Anwar Ali And Ors. vs State Of U.P.

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HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
CRIMINAL APPEAL No. - 538 of 2011
1. Anwar Ali
2. Ramu alias Ram Kumar
3. Ram Sajivan Patel .....Appellant(s)
Versus
State of U.P. .....Respondent(s)
: Shishir Pradhan, Alok Kumar Mishra, Ashok
Counsel for Appellant (s)
Kumar Singh, Ishika Srivastava, Jagdish
Prasad Upadhyay, Jaikaran, Lalit Kumar
Singh, Nagendra Mohan, Sangeeta Singh,
Saurabh Srivastava, Sharda Verma, Shrawan
Kumar, Simi Jha, Sushil Kumar, Sushil
Kumar Dwivedi, Udai Prakash
: Govt. Advocate
Counsel for Respondent(s)
Connected with
CRIMINAL APPEAL No. - 550 of 2011
1. Rati Pal Patel
2. Paras Nath Patel
3. Udai Raj
4. Shankar Nai .....Appellant(s)
Versus
State of U.P. .....Respondent(s)
Counsel for Appellant (s) : P.K. Singh, Alok Kumar Mishra, Ashok
Kumar Singh, Dilip Kumar Pandey, H S
Tiwari, Ishika Srivastava, Jagdish Prasad
Upadhyay, Jaikaran, Piyush Shrivastava,
Sandeep Kumar Srivastava, Sangeeta Singh,
Saurabh Srivastava, Shailendra Kumar Singh,
Sheo Prakash Singh, Simi Jha, Sudhir Kumar
Misra, Surya Nath Singh, Sushil Kumar,
Vivek Kumar Tripathi
Counsel for Respondent(s) : Govt. Advocate
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Court No. -10
Reserved on 19.03.2026
Delivered on 01.07.2026
A.F.R.
HON'BLE RAJNISH KUMAR, J.
HON'BLE ZAFEER AHMAD, J.
(Per : Rajnish Kumar, J.)
(1) The aforesaid criminal appeals under Section 374 (2) of the
Code of Criminal Procedure, 1973 (here-in-after referred to as
“ Cr.P.C. ”) have been filed against the judgment and order dated
03.02.2011 passed by Additional District and Sessions Judge/
F.T.C.-III, Raebareli, in Session Trial No. 01 of 2003; State
Versus Anwar Ali and others, emanating from Case Crime No.
119 of 2002, under Sections 147, 148, 302, 376, 323 read with
Section 149 of the Indian Penal Code, 1860 (here-in-after
referred to as “ I.P.C. ”) and Section 3(ii)(v) of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act,
1989 (here-in-after referred to as “ SC/ST Act ”) , Police Station
Unchahar, District Raebareli, wherein the accused/appellants,
Anwar Ali, Ramu alias Ram Kumar, Ram Sajivan Patel, Rati
Pal Patel, Paras Nath Patel, Udai Raj and Shankar Nai, have
been convicted and sentenced in the manner as stated here-in-
below :-
Name of Accused
Conviction Sentence
Persons
Udai Raj
Under Section 147
read with 149 I.P.C. 1 year’s R.I.
Anwar Ali
Shankar Nai
Under Section 148
read with 149 I.P.C.
2 year’s R.I.
Paras Nath Patel
Ram Sajivan Patel
Ratipal Patel
Under Section 323
read with 149 I.P.C.
6 months’ R.I.
Ramu alias Ram
Kumar
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Under Section 376
(2) (g) I.P.C. read
with Section 3 (ii) (v)
of S.C./S.T. Act
Life imprisonment and a
fine of Rs.10,000/-. In
default of payment of fine
to undergo additional one
year’s simple imprisonment

Anwar Ali
Shankar Nai
Paras Nath Patel
Ram Sajivan Patel
Ratipal Patel
Under Section 302
read with Section 149
read with Section 3
(ii) (v) of S.C./S.T. Act
Life imprisonment and a
fine of Rs.10,000/-. In
default of payment of fine
to undergo additional one
year’s simple imprisonment
Under Section 376
(2)(g) I.P.C.
Life imprisonment and a
fine of Rs.10,000/-. In
default of payment of fine
to undergo additional one
year’s simple imprisonment
Udai Raj
Ramu alias Ram
Kumar
Under Section 302
read with Section 149
I.P.C.
Life imprisonment and a
fine of Rs.10,000/-. In
default of payment of fine
to undergo additional one
year’s simple imprisonment
It has further been provided that half of the fine shall be
disbursed to victim of the incident and the period already
undergone would be adjusted in the period of sentence.
FACTS
(2) The prosecution case, in short, is that complainant, Banwari Lal
son of Nazeer Lal, resident of village Mansa-Ka-Purwa, Police
Station Salon, District Raebareli, had submitted written report
(Ext. Ka.1) at police station Unchahar, district Raebareli on
25.05.2002, alleging therein that they (complainant and his
companions) move from place to place and live by setting up
temporary camps. On 24.05.2002, they had shifted from village
Kakriha, police station Sangramgarh, district Pratapgarh to
village Hariharpur, a hamlet of Nigoha, Police Station
Unchahar and set up their camps at 03:00 p.m., in the field of
Raja Ram Maurya, located to the south of Gram Pradhan Jagat
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Narayan's house. Due to storm and rains in night, their camp
collapsed, on account of which, some people were sleeping in
the verandah in front of the shop of Pradhan; some people were
awake and some people were in camp. Meanwhile, 3-4 persons
were seen coming from the southern side towards the village.
They (assailants), upon reaching the camp, started beating with
danda (sticks), then, they (complainant and others) ran
shouting, upon which the assailants dragged the victim (wife of
Sitaram) to some distance. Pokhai son of Nazeer Lal ran to
rescue her, therefore, one of the assailant fired at him (Pokhai)
with a country-made pistol ( ). Pokhai, shouting and
dV~Vk
running, fell down in a ditch ( [kUrh ) aside the road and died.
Among them (complainant and his companions), Teerath Nath
son of Pokhai, Bhungi son of Chattrapal, Shobnath son of
Navrangi, Lalalu Navrangi and Jokhai son of Langad, resident
of village Mansa-Ka-Purwa and Mithilesh Kumar son of
Sitaram and Suresh Kumar son of Nandlal and Sanjay Kumar
son of Rampher and others of Hariharpur etc., ran shouting and
identified the assailants, but on account of fear, they
(complainant and others) could not go ahead. They would
identify the assailants, if came before them. After taking the
victim to some distance and committing wrongful act with her,
the assailants left her. This incident is of 25.05.2002 at about
01:30 in the night. Report may be registered and legal action
may be taken.
(3) On the basis of the aforesaid written report (Ext. Ka.1), F.I.R.,
bearing Case Crime No. 119 of 2002, under Sections 302, 376
and 323 I.P.C., was registered at police station Unchahar,
district Raibareli against 3-4 unknown persons on 25.05.2002,
at 05:30 in the morning.
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(4) The investigation of the case was conducted by Sub-Inspector
R.P. Saroj. He started the investigation of the case on the date
of F.I.R. itself i.e. on 25.05.2002. After collecting check F.I.R.
and recording the statement of the complainant, he reached the
place of occurrence along with police personnels. He inspected
the place of occurrence and prepared recovery memos of blood
stained soil and plain soil, blood stained and semen stained
ghaghra ( ) of the victim and one empty cartridge 12 bore
घाघरा
and Rs.60/-. He, thereafter, prepared site plan on the pointing
out of the complainant and the victim. On his dictation, S.I.
Anil Kumar Pandey had prepared inquest ( panchayatnama ) of
the dead body of the deceased Pokhai and sent it for post-
mortem along with constable. He also sent the victim for
medical examination along with constable.
(5) The medical examination of the victim was conducted by Dr.
Vineeta Singh at District Female Hospital, Raebareli on
25.05.2002 at 05:20 p.m. In her medico-legal report dated
25.05.2002 (Ext. Ka.2), she noted as under :-
“MI-(1) Black mole on front of fore arm Rt. 3 cm below
elbow joint.
(2) Black mole on Left cheeck 6 cm in front of Left
ear.

General Exam- Ht. 4’ 10½” Wt.-38 Kg. Teeth 14/14
Breast well developed Axillary hair present.
Internal Exam- Pubic hair present hymen torn at 7
O’clock position .3 cm x .1 cm bleeds on toutch.
Vagina admits 1 finger with difficulty. No discharge no
bleed P/V.
(1) Vaginal smear taken & sent to pathologist for
exam of sperms and gonococci.
(2) Case referred to Radiologist for x-ray both wrist &
elbow for estimation of age.
(3) Referred to EMO District Hospital for external
injuries.
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Conclusion – (1) Examination is suggestive of
penetration by some blunt object report of pathologist
awaited.
(2) Report of radiologist awaited for estimation of
age.”

(6) On reference by Dr. Vineeta Singh, EMO, District Female
Hospital, Raebareli, the external injuries on the body of the
victim were examined by Dr. R.K. Mishra on 25.05.2002 at
06:00 p.m. at District Hospital, Raebareli. In the injury report
(Ext. Ka.4), following injuries have been noted :-
(1) Multiple linear scratches on the left forearm laterally
and dorsally over the lower two third area. Pink to
dark pinkish colour.
Multiple blotchy abraded contusion on the upper
(2)
third both the sides of the back widely spread.
Irregular patterned pink to darkish pink.
(3) Linear patterned contusion 7 cm x 2 cm on the right
upper and lateral rim far back. Pink to darkish pink.
(4) Linear patterned contusion 11 cm x 1½ cm on the
right lower thigh laterally and the knee antero
laterally. Pink and dark pink.
Injury no. (1) through (4) are due to hard and blunt object.
The duration is from three fourth of a day to one day and
the nature is simple.
(7) On receipt of x-ray report and pathological report, Dr. Vineeta
Singh had prepared supplementary report dated 28.05.2002(Ext.
Ka.3), in which she noted as under :-
“X-ray report – (1) x-ray both elbow- epiphysis around the
elbow joint are fused.
(2) x-ray both wrist ephiphysis of lower end of Radius and
ulna are not fused.
Pathological report – Vaginal smear is negative for sperms
and gonococci.
Conclusion – (1) exam and pathological report is
suggestive of penetration of vagina by some blunt object.
(2) Age according to pathological report & by appearance
is about 16 years.
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(8) The post-mortem of the dead body of the deceased Pokhai son
of Nazeer was conducted by Dr. Sanjay Kumar Pandey and Dr.
C.H. Agarwal on 25.05.2002 at 04:00 p.m. at District Hospital,
Raebareli. In the post-mortem report (Ext. Ka.5), the following
ante-mortem injuries have been noted :-
(1) L.W. oval .5 cm x .5 cm medial & below Lt. side
nipple depth is upto chest wall.
L.W. oval .5 cm x .5 c.m. in midline below
(2)
xiphisternum. 12 cm from umbilical. Singing
present.
(3) L.W. oval .5 cm x .5 cm ċ singed margin over
manubrium in midline.
(4) Abrasion of 2 cm x 2 cm ċ central location .5 cm
x .5 cm on Right side in mid clavicular junction
bone.
(5) Abrasion of 2 cm x .5 cm at base of neck Rt. side.”
As per opinion of Dr. S.K. Pandey and Dr. C.H. Agarwal,
the cause of death was shock and hemorrhage as a result of
ante-mortem fire arm injury.
(9) The further investigation of the case was entrusted on
29.05.2002 to Circle Officer Sri Chiranjiv Nath Sinha on
account of addition of offence under Section 3 (ii) (v) of
S.C./S.T. Act against the accused persons. He, after collecting
material evidences, recording statements of witnesses including
previous Investigating Officer Sri R.P. Saroj, submitted the
charge-sheet No. 18 of 2002 dated 08.06.2002 against accused
Udai Raj son of Brijlal Dhobi, Shankar Nai son of Ramesh Nai,
Ramu alias Ram Kumar son of Raghunath Dhobi, Paras Nath
Patel son of Kallu Patel, Ram Sajivan Patel son of Budhuram
Patel and Ratipal Patel son of Bhagwandeen Patel, under
Sections 147, 148, 149, 302, 376 (G), 323 I.P.C. and Section 3
(ii)(v) of S.C./S.T. Act.
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(10) Thereafter, further investigating was entrusted to Circle Officer
Avadh Bihari Rakesh on 09.07.2002 against accused Anwar Ali.
He, after collecting material evidences and recording statement
of accused Anwar Ali at District Jail, Raibareli, submitted
charge-sheet No. 18A/2002 dated 16.07.2002 against accused
Anwar Ali under Sections 147, 148, 149, 302, 376 (G), 323
I.P.C. and Section 3 (ii)(v) of S.C./S.T. Act.
(11) The learned Chief Judicial Magistrate, Court No.9, Raebareli,
took cognizance on the aforesaid charge-sheets and committed
the case to the Court of Session on 02.01.2003, where the case
was registered as Session Trial No. 1 of 2003; State Versus
Anwar Ali and others.
(12) Learned Additional Session Judge-II, Raebareli, framed charges
against accused Shanker Nai, Paras Nath, Ram Sajivan, Ratipal
and Anwar Ali under Sections 147/149, 148/149, 302/149, 376,
323/149 I.P.C. and Section 3 (ii) (v) of S.C./S.T. Act and against
accused Udai Raj, Ramu alias Ram Kumar under Sections 147,
148, 302, 376 and 323 I.P.C. by means of order dated
24.01.2003, respectively. All the aforesaid accused persons
denied the charges framed against them and pleaded for trial.
Hence the trial commenced.
(13) The prosecution, in support of its case, examined twelve
witnesses, who are as under :-
P.W.1 Victim
P.W.2-Banwari Complainant
P.W.3-Dr. Vineeta Singh Examined the victim and proved
medico-legal report and supplementary
report prepared by her (Ext. Ka. 2 and
Ext. Ka.3)
P.W.4-Teerath Raj alias Tirath Lal Eye witness/Son of deceased Pokhai
P.W.5-Dr. R.K. Mishra Examined the external injuries of the
victim and proved injury report (Ext.
