# Aslam & Anr v. State of U.P. Opp. Party

- **Citation:** (2023) 1 ILRA 1050
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-17
- **Case number:** Crl. Appeal No. 6929 of 2017
- **Bench:** Mayank Kumar Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aslam-anr-v-state-of-u-p-opp-party-49565
- **Pages:** 13

## Headnote

Criminal Law- Indian Penal Code, 1860-
Sections 313 & 452 - Section 366- Section
376 D- The entire evidence adduced by
PW-1 Victim with regard to the occurrence
is full of contradictions and is not reliable
because firstly no documentary evidence
is available on record concerning the
alleged miscarriage. Acquaintance with
the accused Aslam indicates that there
was no occasion for the appellants to
commit house-trespass and abduction of
the victim on 12.06.2014, when both the
witnesses admitted that Aslam, the victim
and the mother of the victim, all were well
acquainted with each other.The medical
report also does not corroborate the
factum of rape with the prosecutrix-The
evidence of PW-1, the victim does not
inspire confidence since it is full of
material contradictions and ignorance
relating to material facts with regard to
the incident of forceful miscarriage caused
by the appellants/accused as well the
incident of abduction and gang rape
alleged to have happened on 12.06.2014.
PW-1 the victim does not appear to be a
sterling
witness
since
her
evidence
conclusively does not corroborate the
story of the prosecution.

Where the testimony of the prosecutrix has
material contradictions and is uncorroborated by
either the medical or any other evidence, then
the same cannot be relied upon for the
1 All. Aslam & Anr. Vs. State of U.P.
1051
purposes of securing the conviction of the
appellant. (Para 23, 27, 34, 48)

Criminal Appeal allowed. (E-3)

Case Law/ Judgements relied upon:-

## Text

_Characters 0–39,988 of 43,531. This is a partial read: ask again with offset=39988 for what follows._

1050 INDIAN LAW REPORTS ALLAHABAD SERIES
punishment keeping in view the 'doctrine of
proportionality'. It appears from perusal of
impugned judgment that sentence awarded
by learned trial court for life term is very
harsh keeping in view the entirety of facts
and circumstances of the case and gravity
of offence. Hon'ble Apex Court, as
discussed above, has held that undue
harshness should be avoided taking into
account
the
reformative
approach
underlying in criminal justice system.

25. As the accused has already
served the sentence of 10 years and 7
months with remission as per jail report
and also he would have lost his job
because he was a police constable, we
deem it proper to award the punishment of
sentence
already
undergone
by
the
appellant.

26. The conviction of appellant u/s
302 IPC is converted into Section 304
(Part I) IPC and appellant is sentenced for
the period already undergone by him with
the fine of Rs.5,000/-. The appellant shall
undergo
three
months
simple
imprisonment in case of default of fine.
Conviction and sentence for the offence
u/s 323 of IPC has already been undergone
by the appellant. Fine for the offence u/s
323 IPC and default sentence in the same
shall remain intact.

27. Accordingly, the appeal is partly
allowed with the modification of the
sentence, as above.

28. Record and proceedings be sent
back to the court below for compliance.
----------
(2023) 1 ILRA 1050
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.01.2023

BEFORE

THE HON'BLE MAYANK KUMAR JAIN, J.

Crl. Appeal No. 6929 of 2017

Aslam & Anr. ...Appellants
Versus
State of U.P. ...Opp. Party

Counsel for the Appellants:
Sri V.P. Singh Kashyap, Sri Durvesh Kumar, Sri
Manish Kumar Kashyap, Sri Sanjay Singh

Counsel for the Opp. Party:
G.A.

Criminal Law- Indian Penal Code, 1860-
Sections 313 & 452 - Section 366- Section
376 D- The entire evidence adduced by
PW-1 Victim with regard to the occurrence
is full of contradictions and is not reliable
because firstly no documentary evidence
is available on record concerning the
alleged miscarriage. Acquaintance with
the accused Aslam indicates that there
was no occasion for the appellants to
commit house-trespass and abduction of
the victim on 12.06.2014, when both the
witnesses admitted that Aslam, the victim
and the mother of the victim, all were well
acquainted with each other.The medical
report also does not corroborate the
factum of rape with the prosecutrix-The
evidence of PW-1, the victim does not
inspire confidence since it is full of
material contradictions and ignorance
relating to material facts with regard to
the incident of forceful miscarriage caused
by the appellants/accused as well the
incident of abduction and gang rape
alleged to have happened on 12.06.2014.
PW-1 the victim does not appear to be a
sterling
witness
since
her
evidence
conclusively does not corroborate the
story of the prosecution.

