# Babu Ram v. State of U.P

- **Citation:** (2024) 8 ILRA 73
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-08
- **Case number:** Criminal Appeal No. 1821 of 2018
- **Bench:** Ashwani Kumar Mishra, Dr. Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babu-ram-v-state-of-u-p-52433
- **Pages:** 10

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 164, 313 & 437(a) -
Indian Penal Code,1860 - Sections 376,
376(2)(f) & 376(2)(n), - Protection of
Children From Sexual Offence Act, 2012-
Sections 5 & 6: - Appeal - against conviction
& sentence - FIR - allegation of sexual assault
by the accused appellant, on his own minor
daughter - investigation - victim who is aged
about 14-15 years was sexual assaulted for the
last about 13 months - chargesheet - plea
taken that, allegations are false and the
prosecution evidence is not reliable - conviction
& sentence - court finds that - (i) victim did not
specified the date, time, manner or place in her
St.ment when she was first subjected to sexual
assault and there is general allegation that for
almost 13 months she was sexually assaulted by
the accused, (ii) admittedly, victim staying with
her grandparents and accused was lived in a
different house with his wife and child and she
was also lived in nearby other relatives but none
was informed about her rape nor anyone ever
saw the incident or came to know of it, (iv)
there is no evidence of any other persons, who
may have been informed about her sexual
exploitation during the entire period of 13
months, (v) in medical evidences, no external
or internal injury, hymen of the victim was found
old torn, (vi) in the pathological report, no dead
or live spermatozoa has been found, (vii) in
such circumstances, the only testimony which
remains on record to support the prosecution
case, (viii) a distinct possibility of the victim
having framed her father to avenge the murder
of her mother by him - court inclined to hold
that the defence has succeeded in creating a
doubt on the prosecution case of rape for 13
months upon the victim - therefore, accused
appellant is entitled to benefit of doubt -
resultantly, appeal succeeds and is allowed -
conviction and sentence is set aside - direction
issued, accordingly. (Para - 40, 41, 42, 43, 45)

Appeals are allowed. (E-11)

## Text

8 All. Babu Ram Vs. State of U.P.
73
of Sessions that the prosecution has failed
to establish its case beyond reasonable
doubt. Once that be so we find that there is
no occasion for this Court to interfere with
the judgment of acquittal passed by the
court below.

22. The view taken by the court below
is clearly a permissible view, in the facts of
the case, and just because a different view
could be taken would ordinarily not be a
ground for this Court to interfere with the
order of acquittal. In such circumstances
we find that neither any triable issue is
raised before us in these appeals nor any
perversity is shown, which may persuade
this Court to interfere in these appeals.

23. The appeals lack merits and are,
consequently, dismissed.
----------
(2024) 8 ILRA 73
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.08.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE DR. GAUTAM CHOWDHARY, J.

Criminal Appeal No. 1821 of 2018

Babu Ram ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Sushil Kumar Pandey, Sri Jitendra Pal
Singh

Counsel for the Respondents:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 164, 313 & 437(a) -
Indian Penal Code,1860 - Sections 376,
376(2)(f) & 376(2)(n), - Protection of
Children From Sexual Offence Act, 2012-
Sections 5 & 6: - Appeal - against conviction
& sentence - FIR - allegation of sexual assault
by the accused appellant, on his own minor
daughter - investigation - victim who is aged
about 14-15 years was sexual assaulted for the
last about 13 months - chargesheet - plea
taken that, allegations are false and the
prosecution evidence is not reliable - conviction
& sentence - court finds that - (i) victim did not
specified the date, time, manner or place in her
St.ment when she was first subjected to sexual
assault and there is general allegation that for
almost 13 months she was sexually assaulted by
the accused, (ii) admittedly, victim staying with
her grandparents and accused was lived in a
different house with his wife and child and she
was also lived in nearby other relatives but none
was informed about her rape nor anyone ever
saw the incident or came to know of it, (iv)
there is no evidence of any other persons, who
may have been informed about her sexual
exploitation during the entire period of 13
months, (v) in medical evidences, no external
or internal injury, hymen of the victim was found
old torn, (vi) in the pathological report, no dead
or live spermatozoa has been found, (vii) in
such circumstances, the only testimony which
remains on record to support the prosecution
case, (viii) a distinct possibility of the victim
having framed her father to avenge the murder
of her mother by him - court inclined to hold
that the defence has succeeded in creating a
doubt on the prosecution case of rape for 13
months upon the victim - therefore, accused
appellant is entitled to benefit of doubt -
resultantly, appeal succeeds and is allowed -
conviction and sentence is set aside - direction
issued, accordingly. (Para - 40, 41, 42, 43, 45)

