# Dharmendra v. State of U.P

- **Citation:** (2016) 3 ILRA 251
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-03-09
- **Bench:** Mrs. Ranjana Pandya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharmendra-v-state-of-u-p-43525
- **Pages:** 8

## Text

3 All. Dharmendra Vs State Of U.P.
251
42. Criminal appeal no. 335 of 2006 is dismissed. We affirm the conviction and
sentences of the appellants awarded under section 307/34 and 302/34 IPC whereas their
conviction and sentence under the Scheduled Caste and Scheduled Tribe Act are set aside.
The appellants are in jail. The Special Judge shall send their modified conviction warrants to
the jail, where they shall serve out their sentences in accordance with law.

43. Office is directed to certify this order to the court concerned forthwith and send
back the lower court record.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.03.2016

BEFORE

THE HON'BLE MRS. RANJANA PANDYA, J.

Criminal Appeal No.- 1009 of 2014

Dharmendra ...Appellant
Versus
State of U.P. ...Respondent

Counsel for Appellant:
M.S. Chandel, Dilip Kumar

Counsel for Respondent:
Govt. Advocate, L.K. Verma

HELD:

1. The prosecutrix's testimony was found unreliable, inconsistent, and suffering from major
contradictions between her FIR, Section 164 CrPC statement, and court testimony.
2. Medical evidence did not support the allegation of forceful rape: no external injuries were found, no
vaginal injuries consistent with the prosecution story, and the medical possibility of injury due to a fall
was noted.
3. The place of occurrence-secluded fields-along with the testimony that the prosecutrix remained
with the appellant for 1-2 hours suggested probability of consensual intercourse.
4. Serious contradictions existed: denial of unconsciousness; denial of pistol threat; contradictions
regarding dragging vs. carrying; contradictions about presence of witnesses Kalua and Choudhary.
5. Forensic Lab Report found semen and sperm on both the victim's petticoat and the accused's
underwear, contradicting her claim that the accused did not ejaculate.
6. Strong enmity between the families was proved: prior litigation, ejectment suits, Section 145 CrPC
proceedings, and disputes over residential land.
7. Material prosecution witnesses Kalua and Choudhary were not produced, weakening the
prosecution case.
8. The trial court ignored defence documents demonstrating enmity and failed to properly appreciate
evidence.
9. The prosecution failed to prove guilt beyond reasonable doubt; the story projected by the
prosecutrix was improbable.
252 INDIAN LAW REPORTS ALLAHABAD SERIES
10. The conviction dated 28.01.2014 under Section 376 IPC and Section 3(2)(5) SC/ST Act was set
aside.
11. The appellant Dharmendra was acquitted and ordered to be released forthwith, subject to
compliance with Section 437-A CrPC.

Case Law Discussed:

1. Rajendra @ Raju v. State of Himachal Pradesh, AIR 2009 SC 3022.
2. Vishnu v. State of Maharashtra, AIR 2006 SC 508.
3. Suresh N. Bhusare v. State of Maharashtra, (1999) 1 SCC 220.
4. Rajoo & Others v. State of Madhya Pradesh, AIR 2009 SC 858.

(Delivered by Hon'ble Mrs. Ranjana Pandya, J.)

1. Challenge in this appeal is to the judgement and order dated 28.1.2014 passed by
Special Judge S.C./S.T. Act/Additional Sessions Judge in Special Criminal Case No. 91 of
2006 (State Vs. Dharmendra) arising out of Crime No. 80 of 2006, under Section 376 I.P.C.
and Section 3(2)(5) S.C./S.T. Act, Police Station-Badausa, District-Banda, whereby the
accused was found guilty under Section 376 I.P.C. and was sentenced to 10 years rigorous
imprisonment and fine of Rs. 10000/- with default stipulation.

2. As per the prosecution case, report was lodged by Naraina stating that he is the
resident of Village-Dimarauvapurva Majra Pauhar. On 31.8.2006, his daughter aged about
20 years went to chop the fodder from her fields, when she was chopping fodder, the
accused caught her from behind, he dragged her and raped her against her wishes. The
victim raised hue and cry, but nobody came to the spot. The victim came home and narrated
the whole incident. The occurrence took place on 31.8.2006 at about 11/12 in the day time,
hence F.I.R. was lodged. Rajendra Singh Solanki, S.I. P.W. 3 who was at the relevant time
posted at the police station as Head Constable proved the chik report as Exhibit Ka-3. He
further scribed the G.D., which was proved as Exhibit Ka-4.

