# Azam v. State of U.P

- **Citation:** (2023) 3 ILRA 1225
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-14
- **Case number:** Criminal Appeal No. 7159 of 2019
- **Bench:** Mayank Kumar Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/azam-v-state-of-u-p-49918
- **Pages:** 12

## Headnote

1226 INDIAN LAW REPORTS ALLAHABAD SERIES
G.A.

Criminal Law - Indian Penal Code, 1860 -
Section 376 - POCSO Act, 2012 - Section
5(m)/6 - sentenced to 10 years rigorous
imprisonment-
allegation-
accused
appellant
raped
11-year-old
daughter
victim of the informant- contradiction in
the evidence of the witnesses of fact- held
no
material
contradiction-
victim's
St.ment
under
Section
164
Cr.P.C.
corroborated the case of prosecution-
evidence of prosecutrix does not require
corroboration if it inspires confidence-
conviction upheld in light of the robust
solitary evidence of the victim- Appeal
dismissed. (Paragraphs 26, 38 to 42)

HELD: In view of the above observations made
by the Hon'ble Apex Court, in the case in hand it
is relevant to note that the victim in her St.ment
under Section 164 Cr.P.C., which she proved as
Ex.
KA3,
corroborated
the
case
of
the
prosecution. Further, in her deposition before
the court, the victim was consistent in her
evidence about the prosecution story. There are
no material contradictions in the St.ments of the
victim and other witnesses of fact which can
adversely affect the case of the prosecution.
The evidence of the witnesses of fact is found to
be trustworthy. (Para 26)

On the basis of the observation made by the
Hon'ble Apex Court, it is to be noted that the
victim has remained consistent in her St.ment
throughout before the trial Court and also when
her St.ment under 164 Cr.P.C. was recorded.
(Para 38)

Learned counsel for the appellant argued that
the ocular evidence and the medical evidence is
not consistent with each other. PW-4 Dr.
Shubhra Singh observed during the medical
examination
of
the
prosecutrix
that
no
spermatozoa was found and no definite opinion
about sexual assault was also given. (Para 39)

Considering the argument of the learned
counsel for the appellant it is to be noted here
that the victim by her reliable and trustworthy
evidence has proved the incident happened with
her. She specifically St.d that the appellant
forcibly raped her. PW-4 Dr. Shubhra Singh
found abrasion on the private part of the victim
and also opined that in view of the aforesaid
abrasions there was a possibility of rape of the
victim. Moreover, the FSL report exhibit Ka-13
also corroborates the incident as human semen
was found on the underwear of the appellant.
Therefore, it cannot be observed that there is
inconsistency between the ocular and the
medical evidence. (Para 40)

On the basis of the above discussions, the
observation made by the Hon'ble Apex Court as
referred and on the appreciation of the
documentary and oral evidence available on
record, it is concluded that on 07.12.2013 at
around 8.00 pm the appellant forcibly raped the
victim. The evidence of PW-1 informant, PW-2
the sister of the victim and above all PW-3 the
victim are found to be trustworthy and their
evidence inspire confidence. A conclusion is
drawn that the witnesses of fact have fully
corroborated the case of prosecution. Therefore,
the prosecution has succeeded to bring home
the charge framed against the appellant. (Para
41)

Appeal dismissed. (E-14)

List of Cases cited:

## Text

_Characters 0–39,995 of 40,709. This is a partial read: ask again with offset=39995 for what follows._

3 All. Azam Vs. State of U.P.
1225
shall in any case be required for the proof
of any fact.

33.
 The
Hon'ble
Apex
Court
enunciated the law relating to conviction on
the basis of the testimony of single eye
witness in the case of Laxmibai (Dead)
through LRs Vs. Bhagwantbura (Dead)
through LRs, AIR 2013 SC 1204 that in
the matter of appreciation of evidence of
witnesses, it is not number of witnesses, but
quality
of
their
evidence
which
is
important, as there is no requirement in law
of evidence that any particular number of
witnesses
is
to
be
examined
to
prove/disprove a fact. It is a time-honoured
principle, that evidence must be weighed
and not counted. The test is whether the
evidence has a ring of trust, is cogent,
credible and trustworthy or otherwise. The
legal system has laid emphasis on value
provided by each witness, rather than the
multiplicity or plurality of witnesses. It is
quality and not quantity, which determines
the adequacy of evidence as has been
provided by Section 134 of the Act.

