# X v. State of U.P. & Ors

- **Citation:** (2024) 4 ILRA 1099
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-09
- **Case number:** Criminal Appeal No. 153 of 2023
- **Bench:** Ashwani Kumar Mishra, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/x-v-state-of-u-p-ors-51773
- **Pages:** 5

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Sections 372 & 384 -
Criminal Appeal Against Acquittal - Indian
Penal Code, 1860 - Sections 376-D & 506
- POCSO Act, 2012 - Section 6 - Benefit of
Doubt
-
Proof
of
Minority
-
Material
Contradictions - Lack of Corroboration - Medical
Evidence - The appellant/victim (X) challenged
the acquittal order dated 24.02.2023 by the
Special Judge (POCSO Act), Bareilly, in Sessions
Trial No. 46 of 2020, arising from Case Crime
No. 432 of 2017, under Sections 376-D, 506 IPC
and Section 6 POCSO Act. The prosecution
alleged that on 10.09.2017, the victim, aged 17,
was abducted from Nekpur Sugar Mill, rendered
1100 INDIAN LAW REPORTS ALLAHABAD SERIES
unconscious by a substance, and gang-raped by
multiple accused, including Sanjay Sonkar, Boby,
Nandram, and others, before being left at her
home with threats. The FIR was lodged on
18.09.2017, and a chargesheet was filed after
investigation. The trial court acquitted the
accused, granting them the benefit of doubt,
finding the prosecution failed to prove the
incident. Held: The appeal was summarily
rejected under Section 384 Cr.P.C., affirming the
acquittal, as: (1) the prosecution failed to prove
the victim's minority, with the trial court noting
deficiencies in evidence (unverified transfer
certificate, absence of birth register or parental
testimony) and the ossification test indicating
the victim was 19 years old, per Section 94 of
the Juvenile Justice Act; (2) the medical
examination, conducted on 19.09.2017, showed
no external or internal injuries, with an old,
healed hymen tear, undermining the gang-rape
allegation; (3) material contradictions in the
victim's St.ments (varying number of assailants
from 9 to 6, 10, and 8 across St.ments and trial)
and lack of independent corroboration dented
her credibility; (4) the bloodstained Capri,
allegedly worn by the victim, was unreliable
evidence, as it was washed, and bloodstains
persisting after 10 days were implausible; (5)
the absence of independent witnesses to the
abduction from a public place and admitted
enmity between families suggested possible
false
implication;
(6)
no
perversity
or
misconstruction of evidence was found in the
trial
court's
permissible
view
that
the
prosecution failed to prove the case beyond
reasonable doubt. The court declined to
interfere with the acquittal, as a different view
alone does not warrant reversal.

## Text

4 All. X Vs. State of U.P. & Ors.
1099
case beyond a reasonable doubt in so far as
the surviving appellant is concerned.

36. Having carefully examined the
entire evidence adduced by the prosecution
in the trial Court, we are of the considered
view that learned trial Court, while holding
the surviving appellant guilty, proceeded on
the basis of conjectures and surmises and
failed to bear in mind the true import of law
laid down by Hon'ble Supreme Court in
Sharad
Birdhichand
Sarda
(Supra)
which has recently been quoted with
approval by Hon'ble Supreme Court in
Raja Naykar (Supra) for ascertaining
whether there was indeed a complete chain
of events that excludes any other possibility
except the involvement of the surviving
appellant in commission of crime in
question.

37. The upshot of aforesaid
discussion is that the impugned judgment
and order dated 27.11.1991 rendered by
learned VIth Additional Sessions Judge,
Unnao, whereby it held the surviving
appellant guilty for the offence under
Sections
302/34
and
377
I.P.C.,
is
unsustainable which deserves to be set
aside and the present appeal deserves to be
allowed.

38. Accordingly, the present appeal
is allowed. Consequently, the impugned
judgment and order dated 27.11.1991 is set
aside. The appellant is acquitted of all
charges levelled against him.

39. The surviving appellant, Maiku
is in jail. Let him be released from jail
forthwith, if he is not wanted in any other
case.

40. The appellant is directed to file
a personal bond and two sureties in the like
amount to the satisfaction of the Court
concerned in compliance of Section 437-A
Cr.P.C. within a period of four weeks from
the date of his release.

41. Let the record of trial Court
along with a copy of this judgment be
transmitted forthwith to the concerned trial
Court for information and necessary
compliance.
----------
(2024) 4 ILRA 1099
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.04.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 153 of 2023
(Under Section 372 Cr.P.C.)

X ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Agnivesh, Sri Jadu Nanda Yadav

Counsel for the Respondents:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Sections 372 & 384 -
Criminal Appeal Against Acquittal - Indian
Penal Code, 1860 - Sections 376-D & 506
- POCSO Act, 2012 - Section 6 - Benefit of
Doubt
-
Proof
of
Minority
-
Material
Contradictions - Lack of Corroboration - Medical
Evidence - The appellant/victim (X) challenged
the acquittal order dated 24.02.2023 by the
Special Judge (POCSO Act), Bareilly, in Sessions
Trial No. 46 of 2020, arising from Case Crime
No. 432 of 2017, under Sections 376-D, 506 IPC
and Section 6 POCSO Act. The prosecution
alleged that on 10.09.2017, the victim, aged 17,
was abducted from Nekpur Sugar Mill, rendered
1100 INDIAN LAW REPORTS ALLAHABAD SERIES
unconscious by a substance, and gang-raped by
multiple accused, including Sanjay Sonkar, Boby,
Nandram, and others, before being left at her
home with threats. The FIR was lodged on
18.09.2017, and a chargesheet was filed after
investigation. The trial court acquitted the
accused, granting them the benefit of doubt,
finding the prosecution failed to prove the
incident. Held: The appeal was summarily
rejected under Section 384 Cr.P.C., affirming the
acquittal, as: (1) the prosecution failed to prove
the victim's minority, with the trial court noting
deficiencies in evidence (unverified transfer
certificate, absence of birth register or parental
testimony) and the ossification test indicating
the victim was 19 years old, per Section 94 of
the Juvenile Justice Act; (2) the medical
examination, conducted on 19.09.2017, showed
no external or internal injuries, with an old,
healed hymen tear, undermining the gang-rape
allegation; (3) material contradictions in the
victim's St.ments (varying number of assailants
from 9 to 6, 10, and 8 across St.ments and trial)
and lack of independent corroboration dented
her credibility; (4) the bloodstained Capri,
allegedly worn by the victim, was unreliable
evidence, as it was washed, and bloodstains
persisting after 10 days were implausible; (5)
the absence of independent witnesses to the
abduction from a public place and admitted
enmity between families suggested possible
false
implication;
(6)
no
perversity
or
misconstruction of evidence was found in the
trial
court's
permissible
view
that
the
prosecution failed to prove the case beyond
reasonable doubt. The court declined to
interfere with the acquittal, as a different view
alone does not warrant reversal.

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.
&
Hon'ble Mohd. Azhar Husain Idrisi, J.)

1. This appeal has been filed by the
victim (X) challenging the judgment and
order dated 24.2.2023, passed by Special
Judge
(POCSO
Act),
Court
No.3/Additional Sessions Judge Bareilly, in
Sessions Trial No.46 of 2020 (State Vs.
Sanjay and others), arising out of Case
Crime No. 432 of 2017, under Sections
376-D, 506 IPC & Section 6 POCSO Act,
Police Station Subhash Nagar, District
Bareilly, whereby accused persons have
been acquitted of the offence by granting
them benefit of doubt. A finding has been
returned that prosecution has not been able
to successfully prove the incident, which
led to the implication of accused persons.

2. This appeal was initially
entertained and lower court records were
summoned, so that the appeal may be
considered for admission. The records have
been received and have been perused by us.

3. The prosecutrix has alleged in
her written report that on 10.9.2017 at
about 7.00 pm she had gone to Nekpur
Sugar Mill to get Chowmein. A scooty
arrived with the minor accused alongwith
accused Jittu @ Jitendra, who are resident
of the same locality and administered some
substance, on account of which she became
unconscious and victim was taken to a
village where she was kept in a room.
When the victim became conscious, she
found herself in a room, where she was
subjected to sexual assault by Sanjay
Sonkar son of Netrapal, Boby, Nandram
and Sanjay son of Makhan Lal etc. The
victim thereafter was left at her house at
about 11.00 in the night and she was also
extended threats. The victim has claimed
herself to be 17 years of age. It is thereafter
that on 18.9.2017 a report was lodged with
local police pursuant to which Case Crime
No.432 of 2017 came to be registered with
above-noted allegations.

4. The investigation ultimately
concluded
with
submission
of
a
chargesheet. Thereafter the case was
committed to the court of sessions. Charges
were framed against the accused persons
4 All. X Vs. State of U.P. & Ors.
1101
who denied the accusations made against
them and demanded trial. It is thereafter
that the trial proceeded and has ultimately
resulted in acquittal of the accused persons.