Where the testimony of the prosecutrix has
material contradictions and is uncorroborated by
either the medical or any other evidence, then
the same cannot be relied upon for the
1 All. Aslam & Anr. Vs. State of U.P.
1051
purposes of securing the conviction of the
appellant. (Para 23, 27, 34, 48)

Criminal Appeal allowed. (E-3)

Case Law/ Judgements relied upon:-

1. Rai Sandeep Vs St., (NCT of Delhi) (2012) 8
SCC 21

2. Hemraj Vs St. of Har., 2014 (2) SCC 395

3. Sadashiv Ramrao Hadbe Vs St. of Maha.,
(2006) 10 SCC 92

4. Krishnegowda Vs St. of Kar., (2017) 13 SCC
98
(Delivered by Hon'ble Mayank Kumar
Jain, J.)

1. Challenge in this appeal is to the
judgment and order dated 26.10.2017
passed by the learned Additional Sessions
Judge/ Fast Track Court No. 1, Rampur in
Sessions Trial No. 533 of 2014 arising out
of Case Crime No. 187-C of 2014, under
section 452, 366, 376-D, 314 IPC, police
station Patwai, district Rampur whereby the
accused-appellant no. 1 Aslam had been
convicted and sentenced to three years
rigorous imprisonment and a fine of Rs.
2000/- under section 452 IPC, five years
rigorous imprisonment and a fine of Rs.
5000/- under section 366 IPC, ten years
rigorous imprisonment and a fine of Rs.
5000/- under section 313 IPC and seven
years rigorous imprisonment and a fine of
Rs. 5000/- under section 376 IPC with
default stipulation. The accused-appellant
No. 2 Rafiq had been convicted and
sentenced
to
three
years
rigorous
imprisonment and a fine of Rs. 2000/-
under section 452 IPC, five years rigorous
imprisonment and a fine of Rs. 5000/-
under section 366 IPC, ten years rigorous
imprisonment and a fine of Rs. 5000/-
under section 313 IPC with default
stipulation. It was also directed that out of
the fine amount so deposited by the
accused-appellants, half of the amount shall
be
given
to
the
victim
after
due
verification. All the sentences were directed
to be run concurrently.

2. Facts of the prosecution case are that the
victim, Ms. ''X', moved an application
under section 156(3) Cr.P.C. before the
court concerned mentioning therein that
earlier on 09.04.2014 Aslam, her neighbour
along with Hanif and Kalua enticed her and
took her away. Regarding this incident,
victim's mother lodged a case Crime No.
120 of 2014, under sections 363, 366 IPC.
The
accused
Aslam
made
physical
relationship with the victim on the pretext
of getting married to her. Thereafter, the
victim became pregnant for three months.
The accused Aslam after pressurizing the
victim and her mother got the victim's
statement recorded under section 164
Cr.P.C. in his favour. On 05.06.2014,
accused Rafiq, who is the brother-in-law of
Aslam came to the house of the victim and
asked her to accompany him to Milak
Tiraha on the pretext that her marriage
would be solemnized with Aslam at Milak.
Believing
this
information,
she
accompanied Rafiq. On their way, Aslam
also joined them and both of them took the
victim instead to a private hospital and got
her pregnancy terminated. Under the
influence of the injection, pregnancy of the
victim was aborted. Thereafter, both of the
accused dropped the victim at her house.
When the mother of the victim returned
home, the victim narrated the incident to
her. Her mother made a complaint to victim
as to why the pregnancy of her daughter
was terminated by him and that she would
lodge a report against him to the police. On
this, Aslam and Rafiq assured her that
1052 INDIAN LAW REPORTS ALLAHABAD SERIES
Aslam would marry the victim. On the
night of 12.06.2014 at around 10.00 p.m.,
Aslam and Rafiq jumped the wall and came
inside the house of the victim and abducted
her showing ''Tamancha'. Both of them
committed her rape. On raising an alarm,
witnesses Islam, Ramzani, and other persons
came there and witnessed the incident. The
victim on same night went to the police
station to lodge the first information report,
but it was not registered, nor she was
medically examined. Thereafter, she moved
an application to S.P. Rampur on 13.06.2014,
but no action was taken in the matter.
Thereafter an application was moved under
section 156(3)Cr.P.C.before the Court. On the
basis of the orders of the Court passed on the
aforesaid application, the first information
report as Case Crime No. 187-C of 2014,
under sections 452, 366, 376-D and 314 IPC
was registered. The investigation was set to
motion and the investigation was entrusted to
Sub Inspector B.S. Bakshish.

3. The Investigating Officer after
completing
the
preliminary
formalities
recorded the evidence of the witnesses and
the statement of the victim was recorded
under section 161 Cr.P.C. She was medically
examined. The site plan of the place of
occurrence was prepared and after the
conclusion of the investigation, a charge sheet
came to be filed against Appellants/accused
under sections 452, 366, 376-D and 314 IPC.

