Professional Documents
Culture Documents
Court No. - 4
This appeal has been filed against the judgement and order dated
No. 6, Budaun, by which the appellants Pappu son of Bhole and Vijaypal
son of Bhole have been punished under Sections 323/34, 506, 376(2)(g)
and 342 of the I.P.C. They have been punished under Section 376(2)(g) of
the IPC with life imprisonment and have been fined with Rs. 1 lac each.
In the event of default it has been provided that they would have to further
under Section 342 IPC with an imprisonment of six months along with a
fine of Rs. 600/- each. In the even of default, they have to further undergo
I.P.C., they have been punished with one month’s imprisonment with a
fine of Rs. 100/- each. In the event of default, they have to further
undergo 15 days imprisonment. With regard to punishment under Section
506 IPC, the appellants have been punished with two years’ of
imprisonment with a fine of Rs. 2,000/- each. In the even of default, they
would have to further undergo two months’ simple imprisonment. All the
The case as had been narrated in the first information report was
that the first informant along with his mother Smt. Ganga Dei, wife Rekha
and two small daughters, on 8.1.2010, while were going from Rasoolpur
Kalan to Aslaur, were at about 7PM in the evening stopped by Vijay Pal
s/o Bhole, Pappu s/o Bhole and Rishipal son of Saudan. The three
miscreants, after stopping them at pistol point took them to a field. There
the first informant, his mother with the two daughters were made to stay
at a particular place and one miscreant with a pistol remained with them.
The two other miscreants forcefully took the wife of the first informant to
a mustard field where they, one after the other, raped her.
As per the first information report, the whole incident started off at
7:00PM in the evening of 8.1.2010 and continued till 4:00AM of the next
day i.e. till the morning hours of 9.1.2010. At 4:00 am of 9.1.2010, when
Dharamveer and Danveer who were passing by saw the first informant
and his family and recognized the three miscreants, the latter ran away.
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recovered the underwears of Vijaypal and Rishipal and kept them in a
sealed cover.
On the next date, i.e. on 11.1.2010, the Police in the presence of the
first informant, Roopkishore and Danveer took into custody the petticoat
and the white underwear of the prosecutrix and kept them in a sealed
cover. On the very same day, remains of the clothes which were burnt and
the broken bangles of the prosecutrix were also taken by the Police and
Dr. Anita Dhasmana. On the same day, she found from the vaginal smear
that there was no spermatozoa seen in the vagina and also gave her
conclusion in the medical report that no definite opinion about rape could
10.1.2010 and likewise, the mother Ganga Dei was also examined on
12.1.2010. After the accused Vijay Pal and Rishipal were arrested they
Doctor who had examined the accused had also sent the smear of the
penis of the accused for examination and thereafter, reports were also
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framed charges under Section 376(2)(g), 342, 323 and 506 IPC against the
on 27.8.2010 and his file, after separating his case, was sent to Juvenile
Justice Board.
charges but they denied the charges and prayed for trial.
was examined as P.W. -1, the prosecutrix Rekha was examined as P.W. 2
and the Doctor Anita Dhasmana who had done the medical examination
Ram Surat Singh Yadav was examined as P.W. 4. Dr. A.K. Verma who had
done the medical examination of the first informant and also that of the
accused was examined as C.W. -1. Danveer and Dharamveer who as per
the first information report had passed by the first informant and his
Pal and Pappu were taken under Section 313 Cr.P.C. They, through their
statements, denied the charges and in fact stated that because of the
enmity which was there in the village due to the election of the Pradhan,
the Gram Pradhan and the first informant together had planted a false case
on them.
Thereafter when the trial took place and the Additional District and
Sessions Judge, Court no. 6 on 25.5. 2013 convicted the appellants under
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Sections 323/34, 506, 376(2)(g) and 342 of the I.P.C., the instant criminal
Ms. Abhilasha Singh was heard for the appellants and Sri Vikas
following arguments.
with his family had reached Rashoolpur Ghat and there the three
accused persons stopped them and, thereafter, his wife was dragged
into the mustard field wherein she was raped several times by the
three accused one after the other between 7:00pm of 8.1.2010 and
4:00am of 9.1.2010. She tried to bring to the fore the fact that in the
had stated that when the family had reached Kanua Nagla Ghat then
the accused had accosted them and had taken away his wife. This
was also as per the learned counsel stated by the P.W. - 2 the
vs. State f U.P. reported in 1991 (2) SCC 432 and State of U.P. v.
Rajveer reported in 2014 (2) ACR 1561 (DB) stated that if there
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regard to the place of occurrence then that would vitiate the
prosecution case.
II. Learned counsel for the appellant further stated that there were
witnesses which went to the root of the matter and because of the
(a) The P.W. 1, Roopkishore the first informant had stated in his
evidence that they had reached Kanua Nagla Ghat at about 7.30PM
then the accused person had met them while the P.W. - 2, the
prosecutrix, had deposed that the accused persons had met them at
(b) Learned counsel for the appellant pointed out that P.W. 1,
while they were passing by and they had questioned the accused
persons as to why they had committed the crime and the three
hand, learned counsel also pointed out that P.W. - 2 had deposed
that when Danveer and Dharamveer had come to answer the call of
nature, namely, for defecation then they had met the accused and,
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he had stated that when there was a hue and cry and the villagers
had collected then the names of the accused were known to him.