5. First and foremost, the court of
sessions has taken up the issue as to
whether the victim at the time of incident
was minor or major. Evidence in that
regard has been noticed in para 31 to 34 of
the judgment. The prosecution has placed
reliance upon the transfer certificate issued
to the victim of Class-VI, on the basis of
which the victim got admitted to Class-VII
in a different educational institution on
24.8.2012. The scholar register has been
produced of the later institution and the
Officiating Principal of the institution has
been examined. The Officiating Principal
has admitted that at the time of admission
of the victim and till she left the institution,
the witness was not posted in the
institution. The transfer certificate was not
verified. Trial court has taken note of the
provision of Section 94 of the Juvenile
Justice Act and it has been observed that
there is neither any material to show the
age of the victim at the time of her
admission to Class-I, nor the extract of the
birth register as per the municipal record
etc. has been produced. Parents of the
victim have also not been examined in
respect of the age of the victim.

6. Upon evaluation of the evidence
placed on record, the trial court has held
that prosecution has not been able to prove
the date of birth of the victim on the basis
of materials placed on record. The victim
was medically examined and in her
ossification test report her age has been
found to be 19 years. The trial court has
thus concluded that the prosecution has not
been able to prove the victim to be a minor,
and that the evidence on record proves that
she was major on the date of incident.
Although learned counsel for the appellant
has placed various submissions but no
illegality or perversity has been pointed out
in the application of appropriate law on the
subject by the trial court. We, therefore,
find no illegality in the finding returned by
the trial court that the victim was major on
the date of incident.

7. On the aspect of commissioning
of gang rape the trial court has taken note
of the statement of doctor, who had
examined the victim and found no traces of
any external or internal injury on the
victim. The hymen of the victim was found
old torn and healed. The trial court has
doubted the prosecution case of gang rape
upon the victim by accused persons on the
ground that absolutely no injury of any
kind has been found on the person of the
victim.

8. The trial court has also
disbelieved the prosecution case on account
of material contradictions in the statement
of victim herself. The victim in her
statement
under
Section 161 Cr.P.C.
specifically implicated 9 persons, who
allegedly had subjected her to sexual
assault. The figure of assailants at the stage
of her statement under Section 164 Cr.P.C.
was reduced to 6 persons. At the time of
medical examination of the victim, she
disclosed the doctor that number of
assailants was 10. During the course of
trial, the figure of assailants has been
reduced to 8. This material contradiction in
the number of assailants has been relied
upon by the trial court to doubt the
prosecution case, particularly when the
medical examination of the victim showed
absolutely no external or internal injury.
Apart from the testimony of the victim, no
independent corroboration has come on
1102 INDIAN LAW REPORTS ALLAHABAD SERIES
record. Although it is settled that if the
victim appears to be credible then her
statement alone can form the basis of
conviction in a case of sexual offence, but
for it to be accepted the victim must be
shown to be trustworthy. The apparent
consideration in her testimony coupled with
the fact that medical report does not
support the allegation of gang rape and no
independent witness has come forward to
support the victim shall surely dent the
prosecution case.

9. Learned counsel for the appellant
has submitted that medical examination
was conducted nearly 10 days after the
incident, and therefore, injuries may not
have been noticed. This plea of the
appellant cannot be accepted, when the
version of the victim is otherwise doubted
by the trial court for valid consideration.
The reason for delayed holding of medical
examination also needs to be noticed. The
incident allegedly occurred on 10.9.2017,
whereas the medical examination was
conducted on 19.9.2017, only because the
written report itself was given to the police
on 18.9.2017. The delay in holding of
medical examination, therefore, was not on
account of any mistake on part of the
accused or the Investigating Agency.

10. The only material, which has
been relied upon by the appellant is the
bloodstained Capri worn by the victim. It is
asserted that same Capri was worn by the
victim at the time when it was recovered by
the
police
and
sent
for
scientific
examination before the FSL. Though we
find that FSL report shows existence of
human blood but the circumstance of the
victim wearing the same cloth even 10 days
after the incident raises some doubt. The
assertion that bloodstains survived even
after the Capri was washed cannot be held
convincing. In fact, the victim has admitted
that her Capri was washed. This evidence
in
itself
would
not
explain
the
contradictions noticed by the court of
sessions in the case of the victim. After the
cloth itself was washed, we do not
understand as to how the bloodstains would
still remain on the Capri even after 10 days
of the incident. Enmity between the
families is otherwise admitted on record,
which can be the cause for committing the
offence but can also be the reason for false
implication.