34. From the aforesaid discussion of
the
oral
and
documentary
evidence
produced by the prosecution against the
appellant, charge u/s 325 I.P.C. against the
appellant,
Bablu,
is
proved
beyond
reasonable doubt. The trial court has
convicted the appellant, Bablu, only u/s
325 I.P.C. and sentenced him to the period
of 7 months and 20 days imprisonment
which
he
has
undergone
during
investigation and trial and a fine of
Rs.2,000/-. The injured P.W.1 Km. Mamta
has received firearm or gunshot wound on
the front of right side chest 15.5 cm above
and at 11.30 o'clock position for umbilicus,
she remained admitted in Medical College,
Meerut for 18 days. Since no State appeal
has been filed against acquitting the
appellant u/s 307 I.P.C. and that 31 years
have lapsed since the date of incident and
learned A.G.A. for the State has not
produced
any
subsequent
criminal
antecedents of the appellant, it is not
justified to intervene with his conviction
u/s 325 I.P.C. and convict him u/s 307
I.P.C.

35.

Considering
the
facts
and
circumstances of the case and nature and
gravity of injury received by injured Km.
Mamta, the ends of justice will be met out if
the fine imposed is enhanced to Rs.20,000/-
(Twenty thousand rupees) to be paid as
compensation to the injured Km. Mamta
within three months from the date of this
judgement. In default of payment of fine, the
appellant shall undergo simple imprisonment
of 4 months. The appeal is disposed of with
above mentioned modification.

36. Let a copy of the judgement along
with the record of the case be sent to the court
concerned for execution of punishment as
modified by the order passed in this criminal
appeal.
----------
(2023) 3 ILRA 1225
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.02.2023

BEFORE

THE HON'BLE MAYANK KUMAR JAIN, J.

Criminal Appeal No. 7159 of 2019

Azam ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Mohd. Shoeb Khan

Counsel for the Opposite Party:
1226 INDIAN LAW REPORTS ALLAHABAD SERIES
G.A.

Criminal Law - Indian Penal Code, 1860 -
Section 376 - POCSO Act, 2012 - Section
5(m)/6 - sentenced to 10 years rigorous
imprisonment-
allegation-
accused
appellant
raped
11-year-old
daughter
victim of the informant- contradiction in
the evidence of the witnesses of fact- held
no
material
contradiction-
victim's
St.ment
under
Section
164
Cr.P.C.
corroborated the case of prosecution-
evidence of prosecutrix does not require
corroboration if it inspires confidence-
conviction upheld in light of the robust
solitary evidence of the victim- Appeal
dismissed. (Paragraphs 26, 38 to 42)

HELD: In view of the above observations made
by the Hon'ble Apex Court, in the case in hand it
is relevant to note that the victim in her St.ment
under Section 164 Cr.P.C., which she proved as
Ex.
KA3,
corroborated
the
case
of
the
prosecution. Further, in her deposition before
the court, the victim was consistent in her
evidence about the prosecution story. There are
no material contradictions in the St.ments of the
victim and other witnesses of fact which can
adversely affect the case of the prosecution.
The evidence of the witnesses of fact is found to
be trustworthy. (Para 26)

On the basis of the observation made by the
Hon'ble Apex Court, it is to be noted that the
victim has remained consistent in her St.ment
throughout before the trial Court and also when
her St.ment under 164 Cr.P.C. was recorded.
(Para 38)

Learned counsel for the appellant argued that
the ocular evidence and the medical evidence is
not consistent with each other. PW-4 Dr.
Shubhra Singh observed during the medical
examination
of
the
prosecutrix
that
no
spermatozoa was found and no definite opinion
about sexual assault was also given. (Para 39)

Considering the argument of the learned
counsel for the appellant it is to be noted here
that the victim by her reliable and trustworthy
evidence has proved the incident happened with
her. She specifically St.d that the appellant
forcibly raped her. PW-4 Dr. Shubhra Singh
found abrasion on the private part of the victim
and also opined that in view of the aforesaid
abrasions there was a possibility of rape of the
victim. Moreover, the FSL report exhibit Ka-13
also corroborates the incident as human semen
was found on the underwear of the appellant.
Therefore, it cannot be observed that there is
inconsistency between the ocular and the
medical evidence. (Para 40)

On the basis of the above discussions, the
observation made by the Hon'ble Apex Court as
referred and on the appreciation of the
documentary and oral evidence available on
record, it is concluded that on 07.12.2013 at
around 8.00 pm the appellant forcibly raped the
victim. The evidence of PW-1 informant, PW-2
the sister of the victim and above all PW-3 the
victim are found to be trustworthy and their
evidence inspire confidence. A conclusion is
drawn that the witnesses of fact have fully
corroborated the case of prosecution. Therefore,
the prosecution has succeeded to bring home
the charge framed against the appellant. (Para
41)

