# Gore @ Sushil (In Jail) v. State of U.P

- **Citation:** (2021) 10 ILRA 126
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-09
- **Case number:** Criminal Appeal No. 3003 of 2018
- **Bench:** Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gore-sushil-in-jail-v-state-of-u-p-46213
- **Pages:** 6

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Section 376, 354, 452,
506 - Protection of Children from Sexual
Offences Act, 2012-Section 4-challenge
to-conviction-accused
molested
then
victim and her mother was the eyewitness-Again accused committed rape
after
three
years-victim
statement
before trial court remained intact and
reliable-no definite opinion about the
rape in medical report-it is settled law if
the statement of victim intact and fully
reliable, conviction can be based on her
statement
alone
even
if
it
is
not
corroborated by the medical evidence-no
having criminal history of the accused is
not at all relevant in such type of casesTrial
court
rightly
convicted
the
accused.(Para 1 to 20)

B. Evidence of prosecutrix stands on equal
footing with that of injured witness and if
evidence
inspires
confidence,
corroboration is not necessary. The court
may convict the accused on the sole
testimony of the prosecutrix. (Para 15,16)

The appeal is dismissed. (E-6)

List of Cases cited:
10 All. Gore @ Sushil Vs. State of U.P.
127

## Text

126 INDIAN LAW REPORTS ALLAHABAD SERIES
testimony, hence this ruling has no
application.

17. The evidence produced by the
prosecution
is
reliable.
The
ocular
testimony stands corroborated with medical
evidence.
There
are
also
supporting
evidence in the form of statement of the
deceased about his death and the recovery
of knife used in the incident and from
prosecution evidence the guilt of the
accused stands proved. The learned trial
court has fully discussed and properly
appreciated the entire evidence on record.
The learned trial court has also analysed all
the defence arguments and the findings
recorded by the trial court are just and
proper. There is no illegality or perversity
in the findings recorded by the trial court
which is liable to be upheld. The criminal
appeal is liable to be dismissed.

18. According, this criminal appeal is
hereby dismissed.

19. The accused is absconding and is
not traceable. Proceedings against his
sureties are pending which shall be put to a
logical end. The trial court shall issue
standing warrants against him and on his
arrest he will be lodged in jail to serve out
his sentence.

20. The lower court's record along
with copy of the judgment be transmitted to
the trial court immediately.

21. We appreciate the assistance
rendered by Sri Lal Ji Chaudhary, Amicus
Curiae. State Government is directed to pay
him Rs. 7,000/- as his remuneration.
----------
(2021)10ILR A126
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.08.2021

BEFORE

THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 3003 of 2018

Gore @ Sushil ...Appellant(In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Sudhakar Shukla, Sri Diwakar Shukla,
Sri Shyam Singh Somvanshi, Sri Sudhakar
Shukla

Counsel for the Respondent:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Section 376, 354, 452,
506 - Protection of Children from Sexual
Offences Act, 2012-Section 4-challenge
to-conviction-accused
molested
then
victim and her mother was the eyewitness-Again accused committed rape
after
three
years-victim
statement
before trial court remained intact and
reliable-no definite opinion about the
rape in medical report-it is settled law if
the statement of victim intact and fully
reliable, conviction can be based on her
statement
alone
even
if
it
is
not
corroborated by the medical evidence-no
having criminal history of the accused is
not at all relevant in such type of casesTrial
court
rightly
convicted
the
accused.(Para 1 to 20)

B. Evidence of prosecutrix stands on equal
footing with that of injured witness and if
evidence
inspires
confidence,
corroboration is not necessary. The court
may convict the accused on the sole
testimony of the prosecutrix. (Para 15,16)

The appeal is dismissed. (E-6)

List of Cases cited:
10 All. Gore @ Sushil Vs. State of U.P.
127
1. St. of H.P. Vs Prem Singh (2009) AIR SC
1090

2. Ram Das Vs St. of Mah.(2007) SCC 176

3. St. of Raj. Vs N.K.(2000) 5 SCC 30

4. Malkhan Singh Vs St. of U.P. (2000) 5 SCC
746

5. Wahid Khan Vs St. of M.P. (2010) 2 SCC 9

6. St. of Har. Vs Basti Ram (2013) AIR SC 1307

7. Sri Narayan Saha Vs St. of Tripura(2004) 7
SCC 775

(Delivered by Hon'ble Ajai Tyagi, J.)

1. This appeal is directed against the
judgment and order dated 4.5.2018, passed
by learned Additional Sessions Judge,
Court No.4, Fatehpur, in Special Trial
No.37 of 2013 (State of UP vs. Gore @
Sushil) arising out of Case Crime No.347
of 2013 under Sections 376, 354, 452, 506
IPC & Section 4 Protection of Children
from Sexual Offences Act, 2012 (herein
after referred to as 'the POCSO Act, 2012'),
P.S.-Bindaki, District-Fatehpur, whereas
the accused-appellant -Gore @ Sushil was
awarded 3 years R.I. under Section 354
IPC, 5 years R.I. under Section 452 IPC, 3
years RI under Section 506 (2) IPC and 10
years RI under Section 4 of the POCSO
Act, 2012, along with fine.

