# Guddu & Anr v. State of U.P

- **Citation:** (2021) 2 ILRA 382
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-28
- **Case number:** Criminal Appeal No. 441 of 2003
- **Bench:** Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/guddu-anr-v-state-of-u-p-46803
- **Pages:** 12

## Headnote

Law-Code
of
Criminal
Procedure, 1973-Section 374(2) & Indian
Penal Code, 1860-Sections 376,366- first
information report was lodged by delay of
8 days without any plausible explanation-
victim
was
major,
at
the
time
of
occurrence, no injury, either internal or
external, was found on the person of
victim -she was consenting party-ocular
evidence is not supported with medical
evidence. (P.W.-1) informant is not an eye
witness-the statement of sole eye witness
(victim) is not reliable and trustworthy-
victim resided
and
moved
with
the
appellants for more than 20 days and even
travelled in Government Bus and did not
make any complaint to any person -
eyewitnesses, who saw the appellants
taking away the victim, were also not
examined
by
the
prosecution,
the
prosecution case, based on sole testimony
of the victim, is neither reliable and trust
worthy nor is of sterling quality and the
prosecution has failed to prove its case
beyond reasonable doubt against the
appellants- appellants are entitled for
acquittal.(Para 1 to 35)

B. 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. There should
not be any prevarication in the version of
such a witness. The witness should be in a
position
to
withstand
the
cross-
2 All. Guddu & Anr. Vs. State of U.P.
383
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. (Para 27)

The Appeal is allowed. (E-5)

List of Cases cited: -

## Text

_Characters 0–39,257 of 40,419. This is a partial read: ask again with offset=39257 for what follows._

382 INDIAN LAW REPORTS ALLAHABAD SERIES
undergone by the lady. The learned Judge
has also directed 80% of the amount to be
invested in fix deposit we now make it
100%.

27. The accused Ajay Singh if he has
completed his term of ten years along with
remission
he
shall
be
released
on
completion of his sentence if not required
in any other offence.

28. The appellant No.3 being already
on bail need not surrender as we have
commuted her sentence to that already
undergone, but if the fines are not
deposited, the procedure as prescribed be
carried out by the Chief Judicial Magistrate
against her.

29. The appeal is partly allowed.

30. This Court is thankful to the
arguing counsels for ably assisting this
Court and getting the appeal disposed of
expeditiously.

31. The record and proceedings be
sent back to the court below.
----------
(2021)02ILR A382
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 28.01.2021

BEFORE

THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 441 of 2003

Guddu & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
R.N.S. Chauhan
Counsel for the Respondent:
Govt. Advocate

A.
Criminal
Law-Code
of
Criminal
Procedure, 1973-Section 374(2) & Indian
Penal Code, 1860-Sections 376,366- first
information report was lodged by delay of
8 days without any plausible explanation-
victim
was
major,
at
the
time
of
occurrence, no injury, either internal or
external, was found on the person of
victim -she was consenting party-ocular
evidence is not supported with medical
evidence. (P.W.-1) informant is not an eye
witness-the statement of sole eye witness
(victim) is not reliable and trustworthy-
victim resided
and
moved
with
the
appellants for more than 20 days and even
travelled in Government Bus and did not
make any complaint to any person -
eyewitnesses, who saw the appellants
taking away the victim, were also not
examined
by
the
prosecution,
the
prosecution case, based on sole testimony
of the victim, is neither reliable and trust
worthy nor is of sterling quality and the
prosecution has failed to prove its case
beyond reasonable doubt against the
appellants- appellants are entitled for
acquittal.(Para 1 to 35)

B. 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. There should
not be any prevarication in the version of
such a witness. The witness should be in a
position
to
withstand
the
cross-
2 All. Guddu & Anr. Vs. State of U.P.
383
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. (Para 27)

The Appeal is allowed. (E-5)

