# Akbar v. State of U.P

- **Citation:** (2016) 3 ILRA 221
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-03-01
- **Bench:** B.K. Narayana, Vijay Prakash Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akbar-v-state-of-u-p-43521
- **Pages:** 13

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3 All. Akbar Vs State Of U.P.
221
 learned counsel for the parties, we hold that the prosecution has failed to prove its case
against the appellants beyond all reasonable doubts and in view of the peculiar facts and
circumstances of the cas the appellants are entitled to benefit of doubt.

57. As a result, this appeal succeeds and is allowed. The impugned judgement dated
21.05.2015 and the order dated 26.05.2015 passed by Additional Sessions Judge, Court
No.3, Basti are set aside and in view of the findings recorded hereinabove, Reference No. 05
of 2015 stands rejected. The appellants Surya Pandey @ Kuldeep Pandey and Dharmendra
Pandey who are in jail, stand acquitted of the charges framed against them and shall be
released forthwith, if not wanted in any other case.

58. However, keeping in view the provisions of Section 437-A Cr.P.C., the appellants
Surya Pandey @ Kuldeep Pandey and Dharmendra Pandey are directed to forthwith furnish
personal bonds in the sum of Rs. One lac and two reliable sureites each in the like amount
before the trial court (which shall be effective for a period of six months) to the effect that in
the event of filing of Special Leave Petition against the instant judgement or for grant of
leave, the appellants on receipt of notice thereof shall appear before the Hon'ble Supreme
Court.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.03.2016

BEFORE

THE HON'BLE B.K. NARAYANA, J.
THE HON'BLE VIJAY PRAKASH PATHAK, J.

Criminal Appeal No. - 6473 of 2011

Akbar ...Appellant
Versus
State of U.P. ...Respondent

Counsel for Appellant:
Veer Singh, Dinesh Kumar Tyagi, Irshad Husain, Lav Srivastava

Counsel for the Respondent:
Govt. Advocate

HELD:

1. The prosecution successfully proved beyond reasonable doubt that the accused-appellant Akbar
repeatedly committed forced sexual intercourse with the prosecutrix -his daughter‐in‐law-by
threatening her with dire consequences.
2. Delay in lodging the FIR was satisfactorily explained considering the victim's circumstances, threats,
social background, and absence of access to her family; therefore the delay did not weaken the
prosecution's case.
222 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Medical evidence did not rule out rape, because the examination occurred long after the incidents
and the victim was a mother of two children.
4. The testimony of the prosecutrix (PW2) was found credible, consistent, and trustworthy, with no
material contradictions affecting the core accusations.
5. Defence plea of false implication due to an alleged ₹50,000 loan was unsubstantiated.
6. Conviction under Sections 376 & 506 IPC was upheld.
7. Considering the appellant's age (about 67 years), clean jail conduct, and the fact that the victim
had remarried, the sentence of life imprisonment was reduced to the period already undergone; fines
were reduced to ₹2,000 (Sec. 376 IPC) and ₹500 (Sec. 506 IPC).

Case Law Discussed:

1. Apren Joseph @ Current Kunjukunju v. State of Kerala, AIR 1973 SC 1 - regarding delay in FIR
and possibility of embellishment.
2. Ravinder Kumar v. State of Punjab, AIR 2001 SC 3576 - delay in FIR is not fatal if satisfactorily
explained.
3. Tara Singh v. State of Punjab, AIR 1991 SC 63 - delay cannot be sole ground to discard
prosecution unless fabrication is shown.
4. State of Himachal Pradesh v. Gian Chand, AIR 2001 SC 2075 - principles on delay, credibility, and
when delay becomes fatal.

(Delivered by Hon'ble B.K. Narayana, J.)

1. Heard Sri Manish Tiwari, learned counsel for the appellant, Sri J.K. Upadhyay,
learned A.G.A. and Smt. Manju Thakur brief holder for the State.

2. The appellant Akbar was charged under Sections 376 and 506 I.P.C. for having
committed forcible repeated sexual intercourse with the prosecutrix, his daughter-in-law,
mother of two children in his house in Meet Nagar Amar Colony near Madeena Masjid, P.S.
Loni, district-Ghaziabad about six months before the lodging of the F.I.R. against him by
Rais Uddin, father of the prosecutrix at police station-Loni, district-Ghaziabad on 5.7.2008
at about 10:30 pm. On trial the learned Additional Sessions Judge, Court no. 13, Ghaziabad
found accused guilty and sentenced him by his judgment and order dated 1.11.2011 to
undergo imprisonment for life and a fine of Rs. 40,000/- under Section 376 I.P.C. and 6
years simple imprisonment and fine of Rs. 8,000/- under Section 506 I.P.C. and in case of
default of payment of fine of Rs. 40,000/- and 8,000/- additional imprisonment of 8 months
and 45 days respectively. Both the sentences were directed to run concurrently.