Appeal dismissed. (E-14)

List of Cases cited:

1. Sachin Kumar Singhraha Vs St. of M.P.,
(2019) 3 SCC (Cri) 575

2. Rohtas Vs St. of Hary., (2020) 1 SCC (Cri) 47

3. Khurshid Ahmed Vs St. of J&K, (2018) 3 SCC
(Cri) 61

4. Rakesh Vs St. of U.P., (2021) 3 SCC (Cri)
149

5. Rai Sandeep Vs State, (NCT of Delhi) (2012)
8 SCC 21

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

7. Sadashiv Ramrao Hadbe Vs St. of Mah.,
(2006) 10 SCC 92

8. St. of Punjab Vs Gurmeet Singh, (1996) 2
SCC 384
3 All. Azam Vs. State of U.P.
1227
9. St. of H.P. Vs Raghubir Singh (1993) 2 SCC
622

(Delivered by Hon'ble Mayank Kumar
Jain, J.)

1. Feeling aggrieved with the
impugned judgement dated 05.11.2019
passed
by
the
Additional
Session
Judge/Special Judge (POCSO Act), Court
No. 01, Gorakhpur in Special Session Trial
No. 19/2014 (State of U. P. Vs Azam)
arising out of Case Crime No. 652 / 2013,
under Section 376 IPC and Section 5 (m)/6
of POCSO Act, Police Station-Khorabar,
District-Gorakhpur whereby the accusedappellant was convicted under Section 376
I.P.C. and sentenced to undergo rigorous
imprisonment for 10 years along with fine
of Rs. 25,000 and in case of default in
depositing the amount of fine additional
rigorous imprisonment for six months was
also awarded, the present appeal has been
preferred.

2. As per the case of the prosecution,
Savitri Maurya, wife of Raj Kumar,
submitted a report to the police station
concerned that on 07.12.2013, she was in
the market. Her daughter victim X, aged 11
years was at home. At around 8:00 pm, her
neighbor Azam came to her house, shut the
mouth of her daughter and took her to the
adjacent under-construction house. He
forcibly raped her. Upon hearing the alarm
raised by the victim, villagers and her
family members reached there, having
torches in their hands and saw Azam
fleeing away while wearing his pant. Her
daughter narrated the whole incident when
she returned from the market.

3. On the basis of the aforesaid
written report, case crime No. 652 of 2013,
under Sections 376 (2) (1) I.P.C. and
Section 5 (m)/6 of POSCO Act, 2012 was
registered against the accused-appellant.

4. The investigation was set into
motion.
After
completing
preliminary
formalities, the investigating officer took
the blood-stained underwear of the victim
worn by her at the time of the incident into
their possession and sent the same for
forensic examination. The applicant Azam
was apprehended and his underwear, which
he was wearing at the time of the incident,
was also taken into possession and sent for
forensic examination. The recovery memo
was prepared accordingly.

5.

The
victim
was
medically
examined. Her statement under Section 164
Cr.P.C. was recorded. The site plan of the
place of occurrence was prepared. The
statements
of
the
victim
and
other
witnesses were recorded and after the
conclusion of the investigation a charge
sheet under Section 376 (2) (i) I.P.C. and 5
(m)/6 of POSCO Act against the appellant.

6. Charge under Section 376 I.P.C.
and Section 5 (m)/6 POCSO Act was
framed against the accused-appellant. He
pleaded not guilty and claimed to be tried.

7. In order to prove its case, the
prosecution produced three witnesses of
fact as PW1 Savitri Maurya (informant),
PW2 Km. Priya (sister of the victim), PW3
the victim and formal witnesses as PW4
Dr. Subhra Singh, PW5 Sri Prakash Yadav
(Investigating Officer) and PW6 Head
Constable Deena Nath Pal.

8. After the close of prosecution
evidence, the statement under Section 313
Cr.P.C. of the accused-appellant was
recorded. He denied the commission of the
offence as alleged by the prosecution. He
1228 INDIAN LAW REPORTS ALLAHABAD SERIES
stated that the witnesses of fact have given
false statements against him. The victim
was tutored thus she deposed against him.
On the basis of the medical evidence, the
commission of rape was not confirmed.
The charge sheet was filed on the basis of
an unfair investigation. The witnesses are
inimical to him. In his additional statement,
he stated that the victim was in love with
his younger brother, letters were exchanged
between them and a demand for a gift was
also made by the victim. His younger
brother was not giving money to his family
members. On the day of the incident, he
saw both of them together. He scolded
them and asked them not to meet again and
due to that reason, he has been falsely
implicated in the present case.

