been
living in Benglore from seven to eight
months before and was working there. He
came Kharka in the month of January,
2012. He has been implicated falsely in this
case. His character is very good. In crossexamination he told that he is resident of
village Kharka where Phoolbadan also
lives. He was told by father of Phoolbadan
that he is to witness in the case of
Phoolbadan.

54. On considering the statements
made by DW-1 & DW-2, it appears that
there is nothing to support the defense
version as stated by them. They have not
narrated the specific place of work where
he was employed. No any job card/duty
card/attendance sheet has been filed to
support his presence at that specific place at
the time of incident. No any admission slip
of hospital has been filed to show that on
the date of occurrence appellant was not
present. Even appellant Phoolbadan has not
made any statement in this regard u/s 313
Cr.P.C. Paper nos. 58-kha/1 to 58-kha/4 are
prescriptions of medicines but language
used therein is not legible. Paper no. 59-kha
is medical certificate in which appellant has
been shown to be suffering from entric
fever but the name & seal of the issuing
authority
is
not
legible.
No
any
Authority/Officer has been examined to
prove these papers and to support his
defense version. So in lack of any such
authentic evidence on record the bald
statements made on behalf of appellant are
of no help to him.

55. Having given our considerations
to the submissions made by learned counsel
for the parties, we are clearly of the opinion
that the prosecution has succeeded in
establishing its case against the appellants
beyond any shadow of doubt and the view
taken by learned Sessions Judge is right.

56. In the result the appeals lack merit
and are hereby dismissed.

57. Copy of this judgment alongwith
original
record
of
Court
below
be
transmitted to the Court concerned for
necessary compliance. A compliance report
be sent to this Court within one month.
Office is directed to keep the compliance
report on record.
----------
(2021)01ILR A391
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.01.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE SAMIT GOPAL, J.

Criminal Appeal No. 7704 of 2007
with
Criminal Appeal No. 7686 of 2007

Vijay Singh ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party
392 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri M.P.S. Chauhan, Sri Apul Misra, Sri
Yogesh Kumar Srivastava

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

(A) Criminal Law - Indian Penal Code,
1860 - Section 376 (2) (g) - commits
gang rape , Section 342 - punishment
for wrongful confinement , Section
506
-
punishment
for
criminal
intimidation
,
Section
228-A
-
Disclosure of identity of the victim of
certain offences - The Scheduled
Castes
and
Scheduled
Tribes
(Prevention of Atrocities) Act, 1989 -
Section 3 (2) (v) - while appreciating
evidence the number of counts of
witnesses is not an important aspect
in a matter - important is the quality
of evidence given by the witness(s).
(Para - 34)

P.W.-2 (First informant) - along with his
wife,
his
two
daughters
namely
"V"
(prosecutrix/victim)(P.W.-1) and Thanwati
and his son reached the brick kilns of Ram
Chandra Mukhiya - allegation - first
informant, his wife and his daughter were
tied to a tree and about 8 meters away
from the place and his elder daughter "V"
aged about 16 years was then raped by the
said three persons, which was witnessed by
them helplessly as they were tied to the
tree
-
accused/appellants
have
been
convicted and sentenced under Section 342
of the Indian Penal Code, 1860. (Para - 3)

HELD:-
Although
"V"
P.W.-1
is
the
prosecutrix/victim of the present case and
P.W.-2 is the first informant and her father
who claims himself to be an eye witness of
the incident and both the witnesses have
tried to narrate a version for implicating the
accused appellants but the same is a
concocted
version
is
termed
as
a
"concocted uniformity" and is thus not safe
to be relied upon. The said two witnesses
fall in the category of unreliable witnesses.
Conviction of the appellants by the trial
court is not sustainable in the eyes of law.
The trial court committed an error in
recording the conviction and sentence of
the appellants. (Para - 42,43)

Criminal appeal allowed. (E - 6)

List of Cases cited :-

1. Vadivelu Thevar Vs St.of Madras , AIR
1957 SC 614

2. Laxmibai (Dead) through Lrs. & anr. Vs
Bhagwantbuva (Dead) through Lrs. & ors.:
(2013) 4 SCC 97

(Delivered by Hon'ble Samit Gopal, J.)

[Delivered by Samit Gopal, J. for the
Bench under Chapter VII Rule 1 (2) of the
Allahabad High Court Rules, 1952]

1.

The
aforesaid
appeals
are
connected together and arise out of
judgment and order dated 31.10.2007
passed by the Additional District &
Sessions Judge, Fast Track Court No.4,
Aligarh in Sessions Trial No. 367 of 1998
(State of U.P. vs. Anil) and Sessions Trial
No. 278 of 1998 (State of U.P. vs. Vijay
and
another),
whereby
the
accused/appellants Anil, Vijay Singh and
Hariom Sharma have been convicted and
sentenced under Section 342 of the Indian
Penal Code, 1860 for one year rigorous
imprisonment, a fine of Rs. 1,000/- each
and in default of payment of fine to one
month simple imprisonment, under Section
376 (2) (g) of the Indian Penal Code, 1860
to Life imprisonment, a fine of Rs. 20,000/-
each and in default of payment of fine to
two months simple imprisonment, under
Section 3 (2) (v) of The Scheduled Castes
and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 to Life imprisonment,
a fine of Rs. 20,000/- each and in default of
1 All. Vijay Singh Vs. State of U.P.
393
payment of fine to two month simple
imprisonment. Further, the appellant no.2
Anil Kumar in Criminal Appeal No. 7686
of 2007 has been convicted and sentenced
under Section 506 of the Indian Penal
Code,
1860
to
two
years
rigorous
imprisonment, a fine of Rs. 2,000/- and in
default of payment of fine to two months
imprisonment. The sentences have been
ordered to run concurrently.

2. In view of the legislative mandate
as contained in Section 228-A of the Indian
Penal Code, 1860 and the observation made
by the Apex Court in various judgments,
the identity of the prosecutrix/victim is not
being disclosed and she will be referred to
as "V" hereinafter.

3. The prosecution case as per the first
information report lodged by Paramsukh
(P.W.-2) is that he along with his wife Smt.
Kishan Pyari Devi aged about 55 years, his
two daughters namely "V" aged about 16
years and Thanwati aged about 13 years
and his son Ved Prakash aged about 10
years reached the brick kilns of Ram
Chandra Mukhiya on 19.10.1994 at about
5.00 p.m. in the presence of Ram Singh
Contractor,
on
which
Ram
Singh
Contractor left him and his family members
under
the
supervision
of
watchman
Sherpal. After the contractor left the place,
the first informant said to the watchman
that his family will not be secured at the
kiln and they be sent to the house of the
owner but the watchman assured him that
in an hour labours will come. The first
informant pleaded many times to the
watchman and later on went to his hut.
Subsequently after sometime at about 7.00
p.m. three persons came to the hut and
showed the first informant a country made
pistol and directed him that he should call
his family members out, otherwise they
will burn the hut. It is further stated that the
first informant then shouted for the
watchman, who then went to the back side
and the said persons then took his whole
family along with himself to a field of
paddy near the brick kiln. The first
informant, his wife and his daughter were
tied to a tree and about 8 meters away from
the place and his elder daughter "V" aged
about 16 years was then raped by the said
three persons, which was witnessed by
them helplessly as they were tied to the
tree. It is further stated that out of the said
persons he identified two of them, who are
namely Thakur Pappu S/o Chintar Pal and
Pandit Pappu S/o Babu Lal Sharma R/o
Mulla Pada, Bhujpura and the third person
was unknown. It is further stated that after
about 30 minutes of the incident, the
younger daughter of the first informant
Km. Thanwati untied them. It is then stated
that later on, the said incident was informed
to the owner of the brick kiln, who told
them that he will inform the police and he
may not lodge any report, but since he did
not take any action then he has come to
lodge the present first information report.

4. An application for lodging of the
first information report was given by
Paramsukh, the same is marked as Exhibit
Ka-1 to the records. On the basis of the said
application, a first information report was
registered on 22.10.1994 at about 17.30
hrs. at Police Station-Kotwali, DistrictAligarh as Case Crime No. 219 of 1994,
under Sections 342, 504, 376 of the Indian
Penal Code, 1860 and 3 (2) (v) of The
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989. The
said first information report is marked as
Exhibit Ka-6 to the records.

5. The prosecutrix/victim "V" was
medically examined on 22.10.1994 at 6.30
394 INDIAN LAW REPORTS ALLAHABAD SERIES
p.m. by Dr. S. Latoriya (P.W.-3) at Mohan
Lal Gautam Women Hospital, Aligarh. The
medical examination report is marked as
Exhibit Ka-2 to the records. The doctor
conducting the medical examination on
local examination found the hymen to be
torn, old tear present and the vagina
admitting two fingers easily. It was
mentioned in the medical examination
report that no marks of injuries were seen
over face, neck, chest, back abdomen and
extremities. The opinion given by the
doctor is as follows:-

"No definite opinion about rape
can be given as she is used to intercourse."

For the determination of age of
"V" she was advised X-ray, which was
conducted on 24.10.1994 and a report was
given by Dr. Qamar Ahmad (P.W.-4), in
which after X-ray examination he opined as
follows :-

"All centres of ossification united
at the respective places."

The said report is marked as
Exhibit Ka-3 to the records.

6. The accused/appellant Vijay Singh
was also subjected to medical examination
on 23.10.1994 at 8.25 p.m. and the doctor
found the following injuries on his person:-

"(i) Abrasion 1 cm x 1⁄4 cm on the
right side of face.

(ii) Abraded contusion 2 cm x 1
cm on the bridge of nose.

(iii) Tenderness over the left
elbow joint.

(iv) Tenderness over the left knee
joint.

(v) Contusion 2 cm x 1 cm on the
back of left midline chest.

(vi) Tenderness over the front of
chest.

(vii) No sign of ext injury seen."

The
doctor
conducting
the
medical examination gave his opinion as
follows:

"Injury No. 1 to 7 are simple
caused by blunt object. Duration 1⁄2 day
old."

7. The investigation concluded and a
charge-sheet
dated
21.11.1994
was
submitted against the accused persons
under Sections 342, 376, 506 of the Indian
Penal Code, 1860 and Section 3 (2) (v) of
The Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989,
the same is marked as Exhibit Ka-5 to the
records.

8. The Trial Court vide its order dated
26.05.2003 framed charges against accused
Vijay Singh and Hariom under Sections
342, 376 (2) (g) of the Indian Penal Code,
1860 and Section 3 (2) (v) of The
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989.

9. Against accused Anil Kumar, the
charges were framed vide order dated
12.10.1998 by the Trial Court under
Sections 376, 342, 506 of the Indian Penal
Code, 1860 and Section 3 (2) (v) of The
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989.

10. All the accused persons pleaded
not guilty and claimed to be tried. They
have not led any defence evidence.

11. The prosecution in order to prove
its case produced "V" as P.W.-1, who is the
prosecutrix/victim and the daughter of the
first informant. Paramsukh P.W.-2 is the
first informant of the present matter and the
father of "V", who claims himself to be an
eyewitness of the incident. Amongst the
formal witnesses Dr. S. Latoriya P.W.-3
1 All. Vijay Singh Vs. State of U.P.
395
conducted the medical examination of "V",
Dr.
Qamar
Ahmad
P.W.-4
is
the
Radiologist, who conducted the X-ray
examination of "V", R.P. Chaudhary P.W.-
5 is the Sub-Inspector, who took up the
investigation
and
remained
the
Investigating Officer till 27.10.1994, after
which it was transferred to Sharad Chandra
Pandey, who had submitted the chargesheet. The said witness proved the
handwriting of Sharad Chandra Pandey and
also of Constable Clerk Lakhan Singh, who
had transcribed the chik first information
report.

12. The Trial Court after considering
the entire evidence on record came to the
conclusion that there is sufficient evidence
against the accused persons for committing
rape on "V" and in so far as the evidence of
"V" was concerned, which was recorded in
Sessions Trial No. 367 of 1998 (State of
U.P. vs. Anil Kumar), the Trial Court came
to its conclusion that the statement of "V"
was recorded after about 10 years of the
incident as such the variations were of no
consequence and convicted the accused
persons and sentenced them as stated
above.

13. We have heard Shri Yogesh
Kumar Srivastava, learned counsel for the
appellants Hariom Sharma and Vijay Singh
and Ms. Kumari Meena, learned Additional
Government Advocate for the State and
perused the record.

14. In the present matter two sets of
evidences have been recorded. One set of
evidence has been recorded in Sessions
Trial No. 278 of 1998 (State of U.P. vs.
Vijay Singh and another), in which two
accused persons, who were tried are Vijay
Singh and Hariom Sharma. The second set
of evidence has been recorded in Sessions
Trial No. 367 of 1998 (State of U.P. vs.
Anil Kumar), in which accused Anil Kumar
is the sole accused.

Accused Anil Kumar, who is the
appellant no.2 in Criminal Appeal No.
7686 of 2007 has died and as such his
appeal stands abated vide order dated
08.09.2020 passed by this Court.

15. As of now, the appellant no.1
Hariom Sharma in Criminal Appeal No.
7686 of 2007 and the sole appellant Vijay
Singh in Criminal Appeal No. 7704 of
2007 are the surviving accused persons
before this Court in the two appeals.

16. The trial of Anil Kumar was
separated being Sessions Trial No. 367 of
1998 (State of U.P. vs. Anil Kumar) and
separate evidence was recorded in the same
and since he has died and his appeal has
abated, this Court will not be referring to
the evidence recorded in his trial as the
same would not be of any purpose and help
to the surviving accused persons namely
Hariom Sharma and Vijay Singh as the
evidence in their trial has been recorded
separately.

17. The learned counsel for the
appellants
made
the
following
submissions:-

(i) The prosecutrix/victim "V" is
a major girl. There is no evidence
whatsoever in the present matter to show
that rape has been committed on her.

(ii) The medical evidence in the
present matter does not at all corroborate
with the prosecution case. The doctor did
not find any mark of injury on the body of
"V". The doctor gave an opinion that she is
used to intercourse and no definite opinion
about rape can be given. The link, which
396 INDIAN LAW REPORTS ALLAHABAD SERIES
comes forward by way of medical evidence
for corroborating an incident of rape, is
totally missing.

(iii) Except for "V" as P.W.-1 and
her father Paramsukh as P.W.-2, who has
claimed to be an eyewitness of the incident,
no other person specially Smt. Kishan Pyari
Devi, the wife of P.W.-2 and the mother of
P.W.-1, her younger sister Km. Thanwati
and her younger brother Ved Prakash have
been produced as witnesses, who are also
claimed to be eyewitnesses.

(iv) The delay in lodging of the
first information report of 3 days does not
have any plausible explanation and thus,
the same has been lodged just to falsely
implicate and harass the accused persons.

(v) There have been serious and
material contradictions in the version given
by "V" P.W. - 1 and Paramsukh P.W. - 2 in
their statements.

18. On the other hand, the learned
Additional Government Advocate for the
State opposed the submissions of learned
counsel for the appellants and argued that
"V" was produced and examined as P.W.-1,
who has stated categorically about rape
being committed on her by the accused
persons. It is further argued that even
Paramsukh P.W.-2, who is the father of "V"
and the first informant, is an eyewitness of
the incident and had also categorically
stated about rape being committed by the
accused persons on his daughter. It is
argued that the presence of P.W.-2 is very
natural. It is argued that the appeal lacks
merit and is liable to be dismissed.

19.

"V"
P.W.-1
is
the
prosecutrix/victim and the daughter of the
first informant. She in her examination - in
- chief states that she belongs to Jatav
community. She identifies accused persons
present in Court and states that they belong
to Thakur community. She states that the
incident took place around 4 years back.
She used to work at Bhujpura brick kiln
along with her father and mother. She
states that in the night at about 8.00 p.m.
three people came and took her away out of
whom two accused are present in Court and
the third was an unknown person. They
took her forcibly to the jungle. The accused
persons took her mother and father also.
Her brother and sister were also taken by
them. The said persons tied her father and
mother with a tree and took her away. They
took her 2 kms. away from that place. She
was raped at that place. She then describes
the manner, in which rape was committed
upon her. She states that the accused ran
away after committing rape upon her. Her
mother and father then reached the place,
where she was present and then she came
back with them. She states that her father
lodged the first information report and got
her medical examination done. The accused
persons
threatened
her
of
dire
consequences.

20. In her cross-examination she has
stated that she and her family members
have never worked in the brick kiln for
casting bricks, where the incident took
place. She came to the said place along
with her mother and father for the first
time. She has no relative in Bhujpura. She
prior to the present incident did not know
any person of Bhujpura and even did not
know accused persons from before. She
was called to work in the brick kiln by Ram
Singh Contractor. On the first day, they
stayed at the kiln itself. There was a hut at
the kiln and they stayed in it. Baking work
at the kiln was not being done. There was
no person at the kiln. The night was a dark
night. It was so much dark that face of a
person could not be seen. She states that it
was about 8.00 p.m. She, her mother, her
1 All. Vijay Singh Vs. State of U.P.
397
father and her brother and sister were in the
hut. She states that when rape was being
committed her both hands were not on the
waist of the accused. Her hands were on the
ground. It took about 30 minutes in
committing rape. She states that she had
bleeding from her private part. She states
that her petticoat and dhoti got blood
stained. She states that the accused persons
had scratched on her chest. Her chest had
marks of scratches of nails. She states that
the accused persons had even injured her
private part and she had received injuries.
Her dhoti was taken off and thrown aside.
She was only wearing petticoat and blouse.
No cloth was spread her under her waist.
She states that the place where she was
thrown on the ground was a ploughed field.
She was thrown in the open and the
accused persons had turned her various
times. All the three accused persons
committed rape within 30 minutes and then
ran away. She states that she received
scratch on her face but she does not know
whether there was any injury mark or not.
Her legs were apart. She states that her
family members were tied to a tree. Her
mother was tied with a dhoti. She was
made to stand near a tree and dhoti was
wrapped all around. She does not know as
to which tree it was, but it did not have any
leaves on it. Her mother and father were
got untied by her sister and then the family
members took her back by lifting her. Her
whole family and Ram Singh Contractor
had gone to the police station. The accused
persons did not let them go to the police
station and they went after three days. They
reached the police station on the third day
at about 7.00--8.00 a.m. Police did not take
her clothes into their possession. Her
medical examination was conducted on the
third day. She was interrogated by the
police on the day when her medical
examination was conducted. She states that
she had told the Investigating Officer that it
was dark night. She states that she has also
informed the Investigating Officer that the
accused persons had with their hands
scratched her chest and private parts due to
which she received injuries. She states that
she also told the Investigating Officer that
she did not know the accused from before.
She states that watchman had told the
names of the accused persons. She states
that if the said facts have not been written
in my statement by the Investigating
Officer, she does not know the reason for
the same. She states that she told the
Investigating Officer that her family
members had brought her to the house by
lifting her and if the same has not been
written
in
her
statement
by
the
Investigating Officer, she does not know
the reason. To a suggestion that all the
three persons did not commit rape on her,
she denies the same. She further denies the
suggestion that a false report has been got
registered on the saying of villagers.
Further to a suggestion that three unknown
persons had come for a loot and on the
saying of villagers they have been falsely
implicated in a case of rape, she denies the
same.

21. "V" was recalled by the
prosecution for further examination by the
orders of the Trial Court, wherein she
stated that she came to know of the name of
accused Vijay Singh @ Pappu Thakur and
Hariom Sharma @ Pappu Pandit at the time
of incident. The said accused persons were
taking names of each other.

22. In her cross-examination she
stated that the accused persons were taking
names of each other at the time of incident.
She heard the name of Hariom @ Pappu
and Vijay @ Pappu. She states that accused
persons were calling each other by taking
398 INDIAN LAW REPORTS ALLAHABAD SERIES
names of their caste. They said Thakur
Pappu may also come. Amongst the
accused persons one was Pandit Pappu. She
states that in her earlier statement she has
stated that the accused persons were of
Thakur community. She states that amongst
the accused persons one was a Thakur and
the other was a Brahmin. She states that her
earlier statement that both the accused
persons were of Thakur community was
not correct. She states that she has not
given any statement in Court that both the
accused
persons
were
of
Thakur
community. She further states that her
father had gone for getting the first
information report lodged. She had a talk
with her father prior to the lodging of the
first information report. She had told the
entire incident to her father. She states that
she did not know the accused persons from
before. She states that the accused present
in Court is Hariom. They were calling each
other by name. She states that now she does
not know as to of which caste the accused
belongs. The name of Hariom was
mentioned in the first information report.
She states that when the accused persons
were calling each other by taking their
names. Her father was also present there.
Her father was present at a distance of 10 to
20 steps. To a suggestion that she is giving
a false statement, she denies.

23. Paramsukh P.W.-2 is the father of
"V", the first informant of the present
matter and also claims himself to be an
eyewitness
of
the
incident.
In
his
examination - in - chief he states that "V" is
his daughter. They belong to Jatav
community. The accused are of higher
caste. He states that around 4 years back he
was working in a brick kiln in Bhujpura
and were staying there in the night. At
about 8.00 p.m., the accused persons along
with one other person came to the kiln and
asked him for "maal", to which he said that
he has nothing and then he was called out
of his hut. At that time his family consisted
of himself, his wife Kishan Pyari, his
daughter
"V"
and
another
daughter
Thanwati and a small child. The said
persons took them to the paddy field
forcibly and tied them to a babul tree. The
accused persons tied all of them except "V"
and took "V" away at some distance from
them. Thanwati could not be tied and she
slipped from it as she was small. The
accused persons then committed rape on
"V" and ran away. His younger daughter
Thanwati untied them and then they went
to "V" and lifted her and brought her back.
He states that then they went to the house
of Mukhiya in the village, who called Ram
Singh Contractor. Ram Singh Contractor
then took him to his house. They did not let
him lodge a report for 2 days. He then
lodged a report after 2 days. He was read
out the report, and states that he gave the
same and also identifies his thumb
impression on it, which was marked as
Exhibit Ka-1 to the records. He states that
the medical examination of his daughter
was done. He states that at that time his
daughter was aged about 14 years.

24. In his cross-examination he states
that he had mentioned the age of his
daughter as 16 years in his report. He states
that he had earlier worked in the kiln and
was driving a buggy. He states that at the
time of incident except for his family there
was no one else. The watchman had run
away. He states that he does not know that
the watchman had run away prior to the
coming of the accused persons. He does not
know the name of the watchman, who is a
resident of Daudpur. The accused persons
had come and asked for "maal" and they
were referring to his daughter by saying so,
the night was dark. He and his family
1 All. Vijay Singh Vs. State of U.P.
399
members did not know the accused from
before. He does not know the name of
Mukhiya, who is called so. He states that
the accused persons told their names after
their arrest. Villagers had told the names of
the accused persons. At the time of lodging
of the report he knew their names. The
accused persons made them walk ahead of
themselves. Both the accused called him
Pappu. He did not know the caste of the
accused prior to lodging of the report. All
the accused were of Thakur community. He
states that he does not know the name of
the person, who told him the name of the
accused. He states that he had written in the
report of the accused had detained them. If
the same is not written in the report he does
not know the reason for it. He states that
his report was written at the police station
by someone else and he cannot tell as to
who wrote it. On the report his thumb
impression was got affixed and the same
was read to him. He states that the delay in
lodging of the first information report was
due to the reason that the accused had
detained them. He states that he had told
the name of third accused also, but if the
same is not in the report he does not know
the reason about it. All the persons were
tied with a dhoti. They were tied for about
30 minutes. They had lifted the girl and
brought her. The accused persons had
stopped them from lodging of the first
information report and had threatened them
of dire consequences, due to which the
same was got registered on the third day,
for which they had gone by hiding for
lodging the report. He was interrogated by
the Investigating Officer on the day of
lodging of the report. He had told the
names of three Pappu's to the Investigating
Officer, but if in his statement, the name of
third person has not been written, he does
not know the reason. He states that he had
told the Investigating Officer that the
accused persons had detained them due to
which the first information report has been
lodged with a delay, but if the said fact has
not been written, he does not know the
reason. To a suggestion that he has falsely
named the accused on the saying of
villagers, he denies. He states that he
cannot say as to whether he could
recognize the accused persons due to dark
or not. Further to a suggestion that on the
saying of villagers due to party-bandi he
has falsely implicated the accused persons,
he denies the same. He states that it is true
that the Inspector at the police station had
written his report and got his thumb
impression affixed on it.

25. The said witness was recalled for
further examination by the prosecution vide
order of the Trial Court. He states that the
accused persons were taking names of each
other and were calling them by taking
names and they used to come to the kiln for
taking bricks. He further states that at the
time of incident they had taken the names.

In the cross-examination he stated
that they were taking name of Pappu. They
were calling Thakur Pappu. They were
saying that Pappu burn the hut. Both were
Pappu Thakur. The third person was Anil
he had written the names of all the three
accused in the report. He is illiterate. He
does not remember the name of the third
person. He states that he had got the name
of Anil written in the report, but if his name
is not written he does not know the reason.
He states on seeing the accused persons in
Court that he now does not remember their
names. The names of the accused were told
to him by Ram Chandra Mukhiya. He
states that previously he had stated that he
had written the names on the saying of
villagers. He states that he does not
remember as to which police personal
400 INDIAN LAW REPORTS ALLAHABAD SERIES
wrote the report. He states on seeing
Exhibit Ka-1 that the same was written by a
police personal at the Police Chauki. On a
suggestion that he is giving the statement
on the tutoring of the Government
Advocate, he denies the same. He states
that he had got the correct names of the
accused written.

26. Dr. S. Latoriya P.W.-3 was posted
as Medical Officer in Mohan Lal Gautam
Women Hospital, Aligarh on 22.10.1994.
She examined "V", who was brought by
police constable. She states that she did not
find any injury on the face, neck, chest,
back, hands and legs of "V". She states that
on internal examination she found the
hymen to be old torn, which admitted two
fingers easily. She had advised X-ray
examination for ascertaining the age of
"V". She states that she cannot give any
opinion about rape as "V" was habitual to
intercourse.
She
proves
the
medical
examination report, which was marked as
Exhibit Ka-2 to the records.

In her cross - examination she
states that in the report there is no mention
of any injury and if there would have been
any injury, she would have written it. She
states that it is true that the victim was
habitual to intercourse. She further states
that there is a variation of two years on
other sides of age.

27. Dr. Qamar Ahmad P.W.-4 was
posted as Senior Radiologist in M.S.
Hospital on 24.10.1994. He got the X-ray
examination done under his supervision of
"V". He states that the right wrist, right
elbow and the right knee was subjected to
X-ray and it was seen that all centres of
ossification are united at the respective
places. He proves the X-ray plates, which is
marked as Material Exhibit-1 to the
records.

In the cross-examination he states
that the age of "V" as per Radiological
examination is about 19 years. He states
that the age of girl can be 2 years above 19
years, but cannot be less than 19 years. He
states that he has not mentioned the age in
his report. The estimation of age is about
19 years. He states that the supplementary
report is not on the record of this case. He
states that he has disclosed the age of the
girl on the basis of X-ray plates.

28. R.P. Chaudhary P.W.-5 is the first
Investigating Officer of the case. The
investigation remained with him from
22.10.1992 to 27.10.1994. During this
period. He recorded the statement of the
first informant, his wife and the victim. He
prepared the site plan and inspected the
place of occurrence. He then recorded the
statement of Ved Prakash, the son of the
first informant. He proves the site plan,
which is marked as Exhibit Ka-4 to the
records. He arrested accused Anil Kumar
on 25.10.1994 with the help of the first
informant and "V". He had recommended
recording of the statement u/s. 164 Cr.P.C.,
which
was
recorded
and
then
the
investigation was transferred to Sharad
Chandra
Pandey.
He
identifies
the
handwriting of Sharad Chandra Pandey and
proves
the
charge-sheet,
which
was
prepared by him. The same is marked as
Exhibit Ka-5 to the records. He then
identifies the handwriting of Constable
Clerk Lakhan Singh and proves the chik
report as that written by him. The same is
marked as Exhibit Ka-6 to the records. He
proves the G.D. entry being G.D. No. 30 at
17.30 hrs. dated 22.10.1994 regarding the
lodging of the first information report and
1 All. Vijay Singh Vs. State of U.P.
401
proves the carbon copy of the same, which
is marked as Exhibit Ka-7 to the records.

In his cross-examination he states
that he prepared the site plan on the pointing out
of the first informant on 22.10.1994. He has not
mentioned the distance between the hut of the
first informant and the place of occurrence in
the site plan. He states that the field was not
having any crop of paddy. It was lying vacant.
He states that there was a closed well near the
place of occurrence. He has not written the
names of the person whose fields are near the
place of occurrence. He states that the place of
occurrence was a vacant land and was not used
for cultivation. He states that there were 12 huts
at the kiln. To a suggestion that he did not go to
the place of occurrence and has thus, not
mentioned the names of the owners of the
tubewell and fields and has not mentioned the
distance between the place of occurrence and
the huts, he denies. He states that he has not
mentioned the length and breadth of the kiln.
He states that in the 12 huts, 12 families live. He
did not interrogate any labour as they were not
present at the spot. He states that he did not
consider it necessary to interrogate the labours
and as such did not make any effort again. He
states that he did not show the route of the
accused going as he did not consider it
necessary. He interrogated "V" on 22.10.1994.
He states that "V" did not tell him that the night
was dark and the face of anyone was not
visible. He states that he did not ask "V" about
the blood stained clothes and she did not tell
him about the accused scratching her chest. He
states that she had told him that she knew the
accused from before. He states to have
interrogated Paramsukh on 22.10.1994 and
have also read the first information report. He
has stated that in the first information report it is
mentioned that the delay in lodging the same
was due to the fact that the brick kiln owner had
told him not to lodge it. He states that the first
informant had in his statement told him that the
owner of the brick kiln has informed the police.
He states that the scribe of the first information
report is Vinod Kumar Gautam. The first
informant told him in his statement that he does
not know the name of the scribe of the first
information report. To a suggestion that the
application has been got written at the police
station, he denies. To a further suggestion that
the Inspector has written the report by his hand,
he denies. He states that he has not taken into
custody the petticoat and blouse of girl as the
incident was 3 days old. He denies the
suggestion that he did not go to the place of
occurrence and did paper work falsely at the
police station.

29. The accused in their statements
under Section 313 Cr.P.C. have denied the
incident.

30. Accused Anil Kumar in his
statement under Section 313 Cr.P.C. has
stated that he is not named in the first
information report, he has been implicated
on the saying of others and has been falsely
implicated and the investigation as done is
totally faulty, he be acquitted.

31. Accused Vijay Singh in his
statement under Section 313 Cr.P.C. has
stated that he has enmity with Ram
Chandra of kiln, who has falsely got shown
him as an accused. He had purchased the
land of someone and was digging mud
from the boundary of his field due to which
he was inimical. He states that he has been
implicated in the matter due to enmity.
Paramsukh was working in the kiln of Ram
Singh Contractor. Paramsukh did not know
him from before.

32. Accused Hariom Sharma in his
statement recorded under Section 313
Cr.P.C. has stated that he has no
relationship with Vijay Singh, he is a
402 INDIAN LAW REPORTS ALLAHABAD SERIES
Brahmin and has been falsely implicated
due to village party-bandi and due to
enmity.

33. "V" P.W.-1 states that she was
raped by three persons but the medical
evidence runs totally contrary to it. She
also states to have received scratches
caused by nails of the accused persons on
her chest and private parts but there is no
such injury found by the doctor who
medically examined her. She states that she
had bled while being raped and her clothes
became blood stained but neither did she
give any such clothes to the Investigating
Officer nor did the doctor conducting her
medical examination find any such injury
on her private parts but to the contrary she
found her to be habitual to sexual
intercourse.

34. Similarly Paramsukh P.W.-2 has
also given the same version of the
incident and rape on his daughter as
given by "V" P.W.-1. Even his statement
does not find corroboration from the
medical evidence. He states to be an eye
witness to the incident alongwith his
wife, younger daughter and son but the
same also does not find corroboration
from any source.

35. The other alleged eye witnesses of
the incident being the mother, younger
sister and younger brother of "V" P.W.-1
have not been produced before the trial
court but their not being produced can in no
manner be fatal to the prosecution and in a
case
like
this
the
version
of
the
prosecutrix/victim is sufficient to prove the
charge against the accused persons but in
the present case Paramsukh P.W.-2 who is
the first informant and the father of PW 1
has deposed of being an eye witness of the
incident.

36. This court has to appreciate the
evidence of the said two witnesses viz. "V"
P.W.-1 and Paramsukh P.W.-2 as to
whether they are truthful witnesses and as
to whether their evidence is of such quality
that they are to be treated as fully reliable
witnesses after testing their deposition from
the
corroborating
evidence
and
circumstances to prove the charges against
the accused persons.

37.