3. The facts of the case are that Rais Uddin, PW1 lodged a written complaint Ext. Ka-1
at police station-Loni, district-Ghaziabad on 5.7.2008 alleging therein that he had got his
daughter married to one Azad son of Akbar, R/o Meet Nagar Amar Colony near Madeena
Masjid, Ghaziabad according to muslim rites and customs about four years before lodging of
the written complaint by him. His daughter had given birth to a male child after two years of
her marriage and another male child was born to her about one month's before the incident.
The maternal aunt of his daughter had gone to the matrimonial home of his daughter about a
week before the lodging of the F.I.R. to meet her for inquiring about her welfare. On
meeting her maternal aunt she broke down and told her that her father-in-law had been
committing forcible sexual intercourse with her repeatedly and when he tried to have sexual
3 All. Akbar Vs State Of U.P.
223
intercourse with her forcibly again about six months before when her second child was
about one month's old she saved herself by imploring her father-in-law to have mercy on her
condition as she had just given birth to a child. The prosecutrix further informed her
maternal aunt that his father-in-law and his other relatives possessed illicit arms and her
father-in-law used to commit rape with her frequently by threatening her with his illicit arms
and by putting her under the fear of killing her father and brother with the help of his
nephew in case she divulged his activities to anyone or refused to succumb to his illegal
demands. The prosecutrix requested her maternal aunt to inform her family members about
her woeful tale and rescue her from the clutches of her father-in-law. It was further stated in
the F.I.R. that neither the prosecutrix nor her one month's old child were being looked after
in her matrimonial home and she along with her two sons had been abandoned in a secluded
room in her matrimonial house to fend for herself and even her husband Azad who was
under the influence of his father and his other family members was not bothered about her
and his children and in case her father valued her life at all he should immediately take steps
for rescuing her from her matrimonial home and if necessary take police help in this regard
as her father-in-law and his other relatives were conspiring to eliminate her. It was also
alleged in the F.I.R. that the informant Rais Uddin was compelled to invoke police help for
securing the freedom of his daughter from the clutches of her father-in-law and his other
relatives who were very dangerous persons were also trying to remarry Azad to someone in
village Khekda. On the basis of the aforesaid written complaint Case Crime no. 981 of 2008
under Sections 376 and 506 I.P.C. was registered against the appellant-Akbar. The chick
FIR Ext.Ka-5 was prepared by Constable Rajnish Kumar (PW5) and recorded in G.D. at
serial number 32 at about 10:30 am. Soon after the registration of the F.I.R. the Investigating
Officer Sub Inspector P.R. Riwala (PW6) geared into action and arrested the accused Akbar
on the same date and recorded the statements of the informant and the victim. He also
inspected the place of incident and prepared the site plan and also recorded the statement of
Smt. Lali (PW3). The victim was sent for medical examination with the lady Homeguard
Saroj to the District Hospital. The victim was medically examined by Dr. Rita Joshi (PW4)
at District Hospital, Ghaziabad on 5.7.2008 at 4 pm and her injury report is on record as Ext.
Ka2. Vaginal smears slides of the victim were dispatched to the Pathology Department for
ascertaining the presence of sperms. According to the report of the slides of her vaginal
smears prepared by Dr. Pramila Gaur on 7.7.2008, Ext. Ka3, no sperms were found in the
victim's vaginal smears. The supplementary report of the victim which was prepared by
PW4, Dr. Rita Joshi after receiving the pathology report of victim's vaginal smears is on
record as Ext. Ka4. The Investigating Officer PW6 after completion of investigation
submitted charge sheet against the appellant-Akbar. Charge was framed against the
appellant under Sections 376 and 506 I.P.C. on 28.01.2010. The accused denied the charge
and claimed trial.