9. After weighing the evidence
available on record and considering the
rival contentions, the learned trial court
convicted and sentenced the accusedappellant as referred to above.

10. I have heard Sri Mohd. Shoeb
Khan, the learned counsel for the accusedappellant and Sri Om Prakash, learned
A.G.A. for the State. I have carefully
perused the record.

11. In the present appeal, on the basis
of the facts and circumstances of the case,
it is to be noted as to whether on
07.12.2013 at around 8 pm, the accusedappellant raped the daughter, aged about 11
years, of the informant.

12. Learned counsel for the appellant
argued that the informant is not the
eyewitness of the incident. In her first
information report, she admitted that when
she returned from the market, she was
informed about the incident by the victim.
PW2 Priya who happens to be the sister of
the victim is also not the eyewitness of the
incident. There are material contradictions
in the testimonies of the informant, PW2
Priya and the victim, create serious doubt
about the prosecution story. The sister of
the victim, in her statement, made a
contradictory
version
that
when
she
reached the place of occurrence, the
accused fled away from the spot while
PW1, the informant, stated in her evidence
that the accused was apprehended on the
spot and he abused them. The medical
evidence also does not corroborate the
prosecution version. The torch, which the
people who rushed towards the place of
occurrence after hearing the alarm were
allegedly carrying, was not taken into the
possession by the investigating officer. He
further submitted that the doctor opined
that on the basis of swelling, she could not
say definitely that the victim was sexually
assaulted. No sperm was found on the
private part or around it on the victim.
Moreover, in the F.S.L. report, no sperm
was found on the underwear of the victim.
Therefore, the medical evidence does not
corroborate the prosecution version. The
prosecution failed to prove charge against
the appellant and therefore the appellant is
liable to be aquitted. The appeal should be
allowed.

13. Per contra learned A.G.A. argued
that the oral evidence and medical evidence
available on record proved the charges
against the accused-appellant. The age of
victim was 13 years at the time of the
incident and she was forcibly raped by the
accused-appellant. On the basis of the
medical
examination,
the
radiologist
determined the age of the victim at the time
of the incident to be 14 years, therefore, the
victim was minor at the time of the
incident. He also submitted that during a
forensic examination, the sperm was found
3 All. Azam Vs. State of U.P.
1229
on the underwear of the accused-appellant
which was worn by him at the time of the
incident. He further submitted that there are
no material contradictions in the statements
of PW1 the informant, PW2 the sister of
the victim and the victim herself. He
further submitted that minor contradictions
are bound to occur since the witnesses
belong to a rural background and such
types of contradictions do not adversely
affect the case of the prosecution. He
further submitted that the victim has
supported the manner of crime committed
by the accused-appellant in her statement
recorded under Section 164 Cr.P.C. She
also corroborated this statement during
deposition before the trial Court. The
victim by her evidence has corroborated the
prosecution version that on the date and
time of occurrence, the accused-appellant
forcefully committed rape on her and the
entire incident was narrated by her to her
mother.

14. PW1 Savitri Maurya who is the
informant of this case has stated in her
evidence that the age of her daughter was
around 11 year and 1/2 month. On
07.12.2013, at around 8:00 pm, when her
daughter was alone in the house, the
accused-appellant entered her house and
after shutting her mouth, took her to the
nearby under-construction house and raped
her. On hearing the alarm, several people
reached there and lightening the torch, they
chased the appellant-accused and caught
him. She was told about the incident when
she
returned
from
the
market.
She
submitted a report to the police. The
underwear which was worn by her daughter
at the time of the incident was taken into
possession before her.

15. PW2 Priya is the sister of the
victim who has narrated the same version
as stated by the informant. She submitted
that when her sister did not return, she went
to trace her and saw that accused-appellant
was coming out from an under-construction
house while wearing his pant. She reached
the spot and found that her daughter was
lying on the floor. The whole incident was
narrated by her sister stating that the
appellant-accused committed rape on her
and threatened if she would inform anyone,
he will repeat the same act with her sister
also. The underwear of her sister was
soaked with blood.

