Allahabad High Court
Tariq @ Lohiya vs State Of U.P. on 24 July, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH In the Hon'ble High Court of Judicature at Allahabad, Lucknow Bench, Lucknow * * * Neutral Citation No. - 2025:AHC-LKO:43120 Judgment reserved on: 16.07.2025 Judgment delivered on: 24.07.2025 A.F.R. Court No. - 15 Case :- CRIMINAL APPEAL No. - 1323 of 2018 Appellant :- Tariq @ Lohiya Respondent :- State of U.P. Counsel for Appellant :- Ajay Kumar Singh,Rajiv Raman Srivastava,Sarvesh Kumar Counsel for Respondent :- Govt. Advocate Hon'ble Subhash Vidyarthi J.
1. By means of the instant criminal appeal filed under Section 374(2) Cr.P.C., the applicant has challenged the validity of the judgment and order dated 26.07.2018 passed by Sri Ram Suchit, the learned Additional Sessions Judge/ Special Judge, POCSO Act, Court No. 8, Sitapur in Special Sessions Trial No. 1 of 2016 arising out of Case Crime No. 268 of 2015, under Sections 363, 366, 376 IPC and Section 3/4 POCSO Act, Police Station Sadarpur, District Sitapur.
2. The aforesaid case was instituted on the basis of a written complaint given by the informant on 15.11.2015 against three persons, including the appellant Tariq alias Lohiya and his two brothers Salim and Idris, stating that when the informant's daughter aged 16 years had gone out of her home at about 10 p.m. in the intervening night of 12/13.11.2015 for urinating, all the accused persons enticed her away. He kept on making enquiries about his daughter but he could not get any knowledge about her.
3. It is recorded in the case diary that the informant had come to the police station along with a written complaint on 15.11.2015 and upon this complaint, an FIR bearing Case Crime No. 268 of 2018 was lodged in Police Station Sadarpur, District Sitapur at 13:10 on 15.11.2015, under Sections 363, 366 IPC.
4. The informant gave a written application to the Station House Officer stating that although he had given a complaint against the appellant and his brothers but after making enquiries from his daughter, it transpired that she had gone away to the house of her maternal grandfather out of her own free will and that he had given the complaint containing false accusations after being mislead by some person. The informant stated that her daughter had gone away to her maternal grandparents' place and had returned out of her own free will and he did not want any further action on his complaint. This application also had thumb impression of the victim and her mother and it had the signatures of five other persons.
5. The victim was taken to District Women Hospital, Sitapur for her medico legal examination on 19.11.2015. She told the doctor that she had gone out of her home at about 10:00 p.m. for urinating, five persons caught her, took her to a grove, the appellant committed the misdeed against her and the other four persons kept a watch. They had threatened her with a weapon and had assaulted on her right leg with a banki. She had fallen unconscious. The medico legal examination report mentions that the victim had not taken bath and she had changed her undergarments but had not washed her undergarments and clothes. On external examination, a stitched wound of 5 c.m. x 1 c.m. was found on her right ankle. The hymen was opined to be old torn and healed. It is recorded in the medico legal examination that the Investigating Officer had collected the victim's undergarments and clothes and had sealed the same for DNA examination for evidence. The nail clippings and blood samples of the victim were taken for DNA examination and samples of pubic hairs and vaginal swabs were also collected for examination. On the basis of the findings of the medico legal examination, the doctor opined that there were signs of use of force and sexual violence could not be ruled out. This report has been marked as exhibit A-2.
6. As per radiological examination, age of the victim has been opined to be about 17 years. The pathological examination report mentions that no spermatozoa were seen in the vaginal smear slide.
7. A recovery memo dated 26.11.2015 states that only the victim's salwar suit was collected on 26.11.2015 but as per it, her undergarments were not collected. In her additional statement, she stated that she had handed over the clothes which she was wearing at the time when she had slept with the appellant.
8. The Headmaster of Primary School, Lalpur, Biswan, Sitapur has given a certificate dated 23.11.2015 stating that the victim has studied in the primary school since 12.06.2006 till 01.07.2010 in classes 1 to 5 and as per school records her date of birth is 03.02.2000.
