# Vinod Kurmi v. State of U.P

- **Citation:** (2016) 3 ILRA 8
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-02-29
- **Case number:** Criminal Appeal No. 4242 of 2011
- **Bench:** Mrs. Ranjana Pandya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-kurmi-v-state-of-u-p-43606
- **Pages:** 8

## Headnote

Criminal Law - Kidnapping - Rape - FIR delay of 27 days - Informant a Police Chowkidar - Hostile
witnesses - Victim contradicting herself - Exoneration of co-accused - Medical evidence contradictory
- Clothes not sent to FSL - Investigation lapses - Burden of proof- Benefit of doubt - Acquittal.

Penal Code, 1860 - Ss. 363, 366, 376, 506 - FIR lodged after 27 days - Informant father a
Chowkidar of same police station - No satisfactory explanation for delay - Eyewitnesses (PW-3, PW-4)
turned hostile - Victim's testimony inconsistent regarding identity of second accused - Medical
evidence contradictory on condition of hymen - Investigation defective as clothes not sent for FSL -
Prosecution version doubtful - Conviction set aside.

## Text

8 INDIAN LAW REPORTS ALLAHABAD SERIES
assumption without there being any tangible evidence. The payment of duty, interest and penalty
consequently cannot be sustained and are set aside. Question No.B is, accordingly, answered in
favour of the appellant and against the Department.

16. In view of the aforesaid, it is not necessary for us to decide question No.A as the same has
becomes academic. However, we are of the opinion, that once a finding has been given by the
Tribunal that there has been no suppression or misstatement by the appellant under Section 11-A of
the Act, consequently, imposition of penalty under Section 11-AC of the Act does not arise.

17. In ECE Industries Limited vs. Commissioner of Central Excise, New Delhi,
2004(164)E.L.T.236, the Supreme Court held, that if there was no willful suppression or
misstatement, the extended period under Section 11-A could not be invoked and since there was no
suppression, penalty could not be imposed also. Similar view was also given by the Supreme Court
in Commissioner of Customs, Mumbai vs. M.M.K.Jewellers, 2008(225) E.L.T.3 (S.C.), wherein
the Supreme Court held:-

"42. Penalty under Section 114A is imposable only when the demand is confirmed under
the proviso to Section 28(1) of the Act. In view of the clear findings of the Commissioner that
the respondent-assessees are not guilty of suppression of facts or are guilty of collusion or
misstatement and, therefore, duty cannot be imposed by invoking the extended period of
limitation. When the duty itself cannot be imposed, no order of imposing the penalty under
Section 114A of the Customs Act can be sustained."

18. The provision of Section 28(1) and Section 114-A of the Customs Act being pari materia
with the provision of Section 11-A and Section 11-AC of the Act, the aforesaid decision is wholly
applicable. Consequently, question No.A is also answered in favour of the appellant and against the
Department.

19. In view of the aforesaid, the order in original as well as the Tribunal's order are quashed.

20. The appeal is allowed.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.02.2016

BEFORE

THE HON'BLE MRS. RANJANA PANDYA, J.

Criminal Appeal No. 4242 of 2011

Vinod Kurmi ...Appellant
Versus
State of U.P. ...Respondent
3 All. Vinod Kurmi Vs. State of U.P.
9
Counsel for the Appellant:
Ashish Kumar, Pradeep Kumar VI

Counsel for the Respondent:
Govt.Advocate

Criminal Law - Kidnapping - Rape - FIR delay of 27 days - Informant a Police Chowkidar - Hostile
witnesses - Victim contradicting herself - Exoneration of co-accused - Medical evidence contradictory
- Clothes not sent to FSL - Investigation lapses - Burden of proof- Benefit of doubt - Acquittal.

Penal Code, 1860 - Ss. 363, 366, 376, 506 - FIR lodged after 27 days - Informant father a
Chowkidar of same police station - No satisfactory explanation for delay - Eyewitnesses (PW-3, PW-4)
turned hostile - Victim's testimony inconsistent regarding identity of second accused - Medical
evidence contradictory on condition of hymen - Investigation defective as clothes not sent for FSL -
Prosecution version doubtful - Conviction set aside.

