# Devanand Pandey v. State of U.P

- **Citation:** (2023) 7 ILRA 28
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-12
- **Case number:** Criminal Appeal No. 1119 of 2001
- **Bench:** Manjive Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/devanand-pandey-v-state-of-u-p-50418
- **Pages:** 13

## Headnote

Criminal Law - Indian Penal Code,1860 -
Section 376 - Appeal against conviction -
Rigorous imprisonment with fine - Code of
Criminal Procedure, 1973 - Sections 164,
200 & 313 - Complainant (brother of
victim) St.d in FIR that appellant and coaccused enticed his sister and took her
away - Victim's age was 14 years and
minor - She had taken away cash and
jewellery with her - During investigation,
in presence of witnesses, police found
victim was going on road, jewellery was in
her bag - After completing investigation
police submitted charge sheet - Trail court
framed charges and convicted him. (Para
3, 4, 6)

Held, initial version of victim that she was
put to threat and enticed by appellant to
run
away
has
been
found
to
be
unbelievable
by
trial
court
as
circumstances narrated make it absolutely
improbable that if a girl was being taken
away by extending threat by only one man
and she was passing through roads having
heavy traffic and persons, then she will
not make any hue and cry and will not
make
complaint
to
any
person
and
accordingly, trial court acquitted appellant
and co-accused for offence punishable u/s
366 IPC. (Para 26)

Testimony of PW-1 and PW-2 regarding
age of victim on date of incident was false,
in medical examination she was found to
be 18 years and as per version of her
brother given in cross-examination she
7 All. Devanand Pandey Vs. State of U.P.
29
was 21 years and victim in her St.ment
said her age was 19 years and she has
married to appellant with her free will,
trial court acquitted appellant of offence
punishable u/s 363, IPC. (Para 27)

Trial court found testimony of prosecutrix
as unbelievable, therefore, in absence of
any corroborative evidence, there was
manifest error of law and facts while
convicting and sentencing appellant u/s
376, IPC (Para 34)

Appeal allowed. (E-13)

List of Cases cited:

## Text

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28 INDIAN LAW REPORTS ALLAHABAD SERIES
implication of Ganga Prasad and Sohan Lal
in the present case as admittedly there was
some dispute in between complainant
family and the family of Ganga Prasad and
Sohan Lal. Learned trial court has simply
ignored the aforesaid serious contradictions
in the testimonies of the prosecution
witnesses and probability of the false
implication of Ganga Prasad and Sohan Lal
in the present case and has convicted and
sentenced Ganga Prasad and Sohan Lal.

22. I am of the view that the
prosecution story is under the cloud of
suspicion and prosecution has not been able
to prove its case against Ganga Prasad and
Sohan Lal beyond reasonable doubt,
therefore, Appellant No. 2 is liable to get
benefit of doubt.

23. In view of the aforesaid reasons,
this Criminal Appeal is allowed.

24. Judgement and order dated
6.11.2001
passed
by
9th
Additional
Sessions Judge, Lucknow in Session Trial
No. 744 of 1996 thereby convicting and
sentencing Sohan Lal under Section 363
I.P.C., is set-aside.

25. Appellant No. 2 is already on bail.
Sureties of Appellant No. 2 are, hereby,
discharged.

26. Let the copy of this judgement
and lower court record be sent back to the
court concerned for necessary information
and compliance.
----------
(2023) 7 ILRA 28
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.07.2023

BEFORE
THE HON'BLE MANJIVE SHUKLA, J.

Criminal Appeal No. 1119 of 2001

Devanand Pandey ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Avinash Srivastava

Counsel for the Respondent:
Govt. Advocate

Criminal Law - Indian Penal Code,1860 -
Section 376 - Appeal against conviction -
Rigorous imprisonment with fine - Code of
Criminal Procedure, 1973 - Sections 164,
200 & 313 - Complainant (brother of
victim) St.d in FIR that appellant and coaccused enticed his sister and took her
away - Victim's age was 14 years and
minor - She had taken away cash and
jewellery with her - During investigation,
in presence of witnesses, police found
victim was going on road, jewellery was in
her bag - After completing investigation
police submitted charge sheet - Trail court
framed charges and convicted him. (Para
3, 4, 6)

Held, initial version of victim that she was
put to threat and enticed by appellant to
run
away
has
been
found
to
be
unbelievable
by
trial
court
as
circumstances narrated make it absolutely
improbable that if a girl was being taken
away by extending threat by only one man
and she was passing through roads having
heavy traffic and persons, then she will
not make any hue and cry and will not
make
complaint
to
any
person
and
accordingly, trial court acquitted appellant
and co-accused for offence punishable u/s
366 IPC. (Para 26)

