# Ajeet Singh Constable (In Jail) v. State of U.P. & Anr

- **Citation:** (2023) 1 ILRA 978
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-22
- **Case number:** Criminal Appeal No. 7478 of 2018
- **Bench:** Ashwani Kumar Mishra, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajeet-singh-constable-in-jail-v-state-of-u-p-anr-49182
- **Pages:** 13

## Headnote

Indian Evidence Act,1872 - Section 3- This
is not a case where there are minor
inconsistencies in the statements of the
victim about commissioning of the offence
of rape by the accused-appellant upon
her, but it is a case where the victim has
developed a new story for the first time
when her statement was recorded under
Section 164 Cr.P.C., i.e. after a month or
more about the commissioning of rape
upon her by the accused-appellant- The
medical report otherwise does not support
the commissioning of rape against the
victim as the Doctor opined that her
hymen was intact and no sign of external
injury has been found- There is no FSL
report or DNA report with regard to
victim,
hence
the
offence
of
commissioning of rape could not be
ascertained- In the facts of the present
case the solitary testimony from the
prosecution side is of the victim herself
but upon a deeper evaluation of the
statement of the victim recorded under
Section 161 and 164 Cr.P.C. and the
statement given before the court below,
we find that there is improvement in the
statements
of
the
victim
after
her
statement was recorded under Section
161 Cr.P.C. on the same day i.e. date of
incident
and
such
development
or
improvement in the statement of the
victim amounts to major improvement,
which
renders
the
testimony
of
P.W.1/victim
unreliable-
Where
the
previous statement and the evidence
before the court below are so inconsistent
and irreconcilable with each other than
both cannot co-exist, therefore, it can be
said
that
the
previous
statement
contradicts the witness with the evidence
given by him/her before the Court.
Although the conviction of the accused can be
secured upon the solitary testimony of the
prosecutrix but where such testimony has major
contradictions and improvements going to the
root of the case of the prosecution and is
further not corroborated by the medical and
other evidence, then no reliance can be placed
upon such testimony. (Para 24, 40, 41, 45, 46)

Criminal Appeal allowed. (E-3)

Case Law/ Judgements relied upon:-

## Text

_Characters 0–39,966 of 43,232. This is a partial read: ask again with offset=39966 for what follows._

978 INDIAN LAW REPORTS ALLAHABAD SERIES
Ashok to the sugar cane field deceased had
parted his company. In such circumstances,
the inference has to be drawn against him
that he had killed the deceased in the sugar
cane field.

41. It is for the prosecution to prove the
involvement of the accused in the commission of
the crime beyond all reasonable doubts. In the
present case the prosecution has successfully
completed the chain of circumstances. The fact
that what happened to the victim after he was
lastly seen by P.W.2-Ashish Malik, P.W.-5Manoj Kumar, was within the knowledge of the
accused but he has not spilled beans about the
fact which was specifically in
his knowledge.

42. Section 106 of the Indian Evidence Act
is as follows:

"106.
Burden
of
proving
fact
especially within knowledge.--When any fact is
especially within the knowledge of any person,
the burden of proving that fact is upon him.
Illustrations"

43. Accused has miserably failed to rebut
the presumption under Section 106 of Evidence
Act.

44. Hence, applying the principles laid
down by the Hon'ble Apex Court in the aforesaid
judgments and having regard to the totality of
facts and circumstances of case, nature of
offence and the manner in which it was executed
or committed, we find that conviction of
appellant under Section 302 I.P.C. is proper and
justified in the law and the impugned judgment
and order is not excessive or exorbitant and no
question arises to interfere in the matter on the
point of punishment imposed upon him.

45. In view of the above facts and
circumstances, impugned judgment and order
dated 28.03.2011 deserves to be affirmed to the
extent of conviction and sentence of appellant
under Section 302 I.P.C. and appeal is liable to
be dismissed to that extent. Ordered accordingly.

46. In the result, the Criminal Appeal is
allowed partly to the extent it relates to the
conviction under Section 201 I.P.C.

47. Impugned judgment and order dated
28.03.2011, is hereby confirmed/affirmed to the
extent of conviction of appellant under Section
302 I.P.C. The appellant, who is in jail, shall
serve out the sentence awarded to him by the
Trial Court.

47. Copy of this order along with lower
Court record be sent to Court concerned
forthwith.

48. A copy of this order be also sent to
Appellant
through
concerned
Jail
Superintendent.

49. Shri Abhinav Jaiswal, learned Amicus
Curiae, for his assistance, is entitled to fee,
assessed at Rs. 21,000/-, to be paid by the State
Government.
----------
(2023) 1 ILRA 978
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.12.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 7478 of 2018

Ajeet Singh Constable
 ...Appellant (In Jail)
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Appellant:
1 All. Ajeet Singh Constable Vs. State of U.P. & Anr.
979
Sri Rajesh Kumar Singh, Sri Rajiv Lochan
Shukla, Sr. Advocate, Sri Tarun Kumar
Srivastava, Sri Prabhu Tripathi