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Ka.4)
P.W.6-Dr. Sanjay Kumar Pandey Conducted post-mortem of the
deceased Pokhai and proved the post-
mortem report (Ext. Ka. 5)
P.W.7-Dr. H.L. Sharma Conducted x-ray of the victim and
proved the x-ray report (Ext. Ka. 11)
and x-ray plate (Material Ext.1).
P.W.8-S.I. Arun Kumar Pandey Prepared panchayatnama of the dead
body of the deceased Pokhai and also
prepared photo lash, challan lash, letter
to R.I., letter to C.M.O. and proved Ext.
Ka. 6 to Ext. 10.
st
P.W.9-S.I. R.P. Saroj 1 Investigating Officer
P.W.10-Constable Moharrir Om
Prakash Tripathi
Prepared check F.I.R. on the basis of
written report submitted by the
complainant and proved check F.I.R.
(Ext. Ka. 14) and carbon copy of
corresponding G.D. entry (Ext. Ka. 15)
nd
2 Investigating Officer and proved
charge sheet no. 18/2002
P.W.11-Circle Officer Chiranjiv
Nath Sinha
rd
P.W.12-Avadh Bihari Rakesh 3 Investigating Officer and proved
charge-sheet no. 18A/2002
(14) In order to prove its case, the prosecution placed on record and
proved the following documentary evidence :-
Ext. Ka. 1 Written Report
Ext. Ka. 2 Letter to the Chief Medical Superintendent for
medical examination of the victim and submit report.
Ext. Ka. 3 Medico-legal and supplementary medical report of
victim by Dr. Vineeta Singh (P.W.3), District Woman
Hospital, Raebareli
Ext. Ka. 4 External Injury Report of victim by Dr. R.K. Mishra
(P.W.5), District Hospital, Raebareli.
Ext. Ka.5 Post-mortem Report of the deceased Pokhai
Ext. Ka.6 Inquest Report ( panchayatnama ) of the dead body of
deceased Pokhai
Ext. Ka.7 Challan lash
Ext. Ka. 8 Photo lash
Ext. Ka. 9 Letter to C.M.O., Raebareli
Ext. Ka. 10 Letter to Reserve Inspector, Raebareli
Ext. Ka. 11 X-ray Report
Ext. Ka. 12 Recovery Memo of blood stained soil and plain soil
and Ghaghra of victim with blood and semen.
Ext. Ka. 13 Recovery Memo of empty cartridge 12 bore
Ext. Ka. 14 Check F.I.R.
Ext. Ka. 15 Carbon Copy of G.D. entry
Ext. Ka. 16. Charge-Sheet No. 18/2002 dated 08.06.2002
Ext. Ka. 17 Charge-sheet No. 18A/2002 dated 16.07.2002
Ext. Ka. 18 Site plan
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(15) In addition to the aforesaid, the prosecution also placed on
record x-ray plate of the victim as material exhibit-1 and proved
it.
(16) After closure of evidence of prosecution, the statement of
accused persons under Section 313 Cr.P.C. was recorded on
09.11.2010, in which they stated that the case has been
instituted against them on account of enmity and conspiracy of
police.
In addition, accused Udai Raj, in his statement, has stated
that he is innocent. He has been implicated in the murder case
of Rajendra Maurya, in which he was acquitted. After being
acquitted in that case, he had written letter against the police
officials, due to which the police bore a grudge against him.
Accused Ramu, in his statement, has stated that he was not
involved in the incident. The police, on account of malice, have
falsely challaned him.
Accused Anwar Ali, in his statement, has stated that he was
not involved in any such incident.
Accused Shankar Nai, in his statement, has stated that he
was falsely implicated in the murder case of Rajendra Maurya,
in which he was acquitted and he had taken action against the
police, on account of which he has been falsely implicated.
Accused Paras Nath, in his statement, has stated that he did
not commit any incident. He was working at Kamlesh’s brick
kiln and was staying there on that night. The police have falsely
challaned him.
Accused Ram Sajeevan, in his statement, has stated that he
did not commit any incident. Earlier, the police of Police
Station Unchahar had implicated him in the murder of Rajendra
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Maurya and after being acquitted from that case, he had written
letter against the police, on account of which, the police has
falsely implicated him in this case.
Accused Rati Pal has also stated in his statement that in the
murder case of Rajendra Maurya, the police of Police Station
Unchahar had falsely implicated him after being acquitted in
that case, he had taken action against the police, on account of
which, the police has again falsely implicated him.
(17) In defence, one witness, namely, Mithilesh Kumar was
examined as D.W.1 in oral evidence. In documentary evidence,
a certified copy of the order passed in Case Crime No. 294 of
2004 of Police Station Unchahar, District Raebareli, was placed
on record.
(18) The trial Court, after hearing learned Counsel for the parties
and considering oral and documentary evidence on record,
convicted and sentenced the accused persons by means of the
impugned judgment and order dated 03.02.2011 in the manner
as stated in paragraph-1 here-in-above in this judgment.
(19) Feeling aggrieved by the aforesaid judgment and order dated
03.02.2011, accused/convicts Anwar Ali, Ramu alias Ram
Kumar and Ram Sajivan Patel have preferred Criminal Appeal
No. 538 of 2011 and accused/convicts Rati Pal Patel, Paras
Nath Patel, Udai Raj and Shanker Nai preferred Criminal
Appeal No. 550 of 2011.
(20) Since both, Criminal Appeal No. 538 of 2011 and Criminal
Appeal No. 550 of 2021, arising out of a common case crime
number and common judgment and order dated 03.02.2011 and
common facts, therefore, they have been clubbed, heard and are
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being decided together by means of this common judgment and
order.
(21) It is pertinent to mention that appellant no.1-Rati Pal Patel in
Criminal Appeal No. 550 of 2011 is on bail granted by Hon’ble
Supreme Court vide order dated 04.02.2025 passed in Criminal
Appeal No. 574 of 2025; Rati Pal Patel Versus State of U.P.,
whereas other appellants in both the appeals are in jail.
Arguments :
(22) Heard Shri Jagdish Prasad Upadhyay, learned Counsel for the
convicts/appellants and Shri Pawan Kumar Mishra, learned
A.G.A. for the State.
Submissions on behalf of the appellants:
(23) Learned counsel for the appellants submitted that the impugned
judgment and order has been passed by the trial Court against
the law and facts as well as against the weight of evidence on
record, recording perverse and erroneous findings on the basis
of surmises and conjectures. The prosecution has failed to prove
it’s case beyond all reasonable doubt and apparently no case,
under which the conviction could be made, is made out against
the appellants. He further submitted that the appellants were not
named in the FIR, which was lodged against 3-4 unknown
persons, but subsequently seven persons were implicated,
without any identification parade from prosecutrix (name is not
being given as she is victim), on account of police enmity with
the connivance of police because the victim belonged to
Banjara community and had come with the group on the same
day, therefore, she could not have personally known to the
appellants and identified. She also could not personally identify
the appellants in Court room. He further submitted that the
victim was major in age and the medical report does not
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corroborate the prosecution story, therefore, the allegation of
gang rape is false. It has also been submitted that the ghaghra
of the victim was allegedly seized, but the petticoat was sent for
forensic examination, which renders recovery doubtful and also
bellies the prosecution case because the victim was not wearing
anything under ghaghra.
(24) Learned counsel for the appellants further submitted that the
prosecution witnesses of fact are interested witnesses and does
not inspire any confidence and all other witnesses are formal
witnesses. There is no corroborative evidence. The post-
mortem report and medical of the victim does not support the
prosecution case. Learned trial court has failed to consider and
rely eye account of the defence witness. PW.1 and PW.2 have
not assigned any role of firing to the appellants, hence the
allegation under Section 302 I.P.C. is not corroborated by
statement of witnesses. Even otherwise, it has been submitted
that the prosecution witnesses have unequivocally deposed that
assailant had fired on Pokhai, when he chased the culprit
attempting to take away the victim, therefore, the murder was
not premeditated so the conviction could not have been made
under Section 302 IPC and it could have been made only under
section 304 IPC, if the Court was of the view that the offence of
murder proved all beyond reasonable doubt.
(25) Learned counsel for the appellants further submitted that there
is no evidence on record to prove essential elements to
constitute unlawful assembly as defined under Section 141
I.P.C. The FIR and the statements under section 161 Cr.P.C.
shows involvement of only 3-4 persons and the purpose of
unlawful assembly has not been proved, therefore, the
provisions of section 149 I.P.C. are not attracted. It has further
been submitted that the conviction could not have been made
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separately under Sections 147 and 148 I.P.C. together for the
same offence, for the reason that if the accused is being
convicted in an aggravated form of offence under section 148
I.P.C., he could not have been convicted separately under
section 143 I.P.C. or 147 I.P.C.
(26) Learned counsel for the appellants further submitted that this
Court may take judicial notice of certain universal, social, legal
and behavioural facts for evaluating the prosecution case, such
as the natural basic instinct of living and non-living being for
sexual desire for which they involve themselves in all kinds of
fear and foul play. It is also recognized by the international
covenant on human rights. It has also been submitted that to
fulfill the said desire the partners may go to any extent, even
causing murder, if obstructed in any manner. The laws, relating
gender equality and protection to weaker section and female are
being misused instead of following in letter and spirit. The
courts have already observed that the police is an organized
group of dacoits in uniform. The witnesses may lie but
circumstances do not. Thus, it has been submitted that victim
may have been seen with her partner by her uncle, therefore, he
would have killed her uncle and the appellants have falsely
been implicated due to police enmity.
(27) Learned counsel for the appellants further submitted that the
provisions of SC/ST Act are not attracted in the present case
because neither deceased nor the victim belonged to any of the
cast notified as SC or ST by the State Government. It has also
not been proved that the crime was committed only because the
victim or the complainant belonged to SC or ST community. It
has also been submitted that the charge-sheet was submitted
under the provisions of S.C./S.T. Act also, therefore, the trial
should have been held before the Special Court under the
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S.C./S.T. Act but it was held before a F.T.C. Court. Thus, the
impugned judgment and order is liable to be set-aside only on
the ground of without jurisdiction.
(28) Learned counsel for the appellants further submitted that the
entire investigation was tainted and made in a very casual
manner only to implicate the appellants only without following
the due procedure, therefore, on the basis of said investigation
neither the charge-sheet could have been filed nor the
appellants would have been convicted. Thus, learned counsel
for the appellants submitted that the impugned judgment and
order is not sustainable in the eyes of law and liable to be set
aside and the appellants are liable to be acquitted of all the
charges.
(29) Learned Counsel for the appellants relies on Gireesan Nair Vs.
State of Kerala ; AIR OnLine 2022 SC 919, Dana Yadav @
Dahu & others Vs. State of Bihar; 2002 (7) SCC 295,
Bhagwan Singh & others Vs. State of M.P. ; 2003 (3) SCC 21,
Allauddin Mian and others Sharif Mian and another Vs.
State of Bihar; (1989) 3 SCC 5, Sukhbir Singh Vs. State of
Haryana ; (2002) 3 SCC 327, Bhimrao alias Ramesh
Pandhari Bhade and others Vs. State of Maharashtra;
(2003) 3 SCC 37, Vijay Padurang Thakre Vs. State of
Maharashtra; AIR 2017 SC 897, Abraham John Vs. State;
1969 Cri.L.J. 1577 (Ker) , Ram Narain Vs. State of Punjab;
AIR 1975 SC 1727, Piara Singh Vs. State of Punjab; AIR
1977 SC 2274, Sharad Birdhi Chand Sharda Vs. State of
Maharashtra; (1984) 4 SCC 116, Ramanand Yadav Vs.
Prabhu Nath Jha; (2003) 12 SC 606, Rudrappa Ramappa
Jainpur and others Vs. State of Karnataka; (2004) 7 SCC
422, State of Punjab Vs. Hakam Singh; (2005) 7 SCC 408,
Vaibhav Vs. State of Maharashtra; 2025 INSC 800, Nandlal
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Vs. State of Maharashtra; (2019) 5 SCC 224, Paul Vs. State
of Kerala; (2020) 3 SCC 115, Balu Sudama Khalde Vs. State
of Maharashtra; AIR 2023 SC 1736, Prabhat Kumar
Mishra alias Prabhat Mishra Vs. State of U.P.; AIR 2024 SC
(Criminal) 632, Shashikant Sharma Vs. State of Uttar
Pradesh; 2024 (1) ALJ 579, Patan Jamal Vali vs. The State
of Andhra Pradesh; AIR 2021 SC 2190, Ram Das and others
Vs. State of Maharashtra ; (2007) 2 SCC 170 and Khuman
Singh Vs. State of Madhya Pradesh ; AIR 2019 SC 4030.
Submissions on behalf of the State:
(30) Learned A.G.A. vehemently opposed the submissions of
learned counsel for the appellants. He submitted that the PW1,
PW2 and PW4 have supported the prosecution case and the
post-mortem report as well as medical report of the victim
corroborates the prosecution case. Thus, the prosecution has
proved the case beyond all reasonable doubt. The submissions
advanced by learned counsel for the appellants in regard to the
applicability of the legal provisions is totally misconceived and
not tenable in the eyes of law. The contention that this Court
may take judicial notice of certain facts, as stated by learned
counsel for the appellants, is misconceived and not tenable;
firstly because the same are based on unauthenticated
documents and secondly judicial notice, if any, can be drawn
only of the facts in terms of section 57 of the Evidence Act.
Thus, the contentions raised by learned counsel for the
appellants are highly misconceived and not tenable in the eyes
of law. The learned trial court has passed the impugned
judgment and order, considering and dealing the evidence and
material on record appropriately by a reasoned and speaking
order, which does not suffer from any error or illegality. The
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appeals have been filed on misconceived and baseless grounds,
having no merit, liable to be dismissed.