Testimony of PW-1 and PW-2 regarding
age of victim on date of incident was false,
in medical examination she was found to
be 18 years and as per version of her
brother given in cross-examination she
7 All. Devanand Pandey Vs. State of U.P.
29
was 21 years and victim in her St.ment
said her age was 19 years and she has
married to appellant with her free will,
trial court acquitted appellant of offence
punishable u/s 363, IPC. (Para 27)

Trial court found testimony of prosecutrix
as unbelievable, therefore, in absence of
any corroborative evidence, there was
manifest error of law and facts while
convicting and sentencing appellant u/s
376, IPC (Para 34)

Appeal allowed. (E-13)

List of Cases cited:

1. Baldeo Sao Vs St. of Jharkhand, reported in
2007 (CrLJ) 3992, (Para 4 to 7)

2. Santosh Prasad @ Santosh Kumar Vs St. of
Bihar, reported in (2020) 3 SCC 443

(Delivered by Hon'ble Manjive Shukla, J.)

1. Heard Mr. Avinash Srivastava,
learned counsel appearing for the appellant
and Mr. Balram Singh, learned Additional
Government Advocate appearing for the
State.

2. Appellant through this criminal
appeal has challenged the judgment and
order dated 28.11.2001 passed by 11th
Additional Sessions Judge, Faizabad in
Sessions Trial No.90/93 whereby the
appellant has been convicted for offence
punishable under Section 376 IPC and has
been sentenced for rigorous imprisonment
of 10 years with fine of Rs.5,000/- with
rider that in the event of failure to deposit
the amount of fine, he will undergo six
months' rigorous imprisonment.

3. Complainant (brother of the victim)
lodged an FIR in Police Station Tarun,
District Faizabad which was registered as
Case Crime No.218 of 1992 under
Section 363/366 IPC. The complainant in
the aforesaid FIR has stated that accused
appellant son of Suryabhan Pandey and
Rohit Kumar Pandey son of Ram Bahor
Pandey, residents of Village Vidyapur
Gayaspur, P.S. Tarun, District Faizabad had
enticed his sister and thereby took her
away. The complainant in the FIR has
further stated that his sister is aged about
14 years and is a minor. In the FIR, it has
further been stated that his sister had also
taken away cash and jewellery with her.
The complainant in the FIR has said that he
tried to search out his sister but she is
untraceable, therefore the First Information
Report be lodged and the police may search
out his sister.

4. After lodging of the aforesaid FIR,
the police of the concerned police station
started investigation. On 5.1.1993 at about
7 p.m. in presence of witnesses Madan
Mohan Mishra and Mohd. Junaid Khan, the
police found that the victim was going on
the road near the south Kabristan of village
Saidpur towards village Pandey Ka Purwa
and thereafter she was questioned and her
bag was searched out, then it was found
that jewellery was in the bag. The recovery
memo was prepared and the victim after
medical examination was handed over to
her father.

5. The police after completing the
investigation
submitted
charge
sheet
against accused appellant under Sections
363, 366, 376 IPC and against accused
Rohit Kumar Pandey under Section 363/34
and 366/34 IPC.

6. The trial court framed charges
against accused appellant under Sections
363, 366, 376 IPC and against accused
Rohit Kumar Pandey under Sections
363/34 and 366/34 IPC. During trial,
30 INDIAN LAW REPORTS ALLAHABAD SERIES
testimony of PW-1 (brother of the victim),
PW-2 (victim), PW-3 Dr. Meera Srivastava,
PW-4 Dr. D.R. Bhuwan and PW-5 Sub
Inspector M.L. Khan was recorded.

7. Thereafter, statements of both the
accused were recorded under Section 313
CrPC.

8. PW-1 (brother of the victim) in his
testimony recorded during trial has deposed
that in the night of 2/3.11.1992 he was
sleeping outside his house and his sister
was sleeping inside the house. When he
woke up in the night and went inside the
house, he found that his sister was not there
and at that time it was about 2.30 a.m. in
the night. PW-1 in his testimony has further
deposed that the age of his sister was 14
years and he tried to search out his sister
but she could not be traced. He has further
stated that accused Rohit Kumar Pandey
and accused appellant are the residents of
his village and both used to come to his
house and also used to talk to his sister. He
also deposed that he had instructed them
not to talk to his sister. He said that when
his sister could not be traced out, then he
became confident that Rohit and accused
appellant had enticed his sister and further
his sister along with her had also taken
away Rs.200/- cash and jewellery. When
his sister could not be traced out, then on
the next day he went to the police station
and lodged the FIR. He has also said that at
the time of incident his mother and father
were not present in the house as his mother
had gone to Ayodhya and his father was in
Surat on his service.