Counsel for the Respondents:
G.A., Sri Pavan Kumar Srivastava, Sri R.B.
Sahai, Sri Sanjay Srivastava, Sri Shailendra
Kumar Dwivedi

Indian Evidence Act,1872 - Section 3- This
is not a case where there are minor
inconsistencies in the statements of the
victim about commissioning of the offence
of rape by the accused-appellant upon
her, but it is a case where the victim has
developed a new story for the first time
when her statement was recorded under
Section 164 Cr.P.C., i.e. after a month or
more about the commissioning of rape
upon her by the accused-appellant- The
medical report otherwise does not support
the commissioning of rape against the
victim as the Doctor opined that her
hymen was intact and no sign of external
injury has been found- There is no FSL
report or DNA report with regard to
victim,
hence
the
offence
of
commissioning of rape could not be
ascertained- In the facts of the present
case the solitary testimony from the
prosecution side is of the victim herself
but upon a deeper evaluation of the
statement of the victim recorded under
Section 161 and 164 Cr.P.C. and the
statement given before the court below,
we find that there is improvement in the
statements
of
the
victim
after
her
statement was recorded under Section
161 Cr.P.C. on the same day i.e. date of
incident
and
such
development
or
improvement in the statement of the
victim amounts to major improvement,
which
renders
the
testimony
of
P.W.1/victim
unreliable-
Where
the
previous statement and the evidence
before the court below are so inconsistent
and irreconcilable with each other than
both cannot co-exist, therefore, it can be
said
that
the
previous
statement
contradicts the witness with the evidence
given by him/her before the Court.
Although the conviction of the accused can be
secured upon the solitary testimony of the
prosecutrix but where such testimony has major
contradictions and improvements going to the
root of the case of the prosecution and is
further not corroborated by the medical and
other evidence, then no reliance can be placed
upon such testimony. (Para 24, 40, 41, 45, 46)

Criminal Appeal allowed. (E-3)

Case Law/ Judgements relied upon:-

1. Sham Singh Vs St. of Har., 2018 SCC OnLine
SC 1042

2. State Vs Saravanan , (2008) 17 SCC 587

3. Mahendra Pratap Singh Vs St. of U.P. (2009)
11 SCC 334

4. Sunil Kumar Sambhudayal Gupta & ors. Vs St.
of Maha. (2010) 13 SCC 657

5. Dola @ Dolagobinda Pradhan & anr. Vs St. of
Odisha (2018) 8 SCC 695
(Delivered by Hon'ble Shiv Shanker
Prasad, J.)

1. This criminal appeal is directed
against the judgment and order dated
12.11.2018, passed by the Additional
Sessions Judge-VIII, Fatehpur in Special
Trial No. 110 of 2015 (State vs. Ajeet
Singh Constable); whereby the accusedappellant has been convicted under sections
376 IPC read with Section 3 (ii) (v)/ 3 (i)
(xii) SC/ST Act and Section 5/6 POCSO
Act and consequently sentenced to rigorous
life imprisonment along with fine of
Rs.20,000/- for the offence under Section 6
of POCSO Act and in default thereof, he
has to further undergo 6 months additional
simple
imprisonment;
rigorous
life
imprisonment
along
with
fine
of
Rs.20,000/- for the offence under Section 3
(ii) (v) SC/ST Act and in default thereof he
980 INDIAN LAW REPORTS ALLAHABAD SERIES
has to further undergo 6 months additional
simple imprisonment; and 5 years rigorous
imprisonment along with fine of Rs.5000/-
for the offence under Section 3 (i) (xii)
SC/ST Act and in default thereof, he has to
further undergo two months additional
simple imprisonment with an observation
that
all
the
sentences
are
to
run
concurrently.

2. As per the prosecution case, on 9th
September, 2015 a written report (Ext. Ka8) was given to the Police Station Malva,
District Fatehpur by the first informant,
namely, Kallu Kori (PW-2) stating that on
9th September, 2015, at about 4:30 a.m. in
the morning, the informant's daughter aged
about 16 years had gone behind the house
to ease herself then accused Ajit Singh,
Constable
posted
in
Police
StationKalyanpur, who was sitting in an ambush,
dragged his daughter to the field by
gagging her mouth and raped her. When
the gagging eased, the victim raised an
alarm.
After
hearing
her
shrieks,
informant's wife rushed to the spot and the
accused-appellant ran away to the G.T.
Road through the paddy field. At the same
time, the first informant/complainant/P.W.-
2 was also easing himself on the side of the
road in front of Malva Police Station and
when he asked the accused, he started
running
and
the
first
informant/complainant/P.W.-2 chased him.
The accused-appellant was not able to run
as his feet were covered with mud and the
first informant held the neck of the
accused-appellant at Itraura Mod, G.T.
Road. The accused-appellant however
escaped from the grip of the first
informant/complainant by sliding off his Tshirt and vest.

