# Chandhari @ Chandhradhari (In Jail) v. State of U.P

- **Citation:** (2022) 5 ILRA 633
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-07
- **Case number:** Criminal Appeal No.5297 of 2021
- **Bench:** Anil Kumar Ojha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandhari-chandhradhari-in-jail-v-state-of-u-p-48564
- **Pages:** 5

## Headnote

Law
-Code
of
Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Section 376-challenge
to-conviction-As per statement of PW2,
victim and PW-6, appellant committed
rape upon the victim at the point of knifeAs per medical report there was injury on
her hymen which is supported by victim
statement-Court
should
examine
the
broader probabilities of a case and not get
swayed
by
minor
contradictions
or
insignificant
discrepancies
in
the
634 INDIAN LAW REPORTS ALLAHABAD SERIES
statement of victim, which are not of a
fatal nature, to throw out an otherwise
reliable prosecution case-Mere delay in
FIR will not make the prosecution story
suspicious-It is a case of rape where
testimony of prosecutrix stands at par
with that of injured witness.(Para 1 to 34)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

5 All. Chandhari @ Chandhradhari Vs. State of U.P.
633
Section 161 Cr.P.C., unless the I.O. or
concerned officer specifically questions the
person in that regard. When a statement
under section 161 CrPC is recorded, a
witness may fail to make a disclosure may
be because of his understanding that it is
not material or may be because no question
in that regard is put by the I.O. Therefore,
in our view, as to when an improvement
would affect the credibility of a witness,
much would depend on the facts of a case
apart from the nature of the improvement
made. In the instant case, notably, both
PW-1 and PW-2 have throughout, right from
the stage of lodging the FIR, disclosed active
participation of the accused Akhilesh, that is,
he entered the house with the co-accused in
the night by scaling the wall, pressed the
mouth of PW-2 and exhorted co-accused
Arvind to finish off the deceased. This stand
was maintained during trial with an addition
that when PW-1 tried to come close to the
deceased, while the deceased was grappling
with co-accused Arvind, Akhilesh left PW-2,
caught hold the deceased by his hands, pulled
the hands of the deceased backwards and
exhorted Arvind to finish off the deceased. In
our view, this addition does not in any way
alter the substratum of the prosecution case
against Akhilesh rather it fills up the narrative
by way of an answer to the question put to
the witnesses during the course of their cross
examination in court. Otherwise also, there
appears truth in the ocular account and
indirectly explains the travel of the bullet in a
downward direction. In these circumstances,
the participation of appellant-Akhilesh in the
occurrence and sharing of common intention
with co-accused Arvind to kill the deceased
has also been proved beyond reasonable
doubt.

39 . For all the reasons recorded
above, we are of the considered view that
the trial court has correctly found the
appellants guilty of the charge for which
they have been tried and convicted. We,
therefore, affirm the judgment and order of
conviction and sentence recorded by the
trial court. Both the appeals are dismissed.
Both the appellants are reported to be on
bail. Their bail bonds are canceled. They
shall be taken into custody forthwith and
shall serve out the sentence awarded by the
court below.

40. Let the order be communicated to
the
trial
court
for
information
and
compliance.
----------
(2022)05ILR A633
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.04.2022

BEFORE

THE HON'BLE ANIL KUMAR OJHA, J.

Criminal Appeal No.5297 of 2021

Chandhari @ Chandhradhari
 ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri J.A. Azmi, Sri Krishna Manohar Tiwari (A.C.)

Counsel for the Respondent:
A.G.A.

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Section 376-challenge
to-conviction-As per statement of PW2,
victim and PW-6, appellant committed
rape upon the victim at the point of knifeAs per medical report there was injury on
her hymen which is supported by victim
statement-Court
should
examine
the
broader probabilities of a case and not get
swayed
by
minor
contradictions
or
insignificant
discrepancies
in
the
634 INDIAN LAW REPORTS ALLAHABAD SERIES
statement of victim, which are not of a
fatal nature, to throw out an otherwise
reliable prosecution case-Mere delay in
FIR will not make the prosecution story
suspicious-It is a case of rape where
testimony of prosecutrix stands at par
with that of injured witness.(Para 1 to 34)

The appeal is dismissed. (E-6)

List of Cases cited:
1. St. of Punj. Vs Hakam Singh (2005) 7 SCC
408

2. Raja & ors. Vs St. of Karn. (2016) 10 SCC 506

(Delivered by Hon'ble Anil Kumar Ojha, J.)