1. Delay in FIR.
Although delay in sexual offences may be explainable, here the informant himself was the Chowkidar
of Police Station Shyam Deorwa, visited twice a month for attendance, yet remained silent for 27
days. Plea of threats unproved. Delay wholly unexplained, creating doubt on entire prosecution
version.(Paras 10-15)

2. Hostile witnesses.
PW-3 (Mithai) and PW-4 (Rajendra), projected as eyewitnesses to the kidnapping, denied seeing the
accused take the victim. Their hostility destroys the prosecution's claimed corroboration. (Para20)

3. Victim's evidence self-contradictory.
Victim stated only Vinod raped her and exonerated Sunil; claimed she named Sunil in S.164 statement
because "lady police threatened her" - explanation not supported by any reason. Statements
inconsistent about (a) persons who saw her being taken, (b) presence of Sunil, (c) conditions of
detention, (d) what she ate or saw. Her narrative found unreliable.(Para 21).

4. Medical evidence contradictory.
Doctor's testimony contradicted written report on whether hymen was intact. No injuries on body; no
signs of struggle. Medical evidence failed to support charge of rape.(Paras 16-17)

5. Investigation flawed.
I.O. admitted clothes of victim were not sent to FSL despite being seized; no valid reason assigned.
Serious lapse weakening prosecution.(Para 22)

HELD (Paras 23-25) : Benefit of doubt-Evidence of witnesses contains major contradictions;
prosecution story "shaky, unreliable and not worthy of credence." Charges not proved beyond
reasonable doubt. Conviction set aside; appeal allowed; accused released.

Case Law discussed:
1. State of Rajasthan v. Narayan, AIR 1992 SC 2004 - (Para 9)
2. State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 - (Para 9)
3. Mohd. Ali @ Guddu v. State of U.P., (2015) 3 SCC (Cri) 82 - (Para 11)
4. State of H.P. v. Gian Chand, (2001) 6 SCC 71 - (Para 14)
5. Tameezuddin @ Tammu v. NCT of Delhi, (2009) 15 SCC 566 -(Para 18)

(Delivered by Hon'ble Mrs. Ranjana Pandya, J.)
10 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Challenge in this appeal is to the judgment and order dated 28.04.2011, passed by
Additional Sessions Judge, Maharajganj, in Sessions Trial No. 163 of 2007 (State vs. Vinod
Kurmi and another), registered as Case Crime No. 681 of 2007, under Sections 363, 366,
376, 506 I.P.C., Police Station Shyam Deorwa, District Maharajganj, whereby the accused
Sunil was acquitted for the offences under Sections 363, 366, 376, 506 I.P.C. and the present
accused appellant namely Vinod Kurmi was found guilty and sentenced for two years
rigorous imprisonment along with fine of Rs. 2000/under Section 363 I.P.C.; seven years
rigorous imprisonment along with fine of Rs. 5000/- under Section 366 I.P.C.; ten years
rigorous imprisonment along with fine of Rs. 10,000/- under Section 376 I.P.C. and two
years rigorous imprisonment along with fine of Rs. 3000/- under Section 506 I.P.C. with
default stipulation.

2. Prosecution case in brief is that one Ram Murat has lodged a written report on
28.08.2007 stating that he was resident of village Piparpati Tola, Samerhana, Police Station
Shyam Deorwa, District Maharajganj. His daughter aged about 12 years, student of class
Vth was kidnapped by the accused Vinod and Sunil on 01.08.2007 while she was going to
attend the call of nature. After three days, the girl could not be traced. She was searched out
at the house of the relatives but, could not be traced. On 03.08.2007, at about 05:00 A.M.,
the accused by pressing the mouth of the victim, taking her away through the fields when
the witnesses Rajendra and Mithai spotted them. They fled away leaving the girl who
narrated the incident to her father. She also told him that she was raped for three days by
both the accused. The accused had also threatened to kill the informant, hence the first
information report was lodged.