Appeals are allowed. (E-11)

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. This criminal appeal is directed
against the judgment and order dated
24.2.2018,
passed
by
the
learned
Additional Sessions Judge/Court No.1,
Pilibhit in Sessions Trial No.8 of 2015,
arising out of Case Crime No.622 of 2015,
74 INDIAN LAW REPORTS ALLAHABAD SERIES
under Sections 376(2)(f), 376(2)(n) IPC
and 5/6 POCSO Act, Police Station
Newriya, District Pilibhit; whereby the
appellant Babu Ram has been convicted
and sentenced to life imprisonment under
Section 5/6 POCSO Act alongwith fine of
Rs.10,000/-; sentenced to ten years rigorous
imprisonment under Section 376(2)(f) IPC
alongwith fine of Rs.10,000/-; sentenced to
ten years rigorous imprisonment under
Section 376(2)(n) IPC alongwith fine of
Rs.10,000/-. In default of payment of fine
to
undergo
one
year
additional
imprisonment in all above sections. All the
sentences are directed to run concurrently.

2. In the present case the first
informant is the step-brother of victim,
namely Sandeep (PW-2). He intimated the
Incharge of Police Station Neoria, District
Pilibhit that his father died several years
ago. After death of his father his mother
Smt. Somwati started living with the
accused appellant Babu Ram and out of
their union a daughter was born who is
around 18 years of age (the victim). Smt.
Somwati, biological mother of informant
and victim died when the victim was only
about a year and a half old. The victim is
residing with her father Babu Ram (the
accused). About five years back accused
Babu Ram remarried a Bengali lady.
Informant alleged in his written report
(Ex.Ka.3) that for the last about one year
the accused appellant Babu Ram has been
sexually exploiting the victim and after she
got fed up, the victim informed of it to him
and also to his cousin Jagdish (s/o Ram
Awtar). The victim also informed them that
about ten days ago the accused appellant
also committed rape on her sister. The
contents
of
the
information
were
incorporated in the general diary and the
First Information Report came to be
registered in the matter on 2.6.2015, being
Case Crime No. 622 of 2015. Victim was
medically examined and her statement
under Section 161 and 164 Cr.P.C. was
recorded on 3.6.2015. The victim stated
before the Magistrate that her father Babu
Ram
has
been
establishing
physical
relations with her for the last one year and
on her refusal she was threatened. This has
continued for a year. Victim further
asserted that she informed her travails to
her brother (PW-2) since her mother had
already died. In her statement to the
Investigating Officer the victim informed
that she got the report filed through her
step-brother Sandeep (PW-2) and cousin
Jagdish (not produced).

3. Victim was medically examined on
3.6.2015. The doctor opined that the victim
was 14-15 years of age and thus a minor.
No external or internal injuries were found
on the victim. Victim's hymen was found
old torn. Vaginal slides were prepared but
in the pathological report no live or dead
spermatozoa was found. After conclusion
of investigation the charge-sheet was
submitted by the police in the matter on
11.7.2015. The Magistrate took cognizance
of the charge-sheet and referred the matter
to the Court of Sessions where it got
registered as Sessions Trial No. 8 of 2015.
The concerned court has charged the
accused appellant of offence under Section
376(2)(f), 376(2)(n) IPC and 5/6 POCSO
Act. The charges were read out to the
accused on 14.9.2015, who denied the
accusations and demanded trial.

4. Before we proceed further with the
facts of the case we may place on record
that on the previous occasion a direction
was issued by us to inquire about the status
and well-being of the victim. Learned AGA
has produced a report from the concerned
police station stating that the victim is
8 All. Babu Ram Vs. State of U.P.
75
already married with three children and is
happily settled. Further details of the victim
and her family or its composition is
withheld to protect the identity and privacy
of the victim.