3. On the basis of the aforesaid
written report a first information report
(Ex.Ka.9) was lodged on 9th September,
2015 at 08.15 a.m., which was registered as
Case Crime No. 0235 of 2015, under
Section 376 IPC, Section 3 (ii) (v)/ 3 (i)
(xii) of SC/ST Act and Section 3/4 POCSO
Act. The chik first information report has
been prepared by Constable-828 Satya
Prakash Mishra (P.W.-8). After registration
of the aforesaid first information the
Investigating Officer i.e. Bandana Singh,
Deputy Superintendent of Police (P.W.-10)
has recorded the statements of first
informant (P.W.-2), and his wife under
Section 161 Cr.P.C. and on the disclosure
of the victim, he has also prepared the site
plan.
Thereafter
P.W.-10
has
taken
possession of T-shirt, black lower pant,
black Sameej and white underwear, which
were worn by the victim. Thereafter P.W.-
10 has sent the victim to the Women
District
Hospital
for
her
medical
examination along with Constable Vandana
Dwivedi (P.W.-3).

4. Dr. Rani Bala Sharma (P.W.-4)
examined the victim and performed the
medical examination on 09.09.15. P.W.-4
has opined that after external and internal
examination of the victim, she found no
injury on the body of the victim. Hymen
was found to be intact and that according to
her, no opinion related to sexual assault
could be given. To ascertain the correct age
of the victim, she was sent to radiologist
Dr. Manu Gopal (P.W.-5) who opined the
victim to be of age 16-18 years. On the
constitution of Medical Board, the victim
was sent to Dr. Rekha Rani (P.W.-7) for reexamination on 23.09.15, where she found
no internal and external injury on the body
of the victim. P.W.-7 did not found any
injury of pinching on the body of the victim
and no injury or blood was found on the
vagina of the victim. Hymen was found to
be intact. In her opinion considering the
1 All. Ajeet Singh Constable Vs. State of U.P. & Anr.
981
Forensic
Science
Laboratory's
report,
physical violence cannot be ruled out. Dr.
Vinay Kumar Pandey, Chief Medical
Officer, Fatehpur (P.W.-6) who was the
Chief Medical Officer opined that on the
basis of medical report submitted by the
board, age of victim is found to be 16
years.

5. The investigation proceeded
thereafter and statement was recorded of
the victim under Section 161 Cr.P.C. and
after completing necessary formalities as
provided
under
Chapter-XII
C.P.C.,
charge-sheet came to be submitted on 7th
November, 2015 (Exhibit-Ka-15) before
the court concerned against the accused
appellant under Section 376 IPC, Section 3
(ii) (v)/ 3 (i) (xii) of SC/ST Act and Section
3/4 POCSO Act on which the Magistrate
concerned took cognizance and committed
the case to Court of Sessions.

6. On 18th February, 2016, following
charges were framed by the Court of
Special Judge (POCSO Act)/Additional
Sessions
Judge/Fast
Track
Court,
Fatehpur:

"eS vkfny vkQrkc vgen] fo'ks"k
U;k;k/kh'k 1⁄4ySafxd vijk/kksa ls ckydksa dk laj{k.k
vf/kfu;e1⁄2@vij l= U;k;k/kh'k@QkLV VaSd
dksVZ] Qrsgiqj vki vfHk;qDr

vthr flag

dks fuEu vkjksi ls vkjksfir djrk gwW&

izFke& ;g fd fnukad 09-09-2015 dks
izkr% 4-30 cts LFkku ceqdke oknh ds ?kj ds ihNs
ds [ksr ogn xzke eyokW Fkkuk eyokW ftyk
Qrsgiqj esa vki tks yksd lsod gS] us oknh
eqdnek dYyw dksjh dh vo;Ld 16 o"khZ; iq=h
fnO;k nsoh] tks vuqlwfpr tkfr dksjh gS] ds lkFk
ySafxd geyk@cykRlax fd;kA bl izdkj vkius
Hkkjrh; n.M lafgrk dh /kkjk 376 lifBr /kkjk
31⁄421⁄21⁄451⁄2@31⁄411⁄21⁄4121⁄2vuq0tkfr@tutkfrvR;kpkj
fuokj.k vf/kfu;e ds vUrxZr n.Muh; vijk/k
dkfjr fd;k gS] tks bl U;k;ky; ds izlaKku esa
gSA

f}rh;& ;g fd mDr fnukad le; o
LFkku ij vki tks yksd lsod 1⁄4iqfyl dEkZpkjh1⁄2
gS] us oknh eqdnek dYyw dksjh dh vo;Ld 16
o"khZ; iq=h fnO;k nsoh ds lkFk xq:rj izos'kd
ySafxd geyk fd;kA bl izdkj vkius /kkjk 5@6
ySafxd vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e]
2012 ds vUrxZr n.Muh; vijk/k dkfjr fd;k]
tks bl U;k;ky; ds izlaKku esa gSA

eSa ,rn}kjk funsZ'k nsrk gwW fd mijksDr
vkjksiksa esa vkidk fopkj.k bl U;k;ky; }kjk
fd;k tk;sxkA"

7. The prosecution in order to
establish the charge levelled against the
accused-appellants,
has
relied
upon
following documentary evidences, which
were duly proved and consequently marked
as Exhibits:

"Written report dated 9.9.2015
has been marked as Exhibit-Ka-8; F.I.R
dated 9.9.2015 has been marked as ExhibitKa-9; Site plan with index dated 9.9.2015
has
been
marked
as
Exhibit-Ka-13;
Statement of the victim has been marked as
Exhibit-Ka-1; Medicolegal Examination
Report dated 9.9.2015 has been marked as
Exhibit-Ka-2;
X-Ray
Report
dated
16.09.2015 has been marked as Exhibit-Ka4, X-Ray Report dated 23.09.2015 has been
marked
as
Exhibit-Ka-3,
Medicolegal
Examination Report dated 23.9.2015 has
been marked as Exhibit-Ka-7, Report of the
Medical Board dated 24.09.2015 has been
marked as Exhibit-Ka-6 and charge-sheet
(original) dated 7.11.2015 has been marked
as Exhibit-Ka-15."

8. The prosecution has also adduced
oral testimony of following witnesses:-

"P.W.-1/ Victim, namely, Divya
Devi; P.W.-2/ Informant, namely Kallu
982 INDIAN LAW REPORTS ALLAHABAD SERIES
Kori, P.W.-3, Women Constable, namely,
Vandana Dwivedi, recorded the statement
of the victim under Section 161 Cr.P.C. of
which videography has been done and she
has also recorded the majid bayan of the
victim and also taken her to the hospital for
medical examination, P.W.-4, namely Dr.
Rani Bala Sharma, who has medically
examined the victim; P.W.-5, namely, Dr.
Manu Gopal, Radiologist; P.W.-6, namely,
Dr. Vinay Kumar Pandey, Chief Medical
Officer from whose order the medical
board was constituted; P.W.-7, namely, Dr.
Rekha Rani, a member of the Medical
Board; P.W.-8, namely, Satya Prakash
Misra, constable, who had typed the chik
F.I.R.; P.W.-9, namely Dr. Rekha Misra,
In-charge Principal, Government Girls Inter
College,
Malva,
Fatehpur,
who
has
certified the date of birth of the victim and
P.W.-10
Vandana
Singh,
Deputy
Superintendent of Police, the Investigating
Officer."

9. After recording of the prosecution
evidence, the incriminating evidence were
put to the accused-appellant for confronting
him with the same under Section 313
Cr.PC. In his statement recorded U/s 313
Cr.P.C. the accused appellant denied his
involvement in the commissioning of the
offence under Section 376 I.P.C. Sections 3
(ii) (v)/ 3 (i) (xii) S.C./S.T. Act and also
Sections 5/6 POCSO Act and also the
charges levelled against him. In the said
statement,
the
accused-appellant
has
specifically stated before the trial court that
since he always reprimanded the first
informant/ P.W.-2 and that is why he has
been implicated in this case to teach a
lesson to him, and he is otherwise innocent.

10. From the materials placed on
record it appears that the statement of the
victim
(P.W.-1)
was
recorded
under
Section 161 Cr.P.C. wherein she did not
allege the commissioning of rape upon her
by the accused-appellant but in the
statement recorded under Section 164
Cr.P.C., which was recorded before the
Magistrate concerned, she disclosed about
commissioning of offence of rape upon her
by the accused-appellant.

11. The trial court after relying upon
the evidence adduced by the prosecution
and recording its finding that the incident
happened around 4:30 a.m. in the morning
and after the incident, a quick first
information report was registered within
about quarter to four hours in the morning
of the incident as evident from the evidence
of the first informant/P.W.-2 and PW-8.
The fact of rape by the accused-appellant
has been conclusively proved by the
evidence of the victim and admittedly the
accused-appellant was working in Police
Station-Malwan before the incident. The
accused-appellant was known to the people
of Malwan area. In the statement of the
accused-appellant recorded under Section
313 Cr.P.C. it was said by him that he was
entrapped in rivalry, but no rivalry was
explained by the defence side, so that the
presumption under section 29 of POCSO
Act could not be dislodged. After perusal
of all the above evidences, the offence
punishable under Section 376 I.P.C. and
Section 6 of POCSO Act has been found
proved against the accused-appellant. On
the basis of aforesaid finding, the trial court
has come to the conclusion that against the
accused-appellant Ajit Singh Sipahi for the
offence punishable under section 376 of
Indian Penal Code read with section 3 (ii)
(v)/ 3 (i) (xii) of S.C./S.T. Act. And Section
5/6 POCSO Act, the prosecution has been
successful in proving the allegation beyond
reasonable
doubt.
Accordingly,
the
accused-appellant has been convicted under
Section 376 of the Indian Penal Code read
1 All. Ajeet Singh Constable Vs. State of U.P. & Anr.
983
with section 3 (ii) (v)/ 3 (i) (xii) of the
S.C./S.T. Act and also Section 5/6 PCOSO
Act and sentenced him to life imprisonment
along with fine as referred to above.