ANALYSIS
(31) We have cogitated on the submissions of learned counsel for the
parties and examined the records.
(32) The facts, on which there seems no dispute on the basis of
submissions of learned counsel for the parties and records, are
that the victim and the complainant belonged to a nomadic
( Banjara ) community, which roam around place to place with
their group for livelihood and live setting up their camps, which
is called ‘ Dera’. On 24.05.2002, they shifted from village
Kakriha, Police Station  Sangramgarh, Pratapgarh to
Hariharpur, a hamlet of Nigoha. Police Station Unchahar,
Raibareli. The camps were set up at about 3.00 PM in the field
of Raja Ram Maurya, located in the South of Gram Pradhan
Jagat Narayan’s house. There was an storm and rains on that
very night, on account of which the camps had collapsed,
consequently some people were sleeping in the veranda in front
of the shop of the Pradhan, some people were awake and some
people were in their camps. An incident occurred in the
intervening night of 24/25.05.2002, on account of which an FIR
was came to be lodged by the complainant on the basis of a
written complaint against 3-4 unknown persons. Thus, the first
contention raised by learned Counsel for the appellants is that
since FIR was lodged only against 3-4 persons, 7 persons have
wrongly and illegally been implicated on account of enmity
with the police and with their collusion, therefore, the
prosecution case is not sustainable on this ground alone and
impugned judgment and order is liable to be set aside.
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(33) The aforesaid contention of learned counsel for the appellants is
misconceived and not tenable only on the aforesaid ground of
increase in numbers of the accused persons during investigation
because it is settled in law that FIR is not an encyclopedia of
the prosecution case. It is only the first information of the
occurrence, as is apparent from the nomenclature FIR; First
Information Report of the occurrence, meaning thereby it is
only to inform to the police as to what kind of incident has
taken place. Thus, it is neither expected nor required that the
FIR would contain every minute detail of the occurrence and
the number of the persons also, particularly where the
occurrence had taken place under the darkness of night.
(34) The evidence on record shows that the complainant (P.W.2), the
victim (P.W.1) and son of deceased Pokhai (P.W.4), who are
witnesses of fact, were persons of a nomadic community
residing temporarily in the camps along with their group, which
roam around and had come to the place of occurrence only on
the previous day of occurrence at about 03:00 in the afternoon
and they were not previously acquainted with the persons of
area and know them or the assailants. Thus, when the accused
were unknown, it is natural that their names did not find place
in the F.I.R. However, the prosecution is required to prove the
involvement of all the accused persons in the alleged crime,
surfaced during investigation, beyond all reasonable doubt with
their identity on the basis of cogent evidence, particularly in the
facts and circumstances of the case in which the FIR was
lodged, promptly after the incident by the person, who was
witness to the incident of crime of murder, kidnapping and rape
and no description of any of the assailant was given. This Court
is also conscious of the fact that in such cases the Court is
required to evaluate the evidence and material on record with
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due care and caution keeping in mind the settled principles
governing appreciation of testimony of the victim as well as
other witnesses.
(35) The FIR of the incident, at about 1.30 AM, in the intervening
night of 24/25.05.2002, was lodged on the basis of written
complaint at 5:30 AM on 25.05.2002. According to the
prosecution version, 3-4 persons were seen coming from the
south towards the village and upon reaching the ‘ Dera’, they
started beating by stick (danda), therefore, the complainant and
other persons started shouting, upon which they dragged the
victim wife of Sitaram to some distance. Pokhai son of Nazeer
ran to get freed the victim, when a person from them fired on
him by a country made pistol, on account of which he ran
shouting and fell in a ditch near the road and died. Teerath Nath
s/o Pokhai, Bhungi s/o Chhtrapal, Shobhnath s/o Navrangi,
Lalau s/o Navrangi, Pokhai s/o Langad r/o Mansha ka Purwa
and Mithilesh Kumar s/o Sitaram, Suresh Kumar s/o Nand Lal
and Sanjay Kumar of Hariharpur etc. ran exhorting and
identified, but on account of fear could not go behind them,
however, they can recognise them on seeing. They took the
victim to a long distance and after doing bad work left her.
(36) The victim appeared as PW1. She deposed that she is of
Mangta caste. The Dera was set up at 3.00 in the noon. The
storm and rain had come in the night after taking food. Some
people went in Dera and some slept in the Verandah of Pradhan.
She was in camp along with her uncle, aunt and son of her aunt
and Pokhai, who was her grandfather, but subsequently referred
him as uncle. At about 12:00–1:00 in the night, miscreants
came and started beating. As she tried to ran, the accused,
Anwar present in Court caught her. Pokhai ran to save her, then
Anwar fired on him by country made pistol, on account of
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which he died. Anwar handed her over to his colleagues, who
dragged her to the bed of canal. Five miscreants came and all
the seven plundered her dignity against her wishes and forcibly
raped. Firstly Anwar raped her and thereafter the remaining
persons raped her one by one. Thereafter, Anwar gave her Rs.
60/- to get her treatment done. He also asked not to tell about it
to anybody and the accused persons left her at some distance.
She was medically examined. She further deposed that after
three days of the incident the police personals had shown her
the photographs first and thereafter caught certain persons and
brought. She identified. They had committed rape with her.
(37) P.W.1 further deposed that the night was alight. She could
identify the accused persons. She identified 6 out of 9 accused
persons present in court and deposed that they had committed
rape with her. The trial Court has recorded that there are seven
accused persons out of which one has given an application for
exemption. The remaining are standing in the cage. Their names
were asked, upon which they told their names as Shankar,
Ratipal, Udairaj, Parasnath, Ram Sajeevan and Anwar. The
defence raised objection on this proceeding.
(38) P.W.1 further deposed that she could identify all the accused.
The accused Anwar had given her Rs. 60/-. She had objected to
it. He, after giving Rs. 60/-, asked to get the treatment done of
all the places, wherever she had got injuries. He had also given
four tablets but she had not taken. The medicine and Rs. 60/-
were given by her to the Constable, but subsequently she said
that she had given it to Banwari, who gave to police. On the
next date also, she identified all the accused persons, who were
present in the trial Court. The trial Court recorded its
observation that all the accused persons named in the charge-
sheet are present.
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(39) P.W.1 further deposed that on account of rape, her ghagra was
blood stained, which was black, white, red, green and blue
stripped. It was taken into custody by the police. Her medical
examination was done in the District Hospital Raebareli and x-
ray was also done.
(40) P.W.1 was extensively cross-examined. She deposed that she
did not know the accused persons previously. They have no
permanent residence. They had come in the village on the date
of incident at 3:00 in the day. She further deposed that when the
miscreants had come, they were sleeping. They had not made
any robbery. She also deposed that they were beating by white
lead. The miscreants had first started beating the people in
camp. They had beaten all the persons in the camp but she
could not tell as to how many persons were beaten. She had
suffered injuries of stick over her whole body, which was
shown by her to the doctor. She also deposed that on account of
sudden attack many persons had left the place and ran away but
she could not run because as soon as she tried to run she was
caught by the miscreants. She also deposed that she does not
have the knowledge of directions. She was taken out of the
camps towards the canal and not towards the village. The canal
is about one kilometer away and they did not took her across
the canal. She was not taken dragging, rather the accused lifted
her. Her uncle was shot by a country-made pistol, on account of
which she could not cry.
(41) P.W.1 further deposed that there was no clothe on her body
because the clothes were torn by the accused, however, the
clothes were not thrown and given to her. She further deposed
that she had told to the Inspector that when they took her lifting
then she was naked. Her clothes were torn. If it was not written
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by the Inspector in her statement, she cannot tell the reason. She
also deposed that she had handed over to the police. She further
deposed that neither her shirt was torn nor she had given it to
the police. She further deposed that she had given the statement
on the last date by mistake that at that time clothes were not on
her body, clothes were torn, the clothes were not thrown by the
accused but given to her. She is stating it on the memory and
not on tutoring.
(42) P.W.1 also deposed that while she was being taken by the
accused persons, she was throwing her legs and hands. Her
bangles were broken, on account of which she had suffered
injuries in the hands and she had shown them to the doctor. She
also deposed that the canal, where she was taken, had no water.
She had not seen that she was taken across the canal. She again
reiterated that the accused persons had came to some distance
and the accused had given her Rs. 60/-. She also deposed that
the ground, where the rape was committed was uneven. She
does not recollect as to whether there was any water. She did
not wear anything under the ghaghra . She also deposed that at
the time of rape also, she was objecting and throwing hands and
legs. Accused persons did bite on her cheeks. The marks of the
teeth and scratches were left on her body. She had not made any
objection to the rape with her. She had not kept her leg on leg.
The bad work was done by all seven accused persons. She does
not recollect as to how much time they had taken in rape. The
blood had come from vagina, which spread in the clothes. She
had shown the marks of blood and scratch of nails to the police
personals. She also deposed that she had not taken bath between
the incident and going with the police.
(43) P.W.1 further deposed that she also does not recollect as to how
much time she remained with the police personals. The medical
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was conducted on the same day and she had not taken bath
before medical. She further deposed that when she came back
after the incident of rape, she came to know that her uncle has
died. She, pointing out towards the accused Anwar, said that at
the place of incident, he had asked not to flaunt, otherwise she
would also be killed as her uncle has been killed. Before that
she did not know that uncle has been killed. She further
deposed that she had not told about the height, age, body etc. of
the accused to the police. The identification of the accused
persons was got done by the police in the police station
Unchahar. At that time all the accused persons were lodged in
police station Unchahar. Firstly, the photographs of the accused
persons were shown to her but she could not identify. Secondly
the police had got identified after 2-3 days, then she identified.
She also deposed that she had gone with the Inspector at the
place of incident of rape. The constable had also accompanied
them. The place of incident of rape was at a distance of 10 – 15
steps from canal. A staple fibre (Phuchada) of Ghaghra was
found at the place of incident. The police had taken it in
custody. She denied the suggestion that any such incident had
not happened and she has given false evidence on tutoring by
the counsel. She also admitted that besides the government
counsel, she has also engaged a private counsel.
(44) The victim, who appeared as P.W.1, is the star witness of the
prosecution. However, there are contradictions and
inconsistencies in her testimony, particularly in regard to
identification of accused persons, place of incident of rape. It is
apparent that she did not know the accused persons prior to the
incident and she along with her group had come a day before
the incident in the noon at the place of the incident. It is also
reflected from her evidence that she was detained by the police
for about three days and no test identification parade was
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conducted and she could not identify the accused persons in
photographs and had identified the accused persons in lock up
of police station and thereafter in Court, but there is no
explanation by the prosecution as to why the victim was
detained by police and where she was kept for such a long
period and as to why Test Identification Parade was not got
done. Thus, it is to be seen as to whether identification of
accused persons by her is in accordance with law or not
complicity of accused/appellants is otherwise proved or not and
other evidence, medical and material corroborates the evidence
of P.W.1 and the prosecution case or not and effect of the
contradictions and inconsistencies in the evidence of the victim.
(45) The complainant Banwari appeared as PW2. He is the real
brother of Pokhai; the deceased and uncle of the victim.
However, initially the victim had referred the Pokhai as her
grandfather but subsequently as uncle. He has stated that 6-7
persons had come from South. He along with others had
shouted. The accused persons had dragged the victim for about
10 steps. She was not going, therefore, they lifted her. Pokhai
tried to get her freed, therefore, they shot him dead. It was
moonlight. Looking to the accused, Anwar, he said that he had
shot fire on Pokhai. His name is Anwar. Pokhai went 10 steps
and fell in ditch and died. He further deposed that the accused
present in court took the victim towards the south near the
canal. The defence raised objection on the identification of the
accused persons in the Court.
(46) P.W.-2 further deposed that they chased the accused persons but
due to fear, they could not proceed further and returned. After
about 1 to 1½ hours, the victim (P.W.-1) returned and told
weeping that all the seven accused persons had committed
wrong act with her one by one near the canal. The accused
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persons had given Rs.60/- consisting of one note of Rs.50/- and
another of Rs.10/- asking her to get the treatment done and did
not tell to anybody about it. He further deposed that the victim
had injuries in her hand, back and leg and was complaining of
pain. Her ghaghra was stained with blood and was also torn a
little. Thereafter, when the dawn broke and it became alight, he
went to the house of a villager and got the report written. The
incident was got written in the same manner as it was from that
person, who read it over to him. After hearing it, he affixed his
thumb impression thereon. The said application was given at
the police station in the morning. He went to the police station
alongwith Shobhnath, Bhungi, Pokhai, the victim and Lallau.
He proved the written report as Paper No.3 /2 (Ext. Ka-1). On
d
being read over to him, P.W.2 proved that the same was got
written by him. He further deposed that the victim was detained
at the police station and they had returned. The Inspector had
come on the dera and recovered the empty cartridges near the
ditch, where the Pokhai was lying dead. He had also recovered
the plain and blood stained mud and kept in different boxes and
the seizure memo were prepared. He further deposed that the
Inspector had also taken custody of the ghaghra of the victim
and Rs.60/-, which was given by the accused persons to her,
which was given by her to him. The same was kept in an
envelope and recovery memo was also prepared. He further
deposed that the accused persons had come to the dera after the
incident and asked for the compromise. They had also met
while he had come to the Court and asked for the compromise.
(47) P.W.2 further deposed that the night was alight and everything
clearly visible. However, in the cross-examination, he deposed
that he does not recollect as to whether the moon was full or
not. He had also not written in the report that the night was
alight. The Investigating Officer had not asked from him as to
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in which light he had identified the accused persons. He, on his
own, had informed the Investigating Officer that he had
identified in the moon light and if it is not written in statement,
then he can not tell the reason for it. Thus, identification of
accused persons by him at the time of incident is doubtful on
account of contradictions in his evidence.