With regard to Pappu he states that the name came to the fore after
apprehended much later, about ten days after the incident. She
states, therefore, that the P.W. - 1 could not have know his name
portion of the testimony of the P.W.-1 :- “जब शोर पर` गांव वाले इकट्ठे
हो गये थे तो गांव वालो ने इनके नाम पता पकडे जाने पर बताया था। पकड़े
जाने पर पप्पू ने अपना नाम पता बताया व गांव वालो ने नाम पता बताये थे
अगर यह बात मेरी रिरपोर्ट व ब्यान में नहीं है तो वजह नहीं बता सकता। यह
दरोगा जी को बतायी।”
statement of Ram Surat Singh Yadav, the P.W. - 4 who had stated
that the accused Vijay Pal and Rishipal were arrested on 10.1.2010
and, therefore, learned counsel stated that if the names of Vijay Pal
and Rishipal were known only on 10.1.2010 then it could not have
been possible for the first informant to know the names of Vijaypal
report lodged. Further, from the very statement of Ram Surat Singh
Yadav, she had pointed out that Pappu was not arrested till
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24.1.2010 and, therefore, again she argued that it was not possible
(d) At one place, it has been submitted by the learned counsel for the
appellant that, the first informant says that he was illiterate and,
was a literate person and he had written the first information report
III. The next argument which the learned counsel for the applicant has
made was that it was very unlikely that two real brothers would
commit the crime of rape together. She has submitted that the
appellant Pappu and Vijay Pal were real brother and therefore, there
together.
IV. The P.W.-2 had deposed in her cross-examination that the accused
persons had covered their faces and, therefore, learned counsel had
V. Learned counsel for the appellant has further argued that the P.W. 2
were relatives as they were uncle and nephew and both of them had
they had on that date disclosed the names of the accused. Learned
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counsel, therefore, submits that this was also a fact which was
VI. It is the contention of the learned counsel for the appellants that the
whole night she had sustained injuries in her back and on her
shape and she would not have been able to even walk properly to
मेरी पत्नी के पास जाना सुबह चार बजे तक चलता रहा । मेरी पत्नी ने
चार बजे के करीब आने पर मुझे बताया की तीनो मुल्जि)जमान ने बारी -
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“सबसे पहले मेरे साथ बलात्कार ऋकि1पाल ने किकया था। उसके बाद
पप्पू ने मेरे साथ बलात्कार किकया था जो आज हाजिजर अदालत है।
रातभर बुरा काम किकया जिजससे मेरी पीठ, चूतड़ छिBल गए थे। मैंने
डॉक्र्टर को यह सब छिBला हुआ किदखा किदया था। मेरी पेर्टीकोर्ट, कच्Bी,
report states that neither was there any external injury and nor was
there any internal injury. What is more, the learned counsel for the
on the glan penis smear of the accused persons. Learned counsel for
the appellant also brought to the notice of the Court the statement
hours. She also opined that no definite opinion about rape could be
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given. In the instant case when the vaginal smear sample was
VII. Learned counsel for the appellants has still further submitted that
P.W. 1 had stated that he himself, his mother and the two daughters,
one of whom was only 15 days old were left under the open sky in
the cold January night. Learned counsel states that in the freezing
conditions the children and the old mother would have died but in
ailment which might have been there because of the cold freezing
night.
case which was taken by the P.W. -1 and P.W. - 2. Learned counsel
states that C.W. - 2 Danveer upon reaching the spot had found that
there was one male, one female and just one girl child. Therefore,
she says that where exactly that 15 days old girl child had
disappeared was not clear and, therefore, she states that the
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Similarly, learned counsel for the appellants states that the
deposed that he did not know Pappu and Vijay Pal at all who were
thereafter, when he had gone to the field he had found one man, one
old lady and just one girl sitting in the cold. He, of course, had also
found prosecutrix shivering in the cold. This witness also does not
speak about the second daughter who was only 15 days old. Even
though the learned counsel for the appellants states that this
VIII. Learned counsel for the appellants further submitted that a very
important witness i.e. the mother of the first informant Ganga Dei
IV. Learned counsel also submits that if Rekha had a fifteen days old
girl daughter she would not have ventured to travel from Budaun
to Delhi and also if the child was born fifteen days prior to the
incident then there would have been evidence of this fact in the
medical report.
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made by Dharamveer who, though was declared hostile and also in view
of the medical report of the prosecutrix and the accused, the conviction of
the appellants was wrongly done and the appellants, in fact, ought to have
been acquitted.