9. PW-1 complainant in his cross
examination has deposed that at the time of
incident his age was about 25 years. He has
further said that he has two younger sisters
namely Saroj Kumari and victim. Saroj
Kumari was two years younger to him and
victim was two years younger to Saroj
Kumari.

10. PW-2 (victim) in her testimony
recorded before the trial court has deposed
hat she knows accused appellant and Rohit,
who are residents of village Vidyapur and
marriage of accused appellant had already
taken place. She has further deposed that
her father is in service at Surat. PW-2 in her
testimony has also stated that accused
appellant and Rohit by extending threat to
her had taken her away with them. The
accused appellant and Rohit used to come
to her house frequently before the incident
and accused appellant is the distant brother
of her father. The marriage of accused
appellant had already taken place one year
back but accused appellant used to say that
he loves her a lot and his marriage has been
done at a wrong place and he further used
to say that he will marry with victim. The
mother of PW-2 came to know about the
talks between accused appellant and victim
and then she instructed the accused
appellant not to come to her house. On the
date of incident her mother was in
Ayodhya. PW-2 in her testimony has
further deposed that on the date of incident
at about 2.00 a.m. in the night, there was
knock at the door and she opened the door,
then the accused appellant extended threat
to her and forcibly took her on his bicycle
to Faizabad and Rohit also went with him.
She has also said that due to threat given by
the accused appellant she took Rs.200/-
cash and jewellery with her. Rohit stopped
at Faizabad and thereafter the accused
appellant took her on bicycle to Ayodhya
and then took her to Hanuman temple and
forcibly put Sindoor in her hair. PW-2 has
further stated that in the night she and the
accused appellant stayed at Ayodhya station
and next day he took her to Barabanki and
7 All. Devanand Pandey Vs. State of U.P.
31
there she stayed at station and on 5.11.1992
he took her to the court compound at
Barabanki and said that they should marry
in writing and further said that she should
tell her age as 20 years and he will not tell
anything about his first marriage. In the
court the accused appellant by extending
threat to the victim took her signatures on
some plain papers. Thereafter, the accused
appellant took PW-2 to Delhi and there he
went in a room in some colony and in the
night of the same day when the accused
appellant found PW-2 alone, he extended
threat to her and against her will did sexual
intercourse. PW-2 in her statement has
further stated that whenever he used to
protest, the accused appellant extended
threat and said that he will go leaving her
alone. PW-2 in her statement has also said
that after the date of incident she remained
with the accused appellant for about two
months and during the period when she
stayed in the colony every night the
accused appellant forcibly used to do
sexual intercourse with her. After two
months he brought her to Barabanki from
Delhi and said her to take tempo and to go
to village Saidpur and there to contact his
Mausa Ram Kumar who will arrange her
stay at the house of some one known to him
and further the accused appellant for
arranging money went to his house at
village Vidyapur and asked that he will
come tomorrow. PW-2 has also said that
after leaving tempo while she was moving
towards village Pandey Ka Purwa, then the
Inspector of the police station along with
her father came and with the help of Jeep
light they caught her and thereafter memo
of recovery was prepared and she after her
medical examination was handed over to
her father.

11. It is to be noted here that though
PW-2 (Victim) in her testimony recorded
during trial has not said anything about her
age at the time of incident but her statement
under Section 164 CrPC was recorded on
16.1.1993 and in the said statement she has
said that her age was 15-16 years.

12. PW-3 Dr. Meera Srivastava,
Emergency
Medical
Officer,
Woman
Hospital,
Faizabad
in
her
testimony
recorded during trial has said that she had
conducted medical examination of the
victim on 7.1.1993 and in the medical
examination it has been found that her
hymen was old torn and two fingers can
easily be inserted in her private part. PW-3
has further stated that as per the x-ray
report the age of the victim was 18 years
and further no opinion can be given in
respect of rape as the girl was used to
sexual intercourse.

13. PW-4 Dr. D.R. Bhuwan, Senior
Medical Officer (X-Ray) in his testimony
recorded during trial has deposed that the
x-ray of right elbow and right wrist of the
victim was carried out on 8.1.1993 and on
the basis of the x-ray report the age of the
victim was found to be 18 years.