(48) P.W.2-Banwari further deposed that he knows the number and
after counting, he stated that seven persons are standing in cage
since he is coming from last many days in the case. He further
deposed in his cross-examination that they used to keep their
dera in the village of incident occasionally. He further deposed
that they had made their dera at about 03:00 in the day on the
date of incident. They had not gone to the populated area of
village. They were keeping camps up to the night. Thereafter,
they prepared food. He neither identifies anybody in the village
Hariharpur nor knows the parentage of anybody. He does not
know anybody named Mithlesh Kumar son of Sitaram. He also
does not know Suresh Kumar son of Nand Lal and Sanjay
Kumar son of Ram Pher. He also does not know from whom he
got the report written. The person had met him near the shop,
which was at a distance of 4 – 6 steps from dera , which was in
a wooden gumti. It was night, lantern was alight and it was
dark. He does not know as to what was kept and being sold in
the shop. The shopkeeper was sitting in the shop alongwith
alight lantern. The paper was given by the said shopkeeper.
When the report was got written, it would have been 04:00 in
the morning. The police had not come by that time. He had told
to the person, who had written the report that 6 – 7 persons
were involved. He had not got heard the report. He had got read
over the written report by an outsider before four steps from the
police station then he had heard that it was written in the report
that 6 – 7 persons were involved. The witness was read over the
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Ext. Ka-1 and told that involvement of 3 -4 persons is written,
upon which, he stated that he had got written that 6 – 7 persons
were involved. He had left the report at the Police Station and
the copy was not given to him. Signatures were also not taken
from him. He also deposed that he had told to the Inspector
about involvement of 6 – 7 persons. Thus, the complainant
could not tell as to from whom the F.I.R. was got written. He
could also not tell properly about the source of light at the shop.
He also could not tell the things sold in the shop. It all coupled
with opening of shop at 04:00 in morning at a small place near
village creates doubt about the place and person, who wrote the
F.I.R., as he has also not been produced, particularly when a
contrary defence evidence has been adduced, which could not
be controverted.
(49) P.W.2-Banwari, on being pointed out towards the accused
Anwar, stated that this man is of short, black coloured and
double heavy body. However, he had not got written in the
report that the person, who killed Pokhai by fire arm, was of
short stature, black coloured and double heavy body. He had not
got written the description of any accused and the clothes,
which were worn by them. All the accused persons present in
the Court are young. It was neither told to the Inspector nor got
written in his statement. He further, in his cross-examination,
denied the suggestion that he was demanding more money for
the compromise from the accused persons, therefore, the
compromise could not be made.
(50) P.W.2 also deposed that after the thunderstorm, 3 – 4 camps
were again made. The dera was in the round shape and there
was a distance of about a hand between two camps. Pokhai was
lying in the verandah. The victim was in the dera of Shobhnath.
The dera of Shobhnath was in the South of his dera at a distance
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of 10 steps. Two – Three persons, namely, Shobhnath, Pokhai
and wife of Shobhnath were lying in the verandah. Firstly, all
the 6 – 7 accused persons had came to his dera and started
beating all. He was also beaten by 1 – 2 sticks but it was not
told by him to the Munshi in the police station. Pokhai had
suffered a lot of injuries. He has died. He had not gone to the
police station with him. Nobody else had got the injuries. He
was not medically examined. He further deposed that the road
is not between the dera and the verandah rather it is adjacent on
the north. Thereafter, he stated that the road is in between the
dera and the verandah. The ditch is on both the sides of road
and Pokhai had fell down in the ditch on the south and died
there. His dead body was also found there. Pokhai was shot
from a distance of 10 steps by one fire. The person, who had
shot, had ran away towards the south. The person, who had shot
the fire, was present outside the dera. Pokhai had chased him
towards south, when he had shot fired. Pokahi had chased him
for about 10 steps but it was not told by him to the Inspector.
He also deposed that they had ran towards the south of dera. He
further deposed that the accused persons had firstly dragged the
victim and thereafter lifted and took her as a dead body. She
had returned on the same night at about 2:30 – 3:00. The report
was got written after she had returned. She had told about the
incident to him and that 6 – 7 persons had done bad work with
her, which was got written by him in the report. He further
reiterated his evidence given in the examination-in-chief in the
cross-examination. Thus, there are contradictions and
inconsistencies not only in the evidence of P.W.2 but between
evidence of P.W.1 and P.W.2 also.
(51) P.W.-4, who was also a member of the group of the complainant
and the victim, also gave his evidence similar to the evidence of
P.W.-1 and P.W.-2. He is son of Pokhai, who was killed in the
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incident. He deposed that the fire was shot from a distance of 4
– 5 steps and thereafter he went about 20 – 25 steps and fell
down aside the road and died. They had chased the accused for
about 2 – 4 steps but thereafter, on account of fear, they
returned. They had gone lifting the victim near the canal, which
was about a kilometer away on the south of dera. The victim
had returned after about two to two and half hours and told that
accused persons have done bad work with her. She also gave
Rs.60/-. The first information report was got written by her
uncle and thereafter the Inspector had come. He further deposed
that he had identified the accused persons in the lighted night
and subsequently also he identified them. He identified the
accused persons in the Court. Out of which, one was short
statured and present in the Court, who has told his name as
Anwar. He had shot fire on Pokhai. The defence objected about
the identification of the accused persons in the Court.
(52) P.W.4, in the cross-examination, deposed that he could not tell
as to who had beaten whom, however, all were being beaten by
sticks. He further, in his cross-examination, deposed that when
the thunderstorm and the rains had come, the camps had fallen
and when it started raining, some persons had gone in the room
of Jagat Narain and some persons were in the dera. The room of
Jagat Narain was in the north of dera at a distance of about 40 –
50 steps. He was in dera. The thunderstorm had come at about
09:00 – 10:00 in the night and rains had come about 10:00 –
11:00 in the night. The dera was at a distance of 20 – 25 steps
from the road in the field. He also deposed that the victim was
in the dera of Shobhnath. He had not seen any accused in the
dera. He further deposed that the accused had not shot fire on
his father immediately after entering but when they lifted the
victim and were going, his father had chased them to get her
freed, then he was shot by fire and he fell down in the ditch at a
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distance of about 20 – 25 steps in the north. He further deposed
that the victim was married at the time of incident. She was hale
and hearty. She had returned at about 2:30 – 03:00 in the night
and the police had come about 07:00 in the morning. The police
had taken the dead body of his father to the police station. He
further deposed that he does not recollect as to whether some
police personnel had taken the dead body and some remained at
the spot. He denied the suggestion that he was not on the spot,
therefore, he is making an excuse of not knowing the things. He
further deposed that when he had identified the accused persons
during his evidence on that date, all the seven accused persons
were present in the cage of the Court. Besides the said seven
persons, one another accused was in the cage, who had no
concern with the case. He also deposed that he does not
recollect as to whether he had any talk with Banwari before the
report was written or not and he had not told to the Banwari or
the police that only 3 – 4 accused were involved in the
incident. Thus, there are contradictions and inconsistencies not
only in evidence of P.W.4, but with the evidence of P.W.1 and
P.W.2.
(53) The aforesaid witnesses, on the one hand, have stated that all in
the dera were beaten by stick (danda) and, on the other hand,
that none other had received any injury. Except the victim and
deceased, none other has been got examined medically. There is
contradiction in distance, from which the fire was shot on the
deceased and the distance, after which he fell and died. P.W.1
has also deposed in her cross-examination that she had not
objected to rape and the accused had come to leave her near the
dera , which could have been only if the alleged miscreant was
known to her, otherwise it is highly improbable. It is also highly
improbable that the unknown miscreants would give medicine
and pay money for treatment. It is also apparent that there are
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contradictions not only in the evidence of aforesaid witnesses,
but between the evidence of aforesaid witnesses also.
(54) On perusal of the evidence of aforesaid three witnesses of fact
i.e. the victim; star witness (P.W.-1), complainant (P.W.-2) and
son of deceased (P.W.-4), who claims themselves to be eye-
witnesses, it emerges that they had come to the village, where
incident occurred, with their group in the previous afternoon of
the intervening night of the incident at about 03:00, when they
started making their camps and during that period they had not
gone towards the populated area of the village. It also emerges
from their evidence that they did not know the persons residing
in the village or vicinity. P.W.-2 and P.W.-4 have identified the
accused persons only in the Court during their evidence and
from their evidence, it does not emerge that they had ever told
the description of the accused persons or what was being worn
by them at the time of incident to the police prior to that.
Admittedly their evidence was recorded after about 5 – 7 years
of the incident. The only identification of the accused persons,
prior to that, has been made by the P.W.-1 i.e. the victim but not
in the Test Identification Parade. Her testimony shows that
firstly she was shown the photographs of the accused persons,
when she could not identify them, thereafter, the accused
persons were shown to her in the lock-up room of the police
station, where she identified them. She has not deposed that the
photographs, which were shown to her, were not of the accused
persons, who got identified by her in the lock-up of the police
station.
(55) The Test Identification Parade can be held under Section 9 of
the Indian Evidence Act, 1872 for identification of the accused
persons. The Test Identification Parade is required to establish
the identity of an accused and it is relevant fact under Section 9
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of the Indian Evidence Act, 1872. The purpose of Test
Identification Parade is to test and strengthen trustworthiness of
the substantive evidence of a witness in court, which belongs to
the investigation stage and if it is done with adequate
precaution and in proper manner, it may be used by Court as a
corroborative evidence. However, if the identification of the
accused, who was not caught at the time of the incident, is not
made properly and in accordance with law and if there is doubt
about the identification of the accused persons, the conviction
cannot be made only on it’s basis. Similarly, if the accused
persons were not identified by the victim in Test Identification
Parade or otherwise, their identification in the Court may not be
sufficient for their conviction.
(56) The Hon’ble Supreme Court, in the case of Umesh Chandra v.
State of Uttarakhand; (2021) 17 SCC 616, has held that test
identification parade under Section 9 of the Indian Evidence
Act, 1872 is not substantive evidence in a criminal prosecution
but is only a corroborative evidence. The relevant paragraphs 9
and 10 are extracted here-in-below :-
“9. A test identification parade under Section 9 of the
Evidence Act is not substantive evidence in a criminal
prosecution but is only corroborative evidence. The
purpose of holding a test identification parade during
the stage of investigation is only to ensure that the
investigating agency prima facie was proceeding in
the right direction where the accused may be
unknown or there was a fleeting glance of the
accused. Mere identification in the test identification
parade therefore cannot form the substantive basis
for conviction unless there are other facts and
circumstances corroborating the identification.
10. But more important than that, the test
identification parade being a part of the investigation,
has to be proved by the prosecution as having been
held in accordance with law. The onus lies on the
prosecution to establish that the TIP was held in
accordance with law. It is only after the prosecution
prima facie establishes a valid TIP having been held,
the question of considering any objection to the same
arises. If the prosecution has failed to establish that a
TIP was properly held by examining the witnesses to
the same, there is nothing for the accused to
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disprove. In the present case, a Magistrate is stated
to have conducted the TIP. The Magistrate has not
been examined. No explanation is forthcoming why
the Magistrate was not examined. The only evidence
available is that of PW 4 the Station House Officer
that during the investigation the TIP was held in the
District Jail, Nainital and he identifies the proceedings
in the court. The identification of the proceedings is
irrelevant as obviously he could not have been
present during the TIP. The TIP, a part of the
investigation, therefore cannot be said to have been
proved much less that it was held in accordance with
the law. Secondly there cannot be repeated TIPs till
such time that the prosecution is successful in
obtaining identification of the accused.”
(57) The Hon’ble Supreme Court, in the case of Gireesan Nair Vs.
State of Kerala (Supra) , has held that if identification in the
TIP has taken place after the accused is shown to the witnesses,
then not only is the evidence of TIP inadmissible, even an
identification in a court during trial is meaningless. The relevant
paragraphs 25 to 29 are extracted here-in-below:-
“ 25 . Analysis: Heard the learned counsel for the
parties and perused the case records. We may, at the
outset, note that the eyewitnesses questioned by the
prosecution did not give out the names or identities of
the Accused participating in the riot and involved in
the destruction of public property. Therefore, the IO
(PW84) had to necessarily conduct a TIP. The object
of conducting a TIP is threefold. First, to enable the
witnesses to satisfy themselves that the accused
whom they suspect is really the one who was seen by
them in connection with the crime. Second, to satisfy
the investigating authorities that the suspect is the
real person whom the witnesses had seen in
connection with the said occurrence. Third, to test the
witnesses’ memory based on first impression and
enable the prosecution to decide whether all or any of
them could be cited as eyewitnesses to the crime
(Mulla and Anr. v. State of U.P.19).
26 . TIPs belong to the stage of investigation by the
police. It assures that investigation is proceeding in
the right direction. It is a rule of prudence which is
required to be followed in cases where the accused is
not known to the witness or the complainant (Matru
alias Girish Chandra v. State of U.P.20; Mulla and Anr.
v. State of U.P.21 and C. Muniappan and Ors. v. State
of Tamil Nadu22). The evidence of a TIP is admissible
under Section 9 of the Indian Evidence Act. However,
it is not a substantive piece of evidence. Instead, it is
used to corroborate the evidence given by witnesses
before a court of law at the time of trial. Therefore,
TIPs, even if held, cannot be considered in all the
cases as trustworthy evidence on which the
conviction of an accused can be sustained (State of
H.P. v. Lekh Raj and Anr.23; and C. Muniappan and
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Ors v. State of T.N.24). 19 (2010) 3 SCC 508 (Paras
44, 45 and 55) 20 (1971) 2 SCC 75 (Para 17) 22
(2010) 9 SCC 567 (Para 42) 23 (2000) 1 SCC 247
(Para 3).