4. The accused appellant-Akbar in his examination under Section 313 Cr.P.C. denied
the prosecution case and stated that informant, Rais Uddin had obtained a loan of Rs.
50,000/- (Rs. fifty thousand) from him for marriages of his two daughters and in order to
avoid repayment of the aforesaid loan instituted the present criminal case against the
appellant which is based upon false allegations. Although the accused did not examine any
defence witness but filed documentary evidence vide list 35Kha, true copy of the application
224 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 12.8.2008 filed by the victim under Section 125 Cr.P.C. against her husband Azad
which was pending before Addl. Chief Judicial Magistrate, Court no. 2, Muzaffar Nagar as
Case no. 34/11 of 2009, under Section 125 Cr.P.C., P.S. Budhana, district-Muzaffafnagar
and true copy of the written statement filed by the victim in Suit No. 595 of 2008 instituted
by her husband Azad in the Court of Additional Civil Judge (JD) Court no. 3, Ghaziabad
vide list 40Kha and the copy of the affidavit of the victim 37Kha filed by her in the same
case, true copy of the complaint dated 18.8.2010 filed by Azad against his wife which was
registered as complaint case no. 7757 of 2008, under Sections 494, 417 and 406 I.P.C., P.S.
Loni, district-Ghaziabad, 38 Kha vide list 40Kha and true copy of the written statement filed
by the victim in Case no. 595 of 2008 instituted by her husband, Azad against her, 41Kha.

5. Sri Manish Tiwari, learned counsel for the appellant has submitted that the
prosecution story spelt out in the F.I.R. does not inspire any confidence as neither any date
nor any place or time of any incident or instance of rape has been given and only bald and
vague allegations have been levelled which are not corroborated by any tangible
circumstance or any reliable evidence. The conviction of the appellant in the present case
which is primarily based on the testimony of the solitary witness the victim herself whose
evidence does not appear to be trustworthy in view of material contradictions, improvements
and omissions in her evidence which does not stand corroborated either by any other witness
or the medical evidence, cannot be sustained. He further submitted that the failure either of
the wife of the accused or his son, the husband of the victim to object to the so called
commission of forcible sexual intercourse by him with the prosecutrix in his home where he
was residing with his entire family appears to be extremely unnatural and contrary to the
normal human conduct. He further submitted that inordinate and unexplained delay in the
lodging of the F.I.R. of the incident, despite it coming in the evidence of PW2 that after she
complained to her husband about his father's conduct, he had left her father's home and
shifted with her to a separate house with the victim where she had lived with him for few
months which must have given several opportunities to the prosecutrix to expose her fatherin-law but she choose to keep mum. The aforesaid omission on her part has rendered the
entire prosecution liable to be rejected in whole sale. The evidence of PW1 and PW3 which
is even otherwise hearsay also does not appear to be trustworthy. The impugned judgment
and order of conviction which is based upon surmises and conjectures is liable to be set
aside. The sentence awarded is extremely harsh and wholly unwarranted.

6. Per contra, Sri G.K. Upadhyay, learned A.G.A. submitted that the prosecution case
stands fully proved by the oral as well as the documentary evidence on record. The reasons
for delay in lodging of the F.I.R. are to be found in the circumstances under which the
heinous offence was committed by her father-in-law with her own daughter-in-law and it
was quite natural for her to keep mum and tolerate the atrocities of her father-in-law before
exposing him at the first opportunity which she got when her maternal aunt whom she could
trust, met her in her matrimonial home, as there is uncontroverted evidence of PW2 on
record proving that no one from her family had met her after her father-in-law had started
forcibly committing sexual intercourse with her and considering the nature of the
relationship between the accused and the victim and heinous offence committed by the
3 All. Akbar Vs State Of U.P.
225
accused which tends to threaten to break the fabric of the institution of family, the sentence
awarded to the appellant can not be said to be excessive or unwarranted

7. Now the only point for determination in this appeal is whether the prosecution has
been able to prove its case beyond reasonable doubt against the appellant?

Analysis of evidence

8. The prosecution in order to prove its case has led oral as well as documentary
evidence. In oral evidence it has examined as many as six witnesses of which three
witnesses are witnesses of fact. PW1, Rais Uddin is the father of the victim and the first
informant of this case, PW2 is the victim, being the solitary eye witness, she is the star
witness of this case and PW3, Lali is the maternal aunt of the victim to whom she had for
the first time disclosed that the accused had been repeatedly raping her. PW4, Dr. Anita
Joshi had examined the victim and prepared her medical report Ext. Ka2 and her
supplementary report Ext. Ka4. PW5 Rajnish Kumar was constable clerk posted at police
station-Loni at the relevant point of time and who had prepared the chick FIR Ext. Ka5 and
had made the necessary entry in the G.D. No. 32. PW6 P.R. Riwala is the Investigating
Officer of this case who prepared and submitted charge sheet against the accused.