List of Cases cited: -

1. Rajak Mohammad Vs St. of H.P. (2018) 9
S.C.C. 248

2. Lilia @Ram Swaroop Vs St. of Raj. (2014) 16
S.C.C. 303

3. Mohd. Ali @ Guddu Vs St. of U.P. (2015) 7
S.C.C. 272

4. St. of M.P. Vs Munna (2016) 1 S.C.C. 696

5. Krishan Kumar Malik Vs St. of Har. (2011) 7
S.C.C. page 130

6. Santosh Prasad @ Santosh Kumar Vs St. of
Bih. (2020) AIR SC 985
(Delivered by Hon'ble Virendra Kumar
Srivastava, J.)

1. The instant criminal appeal, under
Section
374
(2)
Code
of
Criminal
Procedure, 1973 (herein after referred to as
'Code') has, been preferred against the
judgment and order dated 26.02.2003,
passed by Additional Session Judge, Fast
Track Court No.2 , Unnao, in Session Trial
No.354 of 2001, arising out of case Crime
No.111 of 2001, Police Station- Fatehpur
Chaurasi,
District-
Unnao,
whereby
appellant Guddu has been convicted for
offence under Section 366 I.P.C. for 5
years rigorous imprisonment with fine of
Rs.5000/- and for offence under Section
376
I.P.C.
for
7
years
rigorous
imprisonment and appellant Naresh has
been convicted under Section 366 I.P.C. for
5 years rigorous imprisonment with fine of
Rs.5000/-.

2. The prosecution case, in brief, is
that the victim (P.W.-2) is sister of
informant Om Prakash (P.W.-1). On
5.5.2001 at about 7:00 a.m., Om Prakash
(P.W.-1) lodged a written report (Ext.Ka.-
1) at police station- Fatehpur Chaurasi,
District-Unnao, alleging therein, that his
sister (P.W.-2), aged about 16 years, had
gone on 27.4.2001, at about 8:30 p.m., to
answer the nature's call, towards the field
of northern side of village. It was further
alleged that at that time informant and his
family members were harvesting their
crops in his field, meanwhile, appellants
Guddu, Santosh along with co-accused his
brother Naresh and his father Ramai Pasi
enticed the victim away. It is further
alleged that the said occurrence was seen
by Uma Shanker son of Madhav Barai, covillager of (P.W.-1), who narrated the
whole story to him and since then he
(P.W.-1) was searching his sister (P.W.-2)
but failed to locate her.

3. On the said information, F.I.R.
Chik (Ext.Ka.-6) was registered against the
appellants
and other co-accused and
investigation
was
entrusted
to
SubInspector Ram Awtar Diwakar (P.W.-4),
who visited the place of occurrence,
prepared the site plan (Ex.Ka.-8) and
recorded
the
statement
of
(P.W.-1)
including other witnesses Uma Shanker,
Guddu
and
Ram
Gopal.
During
investigation, on 17.5.2001 the victim
(P.W.-2) was recovered by P.W.-4, in the
384 INDIAN LAW REPORTS ALLAHABAD SERIES
presence of P.W.-1, near Takia Crossing
when she was traveling with appellant
Guddu in Bus No.U.G.P.-04143. P.W.-2
was sent to Government Women Hospital,
Unnao for medico legal examination. Dr.
Tabbasum Khan (P.W.-3) examined the
P.W.-2 on 18.5.2001 and prepared medico
legal certificate (Ext.Ka.-4). According to
her, the victim's height was 154 c.m. and
her weight was 42 kg. In external
examination of the P.W.-2, no mark of
injury was present on any part of her body ;
her both breast were developed ; pubic and
auxiliary hairs were present.

4. According to doctor (P.W.-3)
further, in internal examination of the
victim (P.W.-2), no mark of injury was
present on her private part ; hymen
ruptured, old torn and healed ; and vagina
admitted two fingers easily. According to
P.W.-3 further, vaginal smear were taken
and two slides were prepared, which were
sent for pathological examination to
ensure for presence of alive or dead
human spermatozoa and the P.W.-2 was
sent for radiological examination for
determination of her age.

5. According to P.W.-3, further she
had
prepared
supplementary
report
(Ex.Ka.-5),
the
victim's
(P.W.-2)
radiological age was more than 18 years
and no definite opinion could be given
regarding rape.

6. After conclusion of investigation,
charge sheet was filed for offence under
Sections 366 and 376 I.P.C. against the
appellants
before
the
concerned
Magistrate,
who
after
taking
the
cognizance of the offence, since the
offence was exclusively triable by the
Court of Sessions, after providing the
copies of relevant police papers, as
required under Section 207 of the Code,
committed the case to the Court of
Sessions, Unnao, for trial.

7. Learned trial Court framed charge
for offence under Section 366 I.P.C.
against the appellant Naresh and for
offence under Sections 366 and 376
I.P.C. against the appellant Guddu, to
which, they denied and claimed for trial.

