HETRAM AND OTHERSversusSTATE OF U.P.

        HIGH COURT OF JUDICATURE AT ALLAHABAD
                 CRIMINAL APPEAL No. - 1350 of 1984

Hetram and others
                                                          …..Appellant(s)

                                Versus

State of U.P.
                                                        …..Respondent(s)


Counsel for Appellant(s)          : Om Prakash Shukla, Ramanuj
                                    Tripathi, S.d.n.singh, Tej Pal
Counsel for Respondent(s)         : A.G.A.

                                     Neutral Citation No. - 2026:AHC:105087
                                                                       AFR
                                           Judgement Reserved on 09.02.2026
                                          Judgement Delivered on 07.05.2026
                                          Judgement Uploaded on 07.05.2026
Court No. - 71

            HON'BLE AVNISH SAXENA, J.

1. Heard Sri Ashwini Tripathi, learned Advocate holding brief appeared
for the appellants and Sri Chandra Badan, learned counsel for the State.

THE APPEAL :-

2. The present criminal appeal under Section 374 CrPC has been
preferred by the three accused/appellants, namely, Hetram son of Shri
Dhar, Shanker son of Shibba and Bhudat son of Chetram in Sessions
Trial No. 259 of 1983 (State Vs. Hetram & others), on being aggrieved
by judgment of conviction and sentenced dated 08.05.1984, wherein all
the three accused/appellants were convicted for offence of rape and
sentenced to seven years rigorous imprisonment with a fine of Rs. 500/-,
in default thereof further six months rigorous imprisonment.

THE PROSECUTION CASE AND TRIAL :-
                                      2
                                                     CRLA No. - 1350 of 1984.

3. The prosecution case disclosed in the written information Ex.Ka-1 is
such that on 09.05.1983 at about 2:00 p.m., the informant-Baso son of
Nathi, r/o Bharna, who belongs to the scheduled caste is the only family
of Scheduled Caste in the village, wherein the village is of Haivasi and
Brahmins Caste, came to his house along with his nephew (bhanja)
Banwari Lal (scribe of the written information) son of Giriraj Prasad and
Lajja son of Peeti r/o of village Gajipur. They met him at Saahar Canal,
where he was grazing the goat. On reaching the house, he found that the
house was bolted from inside, he jumped the boundary wall and opened
the door and came inside, He saw Hetram, Shanker and Bhudat ran away
after opening the door. His wife (prosecutrix) has informed him while
crying that she has been raped. This incident has been witnessed by him
and his friends and they have also identified the accused/appellants. He
was not let to go out but somehow managed by hiding himself to reach
the police station. He is afraid of his life and property.

4. This FIR is lodged on 14.05.1983 at Police Station Barsana, District
Mathura in Case Crime No. 32 of 1983. The victim was medically
examined on 15.05.1983 at Mahila Chikitsalaya, Mathura at 4:35 p.m.,
wherein it is disclosed that she is 26-28 weeks pregnant. The vaginal
smear was taken for pathological examination. The supplementary report
dated 19.05.1983 provides that no sperm seen, the age of lady is about
18 years. The pathological report reveals that she is seven months
pregnant but not in labour pain and no definite opinion could be given.

5. The investigation of the case has been carried out by PW-4 Balbeer
Singh, who has submitted the charge sheet on 31.05.1983 against the
three accused.

6. The charge has been framed on 08.12.1983 against the
accused/appellants for committing rape. The prosecution has produced
four witnesses, three witnesses of fact, namely, PW-1/Baso (informant);
PW-2/prosecutrix; and PW-3/ Banwari Lal (the scribe of written
information), who has also witnessed that the accused/applicant have
sprinted away from the house. The formal witness/ PW-4 Balbeer Singh
                                     3
                                                  CRLA No. - 1350 of 1984.

was produced, who is the Investigating Officer and has proved the FIR,
G.D., site plan and the charge sheet. The accused/applicants have
admitted the medico legal report and supplementary medical report.