14. Lastly, testimony of PW-5 Sub
Inspector M.L. Khan, Incharge Chowki
Shahjadpur, Kotwali Akbarpur has been
recorded and he has proved different papers
submitted by the police.

15. Thereafter, the statements of
accused under Section 313 CrPC were
recorded.
Accused
appellant
in
his
statement has categorically stated that he
had neither extended any threat to the
victim nor had enticed for taking her away
and further she had gone with him with her
free will. Accused appellant has also stated
that he did not extend any threat to the
victim for having sexual intercourse with
32 INDIAN LAW REPORTS ALLAHABAD SERIES
him and whenever sexual intercourse took
place it was with her consent. Accused
appellant has also stated that the victim on
the date of incident was major and after the
incident she had also filed one Complaint
Case No.3219/92 in the court of Chief
Judicial Magistrate, Barabanki against the
brother of the victim and others wherein
her statement under Section 200 CrPC was
recorded on 27.11.1992. In the aforesaid
statement recorded under Section 200 CrPC
the victim has stated that her age is 19
years and she has also stated that she had
married with the accused appellant with her
free will. The accused appellant has also
filed certified copy of the statement of the
victim recorded under Section 200 CrPC in
Case No.3219/92, Victim vs. brother of the
victim and others filed in the court of Chief
Judicial
Magistrate,
Barabanki.
For
convenience,
the
aforesaid
statement
recorded under Section 200 CrPC is
reproduced as under:-

"नकल
बयान
अन्तर्गत
200
CrPC........(पीड़िता)

.........(पीड़िता) उम्र 19साल डनवाडसनी मो०
काशीपुर कस्वा व थाना रुदौली डिला बाराबंकी ने सशपथ बयान
डकया डक मेरे डपता रामचन्र वाहर सूरत में रहते है डिनकी डबना
इिाित के मेरे भाई सुधीर कुमार पाण्डेय व मेरे चाचा सत्यनरायन व
मेरी मााँ परमेश्वरी एक अज्ञात आदमी के हाथ बेच देना चाहते थे
इसके डलए मैं तैयार नही थी, मेरा मूल रूप से डनवास डवद्यापुर थाना
तारुन डिला फैिाबाद है लेडकन मुडजिमान बराबर दबाव डाल रहे थे
डक मेरी मिी के डहसाब से चलो नही तो मार डालेर्े। इसी डर के
कारण मैं डदनांक 2.11.92 को अपनी मिी से डबना डकसी िोर
दवाव के अपने एक ररस्तेदार मो० काशीपुर कस्वा व थाना रुदौली
डिला बाराबंकी के घर आ र्ई और उनसे मैने घटना बाकयदा
बतायी और अपने ररस्तेदार से अनुरोध डकया डक अब हम
मुडजिमानों के घर नहीं िायेर्े क्योंडक मेरे डपता िी घर पर नही है।
तब मेरे ररश्तेदारो ने देवानन्द पुत्र सूयगभान िो मेरे र्ांव डवद्यापुर के
रहने वाले है को रुदौली वुलाया और सबके सामने देवानन्द से शादी
करना तय कर डलया और मैने र्वाहो के सामने अपनी मिी से शादी
कर डलया।

आि से 15 डदन हुए िब शाम पांच बिे उपरोक्त
मुडजिमान मेरे रहने के स्थान मो० काशीपुर आये इनके साथ तीन
अज्ञात आदमी भी थे और डफर दबाव डाला और मिी के डिलाफ
मुडजिमानों ने थप्प़िो से मारा और मार कर लापता करने की धमकी
डदया। मुझे मुडजिमानों से िान का ितरा है। देवानन्द ने मुझे भर्ाया
नही बडजक मैंने अपनी मिी से उनसे शादी डकया है। इस घटना की
ररपोटग मैंने पुडलस कप्तान को डदया है।