3. On the basis of aforesaid written report CP 572 Kalp Nath Prasad has scribed the
chik report which was proved by this witness as Exhibit Ka-3 and also prepared the G.D.
whose copy was proved as Exhibit Ka-4. Investigation of the matter was entrusted to S.I.
Uma Shankar Yadav PW-9 who copied the chik and G.D. in the case diary. He recorded the
statement of the informant Ram Murat, further recorded the statement of the victim at her
house. Her clothes were taken into possession by the police. Seizure memo was prepared
which was proved by this witness as Exhibit Ka-10. The place of incident was inspected at
the pointing out of the victim and site plan was prepared which was proved as Exhibit Ka11. The clothes of the victim was produced before the court and were exhibited as material
exhibits 1, 2 and 3. He arrested the accused on 29.08.2007. On 30.08.2007, he recorded the
statement of the witnesses Rajendra and the Mithai. After which the investigation was
transferred to S.I. Jamuna Prasad Singh PW-8. He prepared the memo of handing over the
victim to her parents which was proved as Exhibit Ka-8. The investigation was ended into a
charge sheet which was proved by this witness as Exhibit Ka-9. Dr. Abha Gupta PW-6 has
medically examined the victim. She proved the medical report as Exhibit Ka-5 and the
radiological report as Exhibit Ka-6. She did not find any marks of injury on the body of the
victim.

4. The prosecution has examined as many as nine witnesses, PW-1 is the informant
Ram Murat who proved the written report as Exhibit Ka-1, P.W.-2 is the victim who proved
3 All. Vinod Kurmi Vs. State of U.P.
11
her statement recorded under Section 164 Cr.P.C. as Exhibit Ka-2. PW-3 is Mithai and PW4 is Rajendra who are said to have seen the accused persons taking away the victim. The
evidence of PW-5 Kalp Nath, PW-6 Dr. Abha Gupta, PW-8 SI Jamuna Prasad Singh and
PW-9 SI Uma Shankar Yadav have earlier been discussed. PW-7 is Dr. Rajeev Ranjan,
radiologist who has proved the radiological report as Exhibit Ka-7.

5. After closure of the prosecution evidence, the statement of the accused persons were
recorded under Section 313 Cr.P.C., in which the accused Sunil has stated that the witnesses
of memo Irshad is inimical with the accused, hence he has been falsely implicated. The
accused Vinod has stated that the informant is Chowkidar of the police station. He has taken
the police in his influence and has lodged a false report. However, no defence evidence was
adduced.

6. After hearing counsel for both the parties, the learned lower court has passed the
sentence and recorded the conviction as specified in para one of the judgment.

7. Feeling aggrieved, the accused appellant has come in this appeal.

8. I have heard learned counsel for the appellant, learned A.G.A. and perused the
original record of the trial court.

9. It has been submitted on behalf of counsel for the appellant that there is inordinate
delay in lodging the first information report. Although mere delay in lodging the FIR cannot
be a ground by itself for throwing the entire prosecution case overboard. The Court has to
seek an explanation for delay and test the truthfulness and plausibility of the reason
assigned. If the delay is explained to the satisfaction of the Court it cannot be counted
against the prosecution. In State of Rajasthan Vs. Narayan, AIR 1992 SC 2004 the Apex
Court has observed that the complaint was lodged two days later but as stated earlier Indian
society being what it is the victims of such a crime ordinarily consult relatives and are
hesitant to approach the police since it involves the question of morality and chastity of a
married woman. A woman and her relatives have to struggle with several situations before
deciding to approach the police. In State of Punjab Vs. Gurmit Singh & Ors., 1996 SCC (2)
384, the Apex Court has held that the Courts cannot overlook the fact that in sexual offences
delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of
the prosecutrix or her family members to go to the police and complain about the incident
which concerns the reputation of the prosecutrix and the honour of her family.

