Phulloo @ Phoolchand vs State Of U.P. on 12 May, 2026





HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2026:AHC-LKO:34388
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
LUCKNOW 
 
CRIMINAL APPEAL No. - 270 of 2013   
 
   Phulloo @ Phoolchand    
 
  .....Appellant(s)   
 
 Versus  
 
   State of U.P.    
 
  .....Respondent(s)       
 
   
 
  
 
Counsel for Appellant(s)   
 
:   
 
Anil Kumar Yadav   
 
  
 
Counsel for Respondent(s)   
 
:   
 
Govt. Advocate   
 
     
 
 Court No. - 14
 
   
 
 HON'BLE SUBHASH VIDYARTHI, J.

1. Heard Sri Anil Kumar Yadav, the learned counsel for the appellant and Sri G.D. Bhatt, the learned AGA-I and perused the record.

2. The appellant Phulloo @ Pholchand is present in the Court.

3. By means of the instant appeal, the appellant has challenged the validity of a judgment and order dated 20.02.2013 passed by the learned Additional Sessions Judge, Court No. 34, Barabanki in Sessions Trial No. 1134/2010 arising out of Case Crime No. 1456/2008, under Sections 376/511, 323, 506 IPC, Police Station Kotwali Nagar, District Barabanki, whereby although the appellant has been acquitted of the charge under Section 506 IPC, he has been convicted for the offence under Sections 376/511 & 323 IPC. The appellant has been sentenced to undergo imprisonment for five years and pay Rs. 1,000/- as fine for the offence under Sections 376/511 IPC. He has been sentenced to undergo six months imprisonment and pay Rs. 500/- as fine for the offence under Section 323 IPC.

4. The present case was instituted on the basis of an FIR lodged by the victim herself stating that when she had gone to attend the call of the nature, the appellant who resides in her neighborhood, came from behind and caught hold of her chest. The complainant raised her voice whereupon the appellant tried to strangulate her and attacked with some sharp edged weapon. Upon hearing the cries of the victim, wife of her husband's younger brother and several other persons reached there due to which she could be saved. The victim stated that the appellant was harassing her for the past several days and he tried to rape her.

5. The victim was examined as PW1. She stated that the incident occurred about three years ago when she had gone to attend the call of nature, the appellant came from behind, caught hold of her chest and wanted to commit the misdeed. When she cried, the appellant pressed her neck. She stated that the appellant was carrying some tool with which he had hit her. As it was night time, she could not identify the tool. The appellant was trying to commit the misdeed against her since long. Several persons reached there upon hearing her cries and thus her honour could be saved.

6. During cross examination the victim stated that upon hearing her cries several persons had gathered there but she could not tell their names. She had suffered an injury due to some sharp edged weapon. However, sutures were not put and merely bandage was placed. No other injury was suffered by her. She had suffered an injury on her hand. The victim stated that quarrel between her and the appellant had taken place because of bananas. Bananas of the appellant had fallen down, for this reason an altercation had taken place. She stated that there was no property dispute between her and the appellant. The complainant further stated during cross-examination that her husband is not in service, he lives at home but he is not a witness of the incident.

7. Buddhu Lal, elder brother of the complainant's husband was examined as PW2. He stated that he had reached the spot on hearing the cries of the complainant. The appellant was catching hold of her Aanchal. Thereafter, he pushed her down and tried to insult her and he ran away while threatening her. During cross-examination, he stated that there are four houses between his house and the house of the complainant. He further stated that when the altercation was taking place, the villagers were seeing from a distance and he was also seeing from a distance. After the incident, the victim did not tell anything to him. The investigating officer met him three months after the incident. He stated that quarrels used to take place frequently between the complainant and the family members of the appellant. PW2 further stated that he has given a statement as per instructions of the victim.

8. PW3 Raju stated that he had no knowledge of this incident as he was not present at the time. This witness was declared hostile.

9. No other witness of fact was examined.

10. The doctor who had conducted the medico-legal examination of the victim, was examined as PW6. He stated that the victim had a scratched contusion of size 4x2.5 cm about 1 cm below the left wrist and blood clot was present there. The injury was simple in nature and appeared to have been caused by some hard and blunt object. The duration of the injury was fresh. The victim had complained about pain in the entire body. During cross-examination, PW6 stated that the injury could have been caused by some rough object and it could also be caused by falling on bricks or stones.