8. The prosecution, in order to prove
its case, examined Om Prakash (P.W.-1),
victim (P.W.-2), Dr, Tabbasum Khan
(P.W.-3) and Sub-Inspector Ram Awtar
Singh (P.W.-4). The prosecution has also
relied written information (Ex.Ka.1),
recovery of victim and arrest memo of
appellant Guddu (Ex, Ka,-2), handing
over memo of victim (Ex.Ka.-3), proved
by P.W.-1, medico legal certificate and
supplementary report (Ex.Ka.-4) and
(Ex.Ka.-5), proved by P.W.-3 and Chik
F.I.R. (Ex.Ka.-6) Kayami G.D. (Ex.Ka.-
7) site plan (Ex.Ka.-8), Chargesheet
(Ex.Ka.-9), proved by (P.W.-4). The
prosecution has also relied X-ray report
(Ex.Ka.-10) and X-ray plate (Material
Ex.-1), the genuineness whereof was
admitted by defence Counsel under
Section 294 of the Code.

9. After conclusion of prosecution
evidence, the statement of appellants
were recorded under Section 313 of the
Code,
who
denied
the
prosecution
evidence and stated that they had been
falsely implicated.

10. Learned trial Court, after
conclusion of trial, convicted and sentenced
the appellants vide impugned judgment and
order. Aggrieved by the judgment and
order as above, the appellants have
preferred this appeal.
2 All. Guddu & Anr. Vs. State of U.P.
385

11. Heard Sri R.N.S. Chauhan,
learned counsel for the appellants and Sri
Brijendra Singh, learned A.G.A.-I for the
State.

12. Learned counsel for the appellants
submitted that the appellants are innocent
and falsely implicated. Learned counsel
further submitted that the first information
report was lodged by delay of 8 days
without any plausible explanation. Learned
counsel further submitted that victim was
major, at the time of occurrence, no injury,
either internal or external, was found on the
person of victim ; she was consenting party
; and ocular evidence is not supported with
medical evidence. Learned counsel further
submitted that whole family members of
the appellants were falsely implicated in
this
case.
Learned
counsel
further
submitted that (P.W.-1) informant is not an
eye witness ; witnesses named in the F.I.R.
as eye witness were not produced by the
prosecution and the statement of sole eye
witness (victim) is not reliable and
trustworthy.
Learned
counsel
further
submitted that alleged recovery of the
victim from Bus is also not trustworthy as
no witness, traveling in the Bus or driver
and conductor were examined by the
prosecution.
Learned
counsel
further
submitted that the trial Court without
considering the material, available on
record, passed the impugned judgment and
order in very casual and cursory manner,
which is liable to be set-aside.

13. In support of the aforesaid
submissions, learned counsel for the
appellants placed reliance on law laid down
by Hon'ble Supreme Court in Rajak
Mohammad
Vs.
State
of
Himachal
Pradesh, (2018) 9 S.C.C. 248, Lilia Alias
Ram Swaroop Vs. State of Rajasthan,
(2014) 16 S.C.C. 303, Mohd. Ali alias
Guddu Vs. State of U.P., (2015) 7 S.C.C.
272 and State of Madhya Pradesh Vs.
Munna, (2016) 1 S.C.C. 696.

14. Per contra, learned A.G.A.
vehemently opposing the submission made
by learned counsel for the appellants,
submitted
that
the
prosecution
case,
supported by the statement of victim, has
been proved beyond reasonable doubt.
Learned A.G.A. further submitted that only
on account of delay in lodging the F.I.R.,
the prosecution story cannot be held as
doubtful because informant (P.W.-1), when
failed to search the victim, had lodged the
F.I.R. and such delay, caused in lodging the
F.I.R., is natural and justified. Learned
A.G.A. further submitted that in rape case
statement of victim cannot be disbelieved
only on account of non production of
independent
witness.
Learned
A.G.A.
further submitted that there is no illegality
in the impugned judgment and order, the
appeal lacks merit and is liable to be
dismissed.

15. I have considered the rival
submissions, advanced by learned counsel
for both the parties and perused the record.

16. The alleged offence was happened
in 2001. The trial Court has convicted the
appellant Naresh for offence under Section
366 I.P.C. and the appellant Guddu for
offence under Sections 366 and 376 I.P.C.