2. The brief facts of this appeal are
that on 23.10.2013, the father of victim
Ram Sanehi lodged an FIR at Police
Station-Bindaki with averments that he
resides in Delhi and does private service
and he rarely comes at his native house at
Fatehpur. At his residence, his wife
resides with four daughters, one son and
informant's aged mother. Gore son of late
Pramod Kumar, who is of the same village
often comes to the house of informant
with intention he pressurize to make
marital
relationship
with
his
elder
daughter Kanchan, but when she refused
to marry with him, he used to take his
younger daughter, the victim for getting
treatment at Kanpur as the victim was
having white-spot on her leg. During the
course of taking her to Kanpur for
treatment, Gore committed rape with the
victim and threatened her not to tell
anybody, therefore, victim remained silent
and Gore committed rape many times.
Informant's elder daughter Kanchan alone
ran away Mumbai and later on recovered
from there.

3. Accused-appellant Gore @ Sushil
was charged by the learned trial court under
Sections 376, 452, 354, 506 (2) IPC and
Section 4 of the POCSO Act, 2012. On
finding guilty, learned trial court convicted
and sentenced the appellant under Sections
452, 354, 506 (2) IPC and Section 4 of the
POCSO Act, 2012. Aggrieved with the
judgment of learned trial court, the
appellant has preferred this appeal.

4. Heard learned counsel for the
appellant, learned AGA for the State and
perused the record.

5. Learned counsel for the appellant
argued that in this case, accused has been
falsely implicated. In medical examination,
there is no corroboration of rape with the
victim. It is argued that only motive behind
the false implication of the appellant was
that victim's parents wanted to marry their
elder daughter Kanchan with appellant, but
Kanchan fled away to Mumbai and when
she was recovered, appellant refused to
marry her. Due to this refusal, the accused
was falsely implicated in this case.
128 INDIAN LAW REPORTS ALLAHABAD SERIES

6. Per contra, learned AGA argued
that prosecution witnesses has supported
the prosecution case. Victim was just 13
years of age, she has supported her version
in her statement under Section 164 Cr.P.C.
and appellant has rightly been convicted by
the learned trial court.

7. Learned counsel for the appellant
advanced arguments at length. First of all,
it is argued that there was inordinate delay
in lodging the FIR in this case. No date,
time and place of occurrence is given in
first information report by the informant.
Victim's statement under Section 161
Cr.P.C. was recorded by the Investigating
Officer after one month of filing FIR. First
Information Report was lodged after three
months of the alleged occurrence and no
explanation is given by the prosecution for
causing so mach delay in filing the FIR.

8. Learned counsel for the appellant
argued that this delay in filing the FIR was
fatal for prosecution case because there was
enough time of three months with the
informant and his family members to falsely
implicate the accused-appellant and for that
reason, after-thought story was made by
them. In this regard, on perusal of the record,
it is seen that as per victim's version, she was
threatened by the appellant not to tell the
incident to anybody otherwise she will be
killed and her elder sister would be defamed.
Prosecution witnesses have said that due to
that fear, victim did not tell the occurrence to
her family members soon after. Learned
lower court also concluded in this regard that
victim was just 13 years old child and it was
natural for her to be scared when appellant
intimidated her. Apart from it, in such type of
cases, family members of victim think twice
before lodging the FIR because their social
reputation remains at stake as held by Hon'ble
Apex Court in State of Himanchal vs. Prem
Singh, AIR 2009 SC 1090. Hon'ble Apex
Court also held in Ram Das vs. State of
Maharashtra, 2007 SCC 176, State of
Rajasthan vs. N.K. (2000) 5 SCC 30 and
Malkhan Singh vs. State of UP (2000) 5
SCC 746 that if delay in filing the FIR is
explained satisfactorily and statement of
victim, who is best witness, is reliable then
delay in lodging the FIR is not fatal. In this
case also, keeping in view the tender age of
the victim, it can be presumed that victim,
just 13 years old, would have been scared
when appellant intimidated her as stated by
her as PW2 that she will be killed if she tells
the occurrence to anybody.

9. Hence, in my opinion, the
prosecution has satisfactorily explained the
delay in filing the FIR and that delay is not
fatal to the prosecution case. As far as
argument of appellant that no date, time and
place was mentioned in the first information
report, it is settled law that FIR is not
encyclopedia, but it is information to set the
law into motion.