4. After the committal of the case, it
was registered as Sessions Trial No. 533 of
2014. Charges were framed against accused
Aslam and Rafiq under sections 452, 366,
376-D and 314 IPC. The appellants denied
the charges and claimed to be tried.

5. In order to prove its case, the
prosecution produced PW-1, the victim,
PW-2 Smt. Zaitoon (mother of the victim),
PW-3 Islam and PW-4 Ramzani, (the eye
witnesses, named in the FIR), PW-5 Dr.
Amita Sharma and PW-6 Sub Inspector
Mukesh Singh (the second Investigating
Officer).

6. After the close of the prosecution
evidence, statements of the accused were
recorded under section 313 Cr.P.C., in
which they denied the occurrence and their
involvement in the crime. They further
stated that witnesses have deposed falsely
against them and they are innocent and they
were implicated due to village enmity.

7. No evidence was produced on
behalf of the accused appellants in their
defence.

8. The learned lower court after
vetting the evidence and hearing the
counsel for the parties, convicted and
sentenced the accused as mentioned above.

9. Feeling aggrieved the appellants
have preferred the present criminal appeal.

10. I have heard Shri Durvesh Kumar,
learned counsel for the appellant, learned
Additional Government Advocate for the
State-respondent and perused the record. I
have re-appriciated the entire evidence
available on record.

10. It is submitted by the learned counsel
for the appellants that the trial court did not
appreciate the evidence available on record
in a rightful manner. The victim was the
consenting party with the accused-appellant
Aslam. No place has been mentioned either
in the first information report or in the
statement of the victim and her mother as
to where or in which hospital the abortion
of the victim was carried out. No medical
evidence
is
available
on
record
to
1 All. Aslam & Anr. Vs. State of U.P.
1053
corroborate the fact that the victim was
having a pregnancy of three months and it
was terminated by the appellants under the
impression of intoxication. It is also
submitted that before the incident, the first
information report was lodged against two
other persons by the mother of the victim,
and the case was withdrawn by the victim
since she was the consenting party with the
appellant Aslam. It is further submitted that
the trial court arrived at the rightful
conclusion that the accused-appellant Rafiq
did not rape the victim. So far as the
involvement of the appellant Aslam is
concerned, the victim had herself admitted
in her evidence that both of them were in
love with each other and several times she
went with the appellant Aslam, therefore
the evidence of the victim belied the
prosecution version about the allegation
that the appellant Aslam raped the victim. It
is further submitted that the occurrence
dated 12.06.2014 is also not believable for
the reason that on one hand, the victim
alleged that the appellants aborted her
foetus on 05.06.2014 while on 12.06.2014
i.e. after one week, she was raped by the
appellants. The appellant Rafiq does not
live with the appellant Aslam, therefore he
has been falsely implicated merely due to
him being the brother-in-law of Aslam.
Since the prosecutrix is a consenting party,
no offence is made out under sections 366
and 376 IPC. The medical report does not
corroborate the version of the prosecution
about rape with the victim. Likewise, there
is no evidence available on record which
may indicate that accused appellants
forcibly caused the miscarriage of the
victim. The alleged witnesses Islam and
Ramzani are not eye-witnesses of the
incident since on perusal of their evidence,
it reflects that the incident was narrated to
them by the victim, therefore their evidence
cannot be relied upon. It is further added
that there are material contradictions in the
evidence of prosecutrix and her mother
against the prosecution story therefore their
evidence can not be relied upon. The appeal
is liable to be allowed and appellants
deserves to be acquitted.

11. Per contra, the learned Additional
Government Advocate argued that since the
medical examination of the victim took
place 1-1/2 months after the alleged
incident, therefore, there was no possibility
of any kind of observation with regard to
pregnancy or its termination. The witnesses
have corroborated the prosecution version.
The appellant Aslam took away the victim
with him and induced her that he will
marry her and made physical relations,
therefore, it cannot be said that the victim
was a consenting party. On raising an
alarm, independent witnesses reached the
spot and they corroborated the fact
committed by the appellants. The victim
had also given her statement before the
doctor about the role of the appellants in
the commission of the crime.