11. The trial court held that the victim/complainant has proved the date, time and place of the incident. There was no discrepancy in her statement and her testimony inspires confidence. The appellant resides in the same village and, therefore, his identity is established. The injuries suffered on the hand of the victim make out the offence under section 323 IPC. The trial court further held that the defense of the appellant that he has been falsely implicated because of a drainage dispute, is not acceptable as a married woman will not play with her honour without any reason. The mere statement of the victim is sufficient for conviction of the appellant.

12. Although it is correct that conviction can be based on the solitary testimony of a victim but it can only be done when the testimony is of sterling quality. Where there are discrepancies in the statement or where the entire facts and the circumstances of the case give rise to a doubt against the prosecution case, in such a case conviction cannot be based on the solitary testimony of the victim.

14. In the present case, the victim stated that the appellant wanted to commit the misdeed and not that he had attempted to commit the misdeed. Wanting to commit an act and attempting to commit the act are two different and distinct things. The victim stated that the appellant had tried to strangulate her, which statement is not corroborated by the medical evidence or any other evidence. The victim stated that when she raised a hue and cry, wife of her husband's younger brother and several other persons reached there. The wife of her husband's younger brother was a family member as well as an eyewitness and yet she has not been produced as a prosecution witness. Section 114(g) of the Evidence Act,1872 provides as follows:

"114(g)-that evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it;"

15. Section 114 of the Evidence Act provides that the court may presume the existence of any fact which it thinks likely to have happen, regard being had to the common course of natural events, human conduct, public and private business in relation to the facts of the peculiar case. Illustration (g) appended to Section 114 provides that the court may presume that evidence which could be and is not produced would, if produced, be unfavourable to a person who withholds it.

16. In Davinder Singh v. State of Punjab: (2023) 19 SCC 229, the Hon'ble Supreme Court referred to an earlier precedent on this point in the following passage: -

9. On the issue of non-examination of material witness, we wish to place reliance on the decision of this Court in Takhaji Hiraji v. Thakore Kubersing Chamansing [(2001) 6 SCC 145]:

"19. So is the case with the criticism levelled by the High Court on the prosecution case finding fault therewith for non-examination of independent witnesses. It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself ? whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses."

17. A lady family member of the victim is said to have reached on the spot hearing the cries of the complainant withholding this person from examination as a witness gives rise to a presumption that had this witness been produced and put to cross-examination by the defense counsel, her testimony would have been unfavorable for the prosecution. PW2 is the elder brother of the complainant's husband and he stated that he had witnessed the incident from a distance along with other villagers. He did not state anything which may indicate that the appellant had attempted to commit rape on the complainant. He further stated that he had given testimony as per instructions of the complainant which makes this witness wholly untrustworthy. PW3 stated that he had not witnessed anything and he had turned hostile.

18. In these circumstances, I am of the considered view that the prosecution has miserably failed to establish the offence under Sections 376/511 IPC.

19. This court does not find any illegality in the impugned order so far as conviction of the appellant for the offence under section 323 IPC is concerned, keeping in view the medico legal examination report available on record as well as the testimony of the doctor.

20. Accordingly, the appeal is allowed in part. The impugned judgment and order dated 20.02.2013 passed by the learned Additional Sessions Judge, Court No. 34, Barabanki in Sessions Trial No. 1134/2010 arising out of Case Crime No. 1456/2008, under Sections 376/511, 323, 506 IPC, Police Station Kotwali Nagar, District Barabanki, is modified to the extent that the appellant is acquitted of the charge for committing offence under Section 376/511 IPC. However, the conviction and sentence for the offence under Section 323 IPC is maintained. The appellant has already undergone more than three years period in custody whereas in the offence under Section 323 of the IPC, he was awarded a sentence of imprisonment for six months only. Therefore, the appellant need not be taken into custody.

21. The appellant is directed to furnish a personal bond and surety in compliance of the provisions of Section 447 of the CrPC within two weeks.

(Subhash Vidyarthi,J.)

May 12, 2026

Pradeep/-