16. PW3 victim has stated that the
incident occurred on 07.12.2013 at around
08:00 pm when her mother had gone to the
market, the accused-appellant called her
but she refused. The accused-appellant told
her that her mother was calling so she came
out but did not find her mother there. The
accused-appellant shut her mouth and took
her to an under-construction house. He
made her lay on the floor and forcefully
committed rape on her. He penetrated his
penis into her private parts. She was crying
and felt severe pain. Upon hearing her
cries, her sister came there. The accusedappellant ran from the spot. Her sister saw
the accused-appellant in the torch light. Her
underwear was blood stained. The entire
incident was narrated by her to her mother.
She was medically examined. She knows
the accused appellant very well, him being
her neighbour. She proved the statement
given by her before the Magistrate under
section 164 Cr.P.C.

17. PW4 Dr. Subhra Singh stated in
her statement that on 08.12.2013 in the
capacity of Senior Consultant District
Women Hospital, Gorakhpur, at 2.30 pm,
she examined the victim which was
brought by C.P. No. 1223, Bhagwati
Verma, PS. Khorabar, District Gorakhpur.
The height of the victim was 137 cm.,
1230 INDIAN LAW REPORTS ALLAHABAD SERIES
Weight 30 kg, teeth 13/13, thin built,
mentally alert, breast not developed,
axillary/pubic hair not present. No sign of
injury on external body parts, vagina does
not admit tip of finger. Slides made by
vaginal swab and sent for pathological
examination. No tear seen. Slide abrasion
in forchette seen.

In supplementary report few
R.B.C. seen. No spermatozoa was found.
On the basis of the injury on the private
part of the victim, it is possible that she was
raped.

18. PW5 Inspector Sri Prakash Yadav
stated that he received the investigation and
after preliminary formalities, took the
statement of the informant, the victim and
the witnesses. He prepared the site plan.
The undergarments worn by the victim and
the accused at the time of the incident were
taken into possession and were sent for
chemical examination. The victim was sent
for medical examination. Her statement
under Section 164 Cr.P.C. was recorded
and
after
the
conclusion
of
the
investigation, he submitted charge sheet
against the accused-appellant.

19. PW6 is the Head Constable Deena
Nath Pal who has stated that on the basis of
written report submitted by the informant
Savitri Maurya, he prepared the F.I.R. No.
379 of 2013 on 07.12.2013 at 22.45 hour
which was registered as Case Crime No.
652 of 2013, under Sections 376 (2) (1)
I.P.C. and 5 (m)/6 POCSO Act at PS
Khorabar, District Gorakhpur against the
applicant. This witness has proved the first
information report as Ex. Ka 11. The
endorsement of the F.I.R. was made in the
general diary of the concerned police
station at Rapat No. 46 at 22.45 hour which
is exhibited as Ex. Ka 12.

20. Learned counsel for the appellant
vehemently argued that there are material
contradictions in the evidence of PW1 and
PW2. The informant PW1 in her statement
stated that at the time of occurrence the
victim was all alone at her house and the
appellant was apprehended by the villagers
on the spot while in her cross-examination
she stated that the accused-appellant was
apprehended at her house on the date of
occurrence and she herself apprehended the
accused-appellant. Learned counsel for the
appellant referred the statement of PW2
Km. Priya, the sister of the victim that
when she rushed towards the place of
occurrence, her sister was lying alone there
and the accused-appellant was not present
there. Learned counsel for the appellant
argued that PW1 Savitri Maurya and PW2
are not the eyewitnesses of the incident,
therefore, their testimonies cannot be relied
upon.

21. So far as the argument of learned
counsel for the appellant is concerned
about the contradictions in the evidence of
witnesses of fact, it is worth to be noted
that the perusal of record goes to show that
examination-in-chief
of
PW1
Savitri
Maurya was recorded on 04.08.2014 and
her cross-examination was recorded on
15.10.2014. The examination-in-chief of
PW2
Km.
Priya
was
recorded
on
06.11.2014 while her cross-examination
was recorded on 24.11.2014. Likewise the
examination-in-chief of the victim was
recorded on 03.01.2015 and since the
cross-examination was not concluded,
therefore, her further cross-examination
was recorded on 01.06.2015.

22. The Hon'ble Apex Court in the
case of Sachin Kumar Singhraha v. State
of M.P., (2019) 3 SCC (Cri) 575 : has held
as under:-
3 All. Azam Vs. State of U.P.
1231

"12.The Court will have to
evaluate the evidence before it keeping in
mind the rustic nature of the depositions of
the villagers, who may not depose about
exact
geographical
locations
with
mathematical precision. Discrepancies of
this nature which do not go to the root of
the matter do not obliterate otherwise
acceptable evidence. It need not be stated
that it is by now well settled that minor
variations should not be taken into
consideration
while
assessing
the
reliability of witness testimony and the
consistency of the prosecution version as a
whole. In this view of the matter, in our
considered opinion, the evidence of PW 5
fully supports the evidence of PW 4 and the
case of the prosecution."