13. PW-1, the victim in her
examination-in-chief stated that she knew
accused appellants Aslam and Rafiq. Aslam
is her neighbour and Rafiq is his brother-inlaw of Aslam and she and Aslam were in
love with each other. Aslam used to say that
he will perform nikah with her and on this
promise he made a physical relationship
with her, and she became pregnant for three
months. On 12.06.2014 when she was
sleeping in her house, Aslam and Rafiq
entered her house after jumping through the
wall and took her to the house of Aslam
pointing the pistol at her. They committed
rape repeatedly. On raising alarm, Islam
and Ramzani came there and on seeing
them, Aslam ran away from the place of
occurrence. The victim has proved the
1054 INDIAN LAW REPORTS ALLAHABAD SERIES
application moved by her as Exhibit Ka-1
and affidavit given by her as Exhibit Ka-2
and the statement recorded under section
164 Cr.P.C. as Exhibit Ka-3.

14. PW-2 Smt. Zaitoon, who is the
mother of the victim stated in her
examination-in-chief that on the date of
occurrence at about 10.00 p.m. Aslam and
Rafiq entered her house and pointing a
pistol, they took away her daughter and
committed rape upon her. Ramzani and
Islam and other persons came there and
rescued her daughter. The report was not
registered by the police.

15. PW-3 Islam Nabi has stated in his
examination-in-chief that he knows the
victim, who is his neighbour. He also
knows Aslam and Rafiq. On 12.06.2014 at
10.00 p.m. when he was at his house, he
heard the noise from the house of Nabi
Khan. He along with Ramzani and other
persons reached there and saw that the
victim was in the house of Aslam in a
naked position. He saw the incident in the
light of Dibia. The victim narrated the
whole
story
that Aslam
and
Rafiq
committed rape upon her.

16. PW-4, Ramzani stated that on the
date of occurrence at around 10.00 p.m. he
heard the noise and reached the house of
Mukim, the father of Aslam, and found that
the victim was crying. They saw the
incident in the light of a Lamp. No other
person was present there with the victim.
On asking, the victim narrated that Aslam
and Rafiq committed rape upon her and
took her at the spot on the point of a pistol.

17. PW-5 Dr. Amita Sharma stated in
her examination-in-chief that she medically
examined the victim. As per the medical
examination report, the victim was over
eighteen years. No positive evidence about
sexual assault was present. No spermatozoa
was seen in supplied smear slide.

18. PW-6 Sub-Inspector Mukesh
Singh, the second Investigating Officer of
the case, stated that on the basis of
evidence collected during the investigation,
he submitted the charge sheet under
sections 452, 363, 376-D and 314 IPC
against the appellants Rafiq and Aslam.
The charge sheet is proved by him as
Exhibit Ka-6.b This witness proved the
document
exhibited
by
the
previous
Investigating Officer S.I. B.S. Bakshish,
such as the site plan as Exhibit Ka-7, the
statement of witnesses recorded by the
earlier
Investigating
Officer
and
the
statement of the victim recorded under
section 164 Cr.P.C. The chik report has
been proved as Exhibit Ka-8 and its entry
in the Rapat 33, at 7.35 p.m. by Constable
Poonam Rani as Exhibit Ka-9.

19. As per the prosecution version in
the present case, the prosecution has
mentioned two occurrences in the first
information report. The first incident is
alleged to have taken place on 05.06.2014
wherein it is alleged that the appellant
accused Rafiq on the pretext of marriage
with the other appellant-accused Aslam
lured the victim and took her away on his
motorcycle. On way to Milak accusedappellant Aslam met them and both of them
under the impression of intoxication caused
forceful abortion by injecting drugs. The
second incident is alleged to have taken
place on 12.06.2014 wherein it is alleged
that on that day around 10:00 pm appellants
Aslam and Rafiq jumped over the wall and
came to the house of the victim, abducted
her at the gunpoint against her will, and
both of them raped her at gunpoint one
after the other.
1 All. Aslam & Anr. Vs. State of U.P.
1055

20. Under the aforesaid set of facts, it
is required to be determined as to whether
on 05.06.2014 accused appellants caused
the miscarriage of the victim and whether
on 12.06.2014 accused-appellant trespassed
the house of the victim and abducted her to
the house of Aslam and both of the
appellants raped her.

21. Section 313 IPC reads thus:

"313. Causing miscarriage without
woman's consent.--Whoever commits the
offence defined in the last preceding
section without the consent of the woman,
whether the woman is quick with child or
not,
shall
be
punished
with
348[imprisonment
for
life],
or
with
imprisonment of either description for a
term which may extend to ten years, and
shall also be liable to fine."