27 . It is a matter of great importance both for the
investigating agency and for the accused and a fortiori
for the proper administration of justice that a TIP is
held without avoidable and unreasonable delay after
the arrest of the accused. This becomes necessary to
eliminate the possibility of the accused being shown
to the witnesses before the test identification parade.
This is a very common plea of the accused, and
therefore, the prosecution has to be cautious to
ensure that there is no scope for making such an
allegation. If, however, circumstances are beyond
control and there is some delay, it cannot be said to
be fatal to the prosecution. But reasons should be
given as to why there was a delay (Mulla and Anr. v.
State of U.P.25 and Suresh Chandra Bahri v. State of
Bihar26).
28 . In cases where the witnesses have had ample
opportunity to see the accused before the
identification parade is held, it may adversely affect
the trial. It is the duty of the prosecution to establish
before the court that right from the day of arrest, the
accused was kept “baparda” to rule out the possibility
of their face being seen while in police custody. If the
witnesses had the opportunity to see the accused
before the TIP, be it in any form, i.e., physically,
through photographs or via media (newspapers,
television etc…), the evidence of the TIP is not
admissible as a valid piece of evidence (Lal Singh
and Ors v. State of U.P.27 and Suryamoorthi and Anr.
v. Govindaswamy and Ors.28).
29 . If identification in the TIP has taken place after the
accused is shown to the witnesses, then not only is
the evidence of TIP inadmissible, even an
identification in a court during trial is meaningless
(Shaikh Umar Ahmed Shaikh and Anr. v. State of
Maharashtra 29). Even a TIP conducted in the
presence of a police officer is inadmissible in light of
Section 162 of the Code of Criminal Procedure, 1973
(Chunthuram v. State of Chhattisgarh30 and
Ramkishan Mithanlal Sharma v. State of Bombay31).”
(58) The Hon’ble Supreme Court, in the case of Dana Yadav @
Dahu & Others Vs. State of Bihar (Supra) , has held that
failure to hold test identification parade, which should be held
with reasonable despatch, does not make the evidence of
identification in court inadmissible rather the same is very
much admissible in law but ordinarily identification of an
accused for the first time in court by a witness should not be
relied upon, the same being from its very nature, inherently of a
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weak character, unless it is corroborated by his previous
Identification in the test identification parade or in any other
evidence. The previous identification in the test identification
parade is a check valve to the evidence of identification in court
of an accused by a witness and the same is a rule of prudence
and not law. It has further been held that ordinarily, if an
accused is not named in the first Information report, his
identification by witnesses in court, should not be relied upon,
especially when they did not disclose name of the accused
before the police. The Hon’ble Supreme Court, in the case of
Bhagwan Singh & Others Vs. State of M.P. (Supra) , has
taken similar view.
(59) In view of above, the identification of the accused persons by
the victim is not in accordance with law and in view of the
allegations levelled on behalf of the appellants that they have
been implicated on account of police enmity, it can not be ruled
out in the facts and circumstances of the case and the manner, in
which they have been got identified. The conduct of the Court
in getting the accused persons identified in the Court is also not
appreciable, which was also objected by the defence time and
again. It has also not been clarified as to when none of the
aforesaid witnesses of fact knew the accused persons and they
have also not given any description of them and as to what
clothes were worn by them at the time of incident, as to why
and how the police got identified the appellants because the
manner, in which the extra-judicial confession was recorded
prior to identification is highly improbable. Even the statement
of the victim (P.W.1) was not recorded for three days and only
after getting the appellants identified in lock-up, her statement
was recorded which is evident from evidence of the
investigating officer, who appeared as P.W.9.
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(60) The evidence of P.W.9, S.I. R.P. Saroj, the first Investigating
Officer, shows that the statement of the victim was not recorded
immediately after lodging of the F.I.R., though the place of
incident was inspected and the site plan was prepared on her
pointing out along with the complainant (P.W.2) on the same
date. The statement of the victim (P.W.1) was recorded on the
third day of the incident i.e. on 27.05.2002 and that too after the
statements of the accused persons and getting them identified in
lock-up by her, wherein they allegedly admitted having
committed the crime against the victim (P.W.1). No explanation
for this delay in recording the statement of the victim (P.W.1)
has been offered. He also failed to disclose as to where the
victim was kept for three days. This witness was recalled and in
his re-statement, he confirmed that he had recorded the
statement of the victim (P.W.1) on the third day. The statement
of the complainant (P.W.2) was recorded on the same day. He
deposed that he had prepared the recovery memo of Rs. 60/- on
the spot.
th th
(61) P.W.9 has also deposed that on 25 and 26 May, the names of
any accused persons involved in the crime had not surfaced. He
further deposed that in Parcha No. 3 dated 27.05.2002, since the
accused persons had admitted the crime after being arrested in
another case vide Case Crime Nos. 123 of 2002 and 124 of
2002 under Section 3/25 of the Arms Act, on the basis of the
recovery of country-made pistols from Udai Raj and Shanker,
the accused persons were arrested, he implicated them in the
present case and started the investigation against them and
upon their alleged admission of having committed gang rape of
the victim, Ramu alias Ram Kumar and Paras Nath were also
arrested accordingly. However, P.W.9 admitted that there was
no independent witness to the arrest. He further deposed that
family members of the complainant (P.W.2) were grazing cattle
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there and were present at the spot, where they were arrested. He
further deposed that the statements of the accused persons were
recorded at the time of arrest, wherein the accused persons
admitted their crime and their statements were recorded after
their arrest. All four accused persons were arrested on
27.05.2002 at 17:00 hours. Before 17:30 hours, no evidence had
been found against them. On the basis of the statement of the
complainant (P.W.2) and those of other witnesses and at their
pointing out, the remaining three accused persons were arrested
while fleeing away. Their names were disclosed by the accused
persons. He further deposed and admitted that no identification
parade of any of the accused persons was conducted. The
statements of the witnesses were recorded on the same day after
the arrest of the accused persons. The victim had stated that
accused Anwar had given her Rs. 60/-. However, Anwar had not
been arrested by that time.
(62) It is very strange as to how the victim could have disclosed the
name of accused Anwar at that time, when both the victim
(P.W.1) and the complainant (P.W.2) have admitted that they did
not know the persons of the village or nearby places nor had
Anwar been arrested by that time. It is also evident from the
evidence of P.W.9, the first Investigating Officer, that no
identification parade was conducted for the identification of the
accused persons. It is also not the case of prosecution that the
family members, who were present at the place of arrest of
some of accused, had identified them. Thus, it is highly
improbable that the accused persons, while arrested in
connection with recovery of arms, would admit of committing
other heinous crime without any basis. Therefore, the
possibility of false implication on account of police enmity or
implication of appellants, to show good work, as they were
arrested in some case, cannot be ruled out in the facts and
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circumstances of the case. Thus, they could not have been
convicted on the basis of such identification.
(63) It is also very strange that the victim was withheld at the police
station after lodging of the first information report and as per
testimony of the P.W.-1 and P.W.-2, the victim had returned
after about 2 – 3 days and it has not been clarified as to why she
was withheld and where she was kept, whereas her medico
legal examination was got conducted in the evening of the date
of lodging of the first information itself. In any case, evidence
on record shows that the victim (P.W.1) was in custody of
police during said period before identification in lock-up,
therefore, identification of accused persons under influence of
police can also not be ruled out.
(64) The first Investigating Officer; P.W.-9 also deposed that the
F.I.R. was lodged under Section 302, 376 and 323 I.P.C. He has
started the investigation on the same day. He went to the spot
and inspected the place of incident and recovered blood stained
and plain mud and ghaghra of the victim stained with blood and
semen. He also recovered one empty cartridge 12 bore and
Rs.60/- and prepared recovery memo of the same and got it
signed by the witnesses. He inspected the place of incident on
the pointing out of the victim and the complainant and prepared
the site plan i.e. paper No. 6Ka/1 and 6Ka/2, which were
marked as Ext. Ka-11, Ext. Ka-12 and Ext. Ka-13. He got the
inquest report prepared dictating to Dr. Anil Kumar Pandey,
which is Ext. Ka-6 and, thereafter, got prepared the Ext. Ka-7,
Ext. Ka-8, Ext. Ka-9 and Ext. Ka-10 and signed them. He
enquired for the accused persons on 26.05.2002 and got the
statement of Gram Pradhan Jagat Narain on 27.05.2002. He
recorded the statement of accused Udai Raj, Shankar Nai,
Ramu alias Ram Kumar and Paras Nath Patel, in which they
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admitted for crime. On the very same date, he recorded the
statement of the victim and finding her of SC/ST community,
he converted the case under the SC/ST Act and provisions of
Section 3(2)(v) of SC/ST Act were invoked and the trial held
for the same and conviction has been made.
(65) One of the arguments of learned counsel for the appellants is
that the provisions of SC/ST Act were wrongly and illegally
invoked as the victim and deceased are not of any category of
SC/ST. For convenience, Section 3(2)(v) of SC/ST Act is
extracted here-in-below :-
“ 3. Punishments for offences atrocities.—
(1)………..
(2) Whoever, not being a member of a Scheduled
Caste or a Scheduled Tribe,—
(i)………...
(ii)…………
(iii)…………
(iv)…………
(v) commits any offence under the Indian Penal
Code (45 of 1860) punishable with imprisonment
for a term of ten years or more against a person or
property [knowing that such person is a member of
a Scheduled Caste or a Scheduled Tribe or such
property belongs to such member], shall be
punishable with imprisonment for life and with fine”
(66) The aforesaid Section 3(2)(v) of SC/ST Act has been amended
by Act 1 of 2016 and by Section 4 of the said amending Act
“knowing that such person is a member of a Scheduled Caste or
a Scheduled Tribe or such property belongs to such member”
has been substituted in place of “on the ground that such person
is a member of a Scheduled Caste or a Scheduled Tribe or such
property belongs to such member” w.e.f. 26-1-2016 vide
notification dated 18.01.2016. Thus, on the date of incident i.e.
25.05.2002, the offence under the said provision could have
been said to have been committed only if a persons not being a
member of SC/ST commits any offence under the I.P.C.
punishable with imprisonment for a term of ten years or more
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against a person or property on the ground that such person is a
member of a Scheduled Caste or a Scheduled Tribe or such
property belongs to such member, shall be punishable with
imprisonment for life and with fine, therefore, if the offence
would have been committed on the ground that the victim is a
member of SC/ST community or such property belongs to such
member. Therefore, firstly the person, who has committed the
crime, must know that the persons with whom he is committing
the crime is a member of SC/ST community or the property,
with which he is committing the crime, belongs to him/her and
secondly, the crime should have been committed because the
other party i.e. the victim is of SC/ST community or the
property belongs to member of such community.
(67) In the present case, admittedly, the victim, complainant and the
deceased had come to place of incident on the date of incident
and as admitted they did not know anybody of village and
vicinity or the accused persons prior to incident, therefore, the
question of knowing about them by the accused persons also
prior to incident is highly improbable. It has also not been
proved that the accused persons knew the victim and the
deceased and their group prior to the incident and that they are
of SC/ST community, therefore, the question of committing
crime on the ground of their caste does not arise. Even
otherwise it has been argued by learned counsel for the
appellants that the victim and the deceased do not belong to any
of the SC/ST community of the State of Uttar Pradesh and have
also placed reliance on the Government Order in this regard and
nothing contrary could be pointed out by the other side. Thus,
apparently, the victim and the deceased were not member of
SC/ST community, therefore, the question of invocation of
provisions of SC/ST Act itself is illegal and not tenable. The
prosecution has also failed to disclose as to how the victim and
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the deceased come under the SC/ST community of the State of
Uttar Pradesh. Learned Trial Court has also failed to consider it.
Thus, this Court is of the view that the conviction under Section
3(2)(v) of SC/ST Act against the appellants is not sustainable in
the eyes of law.
(68) The Hon’ble Supreme Court, in the case of Prabhat Kumar
Mishra alias Prabhat Mishra Vs. State of U.P. (Supra) , has
quashed the proceedings under Section 3(2)(v) of S.C./S.T. Act
on the ground that it is nowhere the case of the prosecution in
the entire charge-sheet that the offence under I.P.C. was
committed by the appellant upon the deceased on the basis of
his caste. The relevant paragraphs 16, 17 and 18 are extracted
here-in-below:-
“ 16 . At the outset, we may take note of the fact that the
prosecution of the appellant herein for the offence under
Section 3(2)(v) of the SC/ST Act is ex facie illegal and
unwarranted because it is nowhere the case of the
prosecution in the entire charge-sheet that the offence under
IPC was committed by the appellant upon the deceased on
the basis of his caste.
17 . This Court in the case of Masumsha Hasanasha
Musalman v. State of Maharashtra1 considered this issue and
held as under:-
“9. Section 3(2)(v) of the Act provides that whoever, not being
a member of a Scheduled Caste or a Scheduled Tribe,
commits any offence under the Penal Code, 1860 punishable
with imprisonment for a term of ten years or more against a
person or property on the ground that such person is a
member of a Scheduled Caste or a Scheduled Tribe or such
property belongs to such member, shall be punishable with
imprisonment for life and with fine. In the present case, there
is no evidence at all to the effect that the appellant committed
the offence alleged against him on the ground that the
deceased is a member of a Scheduled Caste or a Scheduled
Tribe. To attract the provisions of Section 3(2)(v) of the Act,
the sine qua non is that the victim should be a person who
belongs to a Scheduled Caste or a Scheduled Tribe and that
the offence under the Penal Code, 1860 is committed against
him on the basis that such a person belongs to a Scheduled
Caste or a Scheduled Tribe. In the absence of such
ingredients, no offence under Section 3(2)(v) of the Act
arises. In that view of the matter, we think, both the trial court
and the High Court missed the essence of this aspect. In
these circumstances, the conviction under the aforesaid
provision by the trial court as well as by the High Court ought
to be set aside.”