3. The victim was examined by Dr. Anita Sagar, who proved that there were no injuries
on the external part of the body. There were no injuries on the overvulva, vagina, lubia
majora, miners and clitoris. Hymen was torn and the vagina was admitting two fingers
easily. The Doctor found cervical erosion and also found 2-3 cms cervical tear on posterior
side, which was stitched by the Doctor. The Doctor proved the medical report as Exhibit Ka5 and Pathological report as Exhibit Ka-6 and supplementary report as Exhibit Ka-5.

4. Investigation was entrusted to P.W. 5 Tejpal Singh, retired Sub-Inspector, who
investigated the matter. He copied the chik report and G.D. in the C.D. He recorded the
statement of P.W. 3 Rajendra Singh Solanki, informant Naraina and the victim. After that
the spot was inspected and site plan was prepared, which was proved by this witness as
Exhibit Ka-8. Subsequently, the statement of Gulshan, Kalua and Choudhary were recorded.
The underwear of the accused was taken into the possession. His statement was recorded.
Further, the statements of S.H.O. D.D. Verma, Sub Inspector Hari Das Prajapati, Constable
Mansook Ali, Constable Ram Chandra, witness Chandrika and Haridas were recorded.
Further, the injury report of the accused and the victim were recorded in the C.D. The
3 All. Dharmendra Vs State Of U.P.
253
medical reports were also recorded in the C.D. The statement of the victim recorded under
Section 164 Cr.P.C. was also copied in the C.D. Petticoat of the victim was taken into
possession, which was sent to the Forensic Lab for examination.

5. The investigation was conducted by this witness ended into the charge-sheet, which
was proved by this witness as Exhibit Ka-9.

6. P.W. 6 Dr. Gyanendra Nikhra, conducted the ossification test of the victim and
proved the radiological report as Exhibit Ka-10 and X-ray plate as material Exhibit 1.

7. The prosecution examined as many as eight witnesses. P.W. 1 is Naraina, the
informant, who lodged the F.I.R., which was proved by this witness as Exhibit Ka-1. He
further proved the recovery memo by virtue of which the Petticoat of the victim was taken
into possession as Exhibit Ka-2. The victim P.W. 3 is S.I. Rajendra Singh Solanki, P.W. 4 is
Dr. Anita Sagar, whose evidence have been discussed by me. Further the evidence of P.W. 5
Tejpal Singh, P.W. 6, Dr. Gyanendra Nikhra and P.W. 7 Haridas Prajapati has proved the
recovery memo as Exhibit Ka-11 and the underwear of the accused as material Exhibit 2.
P.W. 8 is Ramkishore Tiwari, writer, who proved the statement of the victim recorded under
Section 164 Cr.P.C. as Exhibit Ka-12.

8. After closure of the prosecution evidence, the statement of the accused was recorded
under Section 313 Cr.P.C., who denied the occurrence and stated that he had been falsely
implicated due to enmity.

9. After hearing counsel for the parties, learned lower court found the accused guilty
and sentence him as has been specified in Para 1 of the judgement.

10. Feeling aggrieved, the accused has come in appeal.

11. I have heard the learned counsel for the parties and perused the trial court record.

12. Learned counsel for the appellant has submitted that the judgement of the lower is
bad in the eyes of law, because the learned lower court has based its judgment on an
inadmissible evidence. Further, it has been submitted that the victim was a major and
consenting party. Hence, the prosecution has miserably failed to proved the case beyond
reasonable doubt.

13. On the other hand learned A.G.A. has submitted that the findings of the fact
recorded by the trial court is based on evidence of the prosecutrix and that no corroboration
was required when the testimony of the prosecutrix was clear, cogent and convincing. He
has further contended that there was nothing to show that the prosecutrix has falsely
implicated the accused and the appeal is liable to be dismissed.

14. As far as F.I.R. is concerned, the occurrence is said to have taken place on
31.8.2006 between 11/12 in the day time, whereas the report was lodged on the same day at
254 INDIAN LAW REPORTS ALLAHABAD SERIES
7:30 p.m. The distance of the place from the police station being 14 kms. Hence, the F.I.R.
is prompt and there is no delay in lodging the F.I.R.