17. Section 361 I.P.C. defines the
offence of kidnapping. Section 362 defines
the offence of abduction. Section 375
defines offence of rape. Section 366 I.P.C.
is aggravated form of kidnapping and
abduction and deals with punishment for
offence
of
kidnapping,
abducting
or
inducing woman to compel her marriage
and Section 376 I.P.C. deals with the
386 INDIAN LAW REPORTS ALLAHABAD SERIES
punishment for the offence of rape.
Sections 361, 362, 366, 375 and 376 I.P.C.
as it was in the year of 2001, are as under :

"361. Kidnapping from lawful
guardianship.--Whoever takes or entices any
minor under sixteen years of age if a male, or
under eighteen years of age if a female, or
any person of unsound mind, out of the
keeping of the lawful guardian of such minor
or person of unsound mind, without the
consent of such guardian, is said to kidnap
such
minor
or
person
from
lawful
guardianship.

362. Abduction.--Whoever by force
compels, or by any deceitful means induces,
any person to go from any place, is said to
abduct that person.

366. Kidnapping, abducting or
inducing woman to compel her marriage,
etc.--Whoever kidnaps or abducts any woman
with intent that she may be compelled, or
knowing it to be likely that she will be
compelled, to marry any person against her
will, or in order that she may be forced or
seduced to illicit intercourse, or knowing it to
be likely that she will be forced or seduced to
illicit intercourse, shall be punished with
imprisonment of either description for a term
which may extend to ten years, and shall also
be liable to fine; and whoever, by means of
criminal intimidation as defined in this Code
or of abuse of authority or any other method
of compulsion, induces any woman to go
from any place with intent that she may be, or
knowing that it is likely that she will be,
forced or seduced to illicit intercourse with
another person shall also be punishable as
aforesaid.

375. Rape - A man is said to
commit rape" who except in the case
hereinafter excepted, has sexual intercourse
with a woman under circumstances falling
under any of the six following descriptions :

First - Against her will.

Secondly - Without her consent.

Thirdly - With her consent, when
her consent has been obtained by putting her
or any person in whom she is interested in
fear of death or of hurt.

Fourthly - With her consent, when
the man knows that he is not her husband,
and that her consent is given because she
believes that he is another man to whom she
is or believes herself to be lawfully married.

Fifthly- With her consent, when, at
the time of giving such consent, by reason of
unsoundness of mind or intoxication or the
administration by him personally or through
another of any stupefying or unwholesome
substance, she is unable to understand the
nature and consequences of that to which she
gives consent.

Sixthly - With or without her
consent, when she is under sixteen years
of age.

Explanation - ...........................

Exception - Sexual intercourse by
a man with his own wife, the wife not being
under fifteen years of age, is not rape.

376. (1) Whoever, except in the
cases provided for by sub section (2),
commits rape shall be punished with
imprisonment of either description for a
term which shall not be less than seven
years but which may extend to ten years
and shall also the liable to fine unless the
woman raped is his own wife and is not
under twelve years of age, in which case,
he shall be punished with imprisonment of
either description for a term which may
extend to two years or with fine or with
both :

Provided that the Court may, for
adequate and special reasons to be
mentioned in the judgment, impose a
sentence of imprisonment for a term of less
than seven years.

(2) whoever, ................"
2 All. Guddu & Anr. Vs. State of U.P.
387

18. Thus, from perusal of aforesaid
provisions, it is clear that if the victim is
aged about 18 years or more than 18 years
the prosecution has to prove by the cogent
evidence and reliable evidence that victim
was abducted and raped forcibly without
her consent and willingness.

19. Om Prakash (P.W.-1), informant
and brother of the victim (P.W.-2), in cross
examination, admitting that P.W.-2 had
passed high school examination in 1998,
has stated that her (P.W.-2) date of birth is
04.01.1982. He has also admitted that he
had not seen the P.W.-2 when she had gone
from
his
house.
He
(P.W.-1)
has
specifically admitted that he had seen his
sister (P.W.-2) after 15 - 20 days of her
missing. This witness has not stated that
either he had seen occurrence when the
P.W.-2 was kidnapped by the appellants or
when she had gone from her house to
answer the nature's call. Thus, this witness
is not an eye witness of the occurrence.