7. In the statement under Section 313 CrPC, the accused/appellants
denied having committed rape on the prosecutrix. They submits that they
are the neighbours of the informant. Hetram and Shanker have stated
that the goats of informant had entered into the field of
accused/appellants and damaged the crops, due to which the
accused/appellant had beaten the informant, who in retaliation has
lodged the false and frivolous FIR. Bhudat has submitted that he has
been falsely implicated due to the village party bandi. The
accused/appellants have not produced any witness in defense.

THE TRIAL COURT JUDGEMENT :-

8. The trial court has recorded the conviction on the basis of testimonies
of three witnesses of fact because the documentary evidence is silent..
Learned trial judge has found that the informant, victim and the
witnesses are trustworthy. The delay in lodging the FIR is attributed on
the point of fear of the informant from the accused/appellants, because
the informant was the only scheduled caste family in the village. The
trial judge further found substance in the statement of prosecutrix that
she has been raped by four persons including the appellants. The fourth
person, who is known as driver could not be traced out. The trial judge
further found that it is but natural that the victim might have washed her
clothes because she was not aware of the procedure. The trial judge
further considered that the injuries on the hands of victim could have
dried up which she suffered due to broken bangles. The trial judge
further considered that the victim is habitual to sex because she is
married as such there was no injury on her private parts. The trial judge
further considered that the victim has cried for help but her voice could
not reach the neighbours because it was summer month and all the
persons might be in their houses. Further considers that the victim was
subjected to rape on the point of knife.
                                     4
                                                    CRLA No. - 1350 of 1984.

THE ARGUMENTS :-

9. Learned counsel for the appellants has submitted that the FIR is
delayed; there are inconsistencies in the statements of PW-1/Baso and
PW-3/Banwari on the point of delay in lodging the FIR. PW-1 has stated
in his cross examination that after the incident he used to go out to graze
the goat, hence the apprehension of fear from the accused/appellants is
incorrect finding. Further submits that there is no external injury suffered
by the victim, which would have been suffered by the victim as she was
subjected to rape by four persons. The witness Banwari is an interested,
related and chance witness. He could not answer the query of the
defence that why he came to meet Baso. Though he has stated that he
came to purchase goat from Baso but on further questioning he states
that Baso has stated to send the goat. This fact is not stated by the
witnesses in their examination-in-chief. Further submits that the doctor
has not been produced. The victim was already having pregnancy of the
seven months. It is not believable that she could not suffer any injury
from the incident of gang rape. Further submits that there is no evidence
against the accused/appellants other than the statement of the witnesses.
There is marked inconsistency in their statements. The victim in her
statement has stated that she has been raped by four persons. All the
persons exited from the house in presence of PW-1/Baso, who has seen
only three persons exiting the house.

10. There is no plausible answer in respect to the fourth persons. Further
submits that the accused/appellants are the neighbours of informant, who
have been falsely implicated in the case, and the trial judge has not
rightly taken into consideration the statements of witnesses and recorded
conviction. Hence, submitted that the appeal be allowed and the accused/
appellant be acquitted.

11. Per contra, learned AGA submits that the family of the victim was
the only family of scheduled caste, they were apprehensive of being
beaten and afraid of their life and property, which restricted them to
lodge the FIR soon after the incident; they were waiting for the
                                     5
                                                  CRLA No. - 1350 of 1984.

opportune time to go to the police station to lodge the FIR. The
prosecution has proved their cases by producing three witnesses of fact,
the informant, the victim, the scribe of written information. The accused
have already admitted the medico legal examination carried out on the
victim. The trial judge has rightly appreciated the evidence and recorded
conviction, which is liable to be affirmed.

THE POINT OF DETERMINATION :-

12. The point of consideration in the present appeal is whether the trial
judge has rightly appreciated the ocular and documentary evidences and
reached to the conclusion of convicting the accused?

APPRECIATION OF EVIDENCE :-

13. The points that culled out from the FIR dated 14.05.1983 are
reiterated underneath:-

13.1. The incident is of 09.05.1983. The FIR is of 14.05.1983 lodged at
10:00 a.m.

13.2. Three persons were named in the FIR, who are the appellants.

13.3. The informant/Baso and PW-3 Banwari Lal have seen three
accused (apellants) exiting from the house of informant after opened the
door. The informant and witness Banwari have seen the victim crying.