5. At the stage of trial the prosecution
has
produced
following
documentary
evidence:-

"1. FIR dt. 2.6.2015 as Ex.Ka.6

2. Written Report dt. 2.6.2015 as
Ex.Ka.3

3. Statement u/s 164 Cr.P.C. dt.
3.6.2015 as Ex.Ka.2

4. Statement of victim Km. Kranti
as Ex.Ka.1

5. Medical report dt.3.6.2015 as
Ex.Ka.5

6. Medical report dt. 3.6.2015 as
Ex.Ka.12

7. X-ray Report dt. 3.6.2015 as
Ex.Ka.4

8. Medical examination report dt.
3.6.2015 as Ex.Ka.13

9.Supplementary
Report
dt.
25.6.2015 as Ex.Ka.14"

6. The victim has been produced as
PW-1 at the trial. She has supported the
prosecution case with regard to sexual
assault on her by the accused appellant for
nearly thirteen months. She has also proved
her statement under Section 164 Cr.P.C.
Victim further stated that on her refusal to
submit to sexual advances of accused she
was threatened with dire consequences.

7. In the cross-examination the victim
has informed that she had come to the
Court with her brother (PW-2). The victim
further stated that her mother was murdered
by the accused appellant. She got this
information from her step-brother Sandeep
and her sister. She treats informant as her
brother since their mother is common i.e.
Smt. Somwati. The victim has denied the
suggestion that she has falsely deposed
against her father on the persuasion of the
informant. She has further alleged that
when her mother died the victim was one to
one and a half years of age and she has
been brought up by the accused appellant
and his family members.

8. In her further cross-examination the
victim stated that the act of sexual assault
upon her was performed for the first time
about ten months back but she does not
remember
the
date,
time
or
place
when/where
the
offence
was
first
committed on her. According to the victim
she lived with her grandparents in a house
with thatched roof while her father lived in
a different house with his family. PW-2
Sandeep lived close to the house of her
grandparents. Her grandfather is very weak
and could hardly move. Her grandparents
and father dissuaded her from interacting or
speaking to the informant. She had come to
depose in the Court with the informant
(PW-2).

9. Victim in her deposition has
explained the incident of 2.6.2015. On that
date the accused had come to the
grandparents house while returning from
work and asked for a glass of water from
the victim. The victim although said that
she is getting water but did not give water
to the accused. It is thereafter that she was
punched on her back by the accused
appellant. It is then that the informant and
his cousin Jagdish intervened; saved the
victim; assaulted the accused and handed
him over to police after tying his hand and
feet. She indicated her wish to be with her
brother and not to stay with her father.
Victim has stated that she understands the
meaning of rape. She has denied the
76 INDIAN LAW REPORTS ALLAHABAD SERIES
suggestion that accused appellant did not
commit any rape upon her or that she had
framed him to take revenge from the
accused appellant for murdering her
mother.

10. Informant Sandeep has been
produced as PW-2. He has fully supported
the prosecution case and has also proved
the written report which was exhibited as
Ka-3. In the cross-examination also PW-2
supported the prosecution case. He has
alleged that accused Babu Ram is his
stepfather and at the time of his marriage
with her mother he was about 8-10 years
old. His mother died when victim was
about a year old. PW-2 in the crossexamination has alleged that after death of
his mother he stayed for sometime at his
nansar (maternal grandfather's house). He
has no enmity with the accused Babu Ram
nor did he suspect the accused appellant of
murdering his mother. He was not aware
that accused Babu Ram was got jailed by
his maternal uncle. He came to the house 45 years after the death of his mother. He
rarely got a chance to talk to the victim as
the accused Babu Ram and his parents
discouraged her to do so. The house of
victim's grandfather has a thatched roof
with no boundary. It is for the first time on
the date of making written report to the
police that the victim informed him about
rape upon her by the accused. On the date
of incident the victim came to his house in
the afternoon and informed his cousin
Jagdish about her rape by the accused. He
came to know about it for the first time at
about 5.00 PM when he returned from his
in-laws house at Shivpuria. Victim returned
to her home thereafter. The act of victim's
refusal to give water and her beating was
seen by him from beneath the tree infront
of the house. Victim rushed to Sandeep
whereafter
he
only
apprehended
the
accused for giving him to the police after
he confessed. The report was lodged by the
informant alongwith Jagdish and the
victim. PW-2 has clearly stated that he
would keep the victim with him till she is
married. PW-2 has denied the suggestion
that due to enmity on account of murder of
his mother by the accused that he has
falsely implicated the accused.