22. So far as the incident dated
05.06.2014 is concerned, PW-1 victim, in
her examination in chief has stated that on
05.06.2014 accused Rafiq came to her and
told her that he will ensure the marriage of
the victim with the accused-appellant
Aslam. She accompanied him to Milak.
She was taken to a private hospital
forcefully and her pregnancy of three
months was terminated. PW-1 victim in her
cross-examination stated that accused Rafiq
came to her house on 12th, 2014 none was
present at that time with her. She did not
know the time when Rafiq came to her. She
did not know when she started from her
house. She did not know at what time she
reached Milak. She did not know how
many villages exist up to Milak. She did
not inform her mother or any relative. She
did not inform her mother about the
pregnancy at the time of occurrence. At the
time of occurrence she was having mobile
with her but she did not make a call to her
mother or any of her relatives. She never
went to Milak before this incident. She did
not know at what time she reached the
crossing of Milak. She went with the
accused Rafiq on her sweet will. She even
did not know about the time of the journey
from Milak to the destination. She did not
know in which direction she was taken
from the crossing while she was fully
conscious. She did not know the name of
the private hospital where she was taken.
She did not know whether patients were
there or not or how many persons were
there. She did not know the number of
injections administered to her. She did not
know how long she remained unconscious
and what time she reached her home. Even
she did not know when she became
conscious and anyone came to see her.

23. The entire evidence adduced by
PW-1 Victim with regard to the occurrence
alleged to have happened on 05.06.2014 is
full of contradictions and is not reliable
because firstly no documentary evidence is
available on record concerning the alleged
miscarriage. The victim in her statement
expressed ignorance relating to material
facts of the incident qua the name of the
private hospital, the name of the doctor, the
time and place of the incident of causing
miscarriage, the distance from her house to
the
hospital,
the
duration
of
her
unconsciousness, the treatment given to her
prior
to
the
alleged
miscarriage
or
treatment received after the miscarriage,
the time of reaching back to her home, even
though she admitted that she had a mobile
phone at the time of the incident when she
left her house but she did not make a call to
her mother or any relative. The prosecutrix
stated in her evidence that she did not
inform her mother about her pregnancy but
contrary to this, PW-2 Smt. Jaitoon , the
mother of the prosecutrix, stated in her
1056 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence that she was informed by her
daughter that she was pregnant for three
months. This conduct of the witness
indicates that no such incident took place
since on the material facts of the incident
the witness did not depose in the Court
cogently. The ignorance expressed by the
victim renders her evidence to be unreliable
relating to this incident.

24. PW-2 Smt. Jaitoon the mother of
the victim stated about the allegation of
causing the miscarriage of the victim on the
basis of the information given to her by the
victim only.

25. On the basis of appreciation of the
above evidence available on record, I am of
the opinion that the prosecution has not
proved with the cogent evidence either oral
or documentary, that on 05.06.2014 the
appellants caused a forceful miscarriage of
the victim.

(i) Now the second occurrence dated
12.06.2014 is to be examined.

Sections 452, 366 and 376-D IPC
provides that :-

"452.
House-trespass
after
preparation for hurt, assault or wrongful
restraint.--Whoever
commits
housetrespass, having made preparation for
causing hurt to any person or for
assaulting any person, or for wrongfully
restraining any person, or for putting any
person in fear of hurt, or of assault, or of
wrongful restraint, shall be punished with
imprisonment of either description for a
term which may extend to seven years,
and shall also be liable to fine."

"366.
Kidnapping,
abducting
or
inducing woman to compel her marriage,
etc.--Whoever kidnaps or abducts any
woman with intent that she may be
compelled, or knowing it to be likely that
she will be compelled, to marry any person
against her will, or in order that she may
be forced or seduced to illicit intercourse,
or knowing it to be likely that she will be
forced or seduced to illicit intercourse,
shall be punished with imprisonment of
either description for a term which may
extend to ten years, and shall also be
liable to fine; 367[and whoever, by means
of criminal intimidation as defined in this
Code or of abuse of authority or any other
method of compulsion, induces any
woman to go from any place with intent
that she may be, or knowing that it is
likely that she will be, forced or seduced to
illicit intercourse with another person
shall also be punishable as aforesaid"

376-D. Gang rape.--Where a woman
is raped by one or more persons
constituting
a
group
or
acting
in
furtherance of a common intention, each
of those persons shall be deemed to have
committed the offence of rape and shall be
punished with rigorous imprisonment for
a term which shall not be less than twenty
years, but which may extend to life which
shall
mean
imprisonment
for
the
remainder of that person's natural life,
and with fine:

Provided that such fine shall be just
and reasonable to meet the medical
expenses and rehabilitation of the victim:

Provided
further
that
any
fine
imposed under this section shall be paid to
the victim."

26. So far the alleged incident dated
12.06.2014 is concerned, PW-1 victim
admitted in her examination in chief that
she was in love with Aslam and Aslam was
also in love with her. The victim in her
evidence stated that she was having good
relations and well acquaintance with the
accused Aslam. She frequently visited the
1 All. Aslam & Anr. Vs. State of U.P.
1057
house of the accused Aslam and had
relations with him and Aslam also used to
visit her house frequently since one year
prior to the incident but she never told this
to her mother. She used to go to the forest
with the accused Aslam without informing
her mother. She used to go with the accused
Aslam to the field to cut the crop of wheat,
rice, and menthol. Aslam used to do labour
work with her.