15. As far as occurrence is concerned in Rajendra @ Raju Vs. State of Himanchal
Pradesh, AIR 2009 SC 3022, the Hon'ble Apex Court has held that :

"In the context of Indian Culture, a woman - victim of sexual aggression - would
rather suffer silently than to falsely implicate somebody. Any statement of rape is an
extremely humiliating experience for a woman and until she is a victim of sex crime,
she would not blame anyone but the real culprit. While appreciating the evidence of the
prosecutrix, the Courts must always keep in mind that no self-respecting woman would
put her honour at stake by falsely alleging commission of rape on her and, therefore,
ordinarily a look for corroboration of her testimony is unnecessary and uncalled for.
But for high improbability in the prosecution case, the conviction in the case of sex
crime may be based on the sole testimony of the prosecutrix. It has been rightly said
that corroborative evidence is not an imperative component of judicial credence in
every case of rape nor the absence of injuries on the private parts of the victim can be
construed as evidence of consent."

17. There is no reason to disbelieve the sole testimony of the prosecutrix, if her
testimony is probable, reliable and worthy of credence. In the cases of rape, the testimony of
the prosecutrix stands at par, infact a better footing then that of an injured witness. It is
really not necessary to insist for corroboration, if the evidence of the prosecutrix inspires
confidence and appears to be credible. Although P.W. 1 is not a witness of fact, but anything
stated to this witness immediately after the occurrence by the victim would be relevant to
consider the matter.

18. P.W. 1 Naraina has stated that when her daughter had gone to chop the fodder, she
was raped by the accused. Although, as per her own version, after the incident, the victim
returned home alongwith Choudhary and narrated the whole incident to her mother.
Although, the mother of the victim has not bee produced, but the mother of the victim
narrated the whole incident to this witness. After the incident, he went inside the house and
saw his daughter's blood stain, then his daughter narrated the whole incident to him. He has
thus, stated that the victim told him that when she was chopping fodder (Jwar), Dharmendra
came from behind and dragged in the fields, dropped her and raped her. On hearing shrieks
Kalua came, at which the accused fled away. The victim returned home with Kalua and
Choudhary.

19. Now it has to be seen that what the victim stated, as far as the occurrence is
concerned in Exhibit Ka-12 being the statement of the victim recorded under Section 164
Cr.P.C. she has stated that when she was chopping fodder, the accused dragged her 3 or 4
times. He pointed a country made pistol at her and raped her. He also threatened her from a
country made pistol. The accused kept on raping her, she became unconscious. When she
gained consciousness, she returned home and narrated the whole incident to her parents.
3 All. Dharmendra Vs State Of U.P.
255
20. This witness as usual also had to undergo the test of cross-examination, but she
miserably failed in the test of cross-examination inasmuch as she has specifically stated that
:
धमेन्र घटना के समय पैन्ट, शटव र् चढ ढ़ी पहने था। धमेन्र घटना करते समय सारे कपड़े उतार कदये थे। मेरा पेट़ीकोट पिट कदया
था. धोत़ी धमेन्द ने छोर कर अिग कर द़ी थ़ी। ऩीचे चारा था। E कटना जथि पर ज्र्ार के पौधे टूट गये थे, पुकिस र्ािों ने देखा था।
ज्र्ार के दो चार पौने टूट गये थे। घूंटो दो घूंटा हम दोनों (में य धमेन्द) खेत के रहे। धमेन्र ने मेरे साथ एक र्ार सूंभोग ककया था। किर हम
दोनों र्हीं पर िेटे रहे।

 Thus, as per aforesaid statement this witness remained with the accused for an hour or
two. During this period the accused had sexually intercourse with her once and then they
kept lying there. This gives weight to the submission of the defence that the intercourse was
a consensual act of the victim and the accused both. Besides in the statement recorded
before the court, the witness completely dispelled of having shown or threatened with any
country made pistol. Although, the statement recorded under Section 164 Cr.P.C. is the
statement recorded just after the incident, but such major variations raised a shadow of
doubt on the prosecution case.

21. It has further been submitted by learned counsel for the appellant that since this
lady was a married lady and there would have been serious implications in her married life,
if she would not have go to lodge the report against the accused inspite of her being a
consenting party, hence she lodged the report.