सुनकर तस्दीक डकया।

ह०-............(पीड़िता) ह०-

कोटग सटी०

मुख्य न्याडयक

सी.िे.एम
 दण्डाडधकारी बाराबंकी

बाराबंकी
 27.11.92

27.11.92

16. Learned trial court has considered
the testimonies of the prosecution witnesses
and the statements of the accused recorded
under Section 313 CrPC. Learned trial
court has found that though the victim in
her testimony has said that the accused
appellant and Rohit had extended threat to
her and enticed her and thereby took her
away but the facts of the case clearly reveal
that the victim while going with the
accused appellant took away Rs.200/- cash
and jewellery from her house. Thereafter,
she went on the bicycle of the accused
appellant to Faizabad and further she went
on bicycle from Faizabad to Ayodhya. At
Ayodhya, the accused appellant and the
victim went to Hanuman temple and there
the accused appellant had put Sindoor in
her hair. The victim in the night stayed at
Ayodhya station and the next day came
with the accused appellant to Barabanki
and stayed at station. Thereafter, on
5.11.1992 she along with the accused
appellant went to the court and there she
signed on some plain papers. Thereafter,
the victim went to Delhi with the accused
appellant and stayed in a room in some
colony
at
Delhi
and
there
sexual
intercourse took place and after staying for
some time in Delhi, accused appellant took
7 All. Devanand Pandey Vs. State of U.P.
33
her back to Barabanki and while she was
going from Barabanki to some place she
was caught by the police and was handed
over to her father. During the aforesaid
travel from village to Faizabad, Faizabad to
Ayodhya, Ayodhya to Barabanki, Barabanki
to Delhi and Delhi to Barabanki, the victim
was with the accused appellant and must
have passed through many places having
presence of several persons but she never
made any attempt either to make a cry or to
contact any person to tell that the accused
appellant had extended any kind of threat
and she had gone with the accused
appellant under the threat extended by him.
Therefore, in the facts and circumstances of
the case, learned trial court found that there
was no threat extended by the accused
appellant and the victim was moving with
accused appellant with her free will.

17.

Learned
trial
court
has
considered the entire evidence available
on record in respect of the age of the
victim on the date of incident and though
the brother of the victim and the victim
herself in her statement recorded under
Section 164 CrPC have stated that the
victim was minor on the date of incident
but the medical examination conducted by
the doctors clearly reveals that on the date
of medical examination the victim was
aged about 18 years and further the
brother of the victim in his statement and
the cross examination has categorically
stated that on the date of incident his age
was about 25 years. He has two younger
sisters, next sister is two years is younger
to him and the victim is two years younger
to the next sister, as such, the age of the
victim on the date of incident as per
version of his brother was 21 years. In
view of the aforesaid evidence, learned
trial court has concluded that the victim on
the date of incident was major.

18. Learned trial court in view of the
aforesaid
conclusions
ultimately
has
acquitted the accused appellant and Rohit
for the offences punishable under Sections
363 and 366 IPC.

19. Learned trial court thereafter has
considered that the victim in her testimony
recorded during trial has said that accused
appellant did sexual intercourse with her
without her consent and even she was
extended threat by accused appellant and
the learned trial court has concluded that
once the victim has said that accused
appellant had done sexual intercourse with
her without her consent and by putting her
to threat, then there is no reason to
disbelieve her version and accordingly,
accused appellant is liable to be convicted
for offence punishable under Section 376
IPC and thus, the learned trial court has
convicted the accused appellant under
Section 376 IPC and sentenced him for
rigorous imprisonment of 10 years and fine
of Rs.5,000/-.

20. Learned counsel appearing for the
appellant has vehemently argued that the
testimony of the prosecution witnesses
recorded
during
trial
categorically
demonstrates that PW-1 and PW-2 all along
have narrated an absolutely false story.
Even the trial court has concluded that the
testimony given by the victim in respect of
threat extended to her by the accused
appellant for running away with him and to
marry him is absolutely false as she
travelled at many places with the accused
appellant and she never raised any alarm or
she never asked any help from other
persons present on the roads. Learned trial
court has also found the version of the
prosecution and the statement of the victim
in respect of her age to be absolutely false
as in the medical report the doctors have
34 INDIAN LAW REPORTS ALLAHABAD SERIES
found the age of the victim to be 18 years
and further as per the testimony of her
brother, she was of 21 years of age on the
date of incident.

21. Learned counsel for the appellant
has further argued that once the testimony
of the victim in respect of threats extended
to her for running away and in respect of
her age has been found to be unbelievable,
then the part of her testimony that she was
put to sexual intercourse by the accused
appellant under threat and without her
consent cannot be believed unless there is
some corroborative evidence and in the
present case there is only piece of
testimony of the victim and there is no
other corroborative evidence and therefore,
learned trial court while convicting the
appellant for offence punishable under
Section 376 IPC has committed manifest
illegality.

22. On the other hand, learned
Additional
Government
Advocate
appearing for the State has argued that
since the victim has said that sexual
intercourse was done by the accused
appellant under threat and without her
consent, as such the learned trial court has
rightly convicted the accused appellant for
offence punishable under Section 376 IPC.

23. I have considered the submissions
advanced by the learned counsels for the
parties and I have also perused the record
of the case.