27. PW-2 Smt. Jaitoon also admitted
the fact that the appellant Aslam was well
acquainted with them and stated that her
daughter was acquainted with the appellant
Aslam for the last six months and she used
to go with Aslam. Acquaintance with the
accused Aslam indicates that there was no
occasion for the appellants to commit
house-trespass and abduction of the victim
on 12.06.2014, when both the witnesses
admitted that Aslam, the victim and the
mother of the victim, all were well
acquainted with each other.

28. PW-1 the victim stated in her
evidence that on the night of 12.06.2014,
she was sleeping in her house alone. The
appellants jumped over the wall and came
to her house and at gunpoint they abducted
her to the house of Aslam and both of them
raped her at gunpoint. PW-2 Smt. Jaitoon in
her cross-examination stated that appellant
Rafiq and Aslam "called' her daughter and
took her away.

29.

This
is
a
very
material
contradiction in the evidence of prosecutrix
and her mother with regard to the manner
the prosecutrix was taken away. The case of
the
prosecution
is
that
the
appellants/accused abducted the proseuctrix
at gunpoint after jumping over the wall
while the mother of the prosecutrix stated
that the appellants accused called her
daughter
and
took
her
away.
This
contradiction
makes
the
story
of
prosecution as doubtful.

30. PW-1 the victim in her statement
stated that there was only one room in her
house. She along with her mother and
younger brother Jishan were living together
in that room. PW-2 Jaitoon Jahan, the
mother of the prosecutrix, stated in her
evidence that on the night of the incident
she was sleeping with her children. There
were three cots. On one cot she was
sleeping with his son, on second cot her
another son and on the third cot her
daughter were sleeping at a distance of 4 to
5 meters. However, on the contrary, the
victim stated that on 12.06.2014 her mother
along with her brother went to attend a
marriage.

31. This also is very material
contradiction. If the mother and siblings of
the victim were sleeping next to the victim
on that night in their house, therefore, the
story
of
the
prosecution
that
the
appellants/accused jumped over the wall
and abducted the victim at gunpoint and
took her away creates a serious doubt about
the version of the prosecution and bellies
the theory of abduction. If the mother and
the siblings of the prosecutrix were
sleeping in the same room where the
prosecutrix was also sleeping therefore, it
appears
to
be
doubtful
that
the
appellants/accused abducted the prosecutrix
at gunpoint and took her away and no
alarm was raised by any member of the
family.

32. PW-1 the victim in her crossexamination stated that when Rafiq and
Aslam jumped the wall, Rafiq shut her
mouth so she could not shout. This fact is
first time narrated by her during her cross-
1058 INDIAN LAW REPORTS ALLAHABAD SERIES
examination in the Court. Neither in the
first
information
report
nor
in
her
examination in chief she stated that Rafiq
shut her mouth and she could not shout.
Likewise, the fact that the appellants took
off her clothes is narrated by the victim
during her cross-examination for the first
time.
Further,
the
victim
expressed
ignorance about the duration of intercourse
committed by the appellants, while she
stated that she was fully conscious at that
time. The victim narrated that she raised an
alarm but no one rescued her. This fact has
been narrated first time by her in the court
during her deposition.

33. PW-1 the victim stated that she
stayed around one hour at the house of
appellant/accused Aslam on the night of
incident. Her clothes were not torn but they
were thrown away. No blood oozed out.
Her clothes were not stained with blood.
She did not sustain any scratch over her
body. She was conscious. PW-5 Dr. Amita
Sharma in her evidence also stated that no
external injury was found at the time of
medical examination of the prosecutrix.
Hymen was upset and old healed. No sign
of sexual assault were noted by her.

34. The medical report also does not
corroborate the factum of rape with the
prosecutrix. Moreover, the clothes which
prosecutrix was wearing at the time of
incident were not given to Investigating
Officer and no FSL report was available on
the record which may indicate that the
prosecutrix was gang raped by the
appellants/accused. The aforesaid situation
also creates doubt about the theory of gang
rape as stated by the prosecution.

35. PW-2 Jaitoon mother of the victim
stated in her examination in chief that his
daughter told her that the appellants raped
her and on raising the alarm, witnesses
Ramzani, Islam and other persons came
there but during her cross examination she
stated that witnesses Ramzani and Islam
told her about the incident after 2-3 hours.
She further stated that on the next day of
the incident she along with her daughter,
Islam and Ramzani went to police station
but the prosecutrix stated in her evidene
that she went to the police station with her
mother and none was with them. This is
also a contradiction between the statement
of prosecutrix and her mother.