9. Apart from the oral evidence, the prosecution had also produced documents which
are available on record and which were duly approved by the witnesses and marked as Ext.
Ka1 to Ka5 :-

(i) Written report Ext. Ka1
(ii) Injury report of victim Ext. Ka2
(iii) Medical report of victim Ext. Ka3
(iv) Supplementary report of the victim Ext. Ka4.
(v) Chik FIR Ext. Ka5
(vi) Charge sheet Ext. Ka7

10. In order to ascertain whether the prosecution has successfully proved its case
beyond all shadows of reasonable doubts or not the court has to examine the following main
issues:-

(i) F.I.R. whether there is an unexplained and inordinate delay in lodging of the
FIR.
(ii) Whether the medical evidence corroborates the prosecution case.
(iii) Credibility of witnesses

11. Now we proceed to test the facts of the present case on the touchstone of the above
mentioned issue.

12. FIR:- The first issue relates to the credibility of the F.I.R. So far as the credibility of
the FIR in this case is concerned, learned counsel for the appellant has questioned its
226 INDIAN LAW REPORTS ALLAHABAD SERIES
reliability on the ground that there was inordinate and unexplained delay of more than six
months in the lodging of the F.I.R. which has rendered the entire prosecution liable to be
rejected in whole sale. The issue whether prosecution case is liable to be thrown out merely
on the ground of delay itself or not has been considered and examined by the Hon'ble
Supreme Court in several decisions, and it will be useful to refer to some of the authorities
on the issue.

13. The Apex Court in the case of Apren Joseph alias Current Kunjukunju and others
Vs. State of Kerala reported in AIR 1973 Supreme Court 1, has observed as hereunder:-

"Delay in lodging the first information report quite often results in embellishment
which is a creature of afterthought. On account of delay, the report not only gets bereft
of the advantage of spontaneity, danger creeps in of the introduction of coloured
version exaggerated account or concocted story as a result of deliberation and
consultation. It is, therefore, essential that the delay in lodging of the first information
report should be satisfactorily explained."

14. Similarly relevant extract of the judgment delivered by Hon'ble Apex Court in the
case of Ravinder Kumar and another Vs. State of Punjab reported in AIR 2001 SC 3576 is
reproduced herein below:-

"The attack on prosecution cases on the ground of delay in lodging FIR has
almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring
feature in most of the criminal cases that there would be some delay in furnishing the
first information to the police. It has to be remembered that law has not fixed any time
for lodging the FIR. Hence a delayed FIR is not illegal. Of course a prompt and
immediate lodging of the FIR is the ideal as that would give the prosecution a twin
advantage. First is that it affords commencement of the investigation without any time
lapse. Second is that it expels the opportunity for any possible concoction of a false
version. Barring these two plus points for a promptly lodged FIR the demerits of the
delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked
that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of
the version incorporated therein.

When there is criticism on the ground that FIR in a case was delayed the court has
to look at the reason why there was such a delay. There can be a variety of genuine
causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for
informing the police of a crime without any lapse of time. This kind of
unconversantness is not too uncommon among urban people also. They might not
immediately think of going to the police station. Another possibility is due to lack of
adequate transport facilities for the informers to reach the police station. The third,
which is a quite common bearing, is that the kith and kin of the deceased might take
some appreciable time to regain a certain level of tranquillity of mind or sedativeness
of temper for moving to the police station for the purpose of furnishing the requisite
information. Yet another cause is, the persons who are supposed to give such
3 All. Akbar Vs State Of U.P.
227
information themselves could be so physically impaired that the police had to reach
them on getting some nebulous information about the incident.

We are not providing an exhausting catalogue of instances which could cause
delay in lodging the FIR. Our effort is to try to point out that the stale demand made in
the criminal courts to treat the FIR vitiated merely on the ground of delay in its
lodgment cannot be approved as a legal corollary. In any case, where there is delay in
making the FIR the court is to look at the causes for it and if such causes are not
attributable to any effort to concoct a version no consequence shall be attached to the
mere delay in lodging the FIR. [Vide Zahoor vs. State of UP (1991 Suppl.(1) SCC 372;
Tara Singh vs. State of Punjab (1991 Suppl.(1) SCC 536); Jamna vs. State of UP (1994
(1) SCC 185). In Tara Singh (Supra) the Court made the following observations:

"It is well settled that the delay in giving the FIR by itself cannot be a ground to
doubt the prosecution case. Knowing the Indian conditions as they are we cannot
expect these villagers to rush to the police station immediately after the occurrence.
Human nature as it is, the kith and kin who have witnessed the occurrence cannot be
expected to act mechanically with all the promptitude in giving the report to the police.
At times being grief-stricken because of the calamity it may not immediately occur to
them that they should give a report. After all it is but natural in these circumstances for
them to take some time to go to the police station for giving the report."