13.4. They have not seen the incident of rape.

13.5. The victim herself has intimated the informant that she has been
raped by the accused/appellants, as such, the FIR was lodged for the
incident of rape.

13.6. Banwari Lal/PW-3 and Lajja came to meet the informant Baso on
09.05.1983.

13.7. Baso’s father met Banwari Lal and Lajja and informed them that
the informant Baso went to graze the goat at Saahar Canal. It is not
disclosed where the informant’s father met Banwari Lal and Lajja.
                                    6
                                                  CRLA No. - 1350 of 1984.

13.8. Banwari Lal/PW-3 and Lajja went to Saahar Canal to meet Baso,
who was in the forest, grazing the goat.

13.9. Baso came home along with Banwari Lal and Lajja and found that
door of the house was bolted from inside. He has jumped the boundary
wall and came inside.

13.10. He saw Hetram, Shanker and Bhudat leaving the house after
opening the door.

14. The contents of the FIR is proved by PW-1/Baso and PW-3/Banwari.
The FIR reveals two types of facts; firstly, from the information received
by victim that she was subjected to rape by three persons and secondly,
that the informant himself saw three persons exiting from his house. The
FIR has no reference about four persons. The delay in FIR is attributed
on fear factor.

15. The medico legal report reveals two facts; firstly, the victim was
seven months pregnant and secondly, that there is no mark of injury on
her private part or body of victim and no definite opinion of rape can be
given, with no sperm seen in pathological examination test.

16. The site plan was prepared by PW-4/ Balbeer Singh, the
Investigating Officer at the instance of informant and victim. The site
plan shows that the accused/appellants along with driver had committed
gang rape on victim at place ‘A’, which is ‘Kotha’ situated at south
western corner of the house. The site plan further shows that the
accused/appellants had run away from the house after jumping the
boundary wall from the western side, whereas the door of the house
situated at north. It is not shown in the site plan that from where the
informant has jumped the boundary wall to enter the house. These
documents have been discussed prior to considering the testimonies of
the witnesses, which are important to be discussed first to consider the
truthfulness of the testimonies vis-a-vis the documents and inter-se
corroboration.
                                    7
                                                  CRLA No. - 1350 of 1984.

17. PW-2 is the victim. She in her statement has stated that the incident
is of 2:00 p.m., she was all alone in the house. Her husband went to
graze the goats. Her father-in-law was also out of the house. She stated
that in her house Hetram and one driver came from the backside, they
have pointed knife on her and threatened her if she will not cooperate,
they would kill her. They have dragged her to the Kotha and threw her
on the cot. Hetram has asked the driver to go first. The driver has raped
her, then Hetram has raped her. Thereafter, Bhudat and Shanker also
came. Then Bhudat has raped her and lastly Shanker has raped her. She
further stated that no one else came for her rescue. When she was being
raped the other persons used to stand in the Chhapper. She was seven
months pregnant and she was wailing in pain. She further stated that
Bhudat, Shanker and Hetram are her neighbour, she knew the
accused/appellants before the incident. She cried a lot but none came for
help. Further stated that the door was closed from inside, her husband,
Banwari and Lajja entered the house by jumping boundary wall and the
accused had ran away. She did not know the driver. She has intimated
entire incident to her husband. During her cross examination she has
stated that she has been raped for one hour. Her bangles were broken and
blood was oozing out from her hand. She further stated that she did not
suffer injuries but was wailing in pain. She stated that she had washed
her clothes with soap.

18. This witness has stated that she has intimated the incident to her
husband. The husband of victim is the author of FIR. If the name of
fourth accused has been intimated by the victim to the informant then
why the FIR contained the name of only three accused persons. The
matter is of gang rape. The three accused are the neighbours of the
victim. In not naming the fourth accused in the FIR, who has raped the
victim, creates doubts as to truthfulness of the prosecution case. The
victim further stated that there was bleeding from her hand, but blood
from the hand of the victim is neither reflected from the statement of
PW-1/Baso nor from the statement of PW-3/ Banwari. It is not even
disclosed that what first-aid she has taken. No broken bangles have been
                                        8
                                                   CRLA No. - 1350 of 1984.

handed over to the Investigating Officer. Even the mark of injuries are
not reflected from the medico legal examination report, which was
carried out five days after the incident, even dried up injuries require
notice. These points required further appreciation of the statement of
other witnesses of fact.