11. PW-3 is Dr. Jagdish Prasad,
Radiologist, who conducted x-ray on the
victim and has proved the x-ray report. He
has also proved the medical report dated
3.6.2015. In his opinion evidence of rape
was not ascertainable from the ultrasound
report.

12. PW-4 is lady constable Preeti,
who has proved the G.D. report. She had
taken
the
victim
for
her
medical
examination.

13. PW-5 is the Investigating Officer
SI Awadhesh Singh. He has proved the
arrest of the accused at 8.20 hours on
3.6.2015. FIR was registered at about
quarter to 12.00 in the night on 3.6.2015.
This witness has denied the suggestion that
he arrested the accused from his residence.
Accused did not enjoy any good reputation.
He visited the house of the accused and
found that he was residing with the second
wife of accused. Parents of the accused
lived in the village.

14. PW-6 is Dr. Mahavir Singh,
Pathologist. He has proved the medical
paper Ex.Ka.12 in which no dead or live
spermatozoa was found.

15. Dr. Smt. Anjali Singh has been
produced as PW-7. He has proved the
medical report Ex.Ka.13. She found the
victim's hymen to be old torn. Two vaginal
8 All. Babu Ram Vs. State of U.P.
77
slides were prepared of the victim. In her
opinion the age of the victim was 14-15
years. Victim came at about 2.00 in the
night for medical examination. However,
no injuries of any kind were found on the
victim and the hymen could be ruptured for
any other reasons like cycling, playing or
injury. As per the doctor in case of sexual
assault some signs ought to have been
come on the body of the victim. This was
not the case here. She could only comment
upon fresh sexual assault and not about
sexual assault continued for the last one
year.

16. On the basis of above evidence
the prosecution got the statement of
accused recorded under Section 313
Cr.P.C. On being confronted with the
prosecution evidence the accused appellant
has stated that false case has been lodged
against him and the prosecution evidence is
not reliable.

17. Sheel Kunwar (mother of accused
appellant) aged about 70 years has been
produced as DW-1. She stated that when
the accused returned from work he asked
for water but when the victim did not offer
him water to drink the accused got angry
and slapped the victim. It is thereafter that
the cousins of victim assaulted the accused
Babu Ram and took him to the police
station where he was formally arrested. She
has stated that despite best effort she could
not ascertain the whereabouts of the victim.
Even after the death of her grandfather the
victim did not visit the family. The second
wife of the accused appellant and their
child have been chased away from the
house by the witnesses.

18. Chameli Devi has been produced as
DW-2. She has stated that the victim was
living with her grandmother and on account
of the incident in which the accused slapped
his daughter for not offering him water
victim's cousin assaulted the accused and got
him arrested. DW-2 happens to be the sister
of the accused appellant.

19. Trial court on the basis of the above
evidence has come to the conclusion that
prosecution has established its case against
the accused appellant and has consequently
convicted the accused appellant, as per above
and sentenced him to life imprisonment.

20. Learned counsel for the appellant
submits that the accused appellant has been
falsely implicated at the instance of PW-2 as
he bore a grudge against the accused
appellant on account of the misplaced belief
that his mother was killed by the accused
appellant. It is argued that the victim was
staying in the house with the grandparents
and the allegation that she was raped for a
year without anyone coming to know of it or
the victim not informing about it to anyone is
improbable. The accused appellant was
otherwise married and his wife was also
living with her child in the house with the
thatched roof. Site plan has been relied upon
to state that parties lived in hutments close to
each other and it appears improbable that a
young girl would be raped for so long
without anyone coming to know of it or the
victim
making
complaint
to
anyone.
Argument is that the accused appellant has
been framed since it is impossible to believe
that the victim was continuously raped for
almost one year without anybody coming to
know of it or anyone seeing the incident. No
exact date, time or place of the act of sexual
assault has otherwise been specified by the
victim.