36. P W-1 victim stated in her
evidence that she used to go to the forest
with Aslam without informing her mother
while PW-2 Smt. Jaitoon denied about the
statement and stated that her daughter used
to go with Aslam after informing her.

37. PW-3 Islam Nabi and PW-4
Ramzani are named as eye witnesses of the
incident dated 12.06.2014.

38. PW-3 Islam Nabi, in his
examination-in-chief, stated that he reached
along with Ramzani at the place of
occurrence and he found the victim in a
naked condition. Thereafter, he was told
about the incident by the prosecutrix. In his
cross examination he stated that prior to
this incident, the prosecutrix went with the
appellant-accused Aslam and he did not
know as to whether any case was lodged or
not. He reached the spot after hearing
sound. He did not see any of the incidents.
Investigating Officer never recorded his
statement and his statement has been
recorded first time in the Court.

39. On the basis of the statement of
PW-3 Islam Nabi, it transpires that the
incident was narrated to him by the
prosecutrix only and he did not see any
1 All. Aslam & Anr. Vs. State of U.P.
1059
incident by himself and moreover, he was
not interrogated by the Investigating
Officer during investigation, therefore, the
evidence of PW-3 does not corroborate the
prosecution version.

40. PW-4 Ramzani appears to be a
chance witness since PW-1 the victim has
stated in her evidence that this witness is
the resident of village Ajeetpur and
Ajeetpur is far away from her place. This
witness has also stated himself to be the
resident of Ajeetpur. He went to the village
of the victim to see some land but he did
not remember the date and month of his
visit. He was staying at the house of Islam.
It is important to mention here that PW-3
Islam did not mention anything about
Ramzani staying with him on the date of
occurrence.

41. Further, this witness stated that he
reached the house of Aslam and saw that
the victim was crying there and he was
informed about the incident by the victim
only, therefore, this witness has deposed on
the basis of hearsay evidence and he is not
the witness of any incident. He has also
stated that when he reached the place of
occurrence, the accused were not present
there. He did not know as to whether it was
dark or moon light night. When they
reached the place of occurrence the accused
had gone away. Other persons came there
but he did not know their names. He did
not go anywhere else but returned to his
house. He was never inquired about this
case by anyone. He only heard about the
miscarriage of the victim. He stated that the
height of the wall of the house of the victim
is about 7 feet.

42. The evidence of PW-4 Ramzani
does not corroborate the prosecution
version because he appears to be a chance
witness and he did not see any of the
incidents
himself
and
further
more,
according to him he was not inquired by
the
Investigating
Officer
during
the
investigation, therefore, the evidence of
PW-4 is not reliable.

43. Another important aspect of this
case is the time of the incident, which is
alleged to have taken place at 10.00 p.m.
No source of light has been shown by the
Investigating Officer in the site plan exhibit
Ka-7. PW-1 the victim, first time in her
deposition before the Court stated that on
12.06.2014 at the time of incident a
kerosene lamp was lit in his house but she
did not tell anything about it to the
Investigating Officer. Pertinent to note that,
PW-2 Jaitoon Jahan, the mother of the
prosecutrix did not say anything about the
source of light available at the time of
incident dated 12.06.2014 during her
entire deposition. PW-3 Islam Nabi stated
that the kerosene lamp was lit in the
house of the prosecutrix. The existence of
kerosene lamp at the time of incident is
not mentioned in the first information
report, not in the examination in chief of
prosecution witnesses of fact, and not
narrated to the Investigating Officer also.
Even in her statement under Section 164
Cr.P.C. exhibit Ka-3, it is not referred. No
such kerosene lamp was taken into
possession by the Investigating Officer,
therefore, in view of the above, the
source of light at the time of incident is
doubtful.

44. It shall not be out of place to
mention here that the statement of the
victim under Section 164 Cr.P.C. was
recorded which is proved by her as Exhibit
Ka-3. In this statement the prosecutrix did
not say even a word about the incident
dated 12.06.2014.
1060 INDIAN LAW REPORTS ALLAHABAD SERIES

45. The Hon'ble Apex Court in Rai
Sandeep Vs. State, (NCT of Delhi) (2012)
8 SCC 21 has eleborated the meaning of
''Sterling Witness' as:-