12. Sri Rajiv Lochan Shukla, learned
counsel for the accused-appellant submits
that as per the prosecution version, the
incident took place on 9.9.2015 at 4:30
A.M., whereas statement of the victim
under Section 161 Cr.P.C. has been
recorded by the Police in which she has
stated that she went to ease herself behind
her house and someone caught hold of her
from behind and gagged her mouth. When
the victim raised alarm her parents came
there. Due to darkness, the victim was
unable to recognise the accused. She has
also stated that no wrongful act had been
committed upon her. She has further stated
that she did not see the person who gagged
her mouth due to darkness.

13. Learned counsel for the appellant
has argued that since the statement of the
victim under Section 161 Cr.P.C. was
recorded soon after the incident and has
been exhibited and accepted by the witness
in Court, the same is liable to be treated as
a natural statement.

14. Learned counsel for the appellant
has also argued that in the medical
examination, which was conducted on
9.9.2015 at 6:15 P.M. she did not disclose
the name of the person as to who had
committed the alleged offence upon her.
The Doctor opined that hymen of the
victim was intact and no definite opinion
regarding sexual assault could be given. In
the report of the Medical Board which
conducted the re-medical examination of
the victim, the hymen of the victim was
found to be intact. This examination was
conducted on 23.09.2015 at 2:00 P.M. The
Board has opined that there are no sign of
use of force, however, final opinion is
reserved pending availability of F.S.L.
report but the Board has also opined that
the sexual violence cannot be ruled out.

15. Learned counsel for the accusedappellant has also submitted that the
statement of victim under Section 164
Cr.P.C. was recorded after long interval of
the incident and the victim was living with
her mother and father in their house.
Statement under Section 164 Cr.P.C. and
statement given before the court below by
the victim were under the pressure and
duress of the parents of the victim. There is
material improvement in the aforesaid
statements of the victim. He has further
argued that when the accused-appellant was
posted in Police Station Malva sometimes
ago, he always reprimanded the first
informant/P.W.-2 and annoyed of this the
informant/P.W.-2 has implicated him in
this forged and frivolous case. Accusedappellant is innocent and he has not
committed any crime against the victim.

16. It is also argued that no F.S.L.
report and D.N.A. test report is on record.
The place where the accused-appellant was
caught by the informant/P.W.-2 is also not
shown in the site plan. The torch by which
the accused-appellant was recognised by
the victim, has not been recovered and
produced before the trial court so that the
same may be proved. According to the
medical examination report no offence of
rape as alleged by the prosecution has been
committed by the accused-appellant upon
the victim. Subsequent change of the stand
by
the
victim
does
not
find
any
corroboration from the materials available
on record and, therefore, the trial court has
grossly erred in relying upon the statement
of the victim as P.W.-1 while her statement
984 INDIAN LAW REPORTS ALLAHABAD SERIES
ought to have been subjected to greater
scrutiny. It is also argued that in such
circumstances
the
conviction
of
the
accused-appellant under Sections 376 IPC
read with Section 3 (ii) (v)/ 3 (i) (xii)
SC/ST Act and Section 5/6 POCSO Act
cannot
be
legally
sustained
on
the
cumulative strength of aforesaid and the
same is liable to be quashed.

17. Learned A.G.A. on the other hand
has supported the prosecution version and
submits that the statement of the victim is
credible in the facts and circumstances of
the case and since she has clearly disclosed
about the commissioning of the offence of
rape by the accused-appellant upon her,
therefore, the trial court has not committed
any error in holding the conviction of the
accused-appellant under Sections 376 IPC
read with Section 3 (ii) (v)/ 3 (i) (xii)
SC/ST Act and Section 5/6 POCSO Act.

18. It is in the context of the above
facts that the present appeal has come up
before us for hearing.

19.

We
have
considered
the
submissions made by learned counsel for
the parties and have gone through the
records of the present appeal especially the
judgment and order of conviction and the
evidence adduced before the trial court.

20. The only question to be addressed
and determined in this appeal is whether
the accusation of guilt arrived at by the
Trial Court and the sentence awarded is
legal and sustainable and suffers from no
infirmity and perversity.

21. The facts as have been noticed
above would clearly go to show that a first
information report was lodged on 9.9.2015
on the written report of the firstinformant/P.W.-2 wherein he has alleged
that in the early morning the victim in order
to go to her school went to ease herself
behind her house and when she was easing
herself, the accused-appellant caught hold
of her from behind and gagged her mouth
and dragged her to the field and committed
rape upon her. On the fateful day of the
incident, her statement under Section 161
Cr.P.C. has been recorded by Police
Constable Vandana Dwivedi (P.W.-3) on
the instruction of Investigating Officer i.e.
P.W.-10 wherein the victim has stated that
on the fateful day she went to ease herself
behind her house and someone caught hold
of her from behind and gagged her mouth.
It has been further alleged that when the
victim raised alarm, her parents i.e. the
informant/P.W.-2 and his wife (mother of
the victim) came on the spot. The victim
did not see the face of that unknown person
due to darkness and after that it was her
father, who said that he was Ajit Singh
Sipahi/Constable. She did not recognise the
accused due to darkness. She has further
admitted that the said statement has been
given by her without any pressure or
duress.