9. In the statement of the informant recorded under Section 161 Cr.P.C., he stated that his daughter had gone out of her home for urinating at 10:00 p.m. on 12.11.2015. When she did not return after quite some time he searched for her and when he could not find her, he believed that his daughter had been enticed away by the three accused persons (the appellant and his two brothers). He stated that the appellant used to visit the informant's home and he was not seen in the village on 13.11.2015. The accused persons had dropped his daughter at Dibiyapur crossing at about 09:00 p.m. She had an injury on her leg which was treated at Biswan. He had gone to the police station on 15.11.2015, had lodged the FIR and had obtained its copy. He further stated that his daughter (the victim) was not present at his home and she had gone to the house of some relatives.
10. The statement of the victim was recorded by the Investigating Officer under Section 161 Cr.P.C. on 19.11.2015 wherein she stated that she was aged 20 years (at the time of giving the statement). On 12.11.2015, her mother had beaten her up badly and had turned her out of her home. In anger, she had gone with the appellant, who is a resident of her village, at about 11:00 p.m. She did not know the name of the village where the appellant had taken her. The victim stated that she loves the appellant and it was upon asking of the appellant that she was returning to her village on a motorcycle. There was a pothole on the way due to which her leg got entangled in the spokes of the motorcycle wheel and got injured. She stated that her father had lodged a false report in the police station as Munna Jadugar keeps on poisoning the minds of her parents. The victim categorically stated that she loves the appellant and has made physical relations with her out of her own free will and she had returned home in the evening on 13.11.2015.
11. In the statement of the victim recorded under Section 164 Cr.P.C. she stated that her father had lodged a false FIR against the appellant whereas she had gone with the appellant on 12.11.2015 out of her own free will. She had gone with him to some village towards Biswan and had stayed with him for three days. Whatsoever the appellant did with her, did with her consent. She stated that she knows the appellant since her childhood, she loves him for the past two years, she wanted to marry him and to live with him and she did not want to go with her parents.
12. The Investigating Officer recorded the statement of Smt. Jagrani, elder sister of the victim. She stated that she had got married in the month of May, 2015 but her gauna had not been performed and she was living at her parent's home. Her younger sister had gone out of the house to urinate at 12:00 in the night on 12.11.2015 but she did not come back. The enquiry made in the village revealed nothing. The appellant, being a neighbor, used to visit her home. The appellant was also not present at his home and, therefore, her family members suspected that the appellant had enticed away her younger sister and her father lodged the FIR. She stated that her sister had returned home.
13. The Investigating Officer recorded the statement of independent witnesses Smt. Usha Devi and Sarvesh Chauhan, both of whom gave statements similar to the statement of the victim's elder sister and they stated that victim and the appellant used to see each other since long and they used to visit each other's home. They stated that they did not want any innocent person to be incarcerated.
14. In the additional statement of the informant, he stated that he had not seen his daughter going away with the appellant and his family members but when his daughter and the appellant both could not be traced after the incident, he suspected that the appellant had enticed away his daughter.
15. The Investigating Officer recorded statement of the victim's mother, she reiterated the FIR version and she further stated that her daughter came back home and at about 10:00 p.m. on 13.11.2015 along with her father (the informant) and a relative Lal Bahadur on a motorcycle. She had told that the appellant had enticed her away. They did not go to lodge an FIR immediately because of fear of public shame and her husband went to the police station 3-4 days after the incident and registered the FIR.
16. Lal Bahadur Chauhan told the Investigating Officer that he had taken the informant to Dibiyapur crossing at about 09:00 p.m. on 13.11.2015, the victim was standing at the crossing and he had brought the informant and the victim back on his motorcycle at about 10:00 p.m.
17. The Investigating Officer had recorded statements of the appellant who stated that he loved the informant's daughter and she also loved him. Both of them had gone away from the village on 12.11.2015. The Investigating Officer recorded the statements of the appellant's brothers co-accused persons Salim and Idrish both of whom stated that they were innocent.
18. The Investigating Officer has recorded that he had talked to several villagers, all of whom had told him on the condition of unanimity that the appellant and the victim were in a relationship since long. Possibly their parents were not aware about it, but no one wanted to speak anything in this regard as whosoever would speak, would be portrayed evil. The Investigating Officer further recorded that no credible material could be collected against the appellant's brothers co-accused persons Salim and Idrish and they were exonerated.