23. The Hon'ble Apex Court in the
case of Rohtas v. State of Haryana, (2020)
1 SCC (Cri) 47 has held as under:-

"26.In a recent decision in
Dilawar
Singh
v.State
of
Haryana
[Dilawar Singh v.State of Haryana, (2015)
1 SCC 737 : (2015) 1 SCC (Cri) 759] , the
Court restated that while analysing the
evidence of eye witnesses, it must be borne
in mind that there is bound to be variations
and difference in the behaviour of the
witnesses or their reactions from situation
to situation and individual to individual.
There cannot be uniformity in the reaction
of witnesses. The Court must not decipher
the evidence on unrealistic basis. There can
be no hard-and-fast rule about the
uniformity in human reaction. "

24. The Hon'ble Apex Court in the
case of Khurshid Ahmed v. State of J&K,
(2018) 3 SCC (Cri) 61 has held as under-

"35.When
analysing
the
evidence available on record, the court
should
not
adopt
hyper
technical
approach but should look at the broader
probabilities of the case. Basing on the
minor contradictions, the court should
not reject the evidence in its entirety.
Sometimes, even in the evidence of
truthful witness, there may appear certain
contradictions basing on their capacity to
remember and reproduce the minute
details. Particularly in the criminal
cases, from the date of incident till the
day they give evidence in the court, there
may be gap of years. Hence, the courts
have to take all these aspects into
consideration and weigh the evidence.
The discrepancies and contradictions
which do not go to the root of the matter,
credence shall not be given to them. In
any event, the paramount consideration
of the court must be to do substantial
justice."

25. The Hon'ble Apex Court in the
case of Rakesh v. State of U.P., (2021) 3
SCC (Cri) 149 has held as under:-

"14. One is required to consider
the entire evidence as a whole with the
other evidence on record. Mere one
sentence here or there and that too to the
question asked by the defence in the
cross-examination cannot be considered
stand alone."

26. In view of the above observations
made by the Hon'ble Apex Court, in the
case in hand it is relevant to note that the
victim in her statement under Section 164
Cr.P.C., which she proved as Ex. KA3,
corroborated the case of the prosecution.
Further, in her deposition before the court,
the victim was consistent in her evidence
about the prosecution story. There are no
material contradictions in the statements of
the victim and other witnesses of fact
1232 INDIAN LAW REPORTS ALLAHABAD SERIES
which can adversely affect the case of the
prosecution. The evidence of the witnesses
of fact is found to be trustworthy.

27. So far as the argument of learned
counsel for the appellant that the victim
stated in her statement that at the time of
occurrence, the appellant made her lay
down on the floor but no injury was found
on her body at the time of her medical
examination is concerned, it is pertinent to
note that the victim in her testimony has
corroborated the facts of the prosecution
version in entirety. Therefore, mere fact
that she stated that the accused-appellant
compelled her to lay down but she did not
suffer any injury, does not create any doubt
about her testimony.

28. The statements of PW1 Savitri
Maurya, PW2 Km. Priya and PW3 victim
made before the court are reliable and
inspire confidence All the three witnesses
of fact have stated that the underwear of the
victim was soaked as a result incident,
which was handed over to the investigating
officer. The informant in her testimony also
proved the site plan prepared by the
investigating officer and all the three
witnesses of fact categorically denied that
the victim had a love affair with the brother
of the appellant Azad and the victim was
caught by the accused-appellant and for
that reason the appellant had been falsely
implicated.

29. So far as the letters which were
filed before the trial court on behalf of the
appellant in his defence, claiming that
victim was in love with his younger brother
are concerned, suffice to mention here that
these letters were not proved by the defence
by any cogent evidence. It appears that
during trial no effort was made by the
appellant to examine the handwriting of the
victim by an expert which could support
the defence taken by the appellant.
Therefore, mere filing of the letters does
not corroborate the defence taken by the
appellant.

30. Learned counsel for the appellant
vehemently argued that deposition of the
victim did not find any corroboration with
the deposition of PW1 and PW2. Since
these
two
witnesses
are
not
the
eyewitnesses, therefore the sole testimony
of the victim cannot be relied upon.