1. Heard Sri Krishna Manohar Tiwari,
learned Amicus Curiae for the appellant,
Sri Ravi Prakash Pandey and Sri Ram
Vichar Chaudhary, learned A.G.A. for the
State and perused the record.

2. Challenge in this Criminal Appeal
is
the
judgement
and
order
dated
07.03.1998 passed by Sessions Judge,
Azamgarh in Sessions Trial No. 722 of
1997, State Vs. Chandhari@Chandradhari
arising out of Crime No. 249 of 1997 under
Section 376 I.P.C., P.S. Kandharapur,
District,
Azamgarh
whereby
learned
Sessions Judge, Azamgarh has convicted
the appellant, Chandhari@Chandradhari
under Section 376 I.P.C. and sentenced him
to undergo Rigorous Imprisonment for a
period of ten years and pay a fine of Rs.
2,000/- and in default of payment of fine, to
suffer
six
months
further
Rigorous
Imprisonment.

3. Shorn of unnecessary details, case of
prosecution is that an F.I.R. was lodged by
complainant, Subai on 25.09.1997 at 16:00
hours
in
P.S.,
Kandharapur,
District,
Azamgarh stating therein that on 20.09.1997
at
about
4:00
P.M.,
appellant,
Chandhari@Chandradhari
forcibly
committed rape upon victim at the point of
knife. Complainant filed a written report at
the police station. Case was registered against
accused, Chandhari@Chandradhari at P.S.,
Kandharapur, District Azamgarh in Crime
No. 249 of 1997 under Section 376 I.P.C.

4.

Investigating
Officer
started
investigation and prepared site-plan of the
spot;
he
produced
the victim
before
concerned Magistrate for recording of her
statement under Section 164 Cr.P.C. Victim's
statement under Section 164 Cr.P.C. was
recorded; she was medically examined. After
recording of statement of witnesses and
conclusion of investigation, I.O. submitted
charge-sheet
against
the
appellant,
Chandhari@Chandradhari in Crime No. 249
of 1997 under Section 376 I.P.C., P.S.
Kandharapur, District Azamgarh.

5. The then Additional Civil Judge,
Junior Division/Judicial Magistrate First
Class, Azamgarh on 19.12.1997 committed
the case of appellant to Sessions Court for
trial.

6. Learned Sessions Judge framed
charge
against
the
appellant,
Chandhari@Chandradhari under Section 376
I.P.C. Appellant denied the charges and
claimed trial.

7. Prosecution was called upon to
adduce the evidence to substantiate the
prosecution version. Prosecution produced
Subai who lodged the F.I.R. as P.W. 1. He
is the complainant/informant of the case.
P.W.
1,
Subai
has
supported
the
prosecution story in his evidence before the
Court P.W. 1 proved F.I.R., Ex. Ka-1.

8. P.W. 2 is the victim herself. She
has supported the prosecution version and
5 All. Chandhari @ Chandhradhari Vs. State of U.P.
635
has specifically stated that appellant,
Chandhari@Chandradhari has committed
rape upon her.

9. P.W. 3, Narmi is the mother of
victim. She has also supported the
prosecution story.

10. P.W. 4, Amarjeet Singh is S.O.,
Kandharapur.
He
has
conducted
the
investigation and proved the charge-sheet,
Ex. Ka-3. P.W.-5, Rajan Yadav is a Court
Moharrir who has proved the Chick F.I.R.,
Ex. Ka-4. P.W. 6, Dr. Sumati Saxena
conducted the medical examination of the
victim and proved medical examination
report as Exhibit Ka-6, Pathological Report
Ex. Ka-7, Radiological Report Ex. Ka-8.
P.W. 6, Dr. Sumati Saxena opined that
victim has been subjected to sexual
intercourse.