22. After long interval, the statement
of the victim was recorded under Section
164 Cr.P.C. which has been exhibited as
Exhibit-Kha-2, wherein she has made
improvement and stated that when she went
to ease herself behind her house, she had a
torch and in the light of the same, she
recognised
the
accused-appellant
Ajit
Singh Sipahi, who caught hold of her from
behind and gagged her mouth and dragged
her to the paddy field and committed rape
upon her. Somehow or other when the
victim could speak, she raised an alarm on
which her mother came there and seeing
them the accused left the victim and ran
away. When the accused was running
1 All. Ajeet Singh Constable Vs. State of U.P. & Anr.
985
away, the father of the victim also came
there and he tried to chase him but he could
not apprehend him.

23. The victim has been examined as
P.W.-1 before the trial court and she has
admitted in her cross-examination that her
statement under Section 164 Cr.P.C. was
recorded after one month from the date of
alleged incident and during this period she
was living with her parents. She has also
stated that in the statement under Section
164 Cr.P.C. she has not disclosed before
the Magistrate concerned that the accused
inserted his penis in her vagina. She has
further
stated
that
her
father
(Informant/P.W.-2) called accused Ajit
Singh Sipahi but he ran away and did not
stop. Victim herself has admitted that when
her statement under Section 161 Cr.P.C.
was recorded, videography of the same was
also done. The victim has reaffirmed the
contents disclosed in her statement under
Section 161 Cr.P.C.

24. From overall evaluation of the
statement of the victim recorded under
Section 161 and 164 Cr.P.C. and the
statement given before the court below, we
find that this is not a case where there are
minor inconsistencies in the statements of
the victim about commissioning of the
offence of rape by the accused-appellant
upon her, but it is a case where the victim
has developed a new story for the first time
when her statement was recorded under
Section 164 Cr.P.C., i.e. after a month or
more about the commissioning of rape
upon her by the accused-appellant. In the
statement recorded under Section 161
Cr.P.C. on the date of incident, she did not
allege commissioning of the offence of
rape upon her by the accused-appellant,
meaning thereby that after some interval,
she
developed
the
story
about
the
commissioning of rape against her by the
accused-appellant, which is not trustworthy
and creates doubt. The medical report
otherwise
does
not
support
the
commissioning of rape against the victim
as the Doctor opined that her hymen was
intact and no sign of external injury has
been found. No definite opinion regarding
sexual assault has been given by the doctor.
The torch in the light of which the accusedappellant was recognised by the victim has
not been recovered and produced before the
court below. It is also noteworthy that
victim (P.W.-1) has stated in her crossexamination that at the time of incident
there was water and slurry in the paddy
field where the offence was alleged to have
been committed. The victim has stated that
the place where she went to ease herself
was dry, there was no slurry and water. It is
improbable to conceive that when it was
dark at about 4:30 A.M. in the morning,
there was any need for the accusedappellant to maintain secrecy and drag her
to the paddy field where there was water
and slurry to commit the offence of rape
upon the victim. This assertion also adds
doubt to the prosecution story.

25. It is also alleged by the
prosecution that the accused-appellant
caught hold of the informant on the road
but this place is not shown in the site plan
by the Investigating Officer i.e. P.W.-10,
which also creates doubt in prosecution
version. Mud stained clothes and slippers
of accused which are alleged to have been
recovered from the place where the
accused-appellant was caught by the
informant are also not produced before the
court below and proved.

26. P.W.-2 Kallu Kori (informant) has
also been examined by the prosecution. He
has admitted in his cross-examination that
986 INDIAN LAW REPORTS ALLAHABAD SERIES
it is true that he had not seen the accusedappellant Ajit Singh Sipahi commissioning
the rape upon his daughter (victim).
Therefore, he is not the eye witness. His
statement is simple hear-say evidence. He
has admitted in his cross-examination that
he has not handed over the clothes of
victim to the police. No FSL report with
regard to clothes has been submitted by the
prosecution either.

27.

P.W.-3
Women
Constable
Vandana Dwivedi has been examined. She
has stated in her cross-examination that
Exh. Kha-1 (statement of the victim
recorded under Section 161 Cr.P.C.) has
been recorded by her on the dictation of the
victim, of which videography was being
done. The victim has also signed on said
statement and the same has also been read
to her. The statement of the victim recorded
under Section 161 Cr.P.C. has been
exhibited and she has verified it.

28. She has further stated that in the
open court when the C.J.M. asked the
victim with regard to rape, she has stated
that no offence of rape was committed
upon her and she did not disclose anyone's
name. Victim's statement under Section
164 Cr.P.C. was not recorded on that date.
After some interval victim was again called
for recording of her statement under
Section 164 Cr.P.C. in which she alleged
that the accused-appellant has committed
the offence of rape upon her. This is clearly
an improvement in the story of prosecution
side.