20. The victim (P.W.-2), sole eye
witness, has stated that on 27.04.2001, at
about 8:30 p.m., she had gone to answer the
nature's call towards the field. She further
stated that the appellant Guddu, brother of
the appellant Naresh and their father Ramai
Pasi including two unknown persons,
suddenly
appeared
there
with
Katta
(country made pistol) and they threatened
her not to make noise otherwise they would
kill her. Stating further, that appellants and
co-accused carried her near Ganges river
(Ganga ki Katri) and kept in a bungalow
for 15 days, she further stated that they
used to carry her in village at every night.
She also stated that during that period
appellant Guddu had forcibly committed
rape with her for 2 - 4 occasions. Stating
that at that time she was aged about 16
years, she further stated that one day
appellants were carrying her for unknown
place, by private bus but she was caught by
the police along with appellant-Guddu,
near Takia Crossing and appellant Naresh
fled away from that bus. She further stated
that she was brought by the police at
concerned
police
station
;
she
was
medically examined in the Government
Women Hospital ; and thereafter she was
handed over in the custody of her parents,
after preparation of handing over memo
(Superdiginama) (Ex.Ka.-3).

21. In cross examination, she (victim)
stated
that
she
had
also
told
the
involvement of Ramai Pasi, father of the
appellant, in the said offence to the
Investigating Officer (P.W.-4) and if he had
not mentioned the involvement of Ramai
Pasi in the said offence, she could not give
any justification. She further stated that she
had gone lonely to answer the nature's call
(Tatti) nearby pond with mug (Lota) and
said pond is situated 20 steps towards east
of her house. Stating further, that it was
dark night, the appellants were present
behind the bush and threatened her by
country made pistol (Tamancha), she
further stated that she could not raise any
alarm and said Mug (Lota) was left there.
Stating further that she walked on foot
whole night ; no one had met her on the
way ; and she did not make any complaint
to any person, she further stated that she
reached in the morning in the village but
did not make any complaint there also to
any person. Stating further, that she stayed
in that village 15 - 20 days, she further
stated that there were appellants' relative in
that village ; she did not make any
complaint to them because she used to go
out of her room, followed by the appellants
with Tamancha, only to answer the nature's
call. Admitting that she had passed
intermediate examination one year before
388 INDIAN LAW REPORTS ALLAHABAD SERIES
the occurrence, she further stated that she
did not know the appellant Guddu, prior to
the occurrence.

22. In Mohd. Ali Alias Guddu
(supra), relied by learned counsel for the
appellants, Hon'ble Supreme Court, where
the first information report was lodged by
delay of 11 days and victim was taken from
one place to another and remained at
various places for almost two months with
only explanation that she was ravished by
the appellant for number of times but no
injury was found on her private part, has
held as under :

"Para-30. True it is, the grammar
of law permits that the testimony of a
prosecutrix can be accepted without any
corroboration without material particulars,
for she has to be placed on a higher
pedestal than an injured witness, but, a
pregnant one, when a court, on studied
scrutiny of the evidence finds it difficult to
accept the version of the prosecutrix,
because it is not unreproachable, there is
requirement for search of such direct or
circumstantial evidence which would lend
assurance to her testimony. As the present
case would show, her testimony does not
inspire confidence, and the circumstantial
evidence remotely does not lend any
support to the same. In the absence of both,
we are compelled to hold that the learned
trial Judge has erroneously convicted the
appellant accused for the alleged offences
and the High Court has fallen into error,
without reappreciating the material on
record, by giving the stamp of approval to
the same."

23. In Lilia Alias Ram Swaroop
(Supra) where the independent witness was
not examined, victim was aged about 20
years and medical evidence was also not
corroborating
the
prosecution
story,
Hon'ble the Supreme Court, allowing the
appeal, set-aside the conviction of the
appellant.

24. In Rajak Mohammad (Supra)
where the victim was remained in the
company of appellant for about 12 days
until she was recovered and she had freely
moved around with the appellant in the
course of movement, she came across many
people at different point of times, yet she
did not make any complaint of the offence,
committed by the appellant, to any person,
Hon'ble Supreme Court, while setting aside
the conviction of the appellant and
expressing doubt on the age of victim,
based on radiological examination and by
giving benefit of doubt in favour of
appellant, held as under :

"Para-9. While it is correct that
the age determined on the basis of a
radiological examination may not be an
accurate
determination
and
sufficient
margin either way has to be allowed, yet
the totality of the facts stated above read
with
the
report
of
the
radiological
examination leaves room for ample doubt
with regard to the correct age of the
prosecutrix. The benefit of the aforesaid
doubt ; naturally, must go in favour of the
accused."