11. Learned court below has also
noticed that though the victim was taken
from a public place in the presence of
several persons at 7.00 in the evening,
allegedly by the accused persons on a twowheeler but no independent person saw the
incident nor anyone came forward to save
the prosecutrix also seems doubtful. The
trial court on the basis of material placed
on record has, therefore, found that the
prosecution case is not convincing and a
finding has been returned that prosecution
has failed to prove its case beyond
reasonable doubt.

12. Though the original records
have been produced before the Court and
the appeal has been heard at some length,
but we find that there is neither any
apparent
perversity
nor
any
misconstruction of oral or documentary
evidence on record, which may vitiate the
findings returned in the judgment of the
court below. Law is otherwise settled that
just because a different view could be
taken in the matter would hardly be a
ground to interfere with the judgment of
acquittal. On the analysis of evidence on
record, we find that the view taken by the
court below is clearly a permissible view,
and there is no sufficient ground to
4 All. Shamsher Ali Vs. State of U.P.
1103
interfere in the present appeal against the
judgment of acquittal.

13. Consequently, this appeal is
summarily rejected under Section 384 of
the Code of Criminal Procedure.
----------
(2024) 4 ILRA 1103
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.04.2024

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Criminal Appeal No. 218 of 2024

Shamsher Ali ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Suresh Chandra Mishra, Sri Mohd. Akhtar, Sri
Ramesh Kumar Pandey, Ms. Sufia Bano, Sri Rajiv
Upadhyaya

Counsel for the Respondent:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 31 - Indian
Penal Code, 1860 - Sections 363, 366 &
376 - Criminal Appeal Against Sentencing -
Concurrent vs. Consecutive Sentences - Single
Transaction Rule - Proviso to Section 31(2)
Cr.P.C. - Judicial Discretion in Sentencing.
The appellant, Shamsher Ali, challenged the
sentencing
part
of
the
judgment
dated
10.01.2014 by the Additional District and
Sessions Judge, Bhadohi, in S.T. No. 20 of 2011,
arising from Case Crime No. 325 of 2010 under
Sections 363, 366, 376 IPC, P.S. Gopiganj, Sant
Ravi Das Nagar, Bhadohi. The appellant was
convicted and sentenced to 7 years' rigorous
imprisonment each for kidnapping (Section 363
IPC) and abduction with intent (Section 366
IPC), and 10 years' rigorous imprisonment for
rape (Section 376 IPC), with the trial court silent
on
whether
the
sentences
would
run
concurrently or consecutively, resulting in a
potential aggregate of 24 years' imprisonment.
Held: The appeal was disposed of, modifying the
sentencing order, as: (1) the trial court's failure
to specify whether sentences should run
concurrently or consecutively violated the legal
obligation under Section 31(1) Cr.P.C., per
Nagaraja
Rao
Vs
Central
Bureau
of
Investigation, (2015) 4 SCC 302; (2) the
aggregate sentence of 24 years contravened the
proviso to Section 31(2) Cr.P.C., which limits
consecutive sentences to 14 years, per Chatar
Singh Vs St. of M.P., AIR 2007 SC 319; (3) the
offences under Sections 363 and 366 IPC
formed part of a single transaction, with Section
366 being a graver version of Section 363,
warranting concurrent sentences under the
single transaction rule, per Mohd. Akhtar
Hussain Vs Assistant Collector of Customs, 1998
AIR 2143, and O.M. Cherian Vs St. of Kerala,
AIR 2015 SC 303; (4) no facts justified
maximum punishment under Sections 363 and
366 IPC or consecutive sentences, indicating a
lack of judicious exercise of discretion; (5) the
appellant, having served 10 years, was entitled
to relief, as consecutive sentences were
disproportionate and lacked justification in the
trial court's judgment. The sentences for
Sections 363, 366, and 376 IPC were upheld but
ordered
to
run
concurrently,
ensuring
compliance
with
Section
31
Cr.P.C.
and
balancing reformatory, retributive, and deterrent
sentencing principles.

List of Cases cited:

1. Mohd. Akhtar Hussain Vs Assistant Collector
of Customs, 1998 AIR 2143

2. Chatar Singh Vs St. of M.P., AIR 2007 SC 319

3. O.M. Cherian Vs St. of Kerala, AIR 2015 SC
303

4. Muthuramalingam Vs St., (2016) 8 SCC 313

5.
Nagaraja
Rao
Vs
Central
Bureau
of
Investigation, (2015) 4 SCC 302

6. Sunil Kumar Vs St. of U.P., Criminal Appeal
No. 526 of 2021, decided on 25.05.2021

7. Yogesh Kumar Vs St. of Punj., CRR No. 3415
of 2019, decided on 01.06.2022