15. The Apex Court in Tara Singh and others Vs. State of Punjab, reported in AIR
1991 SC 63, the Apex Court in paragraph 4 of its judgment has observed as hereunder:-

"4. It is well-settled that the delay in giving the FIR by itself cannot be a ground to
doubt the prosecution case. Knowing the Indian conditions as they are we cannot
expect these villagers to rush to the police station immediately after the occurrence.
Human nature as it is, the kith and kin who have witnessed the occurrence cannot be
expected to act mechanically with all the promptitude in giving the report to the police.
At times being grief-stricken because of the calamity it may not immediately occur to
them that they should give a report. After all it is but natural in these circumstances for
them to take some time to go to the police station for giving the" report. Of course the
Supreme Court as well as the High Courts have pointed out that in cases arising out of
acute factions there is a tendency to implicate persons belonging to the opposite faction
falsely. In order to avert the danger of convicting such innocent persons the courts are
cautioned to scrutinise the evidence of such interested witnesses with greater care and
caution and separate grain from the chaff after subjecting the evidence to a closer
scrutiny and in doing so the contents of the FIR also will have to be scrutinised
carefully. However, unless there are indications of fabrication, the court cannot reject
the prosecution version as given in the FIR and later substantiated by the evidence
merely on the ground of delay. These are all matters for appreciation and much
depends on the facts and circumstances of each case. In the instant case there are three
eye-witnesses. They have consistently deposed that the two appellants inflicted injuries
on the neck with kirpans. The medical evidence amply supports the same. In these
228 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances we are unable to agree with the learned Counsel that the entire case
should be thrown out on the mere ground there was some delay in the FIR reaching the
local Magistrate. In the report given by P.W.2 to the police all the necessary details are
mentioned. It is particularly mentioned that these two appellants inflicted injuries with
kirpans on the neck of the deceased. This report according to the prosecution, was
given at about 8.45 P.M. and on the basis of the report the Investigating Officer
prepared copies of the FIR and despatched the same to all the concerned officers
including the local Magistrate who received the same at about 2.45 A.M. Therefore we
are unable to say that there was inordinate and unexplained delay. There is no ground
to doubt the presence of the eye-witnesses at the scene of occurrence. We have perused
their evidence and they have withstood the cross- examination. There are no material
contradictions or omissions which in any manner throw a doubt on their varasity. The
High Court by way of an abundant caution gave the benefit of doubt to the other three
accused since the allegation against them is an omnibus one. Though we are unable to
fully agree with this finding but since there is no appeal against their acquittal we need
not further proceed to consider the legality or propriety of the findings of the High
Court in acquitting them. So far as the appellants are concerned, the evidence against
them is cogent and convincing and specific over tacts arc attributed to them as
mentioned above. Therefore we see absolutely no grounds to interfere. The appeal is,
therefore, dismissed."

16. In State of Himanchal Pradesh Vs. Gian Chand reported in AIR 2001(1) SC
2075, the Apex Court reiterated as herein under :-

"Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the
prosecution case and discarding the same solely on the ground of delay in lodging the
first information report. Delay has the effect of putting the Court in its guard to search
if any explanation has been offered for the delay, and if offered, whether it is
satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there
is possibility of embellishment in prosecution version on account of such delay, the
delay would be fatal to the prosecution. However, if the delay is explained to the
satisfaction of the court, the delay cannot by itself be a ground for disbelieving and
discarding the entire prosecution case."

17. Thus the legal position which emerges after going through the catena of judgments
referred to herein above is that it is settled principle of criminal jurisprudence that mere
delay in lodging the FIR may not prove fatal in all cases, but in the given circumstances of
the case delay in lodging the FIR can be one of the factors which may corrode the credibility
of the prosecution version but delay in lodging the FIR cannot be a ground itself for
throwing away the entire prosecution version as given in the FIR and later substantiated by
the evidence, unless there are indications of fabrication. The Court has further to seek
explanation for delay and check the truthfulness of the version to inquire and if the court is
satisfied then the case of prosecution cannot fall on this ground alone.
3 All. Akbar Vs State Of U.P.
229
18. In the instant case the F.I.R. of the incident was lodged on 5.7.2008 by the victim's
father, Rais Uddin alleging there that accused-Akbar who was the father-in-law of the victim
had been repeatedly committing sexual intercourse with her forcibly since more than six
months from the date of the lodging of the first information report in his residence at Meet
Nagar Amar Colony, Ghaziabad. Thus in order to ascertain whether the prosecution has
come up with any satisfactory explanation for the delay in lodging the F.I.R. it would be
useful to look into the evidence of PW1, PW2 and PW3.

