# Gudun & Ors v. The State of U.P

- **Citation:** (2023) 8 ILRA 90
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-22
- **Case number:** Criminal Appeal No. 563 of 2000
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gudun-ors-v-the-state-of-u-p-50633
- **Pages:** 15

## Headnote

Criminal Law - Indian Penal Code,1860 -
Sections
376/511,
354
&
506
-
Punishment for rape - Appeal against
conviction - Rigorous imprisonment with
fine - Code of Criminal Procedure, 1973 -
Sections 161 & 164 - Indian Evidence Act,
8 All. Gudun & Ors. Vs. The State of U.P.
91
1872 - Sections 53, 114 (g) & 155(4) - FIR
lodged for commission of offence of
molestation and attempt to commit rape
on victim - None of independent witnesses
came forward in support of prosecution
version, all accused persons belonged to
same family with whom there was enmity
on
account
of
civil
litigation
with
informant - Delay in lodging FIR - Medical
evidence not in support of prosecution
version, no injury on external or internal
part of victim except crust on base of little
finger of right hand, established she was
habitual of sexual intercourse - Two real
brothers may not commit such offence
together - Time of occurrence and going
alone out of house for defecation by victim
appears concocted - Therefore, some roles
assigned to all appellants - Prosecution
failed in establishing prosecution case
against appellants regarding commission
of alleged crime - Thus, impugned order
set aside. (Para 2, 60)

Appeal allowed. (E-14)

List of Cases cited:

## Text

_Characters 0–39,912 of 48,846. This is a partial read: ask again with offset=39912 for what follows._

90 INDIAN LAW REPORTS ALLAHABAD SERIES
summarised above, we find that the dying
declaration of the deceased was recorded
by a Magistrate who deposed as PW-8. In
his testimony, he stated that the injured was
in a condition to speak and the doctor has
given his opinion that the injured was in a
condition to speak and when the deceased's
statement was recorded, no one except the
doctor was present. The PW-8 has proved
the "dying declaration" (Ex. ka-18) which
was prepared by the PW-8 in his own
handwriting and bears the opinion of Dr.
P.C. Chandel (PW-7) about his health
condition. The statement of the deceased
was
recorded
on
01:20
A.M.
on
19.07.1979. The PW-7 Dr. P.C. Chandel has
stated in his evidence that the patient was
conscious at the time of recording of his
statement by the PW-8 and entry to this
effect was made on the Bed Head Ticket
with a noting that the patient was in a
condition to speak. The learned trial court
has found the dying declaration to be
trustworthy and not tutored. Under the
circumstances,
the
dying
declaration
(Ex.ka-18) as proved by the PW-8 and
corroborated with the evidence of PW-7,
has to be given due weight. Considering the
evidence of prosecution witnesses as noted
in paragraph-12 of this judgment, we are of
the view that the "dying declaration" of the
deceased was voluntary and trustworthy.
Therefore, it can be safely concluded that
the accused Ram Kishore committed the
offence under Section 302 and 394 I.P.C.
Accordingly, his conviction and sentence
under Sections 302, 394 I.P.C. deserves to
be confirmed.

21. For all the reasons stated herein
above, this Court finds no reason to
interfere with the impugned judgment and
order dated 7.1.1982 passed by the Trial
Court in Session Trial No. 252 of 1980
convicting
and
sentencing
the
sole
appellant Ram Kishore for the offences
under Sections 302 and 394 IPC. This
Court is in complete agreement to the view
taken by the Trial Court and affirms the
same.
The
appeal
is,
accordingly,
dismissed. Accused/appellant Ram Kishore
has already been arrested and sent to jail on
20.07.2023. He shall serve out the
remaining period of sentence in terms of
the impugned judgment and order dated
07.01.1982 passed by the Trial Court.