10. PW-1 Ram Murat has stated that when his daughter went to attend the call of
nature, she did not returned. Next morning, he came to know about the missing of the girl.
He went to the village Pradhan and Panch when the girl was found missing. He was told by
Rajendra and Mithai that they saw the accused persons taking away the victim and thus, he
lodged the report on 28.08.2007 after a delay of about 27 days. He has tried to explain this
delay by stating that on 03.08.2007, his daughter was recovered at 05:00 A.M. He was
trying to go to the police station while the accused threatened to kill him. Due to sudden
threat, he could not lodge the first information report.
12 INDIAN LAW REPORTS ALLAHABAD SERIES

11. If the obligation in the first information report and the statement of the informant is
taken on its face value, even then, no reason has been assigned why till the recovery of the
girl, the informant kept mum. In (2015) 3 SCC (Cri) 82, Mohd. Ali alias Guddu vs. State of
Uttar Pradesh, Hon'ble the Apex Court has held as under:-

"Be it clearly stated here that delay in lodging the first information report in cases
under Section 376 I.P.C. would depend upon facts of each case and this Court has
given immense allowance to such delay, regard being had to the trauma suffered by the
prosecutrix and various other factors, but a significant one, in the present case, it has
to be appreciated from a different perspective. The prosecutrix was missing from home.
In such a situation, it was a normal expectation that either the mother or the brother
would have lodge a missing report at the police station. The same was not done. This
action of PW-2 really throws a great challenge to common sense. No explanation has
been offered for such delay. The learned trial Judge has adverted to this fact on an
unacceptable backdrop by referring to the principle that prosecutrix suffered from
trauma and the constraint of the social stigma. The prosecutrix at that time was
nowhere on the scene. It is the mother who was required to inform the police about
missing of her grown-up daughter. In the absence of any explanation, it gives rise to a
sense of doubt."

12. In this regard, PW-1 Ram Murat has stated that he was threatened by the accused.
He has stated that the girl was brought back to the home three days after she was missing
from the house by Rajendra and the girl had told him that she was kidnapped by Vinod and
Sunil and then he has come to know about the occurrence. In cross-examination, the witness
has stated that when he went to "Pancho", they had suggested him to go to the police station
to lodge the report but he did not go to the police station but keep on searching his daughter.
He has stated that when he went to the police station, he narrated the incident to the Sub
Inspector. The Sub Inspector called one person to scribe the written report which was
dictated by the Sub Inspector, while this witness has signed the written report. He has
further mentioned that when he got the report scribed, he had written that Vinod and Sunil
armed with lathi, danda and arms were threatening him. The testimony of this witness is not
reliable, inasmuch as the story as narrated by this witness is not palatable because he has
admitted that he is the Chowkidar of the village. Even Kalp Nath Prasas PW-5, who has
proved the chik report and copy of G.D., has admitted that the informant Ram Murat is
Chowkidar of the Police Station, Shyam Deorwa and the tehrir was submitted by the
informant. When this witness was asked what was the meaning of "Prarthi" mentioned in the
first information report, he said that "Prarthi" means "Vidyarthi". In the next breath, he said
that he did not know the meaning of "Prarthi". He has admitted that when the accused were
threatening him, he had told this matter to Gopali, resident of his village at which Gopali has
suggested this witness to lodge the first information report.

13. Although, the informant and his daughter, the victim have concealed that the
informant is a Chowkidar. Mithai PW-3, who is a hostile witness, whose evidence could
also be relied on, has admitted that Ram Murat is the Chowkidar of the village and he is the
3 All. Vinod Kurmi Vs. State of U.P.
13
Chowkidar of the Police Station Shyam Deorwa, where the report was lodged and he also
goes twice to the Police Station for his attendance. Even PW-4, Rajendra who as per version
of the informant is related to informant, has admitted that the informant is Chowkidar of
Police Station Shyam Deorwa who has to go to get his attendance mark at the police station
twice a month.