29. P.W.-4 Dr. Rani Bala Sharma is
the Doctor who has examined the injuries
of the victim. She found that the hymen of
the victim was intact and there was no
injury either externally or internally on the
body of the victim. There was also no
injury on the private part of the body of the
victim. Doctor has opined that the offence
of rape was not committed upon the victim.
No supplementary report was prepared nor
any cloth of the victim was taken in
possession.

30.
 P.W.-5
Dr.
Manu
Gopal,
Radiologist, District Hospital, Fatehpur has
also been examined and he has opined that
the age of the victim at the time of incident
was between 16 to 18 years. Though in the
examination-in-chief P.W.-5 has stated that
on 23rd September, 2015 the X-ray of the
victim has been done by him and he has
also stated that before 23rd September,
2015 i.e. on 10th September, 2015 he has
done the X-ray of the victim but in the
cross-examination he has stated that he has
done the X-ray of victim only on 23rd
September, 2015 and has not done the same
on 10th September, 2015.

31. P.W.-6 Dr. Vinay Kumar Pandey,
who was the Chairman of the Medical
Board has opined the age of the victim at
the time of incident was about 16 years. It
may be 17 to 18 years. He has alleged that
this board was constituted by the order of
the District Magistrate dated 15.9.2015.

32. P.W.-7 Dr. Rekha Rani was also
the member of the Board. She opined that
the hymen of the victim was intact at the
time of medical examination. She further
opined that there are no sign of use of
intercourse, however, final opinion was
reserved, pending availability of FSL
report. From perusal of the original records
and other documents, which are available at
the stage of the appeal there is no FSL
report or DNA report with regard to victim,
hence the offence of commissioning of rape
could not be ascertained. P.W.-7 has also
stated that there was no pinching injury on
1 All. Ajeet Singh Constable Vs. State of U.P. & Anr.
987
the body of the victim and there was no
injury and bleeding on the private parts of
the body of the victim.

33. P.W.-8 Constable Satya Prakash
Misra has also been examined by the
prosecution. He has stated in his crossexamination that the informant Kallu Kori
has not provided him any clothes of
accused or victim which were wore by
them at the time of the incident, during
writing of the F.I.R.

34. P.W.-9 Dr. Rekha Misra, Acting
Principal
of
Government
Girls
Inter
College has also been examined. She has
proved the date of birth of the victim,
which is 6.5.2000.

35. P.W.-10 Bandana Singh, Deputy
Superintendent
of
Police,
who
was
Investigating Officer of the case has also
been examined. She has stated that she took
the clothes of the victim but with regard to
the clothes of the victim or accused there is
no FSL report on record. She has also
corroborated in her cross-examination that
in the medical report of the victim dated
9.9.2015 victim has not stated the name of
the accused Ajit Singh Sipahi with regard
to commissioning of offence of rape.
Victim has also not disclosed the name of
any one who has gagged her mouth from
behind. She has also admitted that in both
the medical reports there is no definite
opinion about sexual assault upon the
victim. She has also admitted that she has
not prepared the memo of clothes which
has been taken by her from the victim.

36. Apart from that statement of
accused Ajit Singh Sipahi has been
recorded under Section 313 Cr.P.C. by the
court in which he has alleged that he is
innocent and has not committed any crime
upon the victim. He has reprimanded the
complainant and that is why he has been
falsely implicated in the present case by the
complainant to teach a lesson. This
statement of the accused-appellant finds
support from the perusal of the evidence on
record.
Complainant
Kallu
Kori
is
vexatious litigant.

37. This fact has been admitted by the
informant himself in his statement before
the court that there is case crime no. 447 of
2013, under Section 302 I.P.C., P.S.
Kotwali registered against him and there
are four other litigations pending before the
Court with regard to him and he has also
admitted that he has filed complaint against
one Dhirendra Kumar Jha before Mahila
Ayog,

38. From perusal of admission with
regard to implication of P.W.-2 in various
cases, the possibility of the accused being
falsely implicated cannot be ruled out. The
accused-appellant was otherwise posted in
the Police Station, till recently, where
P.W.-2 had his shop and lived.

39. The law laid down by the Apex
Court in the case of Sham Singh Vs. State
of Haryana reported in 2018 SCC
OnLine SC 1042 can be summarized as
under :

"An accused can be convicted
under section 376 IPC on the basis of sole
testimony of the prosecutrix, if such
testimony is worthy of credence and
inspires confidence and is of sterling
quality then corroboration from other
evidence is not required. But where the
statement of prosecutrix suffers from
material inconsistency, contradiction and
does not inspire confidence, then some
other material may be even short of
988 INDIAN LAW REPORTS ALLAHABAD SERIES
corroboration
from
other
evidence
collected
during
investigation
is
necessary."

40. In the facts of the present case the
solitary testimony from the prosecution
side is of the victim herself but upon a
deeper evaluation of the statement of the
victim recorded under Section 161 and 164
Cr.P.C. and the statement given before the
court below, we find that there is
improvement in the statements of the
victim after her statement was recorded
under Section 161 Cr.P.C. on the same day
i.e. date of incident and such development
or improvement in the statement of the
victim amounts to major improvement,
which
renders
the
testimony
of
P.W.1/victim unreliable.