22. Office is directed to transmit a
certified copy of this judgment and order to
the
concerned
Court
for
necessary
information and compliance. It is further
directed that the original record of the case
be returned forthwith which shall be kept
safely by the trial Court.
----------
(2023) 8 ILRA 90
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.08.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Appeal No. 563 of 2000

Gudun & Ors. ...Appellants
Versus
The State of U.P. ...Respondent

Counsel for the Appellants:
Balram Yadav, Ashwini Kumar Tripathi,
Indra Pratap Singh, Umesh Kumar Yadav

Counsel for the Respondent:
Govt. Advocate

Criminal Law - Indian Penal Code,1860 -
Sections
376/511,
354
&
506
-
Punishment for rape - Appeal against
conviction - Rigorous imprisonment with
fine - Code of Criminal Procedure, 1973 -
Sections 161 & 164 - Indian Evidence Act,
8 All. Gudun & Ors. Vs. The State of U.P.
91
1872 - Sections 53, 114 (g) & 155(4) - FIR
lodged for commission of offence of
molestation and attempt to commit rape
on victim - None of independent witnesses
came forward in support of prosecution
version, all accused persons belonged to
same family with whom there was enmity
on
account
of
civil
litigation
with
informant - Delay in lodging FIR - Medical
evidence not in support of prosecution
version, no injury on external or internal
part of victim except crust on base of little
finger of right hand, established she was
habitual of sexual intercourse - Two real
brothers may not commit such offence
together - Time of occurrence and going
alone out of house for defecation by victim
appears concocted - Therefore, some roles
assigned to all appellants - Prosecution
failed in establishing prosecution case
against appellants regarding commission
of alleged crime - Thus, impugned order
set aside. (Para 2, 60)

Appeal allowed. (E-14)

List of Cases cited:

1. Aman Kumar Vs St., AIR 2004 SC 1497

2. Tukaram Vs St. of Mah., AIR 1979 SC 185

3. Nilambar Goudo Vs St. of Orissa, 1982 Cri LJ
NOC 172 (Ori)

4. Joginder Singh Vs St. of Punj., 1974 CrLJ 117

5. Ram Kali Vs St. of U.P., AIR 1947 All 191

6. Vimal Suresh Kambley Vs Chaluverapinake,
AIR 2003 SC 818

7. St. of Raj. Vs Biram Lal, 2005 CrLJ 2561 (SC)

8. St. of Karn. Vs Manjanna, AIR 2000 SC
2231

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

10. Lalta Prasad Vs St. of M.P., AIR 1979 SC
1276

11. Charan Singh Vs St. of Har., (1988) 3 Crimes
85 (P&H)

12. Zahoor Ali Vs St. of U.P., 1989 CrLJ 1177
(All)

13. Sakariya Vs St. of M.P., 1991 CrLJ 1925 (MP)

14. Mah. Vs Abdul Hafees Faroki, 1998 CrLJ
3603 (SC)

15. Joseph Vs St. of Kerala, 2000 CrLJ 2467
(SC)

16. Sampad Vs St. of Orissa, 2001 CrLJ 793
(Ori)

17. St. of Orissa Vs Rama Swain & ors., 2007
CrLJ 714 (Ori)

18. Goverdhan Vs St. of M.P., 2006 CrLJ 4118

19. Mansingh Vs St. of M.P., 2007 CrLJ 201 (MP)

20. St. of Mah. Vs Rameshwar Sridhar Jaware,
2008 CrLJ 675 (Bom)

21. Suresh Govinda Nagdeve Vs St. of Mah.,
2008 CrLJ 2943 (Bom)
(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Sri Indra Pratap Singh,
learned counsel for the appellants, Ms.
Anupriya Jaiswal, learned AGA for the
State and perused the record.