21. Alternatively, it is submitted that
the
accused
appellant
has
already
undergone incarceration of more than ten
78 INDIAN LAW REPORTS ALLAHABAD SERIES
years nine months and since he has
otherwise no criminal history, the appellant
is entitled to be released on the sentence
already undergone by him. Learned counsel
also argues that no reasons have been
assigned by the trial Judge to award
maximum sentence, in the facts of the
present case.

22. We have heard Sri Jitendra Pal
Singh, learned counsel for the accused
appellant, Sri J.P. Singh, learned AGA for
the State and have perused the records
including the trial court records.

23. The evidence on record reveals
that the victim is unmarried daughter of the
accused appellant. Prosecution case is that
she was sexually assaulted by her own
father for almost a year. The primary
evidence of the prosecution is the statement
of the victim, who has supported the
prosecution case as per which she was
sexually assaulted by the accused appellant
for almost thirteen months, whereafter
complaint was made by the victim to her
step-brother Sandeep. The manner in which
the incident is alleged to have taken place
needs careful analysis in light of the
evidence on record.

24. The victim as well as PW-2 both
are consistent in saying that on 2.6.2015
accused appellant came to the house of
victim's grandparents while returning from
work and demanded a glass of water from the
victim. The victim however did not give
water to drink to the accused appellant.
Accused appellant thereafter punched the
victim on her back. It is thereafter that PW-2
alongwith his cousin Jagdish came and
physically assaulted the accused appellant
whereafter he was taken to the police. The
incident of sexual assault has not taken place
on 2.6.2015. It was apparently the act of
accused appellant slapping his daughter
(victim) which was the reason for accused
appellant to be physically assaulted and then
taken to police or the police arresting him.
The immediate cause of raising protest
against the accused appellant was, therefore,
the act of victim being slapped/punched by
the accused appellant.

25. Now coming to the allegation of
sexual assault by the accused appellant, on
his own daughter, the victim's consistent
version is that she was sexually assaulted for
the last about 13 months. The victim on
specific inquiry, however, has not specified
the date, time or place when she was first
subjected to sexual assault. She has also not
disclosed as to when and how the accused
appellant sexually abused her. There is just a
general allegation that for almost 13 months
she was sexually assaulted by the accused on
the threat that she would be harmed. For this
entire 13 months the victim, however, has not
made any complaint to anyone.

26.

The
prosecution
witnesses
specifically state that the victim was staying
with her grandparents. Accused appellant
lived in a different house with his wife and
child. These houses were in close proximity.
Site plan indicates that family of other
brothers of accused also lived close by. Stepbrother of the victim, namely Sandeep also
lived nearby. Victim therefore had access to
the step-brother and other relatives including
her grandparents but admittedly none was
informed about her rape nor anyone ever saw
the incident or came to know of it. The victim
has not even alleged that she told anyone
about her sexual exploitation.

27. We have also perused site plan
which shows that the house of the accused
appellant consisted of one thatched roof
with a door while another room had no
8 All. Babu Ram Vs. State of U.P.
79
doors. Outside these two rooms is a
platform. Adjoining this house there is a
little open space belonging to the brother of
the accused appellant and, thereafter lies
the thatched rooms belonging to other
family members. There is absolutely no
evidence of any other persons, who may have
been informed by the victim during this entire
period of 13 months that she was being
sexually assaulted by her own father. Wife of
accused appellant admittedly lives close by.
Accused appellant Babu Ram also has a child
with her second wife (victim's stepmother). It
looks rather strange that a young girl was
raped for almost 13 months in her own house
by her father without anyone coming to know
of it or the daughter informing anyone about
it. In the entire statement of the victim there is
no disclosure that she ever informed anyone
of her travails and it was only on the date
when she was slapped by her father for not
providing him water that she informed about
her rape to her stepbrother and his cousin.
The victim in her statement has explained the
family composition as also the place where
she lived in following words:-