25. It is settled principle of law that
for offence of rape, the prosecution case
based
on
solitary
evidence
of
the
prosecutrix, whose evidence is trustworthy,
unblemished and of sterling quality, cannot
be thrown out for want of corroborative
evidence and independent witness.

26. In Krishan Kumar Malik Vs.
State of Haryana (2011) 7 S.C.C. page
130, Hon'ble Supreme Court was also of
2 All. Guddu & Anr. Vs. State of U.P.
389
the view that for offence of rape, the
solitary evidence of victim is sufficient,
provided that it inspire confidence of the
Court and is reliable trustworthy and of
sterling quality.

27. Supreme Court in Santosh Prasad
@ Santosh Kumar v. State of Bihar AIR
2020 SC 985, while allowing the appeal
against conviction, in a case based on the
solitary evidence of prosecutrix, expressing
its opinion regarding nature and quality of
solitary evidence of victim as well as scope
of false implication of accused in sexual
offences, has held as under :

"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
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 (AIR 2009
SC 858) (supra) and Rai Sandeep @
Deepu, (AIR 2012 SC 3157) 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 (AIR
2009 SC 858, Para 9) (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
390 INDIAN LAW REPORTS ALLAHABAD SERIES
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] : (AIR 1996 SC 1393)
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
and 113-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 s 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 (AIR 2012 SC 3157, Para 15)
(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. 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
2 All. Guddu & Anr. Vs. State of U.P.
391
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. State of Haryana (2011) 7
SCC 130 : (AIR 2011 SC 2877), it is
observed and held by this Court that no
doubt, it is true that to hold an accused
guilty for commission of an offence of rape,
the solitary evidence of the prosecutrix is
sufficient provided the same inspires
confidence and appears to be absolutely
trustworthy, unblemished and should be of
sterling quality."

5.5. With the aforesaid decisions
in mind, it is required to be considered,
whether is it safe to convict the accused
solely on the solitary evidence of the
prosecutrix? Whether the evidence of the
prosecutrix inspires confidence and appears
to be absolutely trustworthy, unblemished
and is of sterling quality ?"
 (Emphasis supplied)

28. Coming to the facts of the case,
the first information report (Ex.Ka.-1) was
lodged by delay of 8 days by Om Prakash
(P.W.-1), who is not eye witness. In F.I.R.
(Ex.Ka.-1)
it
has
been
specificially
mentioned that Uma Shankar son of
Madhav Barai, Guddu son of Ram Swarup,
Ram Gopal son of Ram Ratan had seen the
appellants and other accused persons that
they were taking away the victim. Om
Prakash (P.W.-1) has also stated in his
examination that Uma Shanker, Guddu and
Ram Gopal had seen that the victim was
being taken away by the appellants and
other co-accused. The prosecution has not
examined the said Uma Shanker, Guddu
and Ram Gopal. In addition to above, the
prosecution has also not examined either
driver or conductor of the bus or any
person travelling in the bus where from the
victim and appellant were alleged to be
recovered and arrested by the police on
17.5.2001. The prosecution has not given
any justification for non-examination of
aforesaid eye witnesses. Non examination
of these important witnesses creates a
doubt in the prosecution story.

29. It is also pertinent to note that
victim (P.W.-2) has stated that place of
occurrence (pond), where she had gone to
answer the nature's call, is situated at
distance of only 20 steps from her house
and the appellants along with other coaccused were hiding behind the bush. From
perusal of site plan (Ex.Ka.-8), it is clear
that said pond is situated nearby the field of
one Shyam and Shiv Dular and grove land
of one Rajendra Prasad. There are no
residential house situated nearby the pond
and in this site plan, no place has been
shown where the appellant and co-accused
were hiding whereas it has been mentioned
that village of P.W.-1 i.e. Marookpur
(Jasra) is situated one furlong away from
there. Further, according to victim (P.W.-2)
at the time of occurrence, she had gone
with mug (Lota) and according to her that
mug was left by her at the place of
occurrence but no lota was either shown or
392 INDIAN LAW REPORTS ALLAHABAD SERIES
recovered by the Investigating Officer from
the place of occurrence .

30. It is pertinent to mention, at this
juncture, that after the recovery of the
victim, she was not produced before any
Magistrate for recording her statement
under Section 164 of the Code and the
Investigating Officer has also not prepared
any site plan of the place from where the
victim was recovered. In addition to above,
the victim was major and according to Dr.
Tabbasum Khan (P.W.-4), no mark of
injury was found on her private part at the
time of examination and no opinion
regarding rape could be given by her.

31. It is also pertinent to note, at this
juncture, that in rural areas, normally
young and unmarried girls do not prefer to
go alone in the night, out of their village,
without informing any member of their
family. In this case, according to the victim
(P.W.-2) she had gone out of her house to
answer the nature's call, at about 8.30 p.m.
and according to P.W.-1 at that time, he
along with his family members, was
harvesting
his
crops.
According
to
prosecution, the appellants along with their
another brother and father, were hiding
behind the bush and kidnapped the P.W.-2.
Record shows that appellants are resident
of village Jasara and P.W.-1 is resident of
village Marookpur. Neither P.W.-1 nor
P.W.-2 has stated that P.W.-2 used to go
daily out of her house alone at 8.30 p.m., to
answer the nature's call. Her (P.W.-2) going
out of her house at 8.30 p.m., at the time of
occurrence to answer the nature's call at
any particular place where appellants along
with his brother and father were already
waiting her, having prior information or
intimation of her (P.W.-2) movement,
makes the conduct of P.W.-2 doubtful in
peculiar facts and circumstances of the
case.

32. It is also pertinent to note, at this
juncture, that although in rape cases,
normally the delay in lodging the F.I.R. is
not material but if such delay was
deliberately caused and was without any
justification it may create doubts in the
veracity of the prosecution case. In this
case, the F.I.R. was lodged by delay of 8
days. According to P.W.-1, at the time of
occurrence, he and his family members
were present in the village and harvesting
the crops. He has specifically stated that the
occurrence was witnessed by one Uma
Shanker, Guddu and Ram Gopal also, who
informed him that the appellants, their
brother and father had kidnapped the
victim. He (P.W.-1) has not stated any
thing, in his statement, as to why he lodged
the F.I.R. by delay of 8 days. Thus, huge
delay of 8 days in lodging the F.I.R.,
further has created doubt in the prosecution
story.

33. In view of the above, as there is
huge delay of 8 days in lodging the F.I.R.
; ocular evidence is not supported with
medical evidence ; victim resided and
moved with the appellants for more than
20
days
and
even
travelled
in
Government Bus and did not make any
complaint to any person and she was
major at the time of occurrence ;
eyewitnesses, who saw the appellants
taking away the victim, were also not
examined
by
the
prosecution,
the
prosecution case, based on sole testimony
of the victim, is neither reliable and trust
worthy nor is of sterling quality and the
prosecution has failed to prove its case
beyond reasonable doubt against the
appellants.
2 All. Smt. Phulau @ Phoolwati & Anr. Vs. State of U.P.
393

34. Thus, the prosecution has miserably
failed to prove its case beyond reasonable
doubt against the appellants. Learned trial
Court, without considering the aforesaid fact
and circumstance of the prosecution story,
has passed the impugned judgment and order
in cursory manner, which is liable to be setaside. Appellants Guddu and Naresh are
entitled for acquittal and consequently the
appeal is liable to be allowed.

35. I am, therefore, unable to uphold the
conviction and sentence of the appellants.
The impugned judgment and order, dated
26.02.2003, passed in Session Trial No.354
of 2001 (State of U.P. Vs. Guddu and
Another), is hereby set-aside. Both the
appellants, Guddu and Naresh are acquitted
and consequently, the appeal is allowed.

36. Appellants are on bail. Their bail
bonds are cancelled and sureties are
discharged.

37. Keeping in view the provision of
Section 437-A of the Code, appellants Guddu
and Naresh are hereby directed forthwith to
furnish personal bond of a sum of Rs.20,000/-
each and two reliable sureties each of the like
amount before the trial Court, which shall be
effective for a period of six months, along
with an undertaking that in the event of filing
of Special Leave Petition against this
judgment or for grant of leave, they, on
receipt of notice thereof, shall appear before
Hon'ble Supreme Court.

38. A copy of this judgment along with
lower court record be sent to trial Court by
FAX for immediate compliance.
----------
(2021)02ILR A393
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.02.2021
BEFORE

THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 917 of 2001

Smt. Phulau @ Phoolwati & Anr.
 ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Shishir Pradhan, Dhirendra Pratap Singh,
Piyush Shrivastava, Surya Nath

Counsel for the Respondent:
Govt. Advocate