11. P.W. 7, Dr. S.P. Singh proved the
Supplementary-Report as Material Exhibit-1.
P.W. 7 has stated in his statement before the
Court
that
as
per
the
Radiological
Examination, age of the victim is found to be
more than 16 years and less than 18 years and
proved X-ray Report, Ex. Ka-9, X-ray plate,
Material Ex.-1.

12. Prosecution concluded its evidence;
statement of appellant under Section 313
Cr.P.C. was recorded. Appellant denied the
evidence and also denied commission of rape
and stated his ignorance. He specifically
stated that he was a poor labourer and used to
do labour work with Shivnath Yadav. He has
three sisters and nine brothers.

13. After hearing the prosecution and
defence, learned Sessions Judge, Azamgarh
convicted the appellant as above.

14. Feeling aggrieved and dissatisfied
with the aforesaid judgement, appellant has
preferred this appeal.

15. Submission of learned Amicus
Curiae for the appellant is that there is five
days' delay in the lodgement of F.I.R.
Evidence of victim is unworthy of
credence; Investigating Officer had not
collected the cloth; victim has gone for
grass-cutting; she was having weapon,
hence she should have inflicted injury upon
the appellant. Prosecution story is doubtful.
Appellant deserves benefit of doubt.

16. Per-contra, learned A.G.A.
vehemently
opposed
the
aforesaid
arguments and submitted that victim is a
labour class rustic lady. There is no
material contradiction in her statement.
Evidence of victim is supported by medical
evidence. Mere delay in lodging the F.I.R.
will not make the prosecution story
suspicious. Appellant committed rape upon
the victim at the point of knife. Appeal
lacks merit and deserves dismissal.

17. In State of Punjab Vs. Hakam
Singh (2005) 7 SCC 408, Hon'ble Apex
Court has held that it is not expected of a
rustic lady to state with precision the chain
of events. In case of rustic lady, Court
should keep in mind her rural background
and scenario in which the incident
happened and should not appreciate her
evidence from rational angle and discredit
her otherwise truthful version on technical
grounds.

18. It is a case of rape where
testimony of prosecutrix stands at par with
that of injured witness. Law on the point of
evidence of rape victim, is clearly settled.
636 INDIAN LAW REPORTS ALLAHABAD SERIES

19. In Raja and others v. State of
Karnataka (2016) 10 SCC 506, Hon'ble
Apex Court has held as follows:

"..........It
was
exposited
that
insofar as the allegation of rape is
concerned, the evidence of the prosecutrix
must be examined as that of a injured
witness whose presence at the spot is
probable but it can never be presumed that
her statement should always without
exception, be taken as gospel truth.

The essence of this verdict which
has stood the test of time proclaims that
though generally the testimony of a victim
of rape or non- consensual physical assault
ought to be accepted as true and
unblemished, it would still be subject to
judicial scrutiny lest a casual, routine and
automatic acceptance thereof results in
unwarranted conviction of the person
charged."

20. Thus Law on the point is that the
testimony of the victim must be appreciated
in the background of the entire case and the
Courts
should
examine
the
broader
probabilities of a case and not get swayed
by minor contradictions or insignificant
discrepancies in the statement of the victim,
which are not of a fatal nature, to throw out
an otherwise reliable prosecution case.

21. In view of above settled legal
position, the evidence of PW2 victim is
being analyzed and evaluated.

22. P.W. 2, victim in her examinationin-chief in Court has specifically stated that
on the date of incident, she had gone for
grass-cutting in the field of Shiv Nath Pasi. It
was 4 O' Clock in the evening. Appellant,
Chandhari@Chandradhari came there and
caught hold her hand. He brought the victim
at the bricklin of Baram Dev Ram and put a
knife at her breast, she cried to save her.
Thereafter, he committed rape upon her; she
became unconscious. When she regained
consciousness, she went to her home and told
the incident to her mother. She again
specifically stated that her age is 13 years.
Appellant forcibly committed rape upon her
at the point of knife.