18 . Thus, from the admitted allegations of the prosecution,
the necessary ingredients of the offence under Section 3(2)(v)
of the SC/ST Act are not made out so as to justify prosecution
of the accused appellant for the said offence.”
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(69) The Hon’ble Supreme Court, in the cases of Shashikant
Sharma Vs. State of Uttar Pradesh (Supra) and Patan Jamal
Vali Vs. The State of Andhra Pradesh (Supra) , has taken
similar view. Similar view has also been taken by the Hon’ble
Supreme Court, in the case of Ramdas and Others Vs. State
of Maharashtra (Supra) , in which it has been held that the
mere fact that the victim happened to be a girl belonging to a
scheduled caste does not attract the provisions of the Act. The
Hon’ble Supreme Court, in the case of Khuman Singh Vs.
State of Madhya Pradesh (Supra) , has also taken similar view
in regard to Section 3(2)(v) of S.C./S.T. Act, however, on
account of sudden fight, the Hon’ble Court converted offence
under Section 302 I.P.C. to Section 304 Part II I.P.C. The
relevant paragraphs 12 to 14 of Khuman Singh Vs. State of
Madhya Pradesh (Supra) are extracted here-in-below:-
“ 12 . From the evidence and other materials on record, there
is nothing to suggest that the offence was committed by the
appellant only because the deceased belonged to a
Scheduled Caste. Both the trial court and the High Court
recorded the finding that the appellant-accused scolded the
deceased Veer Singh that he belongs to “Khangar” Caste and
how he could drive away the cattle of the person belonging to
“Thakur” Caste and therefore, the appellant-accused has
committed the offence under Section 3(2)(v) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act.
Section 3 of the said Act deals with the punishments for
offences of atrocities committed under the Scheduled Castes
and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
Section 3(2)(v) of the Act reads as under:-
“Section 3 – Punishments for offences of atrocities – (1)
………
(2) Whoever, not being a member of a Scheduled Caste or a
Schedule Tribe, -
…….
(v) commits any offence under the Indian Penal Code
punishable with imprisonment for a term of ten years or more
against a person or property knowing that such person is a
member of a Scheduled Caste or a Scheduled Tribe or such
property belongs to such member, shall be punishable with
imprisonment for life and with fine”.
The object of Section 3(2)(v) of the Act is to provide for
enhanced punishment with regard to the offences under the
Indian Penal Code punishable with imprisonment for a term of
ten years or more against a person or property knowing that
the victim is a member of a Scheduled Caste or a Scheduled
Tribe.
13 . In Dinesh alias Buddha v. State of Rajasthan (2006) 3
SCC 771, the Supreme Court held as under:-
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“15. Sine qua non for application of Section 3(2)(v) is that an
offence must have been committed against a person on the
ground that such person is a member of Scheduled Castes
and Scheduled Tribes. In the instant case no evidence has
been led to establish this requirement. It is not case of the
prosecution that the rape was committed on the victim since
she was a member of Scheduled Caste. In the absence of
evidence to that effect, Section 3(2)(v) of the Atrocities Act
been applicable then by operation of law, the sentence would
have been imprisonment for life and fine. As held by the
Supreme Court, the offence must be such so as to attract the
offence under Section 3(2)(v) of the Act. The offence must
have been committed against the person on the ground that
such person is a member of Scheduled Caste and Scheduled
Tribe. In the present case, the fact that the deceased was
belonging to “Khangar”-Scheduled Caste is not disputed.
There is no evidence to show that the offence was committed
only on the ground that the victim was a member of the
Scheduled Caste and therefore, the conviction of the
appellant-accused under Section 3(2)(v) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act is
not sustainable.
14 . Insofar as the conviction under Section 302 IPC is
concerned, as discussed earlier, the conviction of the
appellant under Section 302 IPC is modified as conviction
under Section 304 Part II IPC. The appellant-accused has
been serving the sentence in jail for more than twelve years.
As per the jail certificate issued by the Superintendent,
Central Jail, Gwalior, the appellant has served the actual
sentence in jail for more than twelve years (as on 04.07.2018)
and as on date, he has served the sentence of more than
thirteen years. Considering the facts and circumstances of the
case, for the conviction under Section 304 Part II IPC, the
appellant is sentenced to undergo imprisonment to the period
already undergone.
(70) It would be appropriate at this stage to deal the argument of
learned counsel for the appellants that since the trial has not
been held by the Special Court under the SC/ST Act, therefore,
the trial itself stands vitiated. There is no doubt that the offences
under the trial held against the appellants are triable by Session.
Section 14 of SC/ST Act provides for Special Court and
Exclusive Special Court for the purpose of providing speedy
trial. The present provision of Section 14 has been amended by
means of Act 1 of 2016 and prior to amendment by the
Amending Act w.e.f. 18.01.2016, Section 14 was as under:-
“ 14. Special Court- For the purpose of providing
for speedy trial, the State Government shall, with
the concurrence of the Chief Justice of the High
Court, by notification in the Official Gazette, specify
for each district a Court of Session to be a Special
Court to try the offences under this Act.”
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(71) The aforesaid provision discloses that the Special Court was to
be notified by the State Government with the concurrence of the
Chief Justice of the High Court for the purpose of providing
speedy trial to try the offences under this Act. Thus, the only
purpose for notification of Special Court for the purpose of the
SC/ST Act was for speedy trial and the Court, which was
empowered to conduct the cases for the offences levelled
against the accused, was to be notified for the aforesaid
purposes, therefore, merely because the case has been tried in a
Court, which was not notified, will vitiate the trial is highly
misconceived and not tenable for the reason that otherwise it
was empowered to try the case. It is also not the allegation that
the Court, which has tried the trial, was not having jurisdiction
for the trial of the offences levelled against the appellants. Even
otherwise, the offences of the I.P.C. were to be tried under
Section 3(2)(v) of SC/ST Act and it is to be seen as to whether
the said offences have been committed on the ground that the
victim or the deceased or their property belong to the member
of SC/ST, but in the present case, as recorded above, it has also
not been proved that they belong to SC/ST community,
therefore, the question of committing the crime on the said
ground does not arise. In any case, when the Court was having
jurisdiction to try the offences, merely because it was not
notified by the Government as a Special Court for trying of
offences under the SC/ST Act speedily, it could not be a ground
to hold that the whole trial is vitiated, consequently, the
impugned judgment and order.
(72) By the amending Act 1 of 2016, Section 14 of SC/ST Act has
been amended and a proviso has also been added that the
Courts so established or specified shall have power to directly
take cognizance of offences under this Act. In a case, in which
the cognizance was taken by the Magistrate prior to committal
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of case after amendment, the matter went up to the Hon’ble
Supreme Court. The Hon’ble Supreme Court held that because
of the restricted role assigned to the Magistrate at the stage of
committal under the new Code, the non-compliance of the same
and raising of any objection in that regard after conviction
attracts the applicability of the principle of `failure of justice'
and the convict-appellant becomes obliged in law to satisfy the
appellate court that he has been prejudiced and deprived of a
fair trial or there has been miscarriage of justice in the case of
Shantaben Bhurabhai Bhuriya Vs. Anand Athabhai
Chaudhari and Others ; (2022) 15 SCC 228 and the Hon’ble
Supreme Court held that it would be totally inapposite and
inappropriate to hold that such non-compliance vitiates the trial.
The Hon’ble Supreme Court further held that if issue is
considered from another angle, the accused is to be tried for the
offences under the Atrocities Act by Special Court / Exclusive
Special Court constituted under Section 14 of the Atrocities
Act. Even those rights are also available to the victim for the
offences under the Atrocities Act, in which the trial is by the
Special Court/Exclusive Special Court constituted under
Section 14 of the Atrocities Act. Therefore, unless and until
those rights which flow from Section 14 of the Atrocities Act
are affected, the accused cannot make any grievance. Even
otherwise in view of the provisions of Section 460 of the
Cr.P.C., it can be an irregularity and not an illegality, therefore,
entire proceedings and conviction cannot be accepted to have
vitiated and is unsustainable.
(73) Applying the ratio of the aforesaid judgment of the Hon’ble
Supreme Court on the present case, we are also of the
considered view that the appellants have failed to show any
prejudice to have been caused to them on account of trial not
being held before the Special Court under the SC/ST Act and
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that it resulted in failure of justice, therefore, the contention is
misconceived and not tenable and liable to be repelled only and
accordingly repelled, holding that the trial cannot be said to be
vitiated on this ground and the impugned judgment and order
cannot be set aside or quashed on this ground.
(74) P.W.9 i.e. the first investigating officer also denied the
suggestion that the F.I.R. had not been lodged by the time of
inquest and, therefore, Section 323 I.P.C. was not mentioned in
the inquest report of the deceased and that only Sections 376
and 302 I.P.C. were mentioned and Section 323 I.P.C. was
added subsequently. He further deposed that the inquest had
been conducted under his dictation by Shri Arun Kumar Pandey
under Sections 323, 302, 376 I.P.C. and Section 3(ii)(v) of the
S.C./S.T. Act. In his earlier statement as discussed above, P.W.9
had stated that on 27.05.2002, after the admission of the
accused persons and the statement of the victim, the case was
found to attract Section 3(ii)(v) of the S.C./S.T. Act and was
accordingly converted, whereas the inquest of the deceased
Pokhai had been conducted on 25.05.2002 between 7:15 a.m.-
9:15 a.m.
(75) P.W.9, in response to a query by the Court, further deposed that
after the case was converted under Section 3(ii)(v) of the
S.C./S.T. Act and the investigation was taken over by the Circle
Officer, he continued to conduct further investigation under the
directions of the Circle Officer. He also deposed that the place
of incident shown in the F.I.R. is not reflected in the inquest
report. The distance of the place of incident mentioned in the
F.I.R. is 10 kilometres towards the east, whereas in the inquest
report it has been shown as 6 kilometres. According to him, the
distance shown in the check F.I.R. was by road, whereas the
distance of 6 kilometers was the direct distance.
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(76) P.W.9 further deposed that the place of occurrence of the rape
was shown by the victim and was situated across the canal after
proceeding from the side of the “dera”. The victim had stated
that she was raped by seven persons. He further deposed that
the victim had described herself as the wife of Sitaram, whereas
the victim stated in her testimony that she was not married at
that time. Thus, his evidence is also contrary to the evidence of
P.W.1 (the victim), who has stated that she was not taken across
the canal and that the rape was committed aside the canal
before reaching it. She had specifically stated that the accused
persons had not taken her across the canal. P.W.9 also deposed
that the complainant had not stated anything about the
involvement of six or seven persons and that all the persons had
stated that only three or four persons were involved. They had
also not provided any description of the accused persons.
(77) In view of above, there are major contradictions and
inconsistencies in the testimony of the first Investigating
Officer (P.W.9) and with the testimonies of P.W.1, P.W.2 and
P.W.4. P.W.1 has deposed that she was not married and P.w.4
has deposed that P.W.1 was married. It also shows that the
investigation was conducted in a very casual manner and was
tainted.
(78) The Circle Officer, who conducted the subsequent investigation
after the conversion of the case under the S.C./S.T. Act,
appeared as P.W.11. His evidence discloses that he had not
recorded the statements of any of the witnesses, whose
statements had been recorded by the earlier Investigating
Officer during the course of the investigation, owing to his busy
schedule, and that he had merely filed the charge-sheet under
the S.C./S.T. Act on the basis of the evidence and material
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collected during the investigation. The accused persons, who
were arrested during his period of investigation were also
examined by the earlier Investigating Officer. Thus, the
evidence of P.W.11 does not throw any light on the case. Sri
Avadh Bihari Rakesh, the then Circle Officer, who had filed the
charge-sheet against Anwar Ali, appeared as P.W.12 and merely
proved the filing of the charge-sheet. He admitted in cross-
examination that he had not examined the witnesses who had
been examined by his predecessors. Constable Om Prakash
Tripathi; P.W.10 proved check F.I.R. and the corresponding
G.D. Entry.
(79) It is not disputed that the deceased, Pokhai, was shot dead by a
firearm injury. There were five ante-mortem injuries on the
body of the deceased Pokhai, out of which two were abrasions
and one was a firearm injury. One pellet was recovered from his
body. The cause of death was shock and haemorrhage as a
result of the ante-mortem firearm injury, which was proved by
Dr. Sanjay Kumar Pandey, who appeared as P.W.6. The injury
report of the victim (P.W.1) indicates four injuries. The first
consisted of multiple linear scratches on the left forearm,
laterally and dorsally, over the lower two-third area; the second
consisted of multiple blotchy abraded contusions on the upper
third of both sides of the back, widely spread; the third was a
linear patterned contusion measuring 7 cm × 2 cm on the right
upper lateral region of the back; and the fourth was a linear
patterned contusion measuring 11 cm × 1½ cm on the right
lower thigh laterally and extending to the anterolateral aspect of
the knee. According to the opinion of doctor (P.W.6), all the
injuries were caused by a hard and blunt object.
(80) According to the conclusion of the medico-legal report of Dr.
Vineeta Singh (P.W.3), the examination was suggestive of
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penetration by some blunt object. The supplementary report
(Ext. Ka.3) further indicates that the vaginal smear was
negative for spermatozoa and gonococci and that the age of
victim was 16 years. The ghaghra of the victim was taken into
custody by the Investigating Officer. However, the FSL Report
dated 12.07.2002 (Paper No. 32 Ka-1) indicates that a petticoat
was found in the sealed packet and that human blood and
human semen were detected on it. This is not only contrary to
the recovery memo relating to the ghaghra , as ghaghra was not
found in the sealed packet sent for F.S.L. and a petticoat was
found but inconsistent also with the medico-legal examination
and pathological report of the victim. These discrepancies raises
serious doubts not only about the prosecution story but also the
investigation in the matter.