2. This appeal has been preferred by
the convicts Gudun, Suresh, Jangay and
Harish Chandra to set aside the judgment
and order of conviction and sentencing
dated 03.06.2000 passed by the XIAdditional Sessions Judge, Faizabad in ST
No.827 of 1997 (State Vs. Gudun and
others) arising out of Case Crime No.55 of
1997, under Sections 376, 354, 506 IPC,
Police Station Khandasa, District Faizabad
whereby the accused persons had been
92 INDIAN LAW REPORTS ALLAHABAD SERIES
convicted under Section 376/511 IPC for
five years rigorous imprisonment and fine
of Rs.2,000/- each and in case of nonpayment of fine to undergo six months
additional incarceration; under Section 354
IPC for one year's rigorous imprisonment
each; under Section 506(2) IPC for one
year's rigorous imprisonment each. It was
also directed that all the sentences shall run
concurrently.

3. In brief, facts of the case are that
informant Shreepal lodged an FIR on
08.03.1997 that in the night of 03.03.1997
at about 09:00 p.m. his daughter had gone
outside the house to attend the call of
nature. Gudun and Musey sons of Radhey
Shyam, Suresh son of Jagram, Harish
Chandra son of Salikram and Jangay son of
Keshri threw his daughter on the ground.
Gudun caught her breast and when Harish
Chandra
opened
her
saree
with
ill
intentions, she cried, upon which Ram
Dulare Yadav, Ramdev and Chandrika
Prasad Tiwari and some other persons of
his village reached on the spot and saw the
accused escaping therefrom. As the matter
was about his daughter, he did not approach
the police but when they started threatening
to kill him, he requested to lodge an FIR
and protect him.

4. In this case the accused 'Musey'
was declared juvenile and his case was
transmitted to the Juvenile Justice Board,
Faizabad for trail. The case of rest of the
accused persons was committed and the
charges were framed under Sections
376/511, 354, 506 IPC. Accused persons
denied the charges and sought trial.

5. Prosecution examined following
witnesses in its support:-

1
PW-1
Shreepal, informant
2
PW-2
Smt. Kusuma
3
PW-3
Dr. P. Nath
4
PW-4
Ramesh Chand Tiwari, constable
moharrir
5
PW-5
SI Ram Nagina Yadav
6
PW-6
Dr. Sushma Singh

6. Following documentary evidences
have been adduced by the prosecution:-

1
Ex.Ka-1
Written complaint
2

Ex.Ka-2

Injury report of the victim
3
Ex.Ka-3
Chik FIR
4
Ex.Ka-4
Carbon copy kaymi GD
5
Ex.Ka-5
Map
6
Ex.Ka-6
Charge sheet
7
Ex.Ka-7
Age determination report of
the victim

(I) Grounds of Appeal

7. The grounds taken by the accused
persons are that: (i) the trial court failed to
examine and evaluate the evidence on
record correctly and judicially and has
mistaken in passing the impugned order;
(ii) the trial court could not consider that
the story of the case was concocted and the
same could not be substantiated by the
prosecution; (iii) the impugned judgment
has been passed on conjunctures and
surmises; (iv) the trial court could not come
to the conclusion that it was a malicious
prosecution on account of enmity, the
evidences are itself contradictory and the
story is imaginary, the trial court failed to
appreciate the main evidence which is
falsifying
the
whole
case;
(v)
the
punishment is excess and the judgment and
order is illegal and arbitrary and is not
sustainable in the eyes of law. Hence, the
impugned
judgment
and
order
of
8 All. Gudun & Ors. Vs. The State of U.P.
93
conviction and sentencing be set aside and
the appeal be allowed.

(II)
Brief
discussion
on
the
statements of prosecution witnesses

8. PW-1, informant, Shreepal has
deposed that at about 09:00-10:00 p.m. on
the date of incident when he was making
jaggery, Ram Dulare and Chandrika were
sitting at the house of Rampal, he heard the
screams of his 14-15 years old daughter to
save her. He ran there with a torch. Ram
Dulare, Chandrika, Rampal and Ramdev
had also reached after him and saw that
accused Musey was doing dirty things with
his daughter and accused Gudun had
caught her hand and breast on the point of a
country-made pistol. Harish Chandra had
opened her saree and she was lying in
naked position. This incident had taken
place in the field of Ram Jiyavan. His
daughter told that accused Musey raped
her. Rest of the accused persons were doing
bad things with her. The girl narrated the
story in front of her mother Dashrath Dei,
Ram
Dulare,
Chandrika
Tiwari
and
Ramdev.
This
witness
has
testified/recognized the signature on the
written complaint Ex.Ka-1.