19. The Investigating Officer submitted a charge-sheet on 22.12.2015 against the appellant for commission of offences under Sections 363, 366 and 376 IPC and 3/4 POCSO Act. The charge-sheet mentions the name of the informant, the victim, the victim's mother and 5 other persons as witnesses, besides the doctor, the headmaster of school and three police persons (13 persons in all) as prosecution witnesses.
20. The trial court framed charges against the appellant for commission of offences under Sections 363, 366, 376 IPC and Section 4 of the POCSO Act on 27.01.2016.
21. The informant was examined as PW-1. In his examination-in-chief he reiterated the FIR version and he proved the written complaint given by him to the police on 15.11.2015, which was marked as exhibit A-1. During his cross-examination, PW-1 denied the suggestion that he had falsely implicated the appellant due to political rivalry. He stated that his daughter had gone out of his home at about 10:00 p.m. while they were asleep. He woke up between 12:00 to 01:00 in the night and saw that his daughter was not on her bed. He searched for his daughter in the village but when he could not find her, he came back home and slept. In the morning he started searching for his daughter in the house of his relative but could not find her. In the evening of 13.11.2015, he came to know that his daughter was present at the police chowki at Debiyapur crossing and he went there and brought his daughter back. He did not talk to his daughter and his daughter did not told him anything. On 15.11.2015 he went to the police station, gave a written complaint and lodged the FIR. He stated that the subsequent letter given to the police stating that his daughter had gone to her maternal grandparent's home out of her own free will and he did not want any proceedings in the matter, does not bear his signature or thumb impression and this application is wrong.
22. The victim was examined by the trial court as PW-2 and she stated that when she had gone out of her house to urinate, the appellant and his brothers Salim and Idris had caught hold of her, gagged her mouth with a cloth, tied her face with a cloth, picked her up and took her away to a grove situated far away where the other accused persons Salim and Idrish held her hand and legs and the appellant raped her. They kept her there for the entire night and the next day and they dropped her near the police chowki in the following night. The police persons had telephonically informed her parents and her parents had come to the police chowki. Her father had taken her to the police station and had lodged the FIR and thereafter she was taken for medico legal examination and her statement was recorded by the Magistrate. She alleged that she had given the statement before the Magistrate under threat extended by the police. Thereafter she was handed over to her parents. The Investigating Officer had taken the clothes worn by her at the time of the incident and his father had given her transfer certificate to the Investigating Officer.
23. During cross-examination, the victim stated that she had gone out of her home for urinating while her parents were asleep. While she was urinating, the appellant caught hold of her and took her away to a grove. She did not know the distance of the grove from the village or the direction in which it is situated. She was kept in the grove during the night and during the following day and the appellant brought her to the Police Chowki at Debiyapur Crossing at about 09;00 p.m., handed her to the police and went away. The police had called her father by making a phone call and had asked him to take away his daughter and thereafter her father brought her back home. She further stated that her father does not have any phone and she couldn't tell as to how did the police call her father by making a phone call. She stated that she had leveled allegation of commission of rape for the first time in the court and she did not tell it to the police or to the Magistrate. She stated that the appellant had brought her to the police chowki at Debiyapur crossing on a motorcycle and she had not made any complaint to the police at that time. The victim denied her statement recorded by the Investigating Officer.
24. The victim admitted the statement given by her before the Magistrate wherein she had stated that the appellant had been falsely implicated whereas she had gone with him out of her own free will and she wanted to marry him and to live with him. She knew him since childhood and she loved with him for the past two years. She also admitted that she had stated that she had given this statement out of her own free will without any pressure. Thereafter she stated on her own that she had given the statement upon being threatened by Chaurasia. The victim did not specify as to who this person 'Chaurasia' was. The victim further stated that after reaching her village, she had not gone to any relatives place and she was staying at her home only.
25. The doctor who had medically examined the victim, was examined as PW-3 and she proved the medico legal examination report. During cross-examination, the doctor stated that the hymen takes a month's time in healing after it is torn. No injury was found on any private part of the victim and there was a stitched wound of size 5 c.m. x 1 c.m. on her right ankle joint from which she opined that force was used against the victim. She stated that the vaginal smear examination did not reveal presence of sperms. She stated that no definite opinion could be given regarding rape.
26. No other prosecution witness was produced before the trial court.
27. In the statement of the appellant recorded under Section 313 Cr.P.C., he denied all the allegations and he stated that he had been falsely implicated because of animosity. The appellant stated that he would produce his defence but he did not do so.