23. She was cross-examined by defence
counsel but could not shake the credibility of
victim. She specifically tendered evidence at
page 18 of the paper book. That she tried to
save herself. Her cloth became stained. Police
did not took her cloth.

24. Evidence of victim is natural and
probable. There is no major contradiction in
her statement.

25. In view of the above, submission of
learned Amicus Curiae is that evidence of
victim is unworthy of credence has no legs to
stand and is rejected accordingly.

26. P.W. 6, Dr. Sumati Saxena has
proved the medical examination report. She
has stated in her examination-in-chief at page
no. 31 of the paper book that on the basis of
medical-examination, she is of the opinion
that
victim
was
subjected
to
sexual
intercourse. There was injury on her hymen.
In the cross-examination, she has also
specifically stated that victim was not
habitual to sexual intercourse.

27. Thus from the evidence of P.W. 2,
victim and P.W. 6, Dr. Sumati Saxena, it is
manifest that appellant committed forcible
sexual intercourse. As doctor has opined that
victim was subjected to sexual intercourse
and there was injury on her hymen, so
evidence of victim is supported by medical
evidence of P.W. 6. In the injury report itself,
5 All. New India Assurance Co. Ltd. Vs. Smt. Leela Devi & Ors.
637
the doctor has opined that linear tear seen on
posterolateral side of hymen.

28. It is accordingly held that evidence
of victim is supported by medical testimony.

29. Learned Amicus Curiae for the
appellant submitted that there is five days'
unexplained delay in lodgement of F.I.R.,
hence prosecution story is doubtful. I am
unable to accept this contention of learned
Amicus Curiae because victim, her father and
relatives are illiterate persons belonging to
labour class. Promptness in lodgement of
F.I.R. cannot be expected from them.
Moreover matter pertains to rape wherein
parties normally immediately don't rush to
police station to save their social prestige.

30. In view of the above, contention of
learned Amicus Curiae with regard to delay
in lodgement of F.I.R. is rejected.

31. Learned Amicus Curiae eloquently
argued that victim has gone for grass-cutting.
She was having weapon so she should have
inflicted injury upon appellant. There is no
sign of resistance by the victim. I am unable
to agree with the aforesaid contention
because victim is a rustic village lady.
Appellant committed rape at the point of
knife, so this contention of learned Amicus
Curiae is also unsustainable and is rejected.

32. The upshot of the above discussion
is that the prosecution has established its case
beyond
reasonable
doubt
against
the
appellant, Chandhari@Chandradhari.

33. The impugned judgment and order
passed by lower court is within four corners
of law. There is no illegality in the judgment
and order dated 07.03.1998 passed by
Sessions Judge, Azamgarh in Sessions Trial
No.
722
of
1997,
State
Vs.
Chandhari@Chandradhari arising out of
Crime No. 249 of 1997 under Section 376
I.P.C., P.S. Kandharapur, District, Azamgarh
whereby learned Sessions Judge, Azamgarh
has
convicted
the
appellant,
Chandhari@Chandradhari under Section 376
I.P.C. and sentenced him to undergo
Rigorous Imprisonment for a period of ten
years and pay a fine of Rs. 2,000/- and in
default of payment of fine, to suffer six
months further Rigorous Imprisonment and
the same is hereby confirmed. Appeal lacks
merit and is liable to be dismissed.

34. Accordingly, this appeal is
dismissed.

35. The assistance rendered by Sri
Krishna Manohar Tiwari, learned Amicus
Curiae for the appellant is appreciable and his
fee is assessed Rs. 10,000/-.

36. Registry of this Court is directed to
pay Rs. 10,000/- to Sri Krishna Manohar
Tiwari, learned Amicus Curiae for the
appellant for his assistance.

37. Copy of this judgment be certified
to the court below for compliance. Lower
court record be transmitted to the District
Court concerned forthwith.
----------
(2022)05ILR A637
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.

First Appeal From Order No. 10 of 1993

New India Assurance Co. Ltd. ...Appellant
Versus
Smt. Leela Devi & Ors. ...Respondents