(81) P.W.3, Dr. Vineeta Singh, Senior Consultant, District Women
Hospital, Raebareli, conducted the medical examination of the
victim and deposed that she can not give any opinion regarding
the allegation of gang rape. She further deposed that the injuries
sustained by the victim could not have been caused by an
accident, although no injury was found on the private parts of
the victim.
(82) Dr. R.K. Mishra, Medical Officer, District Hospital, Raebareli,
who conducted the medical examination of the external injuries
of the victim (P.W.1), appeared as P.W.5. In his cross-
examination, he deposed that there was no lacerated wound on
the wrist of the victim. No injury caused by broken bangles was
found on her wrist, whereas the victim (P.W.1), in her
testimony, deposed that while she was being forcibly taken
away by the accused persons, her bangles had broken and she
had sustained injuries in her hand, whereas the medical was
conducted on the very same date of incident. Similarly, no
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injury attributable to broken bangles was found by Dr. H.L.
Sharma (P.W.7), who proved the X-ray report of the victim. He
also opined that the victim (P.W.1) was more than 16 years of
age.
(83) In view of above, the medical also does not support the
prosecution case. The Hon’ble Supreme Court, in the case of
Ramanand Yadav Vs. Prabhu Nath Jha and Others (Supra) ,
has held that it is trite law that oral evidence has to get primacy
and medical evidence is basically opinionative. It is only when
the medical evidence specifically rules out the injury as claimed
to have been inflicted as per the oral testimony, then only in a
given case the Court has to draw adverse inference. However,
it may be of no relevance, if the case is otherwise proved by
cogent evidence as the medical evidence is only an expert
opinion.
(84) The Hon’ble Supreme Court, in the case of Awadhesh and
Another Vs. State of Madhya Pradesh (Supra) , has held that
though medical expert's opinion is not always final and binding,
but in the said case it corroborates other circumstances, which
indicate that the eye-witnesses had not seen the actual
occurrence.
(85) The Hon’ble Supreme Court, in the case of Piara Singh &
Others Vs. State of Punjab (Supra) , has held that evidence of
a medical man or an expert is merely an opinion which lends
corroboration to the direct evidence in the case. Where there is
a glaring inconsistency between direct evidence and the medical
evidence in respect of the entire prosecution story, that is
undoubtedly a manifest, defect in the prosecution case. The
Hon’ble Supreme Court, in the case of Ram Narain Singh Vs.
The State of Punjab (Supra) , has taken similar view.
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(86) In view of above, in criminal law, the case is to be proved by
the prosecution by standing on it’s own legs, primarily on the
basis of ocular or circumstantial evidence as the case may be.
The instant case is a case of ocular evidence as P.W.1, P.W.2
and P.W.4, the witnesses of facts, are the eye-witnesses. The
Hon’ble Supreme Court, in the case of Balu Sudam Khalde
Vs. State of Maharashtra (Supra) , has observed that the
appreciation of ocular evidence is a hard task. There is no fixed
or straight-jacket formula for appreciation of the ocular
evidence. The judicially evolved principles for appreciation of
ocular evidence in a criminal case have been enumerated in
paragraphs 25 to 27, which are extracted here-in-below:-
“ 25 . The appreciation of ocular evidence is a hard task. There
is no fixed or straight-jacket formula for appreciation of the
ocular evidence. The judicially evolved principles for
appreciation of ocular evidence in a criminal case can be
enumerated as under:
“I. While appreciating the evidence of a witness, the approach
must be whether the evidence of the witness read as a whole
appears to have a ring of truth. Once that impression is
formed, it is undoubtedly necessary for the Court to scrutinize
the evidence more particularly keeping in view the
deficiencies, drawbacks and infirmities pointed out in the
evidence as a whole and evaluate them to find out whether it
is against the general tenor of the evidence given by the
witness and whether the earlier evaluation of the evidence is
shaken as to render it unworthy of belief.
II. If the Court before whom the witness gives evidence had
the opportunity to form the opinion about the general tenor of
evidence given by the witness, the appellate court which had
not this benefit will have to attach due weight to the
appreciation of evidence by the trial court and unless there
are reasons weighty and formidable it would not be proper to
reject the evidence on the ground of minor variations or
infirmities in the matter of trivial details.
III. When eye-witness is examined at length it is quite
possible for him to make some discrepancies. But courts
should bear in mind that it is only when discrepancies in the
evidence of a witness are so incompatible with the credibility
of his version that the court is justified in jettisoning his
evidence.
IV. Minor discrepancies on trivial matters not touching the
core of the case, hyper technical approach by taking
sentences torn out of context here or there from the evidence,
attaching importance to some technical error committed by
the investigating officer not going to the root of the matter
would not ordinarily permit rejection of the evidence as a
whole.
V. Too serious a view to be adopted on mere variations falling
in the narration of an incident (either as between the evidence
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of two witnesses or as between two statements of the same
witness) is an unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to possess a
photographic memory and to recall the details of an incident.
It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by
events. The witness could not have anticipated the
occurrence which so often has an element of surprise. The
mental faculties therefore cannot be expected to be attuned
to absorb the details.
VIII. The powers of observation differ from person to person.
What one may notice, another may not. An object or
movement might emboss its image on one person's mind
whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a
conversation and reproduce the very words used by them or
heard by them. They can only recall the main purport of the
conversation. It is unrealistic to expect a witness to be a
human tape recorder.
X. In regard to exact time of an incident, or the time duration
of an occurrence, usually, people make their estimates by
guess work on the spur of the moment at the time of
interrogation. And one cannot expect people to make very
precise or reliable estimates in such matters. Again, it
depends on the time-sense of individuals which varies from
person to person.
XI. Ordinarily a witness cannot be expected to recall
accurately the sequence of events which take place in rapid
succession or in a short time span. A witness is liable to get
confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed
by the court atmosphere and the piercing cross examination
by counsel and out of nervousness mix up facts, get confused
regarding sequence of events, or fill up details from
imagination on the spur of the moment. The sub-conscious
mind of the witness sometimes so operates on account of the
fear of looking foolish or being disbelieved though the witness
is giving a truthful and honest account of the occurrence
witnessed by him.
XIII. A former statement though seemingly inconsistent with
the evidence need not necessarily be sufficient to amount to
contradiction. Unless the former statement has the potency to
discredit the later statement, even if the later statement is at
variance with the former to some extent it would not be
helpful to contradict that witness.”
26 . When the evidence of an injured eye-witness is to be
appreciated, the under- noted legal principles enunciated by
the Courts are required to be kept in mind:
(a) The presence of an injured eye-witness at the time and
place of the occurrence cannot be doubted unless there are
material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must
be believed that an injured witness would not allow the real
culprits to escape and falsely implicate the accused.
(c) The evidence of injured witness has greater evidentiary
value and unless compelling reasons exist, their statements
are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on
account of some embellishment in natural conduct or minor
contradictions.
(e) If there be any exaggeration or immaterial embellishments
in the evidence of an injured witness, then such contradiction,
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exaggeration or embellishment should be discarded from the
evidence of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must be
taken into consideration and discrepancies which normally
creep due to loss of memory with passage of time should be
discarded.
27 . In assessing the value of the evidence of the
eyewitnesses, two principal considerations are whether, in the
circumstances of the case, it is possible to believe their
presence at the scene of occurrence or in such situations as
would make it possible for them to witness the facts deposed
to by them and secondly, whether there is anything inherently
improbable or unreliable in their evidence. In respect of both
these considerations, circumstances either elicited from those
witnesses themselves or established by other evidence
tending to improbabilise their presence or to discredit the
veracity of their statements, will have a bearing upon the
value which a Court would attach to their evidence. Although
in cases where the plea of the accused is a mere denial, the
evidence of the prosecution witnesses has to be examined on
its own merits, where the accused raise a definite plea or put
forward a positive case which is inconsistent with that of the
prosecution, the nature of such plea or case and the
probabilities in respect of it will also have to be taken into
account while assessing the value of the prosecution
evidence.”
(87) The Hon’ble Supreme Court, in the aforesaid case, has also
held that it is a cardinal principle of criminal jurisprudence that
the initial burden to establish the case against the accused
beyond all reasonable doubt rests on the prosecution. It is also
an elementary principle of law that the prosecution has to prove
its case on its own legs and cannot derive advantage or benefit
from the weakness of the defence. However, on reaching to the
conclusion that the evidence of the eyewitnesses inspires
confidence and there is nothing in their evidence on the basis of
which it could be said that they are unreliable witnesses, to
fortify the view, the Court can definitely look into the
suggestions made by the defence counsel to the eyewitnesses,
the reply to those establishing the presence of the accused
persons as well as the eyewitnesses. The main object of cross-
examination is to find out the truth on record and to help the
Court in knowing the truth of the case.
(88) Adverting to the facts of the present cast and upon considering
the ocular evidence of P.W.1, P.W.2 and P.W.4 with the other
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evidence and material on record, as discussed above, the
evidence of aforesaid witnesses does not inspire confidence, in
as much as there is no proper identification of the accused
persons i.e. the appellants, who were not previously known to
the complainant and victim.
(89) The complainant, Banwari (P.W.2), gave an application (Paper
No. 134 Ka) for discharge of ten witnesses from tendering
evidence on the ground that they had colluded with the accused
persons and would not depose the truth before the Court. The
said ten persons include Shobnath and Lallau, who had
accompanied the complainant (P.W.2) with him for lodging the
F.I.R. along with Bhungi, Pokhai, and the victim, whereas
Pokhai had already died and the victim appeared as P.W.1.
Bhungi has also not been produced.
(90) The defence produced Mithilesh Kumar, son of Sitaram, as
D.W.1, who was a prosecution witness but was got discharged
by the complainant. He deposed that about 60–70 “Mangta”
had set up a dera in the field of Raja Ram Maurya. On the said
night, there was a severe storm and rain, due to which the dera
had collapsed. Some persons were inside the dera, some of
whom were saved, while others were in the verandah of his
house. He further deposed that he heard noise and cries near the
dera of the Mangta at about 1:00 a.m. He came out and saw 3–4
persons dragging the Mangta. When a Mangta objected, he was
shot dead. He further deposed that he saw 3–4 persons and in
the light of a torch, he could see their faces and the accused
persons present in Court were not those persons. He further
deposed that he went along with 3–4 villagers and informed the
police, whereupon the police came, by which time it was
morning. On perusal of Ext. Ka.1, he deposed that it was
written by him. In cross-examination, he deposed that Ext. Ka.1
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was written on the dictation of some police personnel and not
Banwari (complainant). He denied the suggestion that to save
the accused persons, who were residents of his village, he had
deposed in their favour. He also proved his signature on the
inquest report of the deceased Pokhai (Ext. Ka.6). Ext. Ka.15,
which is the corresponding G.D. Entry No. 6 of the F.I.R. dated
25.05.2002, indicates the presence of Mithilesh Kumar, son of
Sitaram, along with others at the police station for lodging the
F.I.R. Thus, the presence of D.W.1 Mithilesh Kumar at the
police station at the time of lodging of the F.I.R., and the
lodging of the F.I.R. against 3–4 unknown persons, cannot be
disputed in the absence of any cogent and reliable evidence
because the complainant (P.W.2) has given contrary and
inconsistent evidence in regard to F.I.R. and the accused
persons mentioned therein, which was given by him after it was
read over to him, as deposed by him.
(91) One of the arguments advanced by learned counsel for the
appellants is that this Court may take judicial notice of certain
universal social, legal, and behavioural facts for evaluating the
prosecution case, such as the natural and basic instinct of living
beings for sexual desire, for which they may involve
themselves in all kinds of fear and foul play. Thus, submission
is that the victim, who was young, must have been indulged in
satisfying her sexual desire with her friend and her uncle would
have seen them together and on being objected by him, he must
have been killed by friend of the victim. This argument has
been advanced on the basis of certain unauthenticated
documents from some research article and extract of journal
without any evidence on the factual aspect as argued. It is
vehemently been opposed by learned A.G.A.
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(92) Section 56 of the Indian Evidence Act, 1872 (here-in-after
referred to as “ Act, 1872 ”) provides that the fact judicially
noticeable need not be proved. Section 57 of Act, 1872
provides the facts of which Court must take judicial notice,
which is extracted here-in-below :-
“ 57. Facts of which Court must take judicial
notice.— The Court shall take judicial notice of the
following facts :-
(1) All laws in force in the territory of India;
(2) All public Acts passed or hereafter to be passed by
Parliament of the United Kingdom, and all local and
personal Acts directed by Parliament of the United
Kingdom to be judicially noticed;
(3) Articles of War for the Indian Army, Navy or Air
Force;
(4) The course of proceeding of Parliament of the
United Kingdom, of the Constituent Assembly of India,
of Parliament and of the legislatures established
under any laws for the time being in force in a
Province or in the States;
(5) The accession and the sign manual of the
Sovereign for the time being of the United Kingdom of
Great Britain and Ireland;
(6) All seals of which English Courts take judicial
notice: the seals of all the Courts in India and of all
Courts out of India established by the authority of the
Central Government or the Crown Representative]:
the seals of Courts of Admiralty and Maritime
Jurisdiction and of Notaries Public, and all seals
which any person is authorised to use by the
Constitution or an Act of Parliament of the United
Kingdom or an Act or Regulation having the force of
law in India;
(7) The accession to office, names, titles, functions
and signatures of the persons filling for the time being
any public office in any State, if the fact of their
appointment to such office is notified in any Official
Gazette;
(8) The existence, title, and national flag of every
State or Sovereign recognized by the Government of
India:
(9) The divisions of time, the geographical divisions of
the world, and public festivals, fasts and holidays
notified in the Official Gazette;
(10) The territories under the dominion of the
Government of India;
(11) The commencement, continuance and
termination of hostilities between the Government of
India and any other State or body of persons;
(12) The names of the members and officers of the
Court, and of their deputies and subordinate officers
and assistants, and also of all officers acting in
execution of its process, and of all advocates,
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attorneys, proctors, vakils, pleaders and other
persons authorized by law to appear or act before it;
(13) The rule of the road on land or at sea.