28. The trial court has held the accused-appellant guilty of commission of offences under Section 363, 366 and 376 IPC and Section 3/4 of POCSO Act and has sentenced him to undergo rigorous imprisonment for 7 years and pay Rs. 2,000/- fine and to undergo two months' additional imprisonment in case of failure to pay fine for the offence under Section 363 IPC. For the offence under Section 366 IPC, the appellant has been sentenced to undergo 7 years' rigorous imprisonment and to pay Rs. 2,000/- as fine and to undergo two months' additional imprisonment in case of failure to pay fine. For the offence under Section 376 IPC, the appellant has been sentenced to undergo 10 years rigorous imprisonment and to pay Rs. 5,000/- fine and to undergo five months' additional imprisonment in case of failure to pay fine. For the offence under section 3/4 POCSO Act, the appellant has been sentenced to undergo 10 years' rigorous imprisonment and to pay Rs. 5,000/- as fine and to undergo five months' additional imprisonment in case of failure to pay fine.
29. The trial court has recorded in its judgment that it was contended on behalf of the accused-appellant that the victim had returned home on 13.11.2015 itself and the FIR has been lodged after a delay on 15.11.2015. Rejecting this contention, the trial court held that although some delay has occurred in lodging of the FIR, generally the police avoids registering FIRs and for any irregularity committed by the police, the informant cannot be made responsible. The trial Court held that the matter related to enticing away a minor, the informant tried to look for her and he had lodged the FIR after finding her out. In these circumstances, it cannot be said that the delay in lodging the FIR is fatal for the prosecution case.
30. The second submission on behalf of the accused-appellant was that the Investigating Officer has not been examined which raises a suspicion against the prosecution case. The trial court rejected this submission by referring to the decision of the Hon'ble Supreme Court in the case of Raj Kishore Jha v. State of Bihar: (2003) 11 SCC 519, wherein it has been held that if the prosecution witnesses have proved the incident beyond reasonable doubt, the prosecution case does not become suspicious merely because of non-examination of the Investigating Officer.
31. The third submission on behalf of the accused-appellant was that the informant had alleged that the victim was aged 16 years whereas there was no documentary evidence to prove this contention. The victim herself stated in her statement under Section 161 Cr.P.C. that she was aged 20 years and even as per the entries made in the voter list and parivar register, she was major. It was further contended that although the medico legal examination report opines that the victim was aged 17 years, there is an error margin of two years on either side. The trial court rejected this contention on the ground that the transfer certificate mentions the date of birth of the victim to be 03.02.2000 and the medico legal examination report opines her age to be 17 years. It proves that the victim was minor at the time of the incident.
32. It was next submitted on behalf of the appellant that the FIR alleges that the offence was committed by three brothers and it is highly unnatural that three brothers would commit a sexual offence together. The accused appellant relied upon the statement of the victim recorded under Section 164 Cr.P.C., which does not support the prosecution case. These contentions have not been dealt with by the trial court.
33. Every person is presumed to be innocent unless proved guilty and it is a duty of the prosecution to establish the guilt of the accused person. Therefore, the trial court should deal with the prosecution case first to ascertain whether the prosecution has established the guilty of the accused and only then the Court is required to deal with the defence case. In case the prosecution fails to establish its case, the accused has to be acquitted without dealing with his evidence. Strangely, in the present case, the trial court has first dealt with the defence case indicating that it was labouring under a misconception that the accused has to establish his innocence and not that the prosecution has to establish the guilt of the accused.
34. The trial court held that although PW-1 has stated that the appellant alone had committed sexual offence against the victim, the victim has stated in her examination-in-chief that the appellant and his two brothers had taken her away, they had gagged her mouth and tied her face, the appellant's brother Salim was catching hold of her hands and his other brother Idris was catching hold of her legs and the appellant raped her. The trial Court referred to the cross-examination of PW-2 wherein she had admitted that she had not leveled the allegation of rape before the police or the magistrate and she had leveled this allegation for the first time before the trial court.
35. The trial court has stated that in her examination in chief, PW-2 has 'admitted' that she had given the statement before the Magistrate under threat of the police whereas this was not an 'admission' made by the victim rather it was an allegation leveled by her. The trial court has mentioned in the judgment that the victim has 'admitted' that she had given the statement before the Magistrate that she loves the appellant for the past two years and wants to live with her and this statement had been given under threat of Chaurasia. This is also not an 'admission' made by the victim, rather it is an allegation leveled by her. The victim has not disclosed any particulars of 'Chaurasia', who had threatened her.