22. Again the victim in her statement stated that she was dragged in the field, but
before the court, she has stated that she was carried by one person and taken and she was
raped and that person was Dharmendra. She has stated that the accused got her from behind,
due to which her fodder and Hasia fell down, suddenly Choudhary and Kalua heard her
shrieks and exhorted at which this state that Dharmendra had caught her when Choudhary
and Kalua came near the victim, Dharmendra insulted her and fled away. She has stated that
both these witnesses heard the incident and returned to their houses and she also went back
to her house. She has stated that she did not become unconscious, whereas in the statement
under Section 164 Cr.P.C. it has been stated that she became unconscious and the
prosecution has been changing their version now and again initially there was a country
made pistol, the victim became unconscious, who returned home after she gained
consciousness, which was denied by the victim before the court. She has gone to the extent
of saying that she did not said to the Magistrate that she became unconscious. I do not think
that the Magistrate would record something not stated by the victim. Hence, it appears that
the victim is even not sparing the court in levelling false implication.

23. No doubt the informant and the victim both are the interested witness, but on the
ground of interestedness only the testimony of witness cannot be discarded.

24. Generally, in cases of rape, the court does not ponder to find corroboration if the
statement of the prosecutrix inspires confidence and is accepted by the court as such,
conviction can be based only on the solitary evidence of the prosecutrix and no
corroboration would be required unless there are compelling reasons which necessitate the
256 INDIAN LAW REPORTS ALLAHABAD SERIES
court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a
condition for judicial reliance there is no requirement of law but a guidance of prudence
under the given facts and circumstances. Minor contradictions or insignificant discrepancies
should not be a ground for throwing out an otherwise reliable prosecution case. A
prosecutrix complaining of having been a victim of the offence of rape is not an accomplice
after the crime. Her testimony has to be appreciated on the principle of probabilities just as
the testimony of any other witness; a high degree of probability having been shown to exist
in view of the subject matter being a criminal charge. However, if the court finds it difficult
to accept the version of the prosecutrix on its face vaule, it may search for evidence, direct
or substantial, which may lend assurance to her testimony as has been held in Vishnu vs.
State of Maharashtra, AIR 2006 SC 508.

The evidence of the prosecutrix is found suffering from serious infirmities and
inconsistencies with other material, prosecutrix making deliberate improvements on material
point with a view to rule out consent on her part and there being no injury on her person
even though her version may be otherwise, no reliance can be placed upon her evidence as
has been held in Suresh N. Bhusare & Ors. vs. State of Maharashtra, (1999) 1 SCC 220.

25. The victim P.W. 2 has further stated that after the occurrence, her husband came to
her house, who came 7-8 days after the occurrence, who stayed her house for 2-3 days. Her
father-in-law also came and she went to her father-in-law's house. Contradicting his
daughter the informant being father of the victim has stated that at the time of occurrence his
son-in-law was residing in District-Bhadohiand he neither visited the house of the
informant, though he knows about the incident. Thus, as per the statement of the victim, her
husband came to her house after the incident, which was denied by her father.

26. The victim has stated that the witnesses Choudhary and Kalua returned back to their
home after the occurrence, whereas P.W. 1 Naraina has stated that Choudhary and Kalua
brought his daughter back to the house. Although, neither Choudhary nor Kalua has been
produced before the court. P.W. 2 has further stated that the accused took her in the fields by
catching both her hands, it appears that the witness could not conceal of the facts before the
court and she has said that neither she sustained any injuries nor she was unconscious. She
has also stated that since the accused heard the footsteps of Choudhary and Kalua, he ran out
of the fields, who was seen by Choudhary and Kalua fleeing away. She has stated that the
police took Rs. 800/- as fare and seized her Petticoat. Dr. Anita Sagar, who examined the
victim at 1045 a.m. on 1.9.2006, found the cervical tear 2-3 cm. on posterior side, about
which she has stated that the injury could have been sustained by falling.

27. There is nothing on record to show that this injury was due to any sexual assault. As
I have said earlier how the Petticoat of the victim was seized at the police station, when she
was wearing a Petticoat and Sari besides Blouse and when she did not have any alternative
Petticoat to wear, how she was left only in a Sari to the court from the police station, from
the police station to hospital and from the hospital to her house.
3 All. Dharmendra Vs State Of U.P.
257
28. The victim has further stated that she had shown the field from where the fodder
was chopped and the broken crops to the I.O., whereas the I.O. P.W. 5 Tejpal Singh has
stated that he did not find any broken plants on the place of the occurrence.