19. PW1, Rais Uddin, informant in his examination in chief has categorically stated
that he had gone to meet his daughter about 9-10 months before the date on which his
statement was recorded during the trial and then his daughter had not made any complaint
and thereafter he did not meet her as he had gone to Maharashtra for earning his livelihood
after 4-5 days of his meeting with his daughter and he had returned from Maharashtra about
10-15 days before the date on which he had learnt about the whole episode.

20. He had further stated in his evidence that when his sister-in-law (Sali) Lali had
gone to meet his daughter in her matrimonial home about 8-10 days before the lodging of
the F.I.R. his daughter had narrated the entire incident to her and Lali had told him about his
daughter's plight about a week after returning from her daughter's matrimonial home.

21. PW2, victim in her evidence tendered during the trial has stated that when her
maternal aunt, Lali had visited her matrimonial home about ten days before the lodging of
the FIR she had told her that her father-in-law, Akbar had been repeatedly having sexual
intercourse with her forcibly and had requested her aunt to narrate her plight to her father
and after her aunt had informed her father about the occurrence he had come to her house on
the date 5th of 2008 (she did not remember the month), and it was then she had narrated her
story to her father for the first time, whereupon her father had taken her away from her
matrimonial home and lodged the F.I.R.

22. It has come in the evidence of victim PW2 that no one from her parental home had
come to meet her after her father-in-law had started having forcible sexual intercourse with
her after about three years of her marriage. She has also stated in her evidence that she did
not tell anyone about her plight as she was being constantly threatened by the accused that in
case she told anyone about the activities of the accused he would kill his father and brother.
The victim had told her husband Azad about his father's conduct but even he did not take
any steps for protecting her although he had left his father's house and lived separately from
his parents for a short period but had returned back to his father's house. The victim narrated
her woeful tale to the first person of her family, her maternal aunt PW3, whom she met after
the accused had started abusing the victim sexually. She was perhaps conscious of the fact
so that if she made a complaint either to her neighbors or the relatives of his husband no one
would believe her and she herself would have been defamed.

23. Similarly PW3, Lali also stated in her evidence that she had gone to meet the victim
about three years before from the date of recording of her statement and on meeting her the
victim had disclosed the activities of her father-in-law to her. She further stated in her
230 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence that she had not informed Rais Uddin, PW1, father of the victim about the incident
immediately after meeting her as he was in Maharashtra and when he returned from
Maharashtra after about 15-20 days she had informed him about the incident. She also stated
that she had neither written any letter to Rais Uddin or informed him telephonically about
the incidents which had happened with the victim as he was expected to return from
Maharashtra soon for attending the marriage of her sister's son and when she had met Rais
Uddin during the marriage in Dhanaura, she had informed him about the plight of the
victim. They had returned from Dhanaura after two days and thereafter Rais Uddin has
given a hand written complaint to the concerned police station.

24. Thus, from the relevant extracts of the statement of PW1, PW2 and PW3, it
transpires that although there was some delay in lodging the F.I.R. but the same cannot be
attributed to the informant or can be said to be deliberate with the object of fabricating the
accused in view of the social background and the illiteracy of the victim, her father and her
sister-in-law. The delay in lodging the F.I.R. in our opinion has been satisfactory explained
by PW1 and PW2.

25. Now coming to the second issue whether the prosecution case stands corroborated
from the medical evidence on record or not, we find from the perusal of the injury report,
medical report, supplementary report of the victim Ext. Ka2, Ka3 and K4 respectively as
well as from the evidence of PW4 Dr. Anita Joshi that the allegation of rape does not stands
substantiated but the same in our opinion will not discredit the prosecution case in view of
the admitted factual position that the incidents of rape had taken place long before the date
on which the victim was medically examined and that apart she was a mother of two
children and habitual to sexual intercourse. So far as the quality of evidence and the
credibility of witnesses in the present case is concerned we have noticed earlier that the
prosecution had produced only three eye witnesses of fact in this case out of whom only
one, the victim, PW2 is the eye witness.