36. Assailing validity of the aforesaid order, the learned counsel for the appellant has submitted that the trial court has committed a patent error in brushing aside the statement of the victim given before the Magistrate wherein she has categorically stated that her father had falsely implicated the appellant whereas she had gone away with him out of her own free will, she loves him, wants to marry him and to live with him only and whatever the appellant did, did with her consent.
37. Per contra, Sri Rajesh Kumar Singh, the learned AGA-I has submitted that in the examination-in-chief of the victim, she has categorically stated that the appellant had committed rape against her. The injury found on the right ankle of the victim establishes use of force against her.
38. When we examine the facts of the present case, it becomes evident that the FIR was lodged on 15.11.2015 against the appellant and his two brothers Salim and Idris, stating that when the informant's daughter aged 16 years had gone out of her home at about 10 p.m. in the intervening night of 12/13.11.2015 for urinating, all the accused persons enticed her away. The complainant kept on making enquiries about his daughter but he could not get any information about her. However, in his statement recorded under Section 161 Cr.P.C., the complainant stated that the accused persons had dropped his daughter at Dibiyapur crossing at about 09:00 p.m. In her statement recorded under Section 161 Cr.P.C. on 19.11.2015 the victim stated that she had returned home in the evening on 13.11.2015. The victim's mother also stated that her daughter had come back home at about 10:00 p.m. on 13.11.2015 along with her father (the informant) and a relative Lal Bahadur on a motorcycle. Lal Bahadur Chauhan also told the Investigating Officer that he had taken the informant to Dibiyapur crossing at about 09:00 p.m. on 13.11.2015, the victim was standing at the crossing and he had brought the informant and the victim back on his motorcycle at about 10:00 p.m. During his cross-examination, the complainant stated that in the evening of 13.11.2015, he came to know that his daughter was present at the police chowki at Debiyapur crossing and he went there and brought his daughter back.
39. The aforesaid statements make it clear that the informant had made a false statement in the FIR that when the appellant and his brothers had enticed away his daughter and he could not get any information about her till lodging of the FIR on 15.11.2015.
40. The FIR alleged that the appellant and his two brothers had enticed away the victim whereas during medico-legal examination, the victim told the doctor that five persons had caught her, took her to a grove, the appellant had committed the misdeed against her and the other four persons kept a watch. The involvement of any other person in commission of the offence could not be established and the charge-sheet was submitted against the appellant only. The informant was examined as PW-1 and he has not stated about involvement of any other person in commission of the offence. PW-2 stated that the appellant's brothers were also involved in commission of the offence as they had caught hold of her hands and legs while the appellant raped her, no application was filed under Section 319 Cr.P.C. for summoning them to face the trial. The victim has told the doctor that five persons were involved in the incident.
41. The medico legal examination report mentions that the victim had not taken a bath and she had changed her undergarments but had not washed her undergarments and clothes. It is recorded in the medico legal examination held on 19.11.2015 that the Investigating Officer had collected the victim's undergarments and clothes and had sealed the same for DNA examination for evidence, but the recovery memo mentions that the victim's salwar suit was collected on 26.11.2015 and it does not make a mention of her undergarments having been collected. In her additional statement, she stated that she had handed over the clothes which she was wearing at the time when she had slept with the appellant.
42. The recovery memo of the clothes has not been made an exhibit.
43. Nowadays this court is observing a trend where the trial courts first deal with the defence case and thereafter the prosecution case and held the accused persons guilty. This shows a basic flaw in the approach of the trial courts while deciding criminal cases.
44. The medico legal examination report mentions that the nail clippings and blood samples of the victim were taken for DNA examination and samples of pubic hairs and vaginal swabs were also collected for examination. However, no test report regarding the same is available on record. The pathological examination report mentions that no spermatozoa were seen in the vaginal smear slide.
45. Section 53-A of the Cr.P.C. provides that when a person is arrested on a charge of committing an offence of rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful to make an examination of the arrested person to find out the marks of injury, if any, on the person of the accused and material may be taken from the person of the accused for DNA profiling. In the present case, DNA examination of samples taken from the body and the clothes of the victim and that of the accused-appellant has not been conducted.