31. Considering this argument, it is
relevant to mention here that the victim had
stated that the accused took her to the
under-construction house and after shutting
her mouth disrobed her and committed rape
upon her. The accused-appellant penetrated
his private parts into the vagina of the
victim. The victim deposed in categorical
terms regarding rape committed upon her
by the accused-appellant. There is no
contradiction in the examination-in-chief
and the cross examination of the victim.
Her evidence inspire confidence and has a
ring of truth. Moreover, the statement of
the informant and the sister of the victim
also corroborate the presence of the
accused-appellant
at
the
place
of
occurrence, since they have stated that they
saw the accused-appellant fleeing from the
place of occurrence while wearing his pant.
PW-2 Priya specifically stated that she
found her sister in a disrobed condition,
therefore, the evidence of the victim and
her sister is consistent with the facts of the
prosecution
and
their
evidence
is
trustworthy.

32. Learned counsel for the accusedappellant submitted that since there are
contradictions in the statements of the
victim and the other witnesses of fact,
3 All. Azam Vs. State of U.P.
1233
therefore,
the
conviction
cannot
be
recorded against the accused-appellant on
solitary evidence of the victim.

33. 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."

34. 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. 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
on such a high pedestal, it is the duty of the
court to scrutinize it carefully, because in a
1234 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

35. 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."

36. The Hon'ble Apex Court in State
of Punjab VS. Gurmeet Singh, (1996) 2
SCC
384
has
held
that
minor
contradictions
or
insignificant
discrepancies in the statement of the
prosecutrix should not be taken into
consideration if the statement of the
prosecutrix is otherwise reliable. The
Hon'ble Apex Court observed as:-

"The
courts
must,
while
evaluating evidence, remain alive to the
fact that in a case of rape, no selfrespecting woman would come forward in
a court just to make a humiliating
statement against her honour such as is
involved in the commission of rape on her.
In cases involving sexual molestation,
supposed considerations which have no
material effect on the veracity of the
prosecution case or even discrepancies in
the statement of the prosecutrix should not,
unless the discrepancies are such which
are of fatal nature, be allowed to throw out
an otherwise reliable prosecution case. The
inherent bashfulness of the females and the
tendency to conceal outrage of sexual
aggression are factors which the Courts
should not over-look. The testimony of the
victim in such cases is vital and unless
there
are
compelling
reasons
which
necessitate looking for corroboration of her
statement, the courts should find no
difficulty to act on the testimony of a victim
of sexual assault alone to convict an
accused where her testimony inspires
confidence and is found to be reliable.
Seeking corroboration of her statement
before relying upon the same, as a rule, in
such cases amounts to adding insult to
injury. Why should the evidence of a girl of
a woman who complains of rape or sexual
molestation, be viewed with doubt, disbelief
or suspicion? The Court while appreciating
the evidence of a prosecutrix may look for
some assurance of her statement to satisfy
its judicial conscience, since she is a
witness who is interested in the outcome of
the charge levelled by her, but there is no
requirement
of
law
to
insist
upon
corroboration of her statement to base
conviction of an accused. The evidence of a
victim of sexual assault stands almost at
par with the evidence of an injured witness
and to an extent is even more reliable. Just
as a witness who has sustained some injury
in the occurrence, which is not found to be
self inflicted, is considered to be a good
witness in the sense that he is least likely to
shield the real culprit, the evidence of a
victim of a sexual offence is entitled to
great weight, absence of corroboration
3 All. Azam Vs. State of U.P.
1235
notwithstanding. Corroborative evidence is
not an imperative component of judicial
credence
in
every
case
of
rape.
Corroboration as a condition for judicial
reliance on the testimony of the prosecutrix
is not a requirement of law but a guidance
of prudence under given circumstances."

37. The Hon'ble Apex Court in State
of H.P. v. Raghubir Singh (1993) 2 SCC
622, has held that the evidence of
prosecutrix does not require corroboration
if it inspires confidence. The Hon'ble Apex
Court observed as:-

"this Court held that there is no
legal compulsion to look for any other
evidence to corroborate the evidence of the
prosecutrix before recording an order of
conviction. Evidence has to be weighed and
not counted. Conviction can be recorded on
the sole testimony of the prosecutrix, if her
evidence inspires confidence and there is
absence of circumstances which militate
against her veracity."

38. On the basis of the observation
made by the Hon'ble Apex Court, it is to be
noted that the victim has remained
consistent in her statement throughout
before the trial Court and also when her
statement under 164 Cr.P.C. was recorded.