26. There is no doubt according to settled legal position it's the quality and not the
quantity which matters and conviction can be based on the sole testimony of a witness, if it
finds corroboration with the other evidence available on record and inspires confidence. It is
also well settled that minor discrepancies occurring in the statements of a witness can be
ignored. Thus, in order to ascertain whether the conviction of the appellant can be sustained
on the evidence of the solitary eye witness, PW2, the victim herself and whether the same
inspires confidence or not it would be useful to extract herein below the relevant portions of
her statement recorded during the trial :-

"श० पूर्वक बयान ककया कक मैं पढ़ी किख़ी नहीं ह ूँ। केर्ि अपना नाम किखना जानत़ी ह ूँ। मेऱी शाद़ी आज कऱीब 7 र्र्व पूर्व
आजाद पुत्र अकबर कन० म़ीत नगर अमर कािोऩी कनकट मद़ीना मकजजद िौऩी गा० बाद के साथ मुसकिम ररकत ररर्ाज के अनुसार हुई थ़ी
शाद़ी के दो साि बाद मेरे िड़का पैदा हुआ। उसके पहिे साि बाद एक िड़का हुआ था। उसके बाद मेरे साथ घट़ी घटना के समय मेरा
दूसरे नम्बर का िड़का कऱीब एक माह का था उससे भ़ी पूर्व अकबर मुिकजम मेरे साथ 6-7 मह़ीने से पहिे से मेऱी कबना मजी के मेरे
साथ बिात्कार करता रहा। मैंने जब मेरा िड़का एक माह का था तब मैंने अकबर से कहा मैं अभ़ी जच्चा ह ूँ मैंने अपने साथ पूर्व के
अकबर द्वारा बिात्कार करने पर कर्रोध करत़ी थ़ी तो अकबर ने इकथयार कदखाकर घमकी द़ी कक यकद तूने कोई की तो तुझे तेरे बच्चे, माई
3 All. Akbar Vs State Of U.P.
231
र् माूँ बाप को जान से मार दूूंगा। और यह म़ी धमकी द़ी कक मेरा मत़ीजा डासना जेि में बन्द है। यह छूटने र्ािा है उससे जान से भरर्ा
दूूंगा।

XX "जब मेरे पहिे पकत आजाद को इस बात का पता चिा तो उसने कहा कक तू मेरे िायक नहीं रह़ी। तिाक दे कदया। पहि़ी
बार जब उसने मुझे तिाक कदया तब मैं अजेि़ी थ़ी दूबारा जब तिाक कदया तब मेऱी खािा िाि़ी मौजूद थ़ी। जब मैंने अपऩी खािा को
साऱी बातें बताई तब जाजाद ने जपऩी दुकान पर बैठकर मुझे तिाक कदया था। दुकान पर उस समय में नह़ी थ़ी। मेऱी खािा थ़ी। मेऱी खािा
र्हीं से चि़ी गई। िॉटकर मेरे पास नहीं आई। मेऱी खािा ने साऱी बात मेरे अब्बा (कपता) को बताई। जब अब्या मेरे पास आये थे तब
उन्होंने बताया था कक आजाद ने खािा के सामने दुकान में तुझे तिाक दे कदया है। पहि़ी बार मेरे अव्या जब मेरे यहाूँ आये थे तब पुकिस
के साथ नह़ी आये थे। किर कहा अजेिे नह़ी आये थे पुकिस के साथ ह़ी आये थे।

मैंने दरोगा ज़ी को बताया था कक आजाद ने पहिे मुझे अकेिे तिाक कदया था किर उसके बाद युज्ञान पर मेऱी खािा िाि़ी के
सामने कदया था। मेरे ब्यानों में दरोगा ज़ी ने नह़ी किखा तो में इसकी कोई र्जह नहीं बता सकता। मैंने मुजि ्‌िर नगर में अपना र् अपने
बच्चों के किये खचे का दार्ा ककया था। मैंने अपने खचव के दार्े में आजाद द्वारा तिाक कदये जाने की बात नह़ी किखाई थ़ी। मुजि ्‌िर
नगर अदाित में खचे र्ािे मुकदमें में मेरा ब्यान हुना था। उस मुकदमें के ध्यान में मैंने आजाद द्वारा तिाक देने की बात नहीं बताई। मुझे
नह़ी मािूम कक जाजाद ने उस मुकदमें के अदाित में खचाव जमा कर रहा है या नहीं।