46. In the statement of the victim recorded under Section 161 Cr.P.C. she stated that her father had lodged a false report in the police station; that she loves the appellant and has made physical relations with her out of her own free will and she had returned home in the evening on 13.11.2015. During her medico-legal examination, the victim told the doctor that the appellant had committed the misdeed against her while the other four persons kept a watch. However, in the statement recorded under Section 164 Cr.P.C., she stated that her father had lodged a false FIR against the appellant whereas she had gone with the appellant on 12.11.2015 out of her own free will. Whatsoever the appellant did with her, did with her consent. She stated that she knows the appellant since her childhood, she loves him for the past two years, she wanted to marry him and to live with him and she did not want to go with her parents. The allegation of rape is not there is the statement of the victim recorded under Section 164 Cr.P.C. and it is not supported by the findings of the pathological examination report of the victim's vaginal smear.
47. In the statements recorded under Sections 161 and 164 Cr.P.C., the victim did not level any allegation against the accused-appellant. Before the doctor, she stated that five persons had forcibly taken her away, the appellant raped her in a grove and the other four persons kept a watch. During her examination-in-chief, the victim stated that the appellant and his brothers Salim and Idris had taken her away to a grove where the appellant's brothers Salim and Idrish held her hand and legs and the appellant raped her. During her cross-examination, the victim stated that only the appellant had caught hold of her and had taken her away.
48. During cross-examination, the victim stated that she had leveled allegation of commission of rape for the first time in the court and she did not tell it to the police or to the Magistrate. The victim admitted the statement given by her before the Magistrate wherein she had stated that the appellant had been falsely implicated whereas she had gone with him out of her own free will and she wanted to marry him and to live with him. She knew him since childhood and she loved with him for the past two years. She also admitted that she had stated that she had given this statement out of her own free will without any pressure. Thereafter she stated on her own that she had given the statement upon being threatened by Chaurasia. The victim did not specify as to who this person 'Chaurasia' was.
49. In Rai Sandeep v. State (NCT of Delhi): (2012) 8 SCC 21, the Hon'ble Supreme Court held that: -
"22. In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
50. The aforesaid discrepancies are also not minor discrepancies, which could have been ignored by the trial Court and no conviction can be based on such statements.
51. The medico-legal report of the victim does not mention any injury on the private parts of the victim's body. The hymen was reported to be old torn and healed. The doctor who had medically examined the victim was examined as PW-3 and she stated that the hymen takes a month's time in healing after it is torn. She stated that the vaginal smear examination did not reveal presence of sperms.
52. Regarding the stitched injury on the ankle, the victim had stated in her statement recorded under Section 161 Cr.P.C. that she had suffered it while riding a motorcycle on the way back to Debiyapur. During her medico-legal examination, the victim stated that the appellant had caused the injury with a banki, but this allegation was not leveled during her examination in the Court and no banki has been recovered from the appellant.
53. The Investigating Officer had recorded the statements of the victim's mother, two sisters, a relative Lal Bahadur and of some other persons and the charge-sheet mentioned as many as 13 witnesses, but only the informant and the victim have been examined. No other prosecution witness has been examined and no explanation has been given for their non-production as prosecution witnesses.
54. In Raj Kishore Jha v. State of Bihar: (2003) 11 SCC 519 relied upon by the trial Court, it was held that mere non-examination of the Investigating Officer does not in every case cause prejudice to the accused or affects the creditability of the prosecution version, but it was so held when after examination-in-chief and partial cross-examination, the Investigating Officer had died and obviously, cross-examination of a dead person could not be completed. Further, the Court held that non-completion of the examination of the Investigation Officer had not caused any prejudice to the accused. The prosecution could not be attributed with any lapse or ulterior motive in such circumstances.
55. In Behari Prasad v. State of Bihar: (1996) 2 SCC 317 it was held that a case of prejudice likely to be suffered mostly depends upon facts of each case and no universal straitjacket formula should be laid down that non-examination of the Investigating Officer per se vitiates the criminal trial.
56. In the present case, when the victim had not leveled any allegation against the accused-appellant in her statements recorded under Sections 161 and 164 Cr.P.C. and there are serious discrepancies in the statements of the informant and the victim recorded at different stages regarding material particulars regarding the offence in question, non-examination of the Investigating Officer has caused a serious prejudice to the trial.