In all these cases, and also on all matters of public
history, literature, science or art, the Court may resort
for its aid to appropriate books or documents of
reference.
If the Court is called upon by any person to take
judicial notice of any fact, it may refuse to do so
unless and until such person produces any such book
or document as it may consider necessary to enable it
to do so.”
(93) The aforesaid provision enumerates the facts of which judicial
notice can be taken by the Court. It further provides that in all
the said cases and also on all matters of public history,
literature, science or art, the Court may resort for its aid to
appropriate books or documents of reference. Thus, judicial
notice of the facts enumerated above can be taken on the basis
of appropriate books or documents of reference. It further
provides that if the Court is called upon by any person to take
judicial notice of any fact, it may refuse to do so unless and
until such person produces any such book or document as it
may consider necessary to enable it to do so.
(94) In the present case, learned Counsel for the appellants has failed
to produce any appropriate and authentic book or documents of
reference and only photocopy of the research article and the
extract of journal has been produced without disclosing it’s
authenticity. Thus, the contention of learned Counsel for the
appellants is misconceived and not tenable. Even otherwise, if
judicial notice of the said facts are taken by this Court, the
necessary facts, for which Court is being called upon to take
judicial notice were required to be proved by cogent evidence,
which the appellants have failed to prove. Thus, the contention
is misconceived and not tenable and accordingly rejected.
(95) One of the arguments of learned Counsel for the appellants is
that there was no evidence on record to prove essential elements
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to constitute ‘unlawful assembly’ as defined under Section 141
I.P.C. and in view of the allegations in the F.I.R. and the
statements under Section 161 Cr.P.C., the involvement of only
3-4 persons have been shown, therefore, the provisions of
Section 149 I.P.C. are not attracted and once conviction under
Section 148 I.P.C. was made, appellants could not have been
convicted separately under Sections 147 and 148 I.P.C.
(96) In the present case, all the appellants have been convicted
separately under Section 147 read with Section 149 I.P.C.,
Section 148 read with 149 I.P.C. and Section 323 read with 149
I.P.C., whereas appellants, Anwar Ali, Shankar Nai, Paras Nath
Patel, Ram Sajivan Patel and Ratipal Patel, under Section 302
read with Section 149 read with Section 3 (ii) (v) of
S.C./S.T.Act and appellants, Udai Raj and Ramu alias Ram
Kumar, under Section 302 read with Section 149 I.P.C.
(97) Section 141 I.P.C. provides that an assembly of five or more
persons is designated as “unlawful assembly”, if the common
object of the persons composing that assembly for committing
the offences provided from first to fifth provided therein.
Section 141 I.P.C. is extracted here-in-below :-
“ 141. Unlawful assembly.— An assembly of five or
more persons is designated an “unlawful assembly”, if
the common object of the persons composing that
assembly is—
First.—To overawe by criminal force, or show of
criminal force, 11[the Central or any State
Government or Parliament or the Legislature of any
State, or any public servant in the exercise of the
lawful power of such public servant; or
Second.—To resist the execution of any law, or of any
legal process; or
Third.—To commit any mischief or criminal trespass,
or other offence; or
Fourth.—By means of criminal force, or show of
criminal force, to any person, to take or obtain
possession of any property, or to deprive any person
of the enjoyment of a right of way, or of the use of
water or other incorporeal right of which he is in
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possession or enjoyment, or to enforce any right or
supposed right; or
Fifth.—By means of criminal force, or show of criminal
force, to compel any person to do what he is not
legally bound to do, or to omit to do what he is legally
entitled to do.
Explanation.—An assembly which was not unlawful
when it assembled, may subsequently become
an unlawful assembly.”
(98) Section 147 I.P.C. provides punishment for rioting, which may
extend to two years, or with fine, or both. Section 148 I.P.C.
provides rioting, armed with deadly weapon, which may extend
to three years, or with fine, or with both, which is aggravated
form of Section 147 I.P.C. and the punishment is awarded with
the aid of Section 149 I.P.C. As per Section 141 I.P.C. for
constituting the ‘unlawful assembly’ five or more persons are
required to have been assembled for the common object in
committing the crime referred in Section 141 I.P.C.
(99) The record indicates that initially the F.I.R. was lodged under
Sections 302, 376, and 323 I.P.C., but subsequently Sections
147, 148, and 149 I.P.C. were added during investigation, upon
surfacing of 6–7 accused persons alleged to have been involved
in the crime and assembled at the place of occurrence with
common object, therefore, the contention of learned counsel
for the appellants regarding the invocation of Section 149 I.P.C.
is misconceived and not tenable, for the reason that during
investigation, it can be done on the basis of evidence and
material collected. However, it would have to be proved during
trial, which the prosecution has failed to do. In any case, the
contention regarding conviction and sentence separately under
Sections 147 and 148 I.P.C. appears to be just and correct,
because on ce the appellants are found to have committed the
offence under Section 148 I.P.C., which is an aggravated form
of Section 147 I.P.C., separate conviction and punishment under
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Section 147 I.P.C. for the same act could not have been made
and that too without recording any specific finding.
(100) The Hon’ble Supreme Court, in the case of Vijay Pandurang
Thakre Vs. State of Maharashtra (Supra) , has enumerated
ingredients required to be essentially established for invocation
of Section 149 I.P.C. and also held that unless a person present
in an unlawful assembly actively participates in the rioting or
does some overt act with the necessary criminal intention or
shares the common object of the unlawful assembly, Sections
147, 148 and 149 I.P.C. will not apply. The relevant paragraphs
14 and 15 are extracted here-in-below:-
“ 14 . As is clear from the plain language, in order to attract the
provision of the Section, following ingredients are to be
essentially established.
(i) There must be an unlawful assembly.
(ii) Commission of an offence by any member of an unlawful
assembly.
(iii) Such offence must have been committed in prosecution of
the common object of the assembly; or must be such as the
members of the assembly knew to be likely to be committed.
If these three elements are satisfied, then only a conviction
under Section 149, I.P.C., may be substantiated, and not
otherwise. None of the Sections 147, 148 and 149 applies to
a person who is merely present in any unlawful assembly,
unless he actively participates in the rioting or does some
overt act with the necessary criminal intention or shares the
common object of the unlawful assembly.
15 . In the facts of the present case, we find that common
object of the assembly, even if it is presumed that there was
an unlawful assembly, has not been proved. The expression
'in prosecution of the common object' occurring in this Section
postulates that the act must be one which have been done
with a view to accomplish the common object attributed to the
members of the unlawful assembly. This expression is to be
strictly construed as equivalent to in order to attain common
object. It must be immediately connected with common object
by virtue of nature of object. In the instant case, even the
evidence is not laid on this aspect. As pointed out above, the
courts below were influenced by the fact that one of the
injuries on the person of Ashok was on his head which
became the cause of death and from this, common object is
inferred.”
(101) The Hon’ble Supreme Court, in the case of Rudrappa
Ramappa Jainpur and Others Vs. State of Karnataka
(Supra) , has taken similar view in regard to Section 143, 147,
148 and 149 I.P.C. in the facts and circumstances of the said
case.
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(102) The Hon’ble Supreme Court, in the case of Sukhbir Singh Vs.
State of Haryana (Supra) , has held that accused is vicariously
guilty of the offence committed by other accused persons only
if he is proved to be a member of an unlawful assembly sharing
its common object. There is no dispute to the legal provision
that once the existence of common object of unlawful assembly
is proved, each member of such an assembly shall be liable for
the main offence notwithstanding his actual participation in the
commission of the offence. It is not necessary that each of the
accused, forming the unlawful assembly, must have committed
the offence with his own hands.
(103) The Hon’ble Supreme Court, in the case of Allauddin Mian
and Others Sharif Mian and Another Vs. State of Bihar
(Supra) , has held that in order to fasten vicarious responsibility
on any member of an unlawful assembly the prosecution must
prove that the act constituting an offence was done in
prosecution of the common object of that assembly or the act
done is such as the members of that assembly knew to be likely
to be committed in prosecution of the common object of that
assembly. In regard to Section 149 I.P.C., it has been held that
this Section creates a specific offence and makes every member
of the unlawful assembly liable for the offence or offences
committed in the course of the occurrence provided the same
was/were committed in prosecution of the common object. It
has further been held that what is important in each case is to
find out if the offence was committed to accomplish the
common object of the assembly or was one which the members
knew to be likely to be committed, there must be ingredients of
the offence committed.
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(104) The Hon’ble Supreme Court, in the case of Bhimrao alias
Ramesh Pandhari Bhade and Others Vs. State of
Maharashtra (Supra) , has held that in absence of any material
to the contrary, it should be presumed that those members of the
original unlawful assembly, who only shared the common
object of assaulting deceased cannot be attributed with the
subsequent change in the common object of some of the
members of the assembly, who entered the house and caused
grievous injuries to him and converted the offence under
Section 326 I.P.C. read with Section 149 I.P.C. to Section 352
I.P.C. read with Section 149 I.P.C.
(105) Adverting to the facts of the present case, the prosecution case
is that 3-4 persons had come at about 01:00 in the intervening
night of 24/25.05.2002, who started beating all members of the
group of the complainant (P.W.2), victim (P.W.1) and the
deceased by sticks and one of the accused started dragging the
victim (P.W.1). When her uncle Pokhai (deceased) chased them
to get her freed, the said accused fired on him from country-
made pistol and handed over the victim (P.W.1) to other
accused persons, who took her towards canal and 7 persons in
all committed rape with her, therefore, it could not be said that
there was no common intention for unlawful assembly and
charge sheet could not have been filed, but it could not be
proved during trial, as discussed above. It also shows that the
deceased was killed only because he chased the accused
persons and tried to get the victim freed. Thus, the argument of
learned Counsel for the appellants that conviction of the
appellants under Section 302 I.P.C. is not sustainable as it could
have been a case falling under Exception 4 of Section 300 I.P.C.
Consequently, the said accused persons could have been
convicted under Section 304 I.P.C. for culpable homicide not
amounting to murder and not under Section 302 I.P.C. This
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contention of learned Counsel for the appellants carries weight,
when considered in the facts and circumstances of the case and
evidence adduced and this Court is of the view that the
conviction under Section 302 I.P.C. read with Section 149 I.P.C.
could have been under Section 304 I.P.C. in view of the
statutory provisions as well as law laid down by the Hon’ble
Supreme Court, in the cases of Sukhbir Singh Vs. State of
Haryana (Supra), Balu Sudam Khalde Vs. State of
Maharashtra (Supra), Paul Vs. State of Kerala (supra) and
Nandlal Vs. State of Maharashtra (supra) relied by learned
Counsel for the appellants.
(106) However, as discussed above, the prosecution has failed to
prove the involvement of the appellants in the crime beyond all
reasonable doubt but learned trial Court, without considering
the evidence and material on record properly and dealing with
the evidence and material in a cursory manner, has convicted
the appellants, which is apparent from the facts that though
complainant (P.W.2) has deposed that he does not know the
person, who had written the F.I.R. and D.W.1 also but learned
trial Court has recorded finding that this is the same witness,
who had written the F.I.R. on the dictation of the complainant
(P.W.2), whereas he has admitted that he had written the F.I.R.
as dictated by some police personnel and not complainant, but
without considering it, the learned trial Court has discarded the
evidence of D.W.1, whereas his presence in the police station at
the time of lodging of F.I.R. with the complainant cannot be
doubted as per the proved G.D. Entry and it has been accepted
by learned trial Court also but the prosecution witnesses have
denied any acquaintance with him. The learned trial Court has
also failed to consider that the investigating officer had
recovered ghaghra of the victim but in the sealed packet, which
was opened by F.S.L., the petticoat was found and report was
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submitted on the said basis. The money, medicine and phuchda
seized by Investigating Officer have not been produced and
proved. Learned trial Court has also failed to consider the
contradictions and inconsistencies of the evidence of the
prosecution witnesses, as discussed above, on the basis of the
evidence and material on record. Thus, this Court is of the view
that learned trial Court has passed the impugned judgment and
order without considering the evidence and material on record
and dealing it appropriately in cursory manner, which is not
sustainable in the eyes of law and the appellants are liable to be
acquitted on the basis of the benefit of doubt.
(107) In view of above, both the appeals are allowed . The impugned
judgment and order dated 03.02.2011 passed by learned trial
Court is hereby set-aside. All the appellants are acquitted from
the charges framed against them.
(108) Appellant No. 1-Rati Pal Patel in Criminal Appeal No. 550 of
2011 is on bail. He needs not surrender in the instant case. His
bail bonds are cancelled and sureties discharged.
(109) The other appellants, namely, Anwar Ali, Ramu alias Ram
Kumar and Ram Sajivan Patel in Criminal Appeal No. 538 of
2011 and Paras Nath Patel, Udai Raj and Shankar Nai in
Criminal Appeal No. 550 of 2011 are in jail. They shall be
released forthwith in the instant case, in case they are not
wanted in any other case. Their bail bonds are cancelled and
sureties discharged.
(110) Pending application(s), if any, stands disposed of, accordingly.
(111) Appellants are directed to file personal bond and two sureties
each in the like amount to the satisfaction of the Court
concerned in compliance of Section 437-A of the Code of
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Criminal Procedure, 1973, corresponding to Section 481 of the
Bhartiya Nagarik Suraksha Sanhita (BNSS), 2023.
(112) Let a copy of this judgment and original records be transmitted
to the Trial Court concerned forthwith and in any case within a
period of one week from today for information and compliance.
(Zafeer Ahmad, J.) (Rajnish Kumar, J.)
July 1, 2026
Ajit/Saurabh/-
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Digitally signed by :-
AJIT KUMAR
High Court of Judicature at Allahabad,
Lucknow Bench