24. I find that the victim in her
testimony recorded during trial has deposed
that she was extended threat and enticed by
the accused appellant and Rohit and
thereby she went with the accused
appellant. She has further stated that she
went from her house to Faizabad with the
accused appellant on bicycle. Thereafter,
from Faizabad to Ayodya on bicycle and
then in Ayodhya she along with the accused
appellant went to Hanuman temple where
the accused appellant extended threat and
put 'Sindoor' in her hair. She has further
said that from Ayodhya she came to
Barabanki and in Barabanki she along with
the accused appellant went to the court
compound and there under threat she
signed on some plain papers. She has
further stated that thereafter she along with
the accused appellant went to Delhi and
stayed there in a room in some colony for
some days and there the accused appellant
under threat and without her consent did
sexual intercourse with her.

25. No doubt, in cases lodged under
Sections 363, 366 and 376 IPC, testimony
of the victim girl is of paramount
importance and once the testimony of the
victim is without contradiction, then the
said testimony itself is sufficient to convict
the accused but where it is found that the
story narrated by the victim is absolutely
improbable and from the very beginning
the victim is giving false statement, then
her testimony definitely has to be looked by
the court with extra care and in the said
circumstance, other corroborative evidence
is also necessary to convict the accused for
offences punishable under Sections 363,
366 and 376 IPC.

26. I find that initial version of the
victim that she was put to threat and was
enticed by the accused appellant to run
away with him has been found to be
unbelievable by the learned trial court as
the
circumstances
narrated
in
the
prosecution story make it absolutely
improbable that if a girl is being taken
away by extending threat by only one man
and she is passing through roads having
7 All. Devanand Pandey Vs. State of U.P.
35
heavy traffic and persons, then she will not
make any hue and cry and will not make
complaint to any person and accordingly,
learned trial court has acquitted the accused
appellant and Rohit for offence punishable
under Section 366 IPC.

27. I also find that learned trial court
has also concluded that the testimony of
PW-1 and PW-2 regarding the age of the
victim on the date of incident is absolutely
false as in the medical examination the
victim has been found to be 18 years of age
and as per version of her brother given in
his cross-examination she on the date of
incident was aged about 21 years and
further the victim herself has filed a
Complaint Case No.3219/92 in the court of
Chief
Judicial
Magistrate,
Barabanki
wherein in her statement recorded under
Section 200 CrPC she has categorically
said that her age is 19 years and thereby
learned trial court has acquitted the accused
of the offence punishable under Section
363 IPC.

28. From the aforesaid, it can be very
easily deduced that the victim's testimony
recorded during trial all along has been
found to be unbelievable/improbable by the
trial court itself and therefore, there is
hardly any occasion to rely upon a small
piece of her testimony and to convict
accused appellant for offence punishable
under Section 376 IPC. It is also a very
important piece of evidence which was on
record in the trial court and even the
accused in their statement recorded under
Section 313 CrPC have also stated about
the said evidence that the victim herself
after the incident in question had filed a
Complaint Case No.3219/92, Victim vs.
brother of the victim and others i.e. against
her brother in which her statement under
Section 200 CrPC was recorded on
27.11.1992 and in the said statement she
has categorically said that her age is 19
years and she has married to the accused
appellant with her free will. The aforesaid
statement of the victim recorded under
Section 200 CrPC in different complaint
case categorically demonstrates that her
marriage took place with the accused
appellant with her free will.

29. The facts when seen in totality
clearly demonstrate that the testimony of
the victim recorded during trial does not
inspire confidence and has been found to be
absolutely
unbelievable/improbable,
therefore in these circumstances one piece
of her testimony that the accused appellant
extended threat to her and did sexual
intercourse with her without her consent,
that
too
without
there
being
any
corroborative evidence regarding threat and
sexual intercourse without consent of the
victim, can also not be relied upon and
therefore, the trial court while relying upon
a piece of her testimony without any
corroborative evidence has committed
manifest illegality.

30. Once it is found that from the very
beginning the victim is giving false
evidence, then a very small piece of her
evidence cannot be relied upon unless there
is some other corroborative evidence. In the
present case, from the very beginning the
entire prosecution story has been found to
be false by the trial court itself, therefore
unless there is some other clinching
corroborative evidence, the accused cannot
be convicted only by relying upon a very
small piece of testimony of the witness
recorded during trial.