29. Perusal of the site plan shows that the place of occurrence is a very secluded place,
where all around there are fields in which fodder (Jwar) was standing and the victim is said
to have chopped the fodder in between and the rape is said to have committed at place ''A',
which is secluded place surrounded by the crops and this type of hide place made in between
the place which could also felicitate meeting of young girls and boys.

30. Another glaring fact in this case is that the victim has denied that she did not give
her consent and has also admitted that the accused did not discharge his semen. This makes
the whole prosecution case dice inasmuch as the prosecution has produced the Forensic Lab
report on record, which is Exhibit Ka-13, according to which on the Petticoat of the victim
and underwear of the accused, semen was found and on both the clothes sperm was found.
This either the oral evidence is incorrect or the medical is incorrect. If the medical and oral
evidence is disbelieved then the oral evidence was down like a heap of cards. The enmity of
the accused with the victim is also proved on record inasmuch as the defence filed 10 papers
while listing 45 Kha. The trial court did not bother to exhibits to be documents and just
made a passing reference of all these papers.

31. As regard the enmity of the accused with the family of the victim is concerned P.W.
1 Naraina has admitted that the place where he resides is owned by Jaikaran father of the
accused. He has further admitted that way back in 1985 the father of the accused had filed
an ejectment suit against the father of the victim, which was decided against the father of the
victim. He has also admitted that the father of the accused had filed cases against the whole
family of the victim and his collaterals, one of whom was Gulshan, who is the witness of
recovery of the underwear. Even the victim P.W. 2 has admitted that enmity with the
accused inasmuch as she has admitted that the land on which they have a house and are
residing initially belonged to the accused and litigation was pending for the last 20 years
between family of the victim and father of the accused.

32. Papers in this regard were also filed by the defence, which were copies of
application moved by father of the accused against the informant and witness Kalua and
Gulshan under Section 145 Cr.P.C. Copies of the plaint decided in favour of the father of the
accused and against the informant are also on record, which proves the enmity between the
family of the victim and the informant.

33. Thus, in the aforesaid background I find it difficult to accept the testimony of the
prosecutrix on its face value I searched for support from other material, but found complete
lack of corroboration on material parts. Thus, the evidence of the prosecutrix making
deliberate improvements on material points with a view to rule out her consent, her
statement read in its totality makes the story projected by the prosecutrix absolutely
improbable.
258 INDIAN LAW REPORTS ALLAHABAD SERIES
34. In Rajoo & Others Vs. State of Madhya Pradesh, AIR 2009 SC 858 the Hon'ble
Apex Court has held that :

"Ordinarily the evidence of a prosecutirx should not be suspected and should be
believed, more so as her statement has to be evaluated on par with that of an injured
witness and if the evidence is reliable, no corroboration is necessary. 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, 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."

35. Thus, the court has been left with the sole testimony of the prosecutrix, which is
unreliable, untrustworthy and unworthy of credence. Thus, on the basis what has been stated
above, I find that the learned lower court has misled itself in reaching to the conclusion that
the accused is guilty for the offence charged. Thus, the accused is entitled to be acquitted
and the appeal is liable to be allowed. Hence the impugned judgement of conviction and
sentence dated 28.1.2014 passed by Special Judge S.C./S.T. Act/Additional Sessions Judge
in Special Criminal Case No. 91 of 2006 (State Vs. Dharmendra) arising out of Crime No.
80 of 2006, under Section 376 I.P.C. and Section 3(2)(5) S.C./S.T. Act, Police StationBadausa, District-Banda, is hereby set aside.

36. Accordingly, the appeal is allowed. The appellant is in jail. He shall be released
forthwith in this case. The provisions of Section 437A Cr.P.C. shall be complied with.

37. Let a copy of this order be sent to the trial court concerned for compliance of the
order.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.02.2016

BEFORE

THE HON'BLE MRS. RANJANA PANDYA, J.

Criminal Appeal No. 2073 of 2014

Dinesh Kumar Maurya ...Appellant
Versus
State of U.P. ...Respondent

Counsel for Appellant:
Gaurav Kumar Shukla, Rajiv Lochan Shukla

Counsel for Respondent:
Govt. Advocate