"बाबूराम के पररवार में कौन-कौन रहता है मुझे
मालूम है। एक पररवार में मैं, दादी, व बाबा रहते हैं। जब मैं रहती थी
तब मैंने देखा कक मेरे बाबा बहुत बीमार हालत में थे चल किर नहीं
सकते थे बहुत कम चलते थे। बाबूराम व उसकी पत्नी और बच्चा
यह सब अलग मकान में एक पररवार में रहते हैं। शेष भाई अपने-
अपने मकान में रहते हैं। संदीप का मकान दादी बाबा के मकान के
पास में है। संदीप आंगन में से नहीं कनकलते है। बाउण्ड्री टूटी हुयी है।
कोई दीवाल नहीं है। इनके घर में छप्पर पडा हुआ है। बाबा मेरे छप्पर
में रहते हैं। मैं भी उनके साथ छप्पर में ही रहती ह ूँ। संदीप से बात
करने को मेरे कपताजी, दादी, सब लोग मना करते थे। कभी-कभी इस
सबसे नजर बचाकर मैं संदीप से बात करती थी। अगर कोई देखता
था तो डांटता भी था। आज मेरे साथ मेरा भाई संदीप, मोटरसाईककल
से मुझे लेकर आया है।"

28. The above statement shows that
apart from accused appellant Babu Ram
and his wife and children the other family
members of the family including the
grandparents and stepbrother Sandeep were
living in close vicinity. There is no reason
disclosed as to why the victim never
informed anyone about the unbecoming
acts of the accused appellant. The victim
has also explained the manner in which the
incident actually occurred.

"कजस कदन बाबूराम को पकडने वाली घटना हुयी थी
वह कदन व तारीख व समय याद नहीं है। शाम का समय था। बाबूराम
काम पर से लौटकर आये थे और दादी के यहां बाबा को देखने के
कलए बैठे थे पानी बाबूराम ने पीने के कलए मांगा था तो मैंने कहा कक
अभी लेकर आती ह ूँ लेककन कदया नहीं तब उन्होंने मेरे पीठ पर एक
घूंसा मारा था। तभी संदीप, जगदीश व घर वाले सब आ गये और
बाबूराम को मारने लगे और मुझे अपने घर ले गये और बाबूराम को
पुकलस बुलाकर पकडवा कदया और इन सभी लोगों ने बाबूराम को
बांधकर डाल कदया। कजससे यह भाग न जाये। यह पूरी घटना मैनें
अपनी आंखो से देखी थी और पुकलस बाबूराम को पकड कर ले
गयी यह भी मैंने देखा था।"

29. Apart from the oral testimony of
the victim herself there is no other
corroborative piece of evidence to support
the allegation of sexual assault upon the
victim. None of the family members who
were living in the close vicinity has
supported the allegation nor is it anyone's
case that any untoward incident was
reported by anyone during the last one
year.

30. The medical evidence on record
has also been examined by us. Three
doctors have been examined namely, PW3, PW-6 and PW-7. In the opinion of the
doctors as well as medical examination
report no external or internal injuries have
been found on the victim. Though the
hymen of the victim was found old torn but
in the opinion of the doctor there could be
various reasons for it. Statement of doctor
Smt. Anjali Singh in this regard is relevant
and is reproduced hereinafter:-
80 INDIAN LAW REPORTS ALLAHABAD SERIES

"पीकडता बाह्य व आंतररक परीक्षण मेरे द्वारा ककया
गया था। पीकडता शरीर पर बाह्य चोट का कोई भी कनशान मौजूद नहीं
था और न ही आंतररक शरीर पर ही कोई कनशान मौजूद था। हाइमन
पुराना िटा हुआ था। हाइमन ककसी भी प्रकार से िट सकता है जैसे
साईककलींग, कोई चोट या खेल कूद से भी िट सकता है। अगर कोई
assault हुआ होता तो शरीर पर कोई न कोई कनशान होता।
लेककन इस केस में ऐसा कुछ नहीं था।"

31. Even in the pathological report no
dead or live spermatozoa has been found.
In such circumstances, the only testimony
which remains on record to support the
prosecution case is the version of the victim
herself.

32. Moreover, although the victim
alleged that her sister was also raped by the
accused appellant about ten days back but
no evidence in that regard has been
produced.