57. In view of the foregoing discussion, I am of the considered view that there were serious discrepancies in the statements of the informant and the victim, the allegation of rape is not supported by the findings of the medico-legal report and the pathological examination report of the vaginal smear slide of the victim and the DNA examination has not been conducted to collect evidence of commission of rape. Several other prosecution witnesses mentioned in the charge-sheet have not been produced in the Court. Thus the prosecution has miserably failed to prove the allegations leveled against the appellant.
58. The trial court held that in a case relating to sexual offences, mere absence of injury cannot lead to an inference that the sexual offence has not been committed. Sexual offences are heinous offences which are against the entire humanity. Sexual offences are such heinous offences, which are completely against human creation. If the dignity of the 50% of the world's human population which is not involved in this crime, is not taken into consideration then why should we believe in it. In this offence, the place of creation, which is the most cherished treasure of a woman, is crushed. In a country like India even a discussion regarding sexual offences is deprecated. This is the reason that keeping in view the peculiar social and religious circumstances and the environment, sexual offences are committed secretly, taking care and caution that the offence may not come to light and no sign is left at the spot which may disclose the offence.
59. The trial court has also stated that the sexual offences against ladies and girls have increased; that it is an irony that while we are celebrating rights of women in all spheres, we are showing little or no concern or interest towards their dignity. This is a sad reflection of the indifferent attitude of the society towards the violation of human dignity of the victims of sexual offences. We must remember that the sexual offender not only violates the privacy of the victim but also causes serious psychological and physical harm in the process. Sexual offence is not merely a physical assault but it often signifies a tendency to destroy entire personality of the aggrieved party. The person committing homicide destroys only the physical body of the victim while a sexual offender also degrades the soul of a helpless woman, which is a permanent suffering.
60. The trial court held that the victim is minor and sexual offences against minors are the most heinous and damaging offences which should be decided with sufficient sensitivity; that although no definite opinion regarding commission of sexual offence has been given in the medico-legal examination report, it should be kept in mind that sexual offence is an offence, not a medical condition. Whether a sexual offence has been committed or not, is a legal conclusion not a conclusion based on medical evidence. The trial court held that from the oral or documentary evidence available on record, the prosecution has proved that the appellant had enticed away the informant's daughter and has committed sexual offence against her.
61. The aforesaid narration made in the impugned order indicates that the trial court has acted with such an unwarranted higher decree of sensitivity towards the alleged offence as has led it to hold the appellant guilty without examining the prosecution evidence thoroughly and properly so as to come to a conclusion whether it establishes the guilt of the appellant.
62. In this regard, it would be relevant to refer to the judgment of the Hon'ble Supreme Court in the case of Raju v. State of M.P.: (2008) 15 SCC 133, wherein it was held that: -
"11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.
12. Reference has been made in Gurmit Singh case [(1996) 2 SCC 384] to the amendments in 1983 to Sections 375 and 376 of the Penal Code making the penal provisions relating to rape more stringent, and also to Section 114-A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that Sections 113-A and 113-B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualised as the presumption under Section 114-A is extremely restricted in its applicability. This clearly shows that insofar as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally, her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined."
(Emphasis added)
63. Therefore, the trial Court has committed a patent error in holding the appellant guilty without a proper and through examination of the evidence on record, merely because the prosecution had alleged that a sexual offence had been committed against a minor girl and the alleged offence is a heinous offence.
64. As this Court has held that the prosecution could not establish the guilt of the accused-appellant, the only conclusion possible that the judgment of the trial Court be set aside and the accused-appellant be acquitted of all the charges.
65. Accordingly, the appeal is allowed. The judgment and order dated 26.07.2018 passed by Sri Ram Suchit, the learned Additional Sessions Judge/ Special Judge, POCSO Act, Court No. 8, Sitapur in Special Sessions Trial No. 1 of 2016 arising out of Case Crime No. 268 of 2015, under Sections 363, 366, 376 IPC and Section 3/4 POCSO Act, Police Station Sadarpur, District Sitapur, convicting and sentencing the appellant, is set aside. The accused-appellant is acquitted of all the charges. In case the appellant has deposited any amount towards fine, the same shall be refunded to him within a period of thirty days from today.
(Subhash Vidyarthi J) Order Date: 24.07.2025 Pradeep/-