9. PW-2, Kusuma has deposed that
the incident occurred about one year and
ten months ago. It was 10 o'clock in the
night she had gone outside the house to
attend the call of nature in Ram Jiyavan's
field. Accused Harish Chandra, Gudun,
Chandrika, Musey and Suresh residents of
her village reached and first caught her and
threw her on the ground. Gudun was
threatening with a country-made pistol.
Accused Musey committed misdemeanour
with her by his penis in her urethra/urinary
tract. When he was doing that thing, rest of
the accused persons had held her. When she
raised alarm, her father and thereafter her
mother and wife of Chhote Lal, Ram
Dulare, Ramdev, Rampal and Baba reached
there. First of all, Gudun had lit the torch.
Her father also had lit the torch. When they
approached the accused, they ran away. Her
father had opened her tied legs.

10. PW-3, Dr. P. Nath had examined
the victim and found hard crust in an area
of 0.5cm x 0.5cm on the base behind the
little finger of the right hand and opined
that it would have come from a blunt
object. It may also occur if any one is
thrown on the ground.

11. PW-4, Chandrika Tiwari has
proved chik FIR Ex.Ka-3 and carbon copy
kaymi GD Ex.Ka-4 regarding lodging of
the FIR.

12. PW-5, SI Ram Nagina Yadav has
deposed that the case was lodged in his
absence. He had copied the chik FIR and
GD, recorded the statements of Ram
Dulare, Ramdev and mother of the victim.
Prepared map Ex.Ka-5 and recorded the
statement of the informant and the victim
on 18.03.1997, copied the medical report
and added Section 376 IPC, arrested the
accused Harish Chandra, Musey Yadav and
Gudun and recorded their statements and
after finding sufficient evidence submitted
the charge sheet Ex.Ka-6 under Sections
376, 354, 506 IPC.

13. PW-6, Dr. Sushma Singh has
deposed that she had medically examined
the victim on 10.03.1997 at about 06:00
p.m. The victim was telling injury to be on
her right hand. There was no injury on her
private part. Hymen was old torn and
healed. Two fingers were easily entering
into her vagina. Vaginal smear was
collected and sent to the pathologist. The
94 INDIAN LAW REPORTS ALLAHABAD SERIES
victim was referred to the CMO who
determined her age to be 17 years. (No
pathological report regarding presence of
live or dead sperm was produced/found).

(III) Discussion on Merit

14. The first argument advanced by
the learned counsel for the appellants is that
there is undue delay in lodging the FIR.
According to the prosecution, the offence
occurred in the night of 03.03.1997 and the
FIR had been lodged in the night of
08.03.1997. As per the FIR it was mere a
case of molestation and an attempt to
commit rape but after investigation the
charge sheet was submitted under Section
376, 354, 506(2) IPC. The informant
deposed that on 04.03.1997 he went to the
concerned SHO but he did not lodge the
FIR and when he moved an application to
the DIG only then FIR could be lodge but
in support of these facts no independent
oral evidence has been produced. So far as
the submission of written report to the DIG
is concerned, no such report has been
proved during the examination-in-chief.
However, during the course of crossexamination the witness was asked about
the application submitted to the DIG in
which some different facts have also been
mentioned which is not the case of the
prosecution. It has also come out that
according to this witness he had already
moved an FIR which had been torn by the
SHO and when he moved another FIR it
was considered for sending her daughter
for medical examination. However, in
absence of proof of letter to DIG in
accordance with law, it can be said that
when there was enmity between both the
parties the case was lodged after an
unreasonable delay though in cases of rape
and molestation five days' delay is not fatal
for the prosecution but the circumstances in
which the concerned FIR has been lodged
would also to be considered before
concluding as to whether the FIR has been
lodged with an unreasonable delay or not.