31. The Hon'ble Supreme Court in its
judgment rendered in the case of Baldeo
Sao vs. State of Jharkhand, reported in
36 INDIAN LAW REPORTS ALLAHABAD SERIES
2007 (CrLJ) 3992 has categorically held
that once the prosecution version has been
found to be unbelievable/improbable, then
the accused cannot be convicted solely
relying on a small piece of evidence of the
victim. Relevant portion of the aforesaid
judgment is extracted as under:-

"4. The present appeal has been
preferred mainly on the grounds that the
learned trial Court has not considered the
improbability of the prosecution case. It
was also asserted that the doctor (PW 3)
did not find any sign of rape and in absence
of probable witness of the occurrence, the
reliance placed by the learned trial Court
on sole statement of the prosecutrix is
misplaced. Mr. P.P.N. Roy, learned senior
counsel appearing on behalf of the
appellant, submitted that the reason behind
this false prosecution has been admitted by
PW 1 and PW 2 during their statements
before the trial Court. According to learned
Counsel,
further
in
absence
of
the
investigating officer, the defence has been
prejudiced. Therefore, the appellant may be
acquitted to the charges.

5. I have gone through the
evidence on record. The prosecution story
depends upon the sole statement of PW 1,
the victim. According to her, the appellant
alongwith Dilip Sao entered in the house
on pretext of water and forcibly committed
rape while nobody was in her house. She
has given the details of the occurrence and
thereafter
stated
that
she
became
unconscious. According to her version,
when her bhabhi returned after few hours,
she was made conscious when she narrated
the entire incident to her bhabhi and
brother. She further admitted that the same
night they went to Ichak Police Station
where her statement was recorded by
Ranvijay Singh vide Ext. 1. However, she
admitted during cross-examination that her
brother PW 2 Hemjraj Turi was an accused
in a case under Section 395 the Indian
Penal Code in which the father of the
appellant. Tulsi Turi, has given evidence
against his brother. She admitted vide
paragraph-20 that her parents as well as
two other brothers were alive. According to
her version, she has got this experience of
sexual intercourse for the first time and she
got injured during rape. However, this fact
has been disputed by PW 3 Dr. Kalpana
Sharan, who found hymen with old rupture
admitting two fingers and no sign of rape
on 13.4.1996. She did not find any injury
on other parts of her body PW 2, brother of
the prosecutrix is hearsay witness of the
occurrence.
According
to
him
vide
paragraph-11, the father of the appellant
has got a case registered against him for
theft. He supported prosecutrix regarding
her injuries on her body. He named four
persons to have accompanied the victim to
Police Station. However, no other witness
has been examined before the trial Court
though named in the chargesheet.

6. The learned trial Court has
considered all these facts and discussed
vide paragraphs-9 to 11. However, he has
relied upon the sole evidence of prosecutrix
and convicted the appellant in spite of the
fact that PW 1 and PW 2 have admitted
enmity between the families for a criminal
case against PW 2 in which the father of
the appellant has deposed against him. The
trial Court has disbelieved the version
regarding the offence under Section 3/4 of
the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, but accepted
the prosecution version from prosecutrix
claiming that she has been subjected to
sexual intercourse for the first time, the
doctor (PW 3) contradict her. The doctor
did not find any mark of violence on her
private
parts,
which
is
against
the
prosecution version.
7 All. Devanand Pandey Vs. State of U.P.
37

7. In the facts and circumstances
discussed above where previous enmity
between the families is admitted and in
absence of any evidence to support the
prosecution version that PW 1 has been
subjected to rape by two persons, I find and
hold that the prosecution in the facts of
present case has not been able to prove
beyond all reasonable doubts the charges
against the appellant. Accordingly the
present appeal has got merit and deserves
to be allowed.

32. The Hon'ble Supreme Court in its
judgment dated 14th February, 2020
rendered in the case of Santosh Prasad @
Santosh Kumar vs. State of Bihar,
reported in (2020) 3 SCC 443 has
considered the issue of conviction of the
accused based on the sole testimony of the
prosecutrix and has held that where the
story narrated by the prosecutrix has been
found to be under the cloud of suspicion,
then one piece of her testimony cannot be
made the basis for conviction of the
accused under Section 376 IPC. The
Hon'ble Supreme Court has categorically
held that the testimony of the prosecutrix
has to pass test of 'sterling witness' and
only then the said testimony can be made
the basis for conviction of the accused.
Relevant
portion
of
the
aforesaid
judgement of the Hon'ble Supreme Court is
extracted as under:-

"5. We have heard the learned
counsel for the respective parties at length.