"15. In our considered opinion, the
''sterling witness' should be of a very high
quality and caliber whose version should,
therefore, be unassailable. The Court
considering the version of such witness
should be in a position to accept it for its
face value without any hesitation. To test
the quality of such a witness, the status of
the witness would be immaterial and what
would be relevant is the truthfulness of the
statement made by such a witness. What
would be more relevant would be the
consistency of the statement right from the
starting point till the end, namely, at the
time when the witness makes the initial
statement and ultimately before the Court.
It should be natural and consistent with
the case of the prosecution qua the
accused. There should not be any
prevarication in the version of such a
witness. The witness should be in a
position
to
withstand
the
cross-
examination of any length and howsoever
strenuous it may be and under no
circumstance should give room for any
doubt as to the factum of the occurrence,
the persons involved, as well as, the
sequence of it. Such a version should have
co-relation with each and everyone of
other supporting material such as the
recoveries made, the weapons used, the
manner
of
offence
committed,
the
scientific evidence and the expert opinion.
The said version should consistently
match with the version of every other
witness. It can even be stated that it should
be akin to the test applied in the case of
circumstantial
evidence
where
there
should not be any missing link in the
chain of circumstances to hold the
accused guilty of the offence alleged
against him. Only if the version of such a
witness qualifies the above test as well as
all other similar such tests to be applied, it
can be held that such a witness can be
called as a ''sterling witness' whose
version can be accepted by the Court
without any corroboration and based on
which the guilty can be punished. To be
more precise, the version of the said
witness on the core spectrum of the crime
should remain intact while all other
attendant
materials,
namely,
oral,
documentary and material objects should
match the said version in material
particulars in order to enable the Court
trying the offence to rely on the core
version to sieve the other supporting
materials for holding the offender guilty
of the charge alleged."

46. On importance given to the
testimony of the prosecutrix in rape cases,
Hon'ble Supreme Court in Hemraj Vs.
State of Haryana, 2014 (2) SCC 395
reminded the Court of their duties in
carefully scrutinizing the same in following
words:-

"6. In a case involving charge of rape
the evidence of the prosecutrix is most
vital. If it is found credible; if it inspires
total confidence, it can be relied upon
even sans corroboration. The court may,
however, if it is hesitant to place implicit
reliance on it, look into other evidence to
lend assurance to it short of corroboration
required in the case of an accomplice.
[See:
State
of
Maharashtra
v.
Chandraprakash Kewalchand Jain[1]].
Such weight is given to the prosecutrix's
evidence because her evidence is on par
with the evidence of an injured witness
which seldom fails to inspire confidence.
Having placed the prosecutrix's evidence
1 All. Aslam & Anr. Vs. State of U.P.
1061
on such a high pedestal, it is the duty of
the court to scrutinize it carefully, because
in a given case on that lone evidence a
man
can
be
sentenced
to
life
imprisonment. The court must, therefore,
with its rich experience evaluate such
evidence with care and circumspection
and only after its conscience is satisfied
about its creditworthiness rely upon it."

47. In Sadashiv Ramrao Hadbe Vs.
State of Maharashtra, (2006) 10 SCC 92
the Hon'ble Apex Court observed that:-

"8. It is true that in a rape case the
accused could be convicted on the sole
testimony of the prosecutrix, if it is
capable of inspiring of confidence in the
mind of the court. If the version given by
the prosecutrix is unsupported by any
medical
evidence
or
the
whole
surrounding circumstances are highly
improbable and belie the case set up by
the prosecutrix, the court shall not act on
the solitary evidence of the prosecutrix.
The courts shall be extremely careful in
accepting the sole testimony of the
prosecutrix when the entire case is
improbable and unlikely to happen."

48.

In
view
of
the
above
observations made by the Hon'ble Apex
Court, the evidence of PW-1, the victim
does not inspire confidence since it is full
of material contradictions and ignorance
relating to material facts with regard to
the incident of forceful miscarriage
caused by the appellants/accused as well
the incident of abduction and gang rape
alleged to have happened on 12.06.2014.
PW-1 the victim does not appear to be a
sterling witness
since her evidence
conclusively does not corroborate the
story of the prosecution.

49.

So
far
as
the
material
contradictions and improvement made by
the witness is concerned, the Hon'ble
Supreme Court in Krishnegowda v. State
of Karnataka, (2017) 13 SCC 98 observed
that:-

"Material
contradiction
in
the
testimony of prosecution witness creates
serious doubt in the mind of the court
about the truthfulness of the witnesses
and hence it cannot be held that the
prosecution has proved the guilt beyond
reasonable doubt and the accused are
entitled for benefit of doubt in such case.
The Hon'ble Court held:-

"...26. Having gone through the
evidence of the prosecution witnesses and
the findings recorded by the High Court
we feel that the High Court has failed to
understand the fact that the guilt of the
accused
has
to
be
proved
beyond
reasonable doubt and this is a classic case
where at each and every stage of the trial,
there were lapses on the part of the
investigating agency and the evidence of
the witnesses is not trustworthy which can
never be a basis for conviction.