41. It is settled law that where the
previous statement and the evidence before
the court below are so inconsistent and
irreconcilable with each other than both
cannot co-exist, therefore, it can be said
that the previous statement contradicts the
witness with the evidence given by him/her
before the Court.

42. In the case of State v. Saravanan
reported in (2008) 17 SCC 587 the Apex
Court has opined as follows:

"The
discrepancies
in
the
evidence of eyewitnesses, if found to be not
minor in nature, may be a ground for
disbelieving
and
discrediting
their
evidence. In such circumstances, witnesses
may not inspire confidence and if their
evidence is found to be in conflict and
contradiction with other evidence or with
the statement already recorded, in such a
case it cannot be held that the prosecution
proved its case beyond reasonable doubt."

43. The aforesaid judgment has been
followed by the Apex Court in the case of
Mahendra Pratap Singh Vs. State of U.P.
reported in (2009) 11 SCC 334.

44. Again the Apex Court in the case
of Sunil Kumar Sambhudayal Gupta &
Others vs State Of Maharashtra reported
in (2010) 13 SCC 657 in paragraph nos. 30
to 32 has held as follows:

"30.
While
appreciating
the
evidence, the court has to take into
consideration
whether
the
contradictions/omissions had been of such
magnitude that they may materially affect
the
trial.
Minor
contradictions,
inconsistencies,
embellishments
or
improvements on trivial matters without
effecting the core of the prosecution case
should not be made a ground to reject the
evidence in its entirety. The Trial Court,
after going through the entire evidence,
must form an opinion about the credibility
of the witnesses and the appellate Court in
normal course would not be justified in
reviewing
the
same
again
without
justifiable reasons.

31.
Where
the
omission(s)
amount to a contradiction, creating a
serious doubt about the truthfulness of a
witness and other witness also make
material improvements before the court in
order to make the evidence acceptable, it
cannot be safe to rely upon such evidence.

32. The discrepancies in the
evidence of eye-witnesses, if found to be not
minor in nature, may be a ground for
disbelieving
and
discrediting
their
evidence. In such circumstances, witnesses
may not inspire confidence and if their
evidence is found to be in conflict and
contradiction with other evidence or with
the statement already."
1 All. Ajeet Singh Constable Vs. State of U.P. & Anr.
989

45. From the aforesaid, we are of the
view that the evidence of victim is not
reliable in the facts of the present case.

46. From the medical examination
reports and the statements of the Doctors
i.e. P.W.-4, P.W.-5, P.W.-6 and P.W.-7, it
is apparent that the medical evidence does
not support the prosecution case of rape
upon the victim.

47. The issue of contradictions in the
statement of the victim as well as the issue
that medical evidence does not support the
prosecution case have been well discussed
by the Apex Court in the case of Dola @
Dolagobinda Pradhan & Another Vs.
State of Odisha reported in (2018) 8 SCC
695. In paragraph-

"36. In our considered opinion,
the Trial Court as well as the High Court
have convicted the appellants without
considering the aforementioned factors in
their proper perspective. The testimony of
the victim is full of inconsistencies and
does not find support from any other
evidence
whatsoever.
Moreover,
the
evidence
of
the
informant/victim
is
inconsistent
and
self-destructive
at
different places. It is noticeable that the
medical record and the Doctor's evidence
do not specify whether there were any
signs of forcible sexual intercourse. It
seems that the First Information Report
was lodged with false allegations to extract
revenge from the appellants, who had
uncovered the theft of forest produce by the
informant and her husband. The High
Court has, in our considered opinion,
brushed aside the various inconsistencies
pointed out by us only on the ground that
the victim could not have deposed falsely
before the Court. The High Court has
proceeded on the basis of assumptions,
conjectures and surmises, inasmuch as
such assumptions are not corroborated by
any
reliable
evidence.
The
medical
evidence does not support the case of the
prosecution relating to the offence of
rape."

(Emphasis added)

48. In view of the above discussions
we find that the trial court was not justified
in returning the finding of guilt against the
accused-appellant on the basis of evidence
led by the prosecution. Finding of the court
below that the guilt of the accusedappellant
has
been
proved
beyond
reasonable
doubt
is
thus
rendered
unsustainable. We hold that the prosecution
has failed to prove the guilt of the accusedappellant beyond reasonable doubt.

49. Consequently in the view of the
deliberation
held
above
this
appeal
succeeds and is allowed.

50. The judgment and order of
conviction against the accused-appellant
Ajeet Singh Sipahi dated 12.11.2018,
passed by the Additional Sessions JudgeVIII, Fatehpur in Special Trial No. 110 of
2015 (State vs. Ajeet Singh Constable) is
hereby set aside.

51. The accused appellant- Ajeet
Singh Sipahi/Constable is clearly entitled to
benefit of doubt . He is in jail since 5th
November,
2018
and
has
already
undergone four years and two months of
incarceration, he is entitled to be released
forthwith subject to compliance of Section
437-A Cr.P.C. unless he is wanted in any
other case.

52.