5.1 We have considered in detail
the impugned judgments and orders passed
by the High Court as well as that of the
learned trial Court convicting the accused.
We have also considered in detail the
evidence on record, both oral as well as
documentary.

5.2
From
the
impugned
judgments and orders passed by both the
courts below, it appears that the appellant
has been convicted solely relying upon the
deposition of the prosecutrix (PW5).
Neither any independent witness nor even
the medical evidence supports the case of
the prosecution. From the deposition of
PW1, it has come on record that there was
a land dispute going on between both the
parties. Even in the cross-examination even
the PW5 - prosecutrix had admitted that
she had an enmity with Santosh (accused).
The prosecutrix was called for medical
examination by Dr. Renu Singh - Medical
Officer and PW7 - Dr. Renu Singh
submitted injury report. In the injury
report, no sperm as well as RBC and WBC
were found. Dr. Renu Singh, PW7 -
Medical Officer in her deposition has
specifically opined and stated that she did
not find any violence marks on the body of
the victim. She has also categorically stated
that there is no physical or pathological
evidence of rape. It is true that thereafter
she has stated that possibility of rape
cannot be ruled out (so stated in the
examination- in-chief). However, in the
cross-examination, she has stated that there
was no physical or pathological evidence
of rape.

5.3 As per the FSL report, the
blood group on the petticoat and the semen
on
the
petticoat
are
stated
to
be
inconclusive. Therefore, the only evidence
available on record would be the deposition
of the prosecutrix. It cannot be disputed
that there can be a conviction solely based
on the evidence of the prosecutrix.
However, the evidence must be reliable and
trustworthy. Therefore, now let us examine
the evidence of the prosecutrix and
consider
whether
in
the
facts
and
circumstances of the case is it safe to
convict the accused solely based on the
38 INDIAN LAW REPORTS ALLAHABAD SERIES
deposition
of
the
prosecutrix,
more
particularly when neither the medical
report/evidence
supports
nor
other
witnesses support and it has come on
record that there was an enmity between
both the parties. 5.4 Before considering the
evidence of the prosecutrix, the decisions of
this Court in the cases of Raju (supra) and
Rai Sandeep @ Deepu, relied upon by he
learned Advocate appearing on behalf of
the appellant-accused, are required to be
referred to and considered.

5.4.1 In the case of Raju (supra),
it is observed and held by this Court in
paragraphs 11 and 12 as under:

"11. It cannot be lost sight of that
rape causes the greatest distress and
humiliation to the victim but at the same
time a false allegation of rape can cause
equal distress, humiliation and damage to
the accused as well. The accused must also
be protected against the possibility of false
implication, particularly where a large
number of accused are involved. It must,
further, be borne in mind that the broad
principle is that an injured witness was
present at the time when the incident
happened and that ordinarily such a
witness would not tell a lie as to the actual
assailants, but there is no presumption or
any basis for assuming that the statement of
such a witness is always correct or without
any embellishment or exaggeration.

12. Reference has been made in
Gurmit Singh case [(1996) 2 SCC 384 :
1996 SCC (Cri) 316] to the amendments in
1983 to Sections 375 and 376 of the Penal
Code making the penal provisions relating
to rape more stringent, and also to Section
114-A of the Evidence Act with respect to a
presumption to be raised with regard to
allegations of consensual sex in a case of
alleged rape. It is however significant that
Sections 113-A and113-B too were inserted
in the Evidence Act by the same amendment
by which certain presumptions in cases of
abetment of suicide and dowry death have
been raised against the accused. These two
sections, thus, raise a clear presumption in
favour of the prosecution but no similar
presumption with respect to rape is
visualised as the presumption under Section
114-A is extremely
restricted in its
applicability. This clearly shows that
insofar
as
allegations
of
rape
are
concerned, the evidence of a prosecutrix
must be examined as that of an injured
witness whose presence at the spot is
probable but it can never be presumed that
her statement should, without exception, be
taken as the gospel truth. Additionally, her
statement can, at best, be adjudged on the
principle that ordinarily no injured witness
would tell a lie or implicate a person
falsely. We believe that it is under these
principles that this case, and others such as
this one, need to be examined." 5.4.2 In the
case of Rai Sandeep alias Deepu (supra),
this Court had an occasion to consider who
can be said to be a "sterling witness". In
paragraph 22, it is observed and held as
under:

"22 In our considered opinion,
the "sterling witness" should be of a very
high quality and calibre 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.
7 All. Devanand Pandey Vs. State of U.P.
39
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 every one 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 such similar tests to be
applied, can it 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." 5.4.3 In the case of
Krishna Kumar Malik v.