19. PW-1/Baso has stated that on 09.05.1983, he went to Saahar Canal
to graze the goats. At 2:00 p.m. his nephew Banwari Lal and Lajja came
from Gowardhan to meet him. They initially met his father at the Bus
Station who has intimated them that this witness/Baso is grazing goats.
Hence, they right away reached to the Saahar Canal. PW-1 on meeting
them has left his goats grazing, taken them to his home. He found that
the door was closed from inside. Hence, he had jumped the wall and
opened the door on which he saw Hetram, Shanker and Bhudat running
away from the door. His father was not at home. He found his wife
weeping, who has intimated him that Hetram, Driver, Shanker and
Bhudat had committed rape on her. If she had specifically stated that
driver has also committed rape on her then why the FIR did not contain
the name of driver. He specifically stated that he got the written
information dictated to Banwari who has written report in his hand
writing. The report was then read over to him and he put his thumb
impression.

20. PW-3/Banwari Lal has specifically stated in his statement that he
was intimated that driver has not committed rape on the victim. He
further stated that all the three accused have pointed out the knife on the
victim and committed rape, whereas the pointing out of knife was
attributed on driver.

21. As the medico legal examination report does not show the signs of
gang rape and the entire case lies on the ocular testimonies on the
witnesses then it would be expedient to scrutinize the statement of
witnesses with utmost caution. There is marked inconsistency in the
statements of PW-1 and PW-3 about the role of driver and the role of
pointing out the knife on the victim.
                                             9
                                                                CRLA No. - 1350 of 1984.

22. During the course of examination PW-1 has stated that as the three
witnesses including PW-1 and PW-3 entered the house after jumping the
boundary wall, they have seen the accused/appellants moving out from
the house. On cross examination, PW-1 has stated that he did not try to
chase them or to catch them. On further questioning, he stated that all the
accused/appellants were wearing their clothes and he also found his wife
in full clothes. During further examination PW-1 has stated that the
accused have threatened him. On continuous threatening he mustered
courage to lodge the FIR. He further stated that he has never seen these
accused coming in his house or meeting his wife. He has stated that he
has not seen any injury on the person of his wife. She was wearing
bangles and has not seen that bangles were broken. This shows that there
is discrepancy pertaining to the injuries suffered by the victim in her
hands by broken bangles. The accusation is heinous in nature. The
informant has not promptly lodged the FIR or took the victim to hospital,
though she was seven months pregnant and purportedly raped by four
persons. This sounds unnatural. Moreover, the informant mustered
courage by threatening of accused, but he remained timid, though his
wife being raped. Hence, there is no plausible explanation of delay in
lodging the FIR.

23. In the case of Lalliram Vs. State of M.P. reported in [(2008) 10 SCC
69], Hon’ble the Supreme Court has held that it is true that the injury is
not sine qua non for deciding whether rape has been committed, but it
has to be decided on the factual matrix of each case. This observation
was made in a matter of Gang rape. The relevant paragraphs 10-12 of the
judgment are reiterated underneath :-

       “10. The trial court noted that though the prosecutrix claimed that she was
       raped by several persons at several times there was no injury noticed and
       doctor has categorically stated that there was no sign of rape and in fact
       there was no injury.
       11. It is true that injury is not a sine qua non for deciding whether rape has
       been committed. But it has to be decided on the factual matrix of each
       case. As was observed by this Court in Pratap Misra v. State of Orissa
       where allegation is of rape by many persons and several times but no
       injury is noticed that certainly is an important factor and if the
       prosecutrix's version is credible, then no corroboration is necessary. But if
       the prosecutrix's version is not credible then there would be need for
       corroboration. (See Aman Kumar v. State of Haryana .)
                                             10
                                                                CRLA No. - 1350 of 1984.