10. Learned counsel for the appellant
argued that appellant was falsely implicated
in this case because as per prosecution
case, victim was taken to Kanpur for
treatment by appellant on 27.7.2013 and
she was taken to Dr.Mamta Bhura, who
was examined as PW4. She has stated in
her statement that victim came to her on
23.4.2013 and she gave her prescription for
medicine. The prescription is also proved
by her as Ex.ka4. Another prescription
Ex.ka5 was also proved, which is of dated
10.6.2013. Hence, as per statement of PW4,
there was no prescription of 27.7.2013, on
which date, appellant is said to take the
victim to Kanpur for treatment.

11. Learned counsel for the appellant
further argued that in fact, the father of
10 All. Gore @ Sushil Vs. State of U.P.
129
victim borrowed Rs.26,000/- from the
appellant for marriage of his daughter
Vineeta and mortgaged his one and a half
bigha agricultural land with him. Father of
victim did not return the above Rs.26,000/-
to the appellant and for that reason and to
pressurize him to get married with his elder
daughter Kanchan, accused-appellant was
falsely implicated.

12. In this regard, it is clear from the
record that treatment of victim in Kanpur
was not denied by defence. Prescription
from PW4 proved the fact that victim was
under treatment with PW4 in Kanpur. As
per prosecution version, appellant used to
take victim to Kanpur for treatment and on
27.7.2013,
he
stayed
in
a
guesthouse/dharmshala with the victim where at
night, he committed rape with the victim as
the victim has stated in her statement under
Section 164 Cr.P.C. and supported this
statement before learned trial court as PW2.
Victim's statement under Section 164
Cr.P.C. corroborated the statement given
by victim as PW2. In that statement, she
categorically stated that on 27.7.2013, she
went to Kanpur with appellant and they
went to Dr.Mamta Bhura and after that they
returned to dharmshala where appellant has
taken a room on rent and at night he
committed rape with her. Prosecution has
examined the Accountant (PW9-Rajesh
Mishra) of said guest-house/dharmshala.
PW9 appeared before learned trial court
with relevant record of guest-house and
said that he was posted as Accountant in
that guest-house. On 27.7.2013 at about
8:30 p.m., one boy Sushil came to his
guest-house with a girl. They had come for
getting treatment and said that they were
brother and sister and he got allotted Room
No.14 on rent. Next day, i.e., 28.7.2013, at
about 8:00-8:30 in the morning, they
checked out. Room rent was paid by Sushil.
PW9 filed receipts of rent and check out as
Ex.ka 17-18 and also filed the copy of
relevant register in the court in which
entries of check-in and check-out were
recorded. Hence, with this evidence,
prosecution proved the fact that on
27.7.2013, appellant took the victim to the
guest-house and stayed there for one night.
Hence, the argument of counsel for the
appellant that he was falsely implicated
fails because it is very well proved by the
prosecution that on the said date of
occurrence, appellant was there in guesthouse with the victim. Therefore, it hardly
matters if there is no medicine prescription
of 27.7.2013. So it cannot be believed that
accused was falsely implicated by the
informant just for the reason that he did not
want to return the borrowed Rs.26,000/-.
Moreover, when he had already mortgaged
his agricultural land with the appellant, it
can not be believed that a person will
falsely implicate somebody with the rape
allegation with his daughter or just to
pressurize him to get married with his elder
daughter.

13. Learned counsel for the appellant
raised argument with force that in medical
examination, no injury was found on the
private part of the victim and there was no
sign of rape. In this regard, learned counsel
for the appellant referred to the medical
report
of
the
victim.
The
medical
examination of the victim was conducted
by Dr.Laxmi Singh, who was posted at
CHC, Bindaki, Fatehpur. Learned counsel
for the appellant said that Dr.Laxmi Singh
was examined as PW5 and she had said in
her report that there was no injury on body
and private part of the victim and she had
given her opinion that during medical
examination, she found no sign of rape or
intercourse.
Learned
counsel
for
the
appellant argued that in such a situation,
130 INDIAN LAW REPORTS ALLAHABAD SERIES
prosecution case is not at all supported by
medical evidence. Hence, on this score
alone, appellant is liable to be acquitted. In
his support, counsel for the appellant
referred the judgment of Hon'ble High
Court of Sikkim in Sandeep Tamang vs.
State of Sikkim, 2016 Cr.LJ 4706 and said
that in this case also, the prosecution
allegation of rape was not supported by
medical report of the victim and Hon'ble
High Court of Sikkim, gave acquittal to the
accused. In this regard, it is very much
material that Dr.Laxmi Singh-PW4, who
conducted the medical examination of the
victim said in medical report that there was
no injury on external or private part of the
victim
and
in
supplementary
report,
Ex.ka7, it is said that no living or dead
spermatozoa was seen in the provided
sewer-slide. It is worth keeping in mind
that victim's medical examination was
conducted
approximately
after
three
months of the said occurrence. As per
medical jurisprudence, living spermatozoa
may be found up to 48 hours or dead
spermatozoa may be found up to 72 hours
after intercourse.