मैंने तिाक देने र्ाि़ी बात मुजि ्‌िर नगर की अदाित में 125 स़ीआरप़ीस़ी के मुकदमें के र् बयानों में क्यों नहीं बताई इसकी
कोई र्जह नहीं बता सकत़ी। यह कहना गित है कक खचव पहिे मुकदमें में अपने पकत द्वारा तिाक देने र्ाि़ी बात इसकिए नहीं बताई हो।
क्योंकक तब तक मेरे पकत ने मुझे तिाक ना कदया हो। मुिकजम द्वारा मेरे साथ बिात्कार करना शुरू करने के कऱीब 2 2-2.1/2 मह़ीने के
याद मैंने यह बात अपने पकत को बताई थ़ी। इस 2 2-2.1/2 मह़ीने में आजाद मेरे पास आता जाता रहता था। मैने 2.2-2.1/2 मह़ीने
तक यह बात आजाद से छुपाई रख़ी।

27. Thus on a close scrutiny of the statement of PW2 produced by the prosecution in
this case, we do not find any serious inconsistencies, discrepancies, omissions,
improvements and contradictions which can be said to effect the core of the prosecution case
or raise doubts about its truthfulness and resultantly making the prosecution case unreliable
and unworthy of credit.

28. The only discrepancy which is found in the evidence of the victim PW2 is that
although in her evidence tendered during the trial she had stated that her husband, Azad had
divorced her before lodging of the F.I.R. but the aforesaid fact does not find mention in the
F.I.R. In our opinion the aforesaid discrepancy is not so material as to discredit the evidence
of PW2 because the primary question involved for determination in this case is that whether
the prosecution has been able to prove by cogent evidence that the accused Akbar had
repeatedly committed sexual intercourse with the victim forcibly or not and the aforesaid
fact in our opinion has been fully established from the evidence of PW2 and mere failure of
the informant to state in the F.I.R. that Azad, husband of the victim had divorced her even
before the lodging of the F.I.R, in our opinion does not effect the credibility of the
prosecution case at all.

29. In the present case the victim PW2 is admittedly an illiterate girl. The incidents of
rape in this case had taken place within four corners of the maternal home of the victim and
her father-in-law was the culprit.
232 INDIAN LAW REPORTS ALLAHABAD SERIES
30. The father of the victim was living in Maharashtra for earning his livelihood and
her elder brother was living in Jharkhand and no one from her family had met her after her
father-in-law had started having sexual intercourse with her forcibly till the day on which
her maternal aunt had come to meet her and then she had promptly narrated her unfortunate
story to her. Even her husband, Azad had failed to respond sympathetically when she had
complained to him about his father's conduct and on the contrary he had called her impure
and not fit for him although after the victim had told him about his father's activity he had
shifted with her to a separate house and lived there for a short period but had soon returned
back to his father's house. Under the circumstances and also considering the background of
the victim and her family members no adverse inference can be drawn against the
prosecution for some delay in lodging the F.I.R. or on the ground of their being some
discrepancies in the evidence of PW1 and PW3 with regard to the time lapse between the
information of the occurrence given by the victim to PW3 and communication thereof by
PW3 to PW1 and the lodging of the F.I.R. The defence has not been able to come up with
any plausible explanation for the alleged false implication of the accused at the behest of the
victim and her father. The explanation given by the defence that the informant, Rais Uddin
had instituted the criminal case in question against the accused-appellant, Akbar with a view
to avoid the repayment of loan or Rs. 50,000/- which he had obtained from the accused for
performing the marriages of his two daughters does not stand corroborated by any material
on record. In view of the forgoing discussion, we have no hesitation in holding that the
prosecution had successfully proved its case against the appellant beyond all reasonable
doubts and the trial court has not committed any error in convicting the accused-appellant.

31. Now coming to the question whether the sentence awarded to the appellant by the
trial court is unduly harsh, learned counsel for the appellant has submitted that the trial court
has awarded maximum sentence prescribed for conviction under Section 376 I.P.C. although
considering the age of the accused-appellant and the admitted fact that the victim has
solemnized second marriage, a lessor punishment could have been awarded and since the
appellant who is presently in jail and has already undergone imprisonment of more than five
years, the sentence awarded may be modified to the sentence already undergone by him or
reduced to the minimum punishment prescribed under Section 376 I.P.C.

32. Per contra, learned A.G.A. Submitted that considering the nature of the offence, the
manner in which it was committed and the relationship between the accused and the victim
the sentence awarded by the court below does not warrant any interference by this Court.

33. Section 376 (1) of the Indian Penal Code along with his proviso is being reproduced
herein below:-