14. Thus, the inordinate delay in lodging the first information report is not at all
explained. The delay in lodging the first information report cannot be used as a ritualistic
formula for doubting the prosecution case and discarding the same solely on the ground of
delay in lodging the first information report. Delay has the effect of putting the Court in its
guard to search, if any, explanation has been offered for the delay, and if offered, whether it
is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is
possibility of embellishment in prosecution version on account of such delay, the delay
would be fatal to the prosecution. However, if the delay is explained to the satisfaction of
the court, the delay cannot be itself be a gerund for disbelieving and discarding the entire
prosecution case as has been laid down in (2001) 6 SCC 71, State of Himachal Pradesh vs.
Gian Chand.

15. Thus, as I have said earlier, the prosecution has miserably failed to explain the
delay which casts a shadow of doubt on the whole prosecution case.

16. As far as, the kidnapping and raping the victim is concerned, the age of the victim
as per the medical report is about 15 years. Her hymen was not found intact and the vagina
was admitting index finger. As per the statement of Dr. Abha Gupta, no signs of struggle
were found on the body of the victim. But contradicting to her report, she has stated that the
hymen was intact which she has explained was that the hymen was not in its natural and
actual position. Thus, the evidence of this witness is contradictory to her medical report
Exhibit Ka-5.

17. Dr. Rajeev Ranjan PW-7 has stated that in any event of the matter, the age of the
victim is below 17 years.

18. In (2009) 15 SCC 566, Tameezuddin Alias Tammu vs. State (NCT of Delhi) the
Hon'ble Apex Court has held as under:-

"It is true that in a case of rape the evidence of the prosecutrix must be given
predominant consideration, but to hold that this evidence has to be accepted even
if the story is improbable and belies logic, would be doing violence to the very
principles which govern the appreciation of evidence in a criminal matter. We are
of the opinion that the story is indeed improbable."

19. It is now well settled that a finding of guilt in a case of rape, can be based on the
uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to
get direct corroboration of the evidence. The evidence of the prosecutrix should not be
rejected on the basis of minor discrepancies and contradictions. If the victim of rape states
14 INDIAN LAW REPORTS ALLAHABAD SERIES
on oath that she was forcibly subjected to sexual intercourse, her statement will normally be
accepted, even if it is uncorroborated, unless the material on record requires drawing of an
inference that there was consent or that the entire incident was improbable or imaginary.
Even if there is consent, the act will still be a 'rape', if the girl is under 16 years of age. It is
also well settled that absence of injuries on the private parts of the victim will not by itself
falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a
doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to
disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the
victim especially on the forearms, writs, face, breast, thighs and back are indicative of
struggle and will support the allegation of sexual assault. The courts should, at the same
time, bear in mind that false charges of rape are not uncommon. There have also been rare
instances where a parent has persuaded a gullible or obedient daughter to make a false
charge of a rape either to take revenge or extort money or to get rid of financial liability.

20. The father of the victim Ram Murat has admitted that his daughter is very obedient,
very simple and obeys everything, said by him. I have no doubt that the victim is a minor
but her evidence has to be scrutinized very carefully and since the prosecution has come
forth with the specific case that she was seen being taken away by the accused persons by
the witnesses Mithai and Rajendra, this definitely, the court will seek corroboration of her
statement by the statement of Rajendra and Mithai who have been produced as persecution
witnesses. Mithai is PW3 who has stated that he had no conversation with Ram Murat about
the victim, nor he saw the accused persons taking away the victim. This witness was
declared hostile and cross examined by the prosecution who has admitted that the accused
persons were resident of another village, whereas the informant was a Chowkidar of the
Police Station Shyam Deorwa where the report was lodged. Rajendra, who as per the
informant, is his brother belonging to the same village has stated that he did not see the
accused taking away the victim nor he told this incident to the informant. He was also
declared hostile by the prosecution and was cross-examined, in which he denied of having
given any statement to the I.O. under Section 161 Cr.P.C. Thus, the witnesses Mithai and
Rajendra have denied of having seen the accused persons taking away the victim.