33. Law with regard to evidentiary
value of the victim of sexual assault is well
settled. The testimony of a victim is
equated to that of an injured witness and is
entitled
to
great
weight.
Ordinarily
allegation of sexual assault has to be
viewed with concern and the testimony of a
victim
is
entitled
to
much
weight.
However, the testimony of the victim of
sexual assault has also to be viewed in the
surrounding facts and circumstances so as
to consider as to whether she could be
treated as a sterling witness such that the
conviction of accused could be based only
on her statement.

34. When the evidence in the present
case is carefully noticed we find that there
is a strong motive for the victim to falsely
implicate her father. Admittedly, the victim
was told by her step-brother (informant)
that their mother was killed by the accused
appellant. The victim has been specific in
alleging so in her deposition. The basis of
such information is the disclosure made by
the informant (PW-2) and her sister who
admittedly has not been produced in
evidence.

35. Informant Sandeep was born from
the union of the mother of victim, namely
Smt. Sonwati and one Parmeshwar Dayal.
Smt. Sonwati died when the victim was
around a year old. PW-2 was living with
her mother and accused appellant Babu
Ram. There is no evidence on record to
indicate as to how the mother of the
informant and the victim Smt. Sonwati
died. In this regard statement of the victim
assumes significance. Victim has clearly
stated in her cross-examination that she
was told about the murder of her mother by
informant Sandeep and her sister. She has
also categorically alleged that she came to
know from Sandeep and her sister that it
was accused appellant Babu Ram, who had
murdered her mother. This is clearly
reflected from the following statement of
the victim:-

"मुझे मेरी मां की हत्या के सम्बंध संदीप व मेरी दीदी
ने बताया था। मुझे इन्ही के द्वारा जानकारी हुयी कक मेरी माूँ को
बाबूराम ने मारा था। संदीप की माूँ व मेरी माूँ एक ही थी। इस ररश्ते
से मैं संदीप को अपना भाई मानती ह ूँ।"

36. The above statement of the victim
clearly indicates that the victim had a belief
that her mother was done to death by the
accused appellant. No evidence, however,
has been brought on record to even
remotely suggest that Smt. Sonwati was
killed by accused appellant Babu Ram.

37. On the aspect of alleged murder of
victim's mother by the accused appellant
the
prosecution
evidence
is
full
of
contradictions. As against PW-1, PW-2 in
his cross-examination has categorically
8 All. Babu Ram Vs. State of U.P.
81
stated that he has no enmity with accused
Babu Ram and he does not bear any enmity
against him for having killed his mother.
Following passages from the statement of
PW-2 is relevant and is reproduced:-

"मेरी व बाबूराम की कोई रंकजश नहीं है। मुझे यह भी
शक नहीं है कक बाबू राम ने मेरी माूँ को मार डाला है। मुझे नहीं पता
कक मेरे मामा ने बाबूराम को जेल कभजवाया है। मैं अपनी माूँ के मरने
के 4-5 साल के बाद अपने घर आ गया था।"

38. Statement of PW-2 and PW-1
contradicts each other on the role of
accused appellant in murdering their
mother Smt. Sonwati. While the victim
says that she was informed by informant
(PW-2) and her sister about the accused
appellant having murdered her mother,
PW-2 (brother of the victim) clearly
disowns any such belief of accused
appellant having killed his mother. Elder
sister of victim has not been produced and
it is only PW-2 who has been produced in
evidence by the prosecution. Though the
question as to who killed Smt. Sonwati
may not be directly in question before us,
but the accusations in that regard against
the accused appellant and its denial by the
informant lends credence to the defence
version that the victim bore a grudge
against the accused appellant. This fact
would be relevant as it may constitute the
basis for false implication of the accused
appellant.

39. In the facts of the case we are
inclined to doubt the statement of PW-2
that he did not doubt the accused appellant
of having killed his mother. The reason for
it is that the victim specifically states that
she was informed about the murder of her
mother by the accused appellant by PW-2
and there is no reason for the victim to lie
on this count. It appears that PW-2 bore a
grudge against the accused appellant on
account of his belief that the accused
appellant had killed his mother and that is
why a distance was maintained by the
family members from PW-2. Victim and
PW-2 both have stated that they were not
allowed to interact. It is only on the date of
incident i.e. 2.6.2015 that the victim told
PW-2 about her rape. It is on this day that
accused
appellant
was
assaulted,
apprehended and handed over to the police
by PW-2. Prior to it no complaint was ever
made by the victim about her rape to
anyone.