15. This Court has also considered the
fact that in this case all the alleged
witnesses of the FIR (who have not been
examined in the court) were either relatives
or the residents of remote distance. Out of
the witnesses mentioned in the FIR,
Ramdev Yadav was brother-in-law (bahnoi)
of the informant who stated in his statement
under Section 161 CrPC that he had not
seen the occurrence. He had heard that the
accused threw the victim on the ground.
Chandrika Prasad Tiwari was residing 10
kms away from his village. Ram Dulare
was the resident of his village but he has
not been examined in the court. He has not
supported the prosecution version in his
statement under Section 161 CrPC but has
stated that he saw the victim coming with
her mother from the fields. He did not see
any one escaping from the spot. He heard
that accused persons had thrown the victim
on the ground for molesting her.

16. Though, the victim of such case is
at par to the injured witnesses and her
evidence should be considered if she is
found to be trustworthy and a sterling
witness but it is not so and the
circumstances and the medical evidence are
not in support of the prosecution case,
therefore,
corroboration
from
the
independent evidence would be necessary
to convict the accused.

17. In this case all the accused
persons are the family members and there
was enmity on account of a civil case with
the informant. Out of them Musey and
Gudun were the real brothers. According to
this
Court,
such
offence
cannot
be
8 All. Gudun & Ors. Vs. The State of U.P.
95
committed by the two real brothers together
in presence of their senior family members.
In this regard defence has submitted
documentary evidence regarding the civil
case pending between the parties i.e. Case
No.64 of 1984 which was instituted by the
father of the accused Gudun and Musey
against
the
family
members
of
the
informant. The enmity is double edged
weapon. On account of enmity an offence
can be caused and an innocent person may
also be falsely implicated in a false and
concocted case. In this case considering the
facts, circumstances, medical and oral
evidence and improvement from the
original case, during the course of trial, it
can be safely concluded that on account of
enmity the accused persons have falsely
been implicated as father of the accused
Musey and Gudun had purchased a land
which was claimed by the informant as his
sahan land.

18. According to this Court, if the
victim had gone to the fields lonely and
accused Musey wanted to rape and molest
her, there was no need of any other person.
A young boy is strong enough to overpower
a girl of tender age for molesting and
committing rape upon her. Involving all the
family members and assigning role to all of
the accused persons that one has caught
hold her one hand, another caught hold her
second hand, some other accused had
caught hold her left leg, her right leg and
the accused Musey was committing rape
with the victim in presence of his elder
brother and his other elder family members,
appears to be a concocted story away from
the reality.

19. It has also been argued that the
victim was not a girl of good moral
character. She had illicit relation with a boy
of her village. On the day of occurrence she
was seen in an inebriated/objectionable
condition with him for which a propaganda
spread in the village, therefore, only to save
the honour of the victim this false story had
been concocted by the informant taking the
victim and her mother into confidence with
the
assistance
of
his
brother-in-law,
Ramdev Yadav. In this regard Section 53 of
the Indian Evidence Act, 1872 (in short 'the
Act, 1872') is material. For ready reference
Section 53 of the Act, 1872 reads as under:-

"53. In criminal cases, previous
good character relevant.-In criminal
proceedings, the fact that the person
accused is of a good character, is
relevant."

20. It is noteworthy that it is a case of
molestation and attempt to commit rape as
the charge was framed under Section
376/511 IPC, therefore, amended Section
53A of the Act, 1872 which was inserted by
the Act of 2013 would not apply.