14. PW2, the victim, in her
statement before learned trial court, had
stated that on 27.7.2013, appellant had
taken her to guest-house where he took
one room on rent and in the night, he
committed rape with her and threatened
her not to tell anybody. The same
statement,
victim
had
given
to
Investigating
Officer
earlier
under
Section 161 Cr.P.C and before the
Magistrate under Section 164 CR.P.C.
Her statement before learned trial court
remained intact. Prosecution could not
make any case in cross-examination,
which have assailed the examination-inchief of victim (PW2). In examination-inchief, defence could not extract anything
which
could
have
been
fatal
for
prosecution case. It is settled law that if
victim's statement is intact and fully
reliable, conviction can be based on her
statement alone even if it is not
corroborated by the medical evidence.

15. Hon'ble Apex Court in Wahid
Khan vs. State of Madhya Pradesh, 2010
(2) SCC (9) has held that evidence of
prosecutrix stands on equal footing with
that of injured witness and if her evidence
inspires confidence, corroboration is not
necessary. In State of Haryana vs. Basti
Ram, AIR 2013 SC 1307, Hon'ble Apex
Court
held
that
if
uncorroborated
statement of prosecutrix is credible,
conviction can be based on it. In this
case, Hon'ble Apex Court after discussing
the entire long issue concluded that law
that emerges on the issue is to the effect
that the statement of the prosecutrix if
found to be worthy of credence and
reliable, requires no corroboration. The
court may convict the accused on the sole
testimony of the prosecutrix.

16. In another case, Sri Narayan
Saha vs. State of Tripura, (2004) 7 SCC
775, there was also the position that doctor,
conducting the medical examination of the
victim, could not give definite opinion
about the rape, but it was held of no
consequence in view of unimpeachable
evidence of the victim. The same position
is with this case in hand. In this case also,
doctor conducting medical examination of
the victim could not give definite opinion
about rape, but the testimony of the victim
inspires full confidence and her evidence
before learned trial court is unimpeachable.
Hence, accused-appellant cannot get any
benefit of the fact that there was no definite
opinion of rape in medical report as
testimony of prosecutrix is fully reliable
10 All. Guddu Vs. State of U.P.
131
and worth believing. Therefore, reliance
can be placed on her testimony without any
doubt.

17. There was allegation under
Section 354 IPC against the accusedappellant also. The victim (PW2) said in
her statement that on 28.9.2013, accused
came to her house and molested her by
pressing her breast and on her crying, her
mother came there and the accused fled
away. Ramkali (PW3), who is mother of
victim is also eye-witness of this fact. She
also
said
in
her
statement
that
approximately before three years from the
date of making the statement before learned
trial court, she was working inside her
house and victim was standing in courtyard. At that time, accused-appellant
entered her house and started molesting the
victim. On victim's crying, she went there
and
saw
herself
accused-appellant
molesting the victim. Therefore, both PW2
and PW3 corroborated their statements. On
this point also, defence could not extract
anything in cross-examination, which could
assail their credibility.

18. Lastly, learned counsel for the
appellant stated that accused has no
criminal history. In my opinion, this case is
not the case where criminal history of the
accused is relevant. There is charge of rape
and molestation against the appellant.
Hence, having or not having criminal
history is not at all relevant in such type of
cases.

19. No other argument was raised on
behalf of appellant.

20.

Hence,
with
the
above
observations, I am of the considered view
that prosecution was very well succeeded
in proving its case beyond doubt and
learned trial court has rightly convicted and
sentenced the accused-appellant for the
charges levelled against him.

21. In view of above, I find no merit
in this appeal.

22. Appeal is dismissed, accordingly.
----------
(2021)10ILR A131
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.09.2021

BEFORE

THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 3030 of 2018

Guddu ...Appellant(In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Amitabh Patel, Sri Manoj Kumar, Sri
Viresh Misra

Counsel for the Respondent:
A.G.A.

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Section 498-A, 304-B
302/34 - Dowry Prohibition Act, 1961Section 4-challenge to-conviction-accused
poured
kerosene
oil
on
his
wife
(deceased) and set her ablazed for nonfulfillment of additional demand of
dowry-she remained alive for five days
after
making
dying
declaration-PW-7
(Doctor)
and
PW-9(Magistrate)
independent witnesses had not turned
hostile-she was in a fit condition to make
the statement at the relevant time-she
only attributed the acts of cruelty, beating
and burning to her husband, who was a
gambler and alcoholic-hostility of PW-1,
PW-3 and PW-4 cannot demolish the value
and reliability of the dying declaration as