39. Learned counsel for the appellant
argued that the ocular evidence and the
medical evidence is not consistent with
each other. PW-4 Dr. Shubhra Singh
observed during the medical examination
of the prosecutrix that no spermatozoa was
found and no definite opinion about sexual
assault was also given.

40. Considering the argument of the
learned counsel for the appellant it is to be
noted here that the victim by her reliable
and trustworthy evidence has proved the
incident
happened
with
her.
She
specifically
stated
that
the
appellant
forcibly raped her. PW-4 Dr. Shubhra
Singh found abrasion on the private part of
the victim and also opined that in view of
the aforesaid abrasions there was a
possibility of rape of the victim. Moreover,
the
FSL
report
exhibit
Ka-13
also
corroborates the incident as human semen
was found on the underwear of the
appellant. Therefore, it cannot be observed
that there is inconsistency between the
ocular and the medical evidence.

41. On the basis of the above
discussions, the observation made by the
Hon'ble Apex Court as referred and on the
appreciation of the documentary and oral
evidence
available
on
record,
it
is
concluded that on 07.12.2013 at around
8.00 pm the appellant forcibly raped the
victim. The evidence of PW-1 informant,
PW-2 the sister of the victim and above all
PW-3 the victim are found to be
trustworthy and their evidence inspire
confidence. A conclusion is drawn that the
witnesses of fact have fully corroborated
the case of prosecution. Therefore, the
prosecution has succeeded to bring home
the charge framed against the appellant.

42.

The
learned
trial
Court
appreciated the documentary and oral
evidence available on record in a rightful
manner and arrived at a conclusion that
appellant-accused committed the offence
and recorded the conviction of the
appellant-accused.

43. In view of the above, the judgment
and the order of sentence passed by the
learned trial Court is liable to be affirmed
and criminal appeal is liable to be
dismissed.
1236 INDIAN LAW REPORTS ALLAHABAD SERIES
Order

44.

The
Criminal
Appeal
is
accordingly dismissed. The judgment and
order dated 05.11.2019 passed by the
learned trial Court in Special Session Trial
No. 19/2014 (State of U. P. Vs Azam)
arising out of Case Crime No. 652 / 2013,
under Section 376 IPC and Section 5 (m)/6
of POCSO Act, Police Station-Khorabar,
District-Gorakhpur is hereby affirmed.

45. Let a certified copy of the
judgment/order along with lower court
record be sent to the court concerned for
necessary compliance forthwith.
----------
(2023) 3 ILRA 1236
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 17.03.2023

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Criminal Appeal No. 1343 of 2015

Om Prakash Vimal ...Appellant
Versus
State ...Respondent

Counsel for the Appellant:
Nandit Kumar Srivastava, Pranjal Krishna,
Prashant Singh Gaur

Counsel for the Respondent:
Bireshwar Nath, Shiv P. Shukla

A. Criminal Law - Code of Criminal
Procedure,1973 - Section 374(2) -Appeal
under Section 374(2) Cr.P.C. read with
Section 27 of the Prevention of Corruption
Act, 1988- Conviction of income tax official
under Sections 7, 13(2) read with Section
13(1)(d) of P.C. Act- bribe demanded to nil
the
income
tax
assessment
of
the
informant- trap laid- accused appellant
caught red handed by CBI- court refuted
submission that recovery of bribe amount
not made from accused. (Para 37)

HELD: In view thereof, this Court does not find
any credence in the submission of the learned
counsel for the accused-appellant that recovery
was not made from the accused-appellant. Once
the
accused-appellant
accepted
the
bribe
amount and he kept it in the drawer of the
office table, which was of the accused-appellant,
the recovery from the drawer of the office table
of the accused-appellant, is recovery from the
accused-appellant himself. (Para 37)

B. Conviction under Sections 7 and 13 of
the P.C. Act- essentials- demand and
acceptance
of
illegal
gratification
by
accused
public
servant-
no
offence
without proof of demand- term "demand"-
not defined in P.C. Act- inserted by
interpretative process- Section 20 of P.C.
Act- Statutory presumption of guilt- shift
in burden of proof- accused to prove that
what
has
been
received-
valuable
consideration
and
not
an
illegal
gratification- foundational facts proved-
presumption of receipt of obtainment of
illegal gratification- if in absence of
evidence of the complainant- inferential
deduction of culpability/guilt of public
servant- based on evidence adduced by
prosecution
permissible-
conviction
upheld- Appeal dismissed.