21. At this score Section 155 of the
Act, 1872 is relevant and the same is
reproduced herein below:-

"155.
Impeaching
credit
of
witness.-The credit of a witness may be
impeached in the following ways by the
adverse party, or, with the consent of the
Court, by the party who calls him-

(1) by the evidence of persons
who testify that they, from their knowledge
of the witness believe him to be unworthy of
credit;

(2) by proof that the witness has
been bribed, or has [accepted] the offer of
a bribe, or has received any other corrupt
inducement to give his evidence;

(3) by proof of former statements
inconsistent with any part of his evidence
which is liable to be contradicted."
96 INDIAN LAW REPORTS ALLAHABAD SERIES

22. Since it is a case of the year 1997,
therefore, the sub-section (4) of Section
155 of the Act, 1872 which was deleted by
Amendment Act of 2002 would be relevant
and applicable which reads as under:-

"(4) When a man is prosecuted
for rape or an attempt to ravish, it may be
shown that the prosecutrix was of generally
immoral character."

23. Thus, this Court is of the view that
sub-section (4) of Section 155 of the Act,
1872 was into existence at the time of
commission of the alleged crime, therefore,
this case would have also to be seen in the
light of the omitted sub-section (4) of
Section 155 of the Act, 1872 because the
medical report and the evidence of PW-3
and PW-6 are not in support of the
prosecution version.

24. It would be expedient to discuss
the norms regarding rape as defined under
Section 375 IPC which is punishable under
Section 376 IPC. Sections 375 and 376 IPC
reads thus:-

"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.-Penetration is sufficient
to
constitute
the
sexual
intercourse
necessary to the offence of rape.

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

376. Punishment for rape.-(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 be for
life or for a term which may extend to ten
years and shall also be liable to fine unless
the women raped is his own wife and is not
under twelve years of age, in which cases,
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,-

(a) being a police officer commits
rape-

(i) within the limits of the police
station to which he is appointed; or
8 All. Gudun & Ors. Vs. The State of U.P.
97

(ii) in the premises of any station
house whether or not situated in the police
station to which he is appointed; or

(iii) on a woman in his custody or
in the custody of a police officer
subordinate to him; or

(b) being a public servant, takes
advantage of his official position and
commits rape on a woman in his custody as
such public servant or in the custody of a
public servant subordinate to him; or

(c) being on the management or
on the staff of a jail, remand home or other
place of custody established by or under
any law for the time being in force or of a
woman's or children's institution takes
advantage of his official position and
commits rape on any inmate of such jail,
remand home, place or institution; or

(d) being on the management or
on the staff of a hospital, takes advantage
of his official position and commits rape on
a woman in that hospital; or

(e) commits rape on a woman
knowing her to be pregnant; or

(f) commits rape on a woman
when she is under twelve years of age; or

(g) commits gang rape, shall be
punished with rigorous imprisonment for a
term which shall not be less than ten years
but which may be for life and shall also be
liable to fine: Provided that the Court may,
for adequate and special reasons to be
mentioned in the judgment, impose a
sentence
of
imprisonment
of
either
description for a term of less than
 ten years.

Explanation 1.-Where a woman
is raped by one or more in a group of
persons acting in furtherance of their
common intention, each of the persons
shall be deemed to have committed gang
rape within the meaning of this sub-section.

Explanation
2.-"Women's
or
children's institution" means an institution,
whether called an orphanage or a home for
neglected woman or children or a widows'
home or by any other name, which is
established
and
maintained
for
the
reception and care of woman or children.

Explanation
3.-"Hospital"
means the precincts of the hospital and
includes the precincts of any institution for
the reception and treatment of persons
during
convalescence
or
of
persons
requiring
medical
attention
or
rehabilitation."

25. Section 375 IPC requires two
essentials; (i) sexual intercourse with a
woman; (ii) sexual intercourse must be
under the circumstances following under
any of the six clauses of the aforesaid
section.

26. It is not a case of consent though
in 1993 the age of consent was above 16
years as per description six of Section 375
IPC. Hence, the age of the victim is
immaterial though according to PW-6, the
victim was about 17 years old. The
intention or expression or even an indecent
assault upon a woman does not amount to
attempt to rape unless the determination of
accused to gratify his passion at all events
and in spite of the resistance is established.