Learned AGA, however, has opposed the appeal and has submitted
that if there were any contradictions in the statements of the P.W. -1 and
P.W. - 2 then they were there because of the fact that the witnesses were
should not be read in evidence on the account of the fact that he had
turned hostile and, therefore, his testimony was not reliable. Still further,
learned AGA submitted that the incident could not be attributed to any
Having heard the learned counsel for the appellants and the learned
AGA, we are of the view that the appeal deserves to be allowed and the
3 , we cannot lose sight of the fact that P.W. - 1 and P.W. - 2 and also
that is that the P.W. - 1, the first informant, had narrated the names of the
about the names after the accused were apprehended and he specifically
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states that Pappu had told his name only after he was arrested. From the
statement of P.W. - 4, we find that Pappu was arrested much later after
part of the first informant. Further, we find that even though C.W.-3 has
has said that though the first informant, the mother and one child were
found by him, he does not deny the finding of the prosecutrix in the field .
He, however, does not in any manner say that the prosecutrix was raped
by the appellants.
In the case of Lalta Prasad vs. State of M.P. reported in AIR 1979
subjected to any sexual intercourse by the accused against her will. On the
other hand, there was the evidence of the Doctor that when she was
examined after the occurrence, the Doctor found old torn hymen and no
sign of any rape or any forcefully intercourse with her. That being so, the
conviction of the appellant under Section 376 IPC was set aside.
was alleged to have been dragged towards the place of occurrence and
then raped but the report of medical examination was in the negative so
far as the seminal stains and presence of spermatozoa in the vagina was
concerned and to top it all there was not even a scratch on her body and
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In the case of Zahoor Ali vs. State of U.P. reported in 1989 CrLJ
1177(All) the Doctor did not find any recent injury on the private parts of
the girl. Hymen was found to be torn from before and healed. Therefore,
Crimes 85 (P&H) it was case of a girl above 16 years who was allegedly
raped. In this case also the question was whether when she admitted of
having suffered some injuries on her back during the incident and when
the same were not found then what had to be done. The lady doctor,
however, who examined her did not find any injury on her private parts or
or blood was found in the vagina. She further found that two fingers could
rightly admitted that the prosecutrix would have suffered tenderness and
swelling of the vagina if she was subjected to rape by two young boys.
The gap between the occurrence and her medico legal examination ruled
out any possibility of any abrasion being healed. Giving the benefit of
In the case of State of State of Orissa vs. Rama Swain and others
reported in 2007 CrLJ 714 (Ori) the accused persons were alleged to
have committed a rape forcibly on the prosecutrix one after another but
the evidence showed that there was dispute between the victim and the
accused persons regarding damage of crop by the cattle of the victim over
the land cultivated by the accused persons. There was no semen stain on
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the apparels of the victim found. Thus the evidence of prosecutrix did not
conviction of the accused was set aside as the prosecution case was not
reported in 1998 CrLJ 3603 (SC), eight persons were accused for raping
a girl twice by turns and pushing the girl out of the running train.
However, when no serious injury was found on the person of the girl and
evidence showed that there was possibility of prosecutrix going with the
793(Odisha), there was charge of gang rape against the accused persons
who allegedly had forcibly lifted the victim to a nearby river bank on
knife point and had committed sexual intercourse with her but no sign of
absence of a proper proof they could not be convicted under Section 376
(2)(g).
well as the report of the chemical analyst was contrary to the evidence of
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prosecutrix. It was held that the possibility of a false accusation could not
reported in 2008 CrLJ 2943 (Bom.), the allegation was that the
that in the night, the crime was committed in an open field but no injury
on the private part or on the back of the prosecutrix was found and the
corresponding injury was there on the private parts or on the body of the
accused. Giving the benefit of doubt, the accused persons were acquitted.
4118, the parties were not keeping good relations in the past and had
lodged FIRs against each other. Medical report did not corroborate the
version given by the prosecutrix. It was held that guilt was not proved and
2467 (SC), the dhoti of the accused contained no blood or semen stains
and there was no injury caused to the private part of the body of the
victim. The conviction was sought to be proved by the fact that vaginal
It was held that this was not a ground for conviction of accused for the
offence of rape and the accused was entitled to acquittal on the basis of
benefit of doubt.
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In even this case no semen or spermatozoa was found in the vaginal
smears of the victim. The facts of the above cited decisions are almost
similar to the facts of the present case. It is the case of the appellant that
during the medical examination of the victim and the accused person.
Furthermore, we find that when the C.W.-2 and C.W. - 3 give their
statements they have conveniently forgotten about the presence of the 4th
member i.e. the 15 days old child about whom the first informant had
had absolutely no external or internal injury despite the fact that the
prosecution has stated throughout that she was gang-raped from 7:00PM
three young strong men commit the crime of rape on a feeble woman who
was 19 years of age and weighed only 37 kg as is clear from the medical
report of Dr. Anita Dhasmana, then she would definitely have had at least
some injuries. The prosecution had to prove its own case to the hilt and
smear and the glan penis smear of the accused-persons then it can safely
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Under such circumstances, the appeal is allowed. The order dated
S.T. No. 5 of 2011, State vs. Pappu and another, under Section 376(2)(g),
342, 323, 506 IPC, P.S. Jarifnagar, District – Budaun, is quashed and set
aside.
are not wanted in any other criminal case be set free forthwith.
PK
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