       12. As rightly contended by learned counsel for the appellants, a decision
       has to be considered in the background of the factual scenario. In criminal
       cases the question of a precedent particularly relating to appreciation of
       evidence is really of no consequence. In Aman Kumar case it was
       observed that a prosecutrix complaining of having been a victim of the
       offence of rape is not an accomplice. There is no rule of law that her
       testimony cannot be acted upon without corroboration in material
       particulars. She stands on a higher pedestal than the injured witness. In the
       latter case there is injury in the physical form while in the former both
       physical as well as psychological and emotional. However, if the court
       finds it difficult to accept the version of a prosecutrix on the face value, it
       may search for evidence direct or circumstantial.”

24. The Investigating Officer/PW-4 Balbeer Singh was not cross
examined but in his examination-in-chief, he has stated that he has
prepared the site plan at the instance of informant and his wife. He has
proved that the FIR and GD is in hand writing of Constable Shiv Dan
Singh and proved the same.

CONCLUSION :-

25. If the statement of three witnesses, namely, the informant/husband
of victim, the victim and the independent witness Banwari/PW-3 is taken
into consideration as to the veracity of the prosecution case, it is found
that the accused/appellants are the neighbours of informant. They have
never been in the house of informant prior to the date of incident. There
was altercation between the accused/appellants and Baso regarding the
grazing of his goat in the field of accused, though it is denied by the
informant but it could be plausible reason for lodging the FIR. If the
incident of was rape committed by four persons with a pregnant lady
having pregnancy of seven months, the rape might have caused grave
medical exigency, which was not reflected in the medico legal report. On
the contrary, the pregnancy was stated to be normal. There is no mark of
injury, even in the hands of the victim. The vagueness of the FIR is also
reflected when only three persons were named in the FIR, though the
victim was purportedly raped by four persons. The delay attributed in the
FIR also shows that it is not attributed to any fear factor, as the
informant was continuously going out even after the incident, then what
stops him from lodging the FIR in such a heinous crime. It would also
not be out of place to mention that according to the prosecution case
every act is done at 2:00 p.m.; the victim was raped, informant entered
                                                                11
                                                                               CRLA No. - 1350 of 1984.

                            the house and accused left the house, whereas, victim was raped for one
                            hour. The delay and the prosecution case creates a doubt in the
                            prosecution story. Hence, the accused/appellants are entitled for the
                            benefit of doubt because the prosecution evidence is not creating
                            confidence that the accused/appellants have committed rape. Hence, they
                            shall be acquitted from the charges as the ocular and documentary
                            evidences does not evinces the involvement of accused appellant in the
                            offence of rape in view of the evidences adduced by the prosecution.

                            26. In the case of Jitendra Kumar Mishra alias Jittu Vs. State of Madhya
                            Pradesh reported in (2024) 2 SCC 666, Hon’ble the Supreme Court held
                            that an appellate court should be slow in interfering with conviction
                            recorded by courts below but where evidence on record indicates that
                            prosecution has failed to prove guilt of accused beyond reasonable doubt
                            and that a plausible view, different from one expressed by trial court, can
                            be taken. The appellate court should not shy away in giving benefit of
                            doubt to the accused.

                            27. Thus, the judgment of conviction and sentence dated 08.05.1984
                            passed by IInd Additional Sessions Judge, Mathura in Session Trial No.
                            259 of 1983 (State Vs. Hetram & others), under Section 376 IPC, is
                            hereby set aside.

                            28. The appellants- Hetram, Shanker and Bhudat are acquitted for
                            offence under Section 376 IPC.

                            29. Accordingly, the criminal appeal is allowed.

                            30. The accused appellants are on bail. Their sureties and executed bail
                            bonds stands discharged.

                            31. The record be remitted, forthwith, as per law, with the copy of the
                            judgement.


                                                                                  (Avnish Saxena,J.)

                            May 07, 2026
                            Abhishek Sri




Digitally signed by :-
ABHISHEK RANJAN SRIVASTAVA
High Court of Judicature at Allahabad