27. In Aman Kumar Vs. State, AIR
2004 SC 1497 the Apex Court held that in
order to find an accused guilty of an
attempt with intent to commit rape, court
has to be satisfied that the accused, when
he led hold of the prosecutrix, not only
desired to gratify his passion but that he
intended to do so at all events, and
notwithstanding any resistance on her part.
Indecent assaults are often magnitude into
attempt of rape in order to come to the
conclusion that the conduct of the accused
was indicative of a determination to gratify
98 INDIAN LAW REPORTS ALLAHABAD SERIES
his passion at all events, and in spite of
resistance.
Material
must
exist.
Surrounding circumstances many times
through becon light that aspect. To convict
a accused under Section 376 IPC the
prosecution must prove; (i) that the accused
had sexual intercourse with a woman in
question; (ii) that the act was done under
circumstances falling under any of the six
descriptions specified in Section 375 IPC;
(iii) that such woman was not the wife of
the accused or, if she was his wife, she was
under 15 years of age; (iv) that there was
penetration (Explanation-I of Section 375
IPC).

28. As per second explanation there is
no need of full penetration of penis with
emission of semen and rapture of hymen.
Partial penetration within a labia majora of
the vulva or pudendum with or without
emission of semen is sufficient to constitute
the offence of rape.

(IV) Burden of Proof

30.
In
Tukaram Vs.
State
of
Maharashtra, AIR 1979 SC 185 it has
been held that in a case of rape, the onus is
always on the prosecution to prove
affirmatively each ingredient of the offence
it seeks to establish and such onus never
shifts.

31. In Nilambar Goudo Vs. State of
Orissa, 1982 Cri LJ NOC 172 (Ori) it
was held that it is duty of the defence to
explain as to how and why in a rape case
the victim and her mother have falsely
implicated the accused. The evidence of
prosecution witnesses cannot be accepted
merely because an accused persons has not
been able to say as to why they have come
forward to depose against them.

32. In Joginder Singh Vs. State of
Punjab, 1974 CrLJ 117 it is held that
however the great suspicion against the
accused and however strong the moral
belief and conviction of the judge, unless
the offence of the accused is established
beyond reasonable doubt or beyond the
possibility of reasonable doubt on the basis
of legal evidence and material on the
record, he cannot be convicted for the
offence. There is an initial presumption of
innocence
of
the
accused
and
the
prosecution has to bring the offence whom
to the accused by reliable evidence, the
accused is entitled to the benefit of every
reasonable doubt. In the instant case, it
could not be established beyond doubt that
the sexual intercourse was committed by
the accused with the victim girl without her
consent or against her will. Consequently
the offence under Section 376 IPC was not
established.

33. Here the appellants have not taken
the defence that an offence of attempt to
commit rape or an offence of rape had been
committed by either of the accused.

(V) Medical Evidence

34. In this case no medical
examination of any accused had been
conducted even Musey who alleged to
have committed the offence has also not
been medically examined to establish the
commission of crime by him. The
accused is entitled to say that if medical
examination of the vital or the material
part of his body would have been
conducted, he would have been in a
position to show that the condition of
those parts negatived the possibility of
his guilt, (Ram Kali Vs. State of UP,
AIR 1947 All 191).
8 All. Gudun & Ors. Vs. The State of U.P.
99

35. It is difficult to believe that after
prolonged forcible sexual intercourse no
injury might be caused to the private parts
or other parts of the prosecutrix. However
absence of injury on person of the accused
and particularly penis cannot be sole
ground
for
discarding
prosecution
evidence.

36. The absence of the injuries on the
body of the prosecutrix, generally, gives
rise to an inference that she was consenting
party to coitus.

37. In Tuka Ram (supra) it had been
held that in absence of any injury on the
person of the victim indicates that the
alleged intercourse was a peaceful affair
and the story of a stiff resistance put up by
the prosecutrix is false or an afterthought.

(VI) Evidence of the Prosecutrix

38. It is no doubt