40. It is quite natural for a young girl
to carry a grudge against her own father if
she harbours a firm belief that her mother
was killed by him. This feeling can be
strong enough to convince her to justify
levelling of false accusation also so that the
guilty father be punished for his act. During
the course of trial specific suggestion has
been given both to PW-1 and PW-2 by the
defence that it was to avenge the enmity
with the accused appellant on account of
his having murdered their mother that the
victim has made false allegation against the
accused appellant.

41. Upon careful perusal and analysis
of the evidence on record we do find a
distinct possibility of the victim having
framed her father to avenge the murder of
her mother by him, particularly when such
facts were told to her by the informant
Sandeep. The evidence, further shows that
all family members discouraged the victim
from interacting with the informant. It
appears that the informant did carry this
belief that her mother was done to death by
the accused appellant and he did told the
victim about it. However, at the trial he has
completely backtracked on this accusation
so as to resist any plea of false implication.
Nevertheless, the testimony does show that
82 INDIAN LAW REPORTS ALLAHABAD SERIES
the victim and PW-2 both harboured a
belief that her mother was murdered by the
accused appellant. In such circumstances,
we are not inclined to place the testimony
of the victim in the category of wholly
reliable witness such that no corroboration
of her testimony would be warranted.

42. Once the testimony of victim is placed
in the category of partially reliable and partially
unreliable we would be required to look for
corroboration of the victim's accusation in other
evidence on record. Upon a careful evaluation
of the evidence we find that there is no
corroboration of the victim's accusation except
the version of PW-2, who himself is not an eyewitness and his testimony is also based upon the
information furnished to him by PW-1.

43. In the facts of the case, it is apparent
that accused appellant has already undergone
incarceration of more than ten years, nine
months with remission. In light of the
discussions aforesaid, we are inclined to hold
that the defence has succeeded in creating a
doubt on the prosecution case of rape for 13
months upon the victim and, therefore, the
accused appellant is entitled to benefit of doubt.

44. So far as judgment of conviction and
sentence passed by the court of Sessions is
concerned, we find that the trial court although
has noticed the evidence on record but has
completely omitted to consider the import of
the victim's accusation of his father in having
murdered her mother. The possibility of false
implication of the accused appellant on account
of
such
enmity
has
been
completely
overlooked. The fact that the accused appellant
otherwise has no criminal history; there is no
evidence of his sexual perversion otherwise
reported in the past; the accused appellant was
already married and it will be difficult to
conceive that the act of sexual assault for almost
a year may go unnoticed or without a grievance
being raised to anyone seems improbable; the
immediate
provocation
was
the
slapping/punching of the victim by accused
appellant for not providing water which
enraged the informant who assaulted and
apprehended the accused and got him arrested
etc. have been overlooked. In that view of the
matter, we are not persuaded to accept the
reasoning assigned by the court of Sessions in
convicting
and
sentencing
the
accused
appellant,
who
has
already
undergone
incarceration of more than ten years in jail.

45. Resultantly, this appeal succeeds and
is allowed. The judgment and order dated
24.2.2018, passed by the learned Additional
Sessions Judge/Court No.1, Pilibhit in Sessions
Trial No.8 of 2015, arising out of Case Crime
No.622 of 2015, under Sections 376(2)(f),
376(2)(n) IPC and 5/6 POCSO Act, Police
Station Newriya, District Pilibhit is set aside.

46. The accused-appellant, who is
reported to be in jail, shall be released,
forthwith, unless he is wanted in any other case,
subject to compliance of Section 437A Cr.P.C.
----------
(2024) 8 ILRA 82
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 28.08.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 2616 of 2006

Sohan Lal ...Appellant
Versus
The State of U.P. ...Respondent

Counsel for the Appellant:
Sri Jyotindra Mishra

Counsel for the Respondent:
Govt. Advocate