21. Coming to the factum of rape, the victim has stated that when she was going to attend the
call of nature, Vinod and one another person met her. They dragged her in the house of Vinod Kurmi,
threaten to kill her, if she would raise alarm and both the persons raped her against her wishes. She
said that she recognized Vinod Kurmi but could not identify the other accused. Athough, her father
PW-1 Ram Murat has stated that the victim had told him that Vinod Kurmi and Sunil have taken her
daughter away and raped her. The victim had gone to the extent of saying that she did not know the
name of the second man. She has stated that she was seeing upon by Rajendra and Mithai while she
was taken away by the accused Vinod Kurmi and one other man, but the witnesses Rajendra and
Mithai have denied of having seen any such occurrence. The victim has exonerated Sunil by saying
that "विनोद कुर्मी र्मेरे साथ गलत कार्म ककया था र्मुल्जिर्म सुनील र्मेरे साथ गलत कार्म नह ीं ककया था। विनोद के साथ सुनील
घटना के सर्मय नह ीं था बल्जक दसु रा कोई आदर्मी था ल्िसका नार्म र्मैं नह ीं िानती और आि िह अदालत र्में नह ीं है।" When the
witness was contradicted as to how she had named Sunil in her statement under Section 164 Cr.P.C.,
she stated that since the lady police had threatened her, she had implicated Sunil also in her statement
under Section 164 Cr.P.C. No enmity with the lady police has been alleged and there is no reason
3 All. Tauseef Vs. State of U.P.
15
 why the lady police would compel the victim to state the name of Sunil is a million dollar
question which remain unanswered because to do so, she would have to be inimical with Sunil which
is not the question, in the present case. The victim has further stated that when the lady police
threatened her, she did not complain about this matter to anybody, although the victim is a teenager
but it appears that she is very good in changing her statement because she has stated that when Vinod
and his companion were taking her away to the house of Vinod, nobody saw her. She was detained at
the house of Vinod Kurmi. she did not go out of the house to attend the call of nature or to drink
water. She has further stated that for three days, she did not eat anything. She has also gone to the
extent of saying that when the accused persons left her and fled away, they kept on threatening her
but Sunil was not amongst them. This negative evidence for Sunil indicates many things and also to
falsify the theory.

22. The Investigating Officer has stated in his statement that he did, what he deemed correct.
PW-9 S.I. Uma Shankar Yadav has also admitted that the informant is Chowkidar of his Police
Station and he did not sent the clothes of the victim to the Forensic Lab because he did not think to
sent them proper. Although the victim had handed over the clothes to him.

23. Thus, on what has been said and discussed above, I find that the evidence of the witnesses
have major contradictions and the prosecution story is shaky, unreliable, not worthy of credence.
Thus, the prosecution has miserably failed to prove the case against the appellant and the appeal is
liable to be allowed.

24. Accordingly the appeal is allowed.

25. The impugned judgment of conviction and sentence dated 28.04.2011, passed by Additional
Sessions Judge, Maharajganj, in Sessions Trial No. 163 of 2007 (State vs. Vinod Kurmi and another),
registered as Case Crime No. 681 of 2007, under Sections 363, 366, 376, 506 I.P.C., Police Station
Shyam Deorwa, District Maharajganj is hereby set aside.

26. The appellant Vinod Kurmi is in jail. He shall be released forthwith in this case. However,
the appellant is directed to comply with the provision of Section 437A Cr.P.C.

27. Let the copy of this judgment be sent to the trial court concerned for compliance.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.02.2016

BEFORE

THE HON'BLE MRS. RANJANA PANDYA, J.

Criminal Appeal No.- 5334 of 2010

Tauseef ...Appellant
Versus
State of U.P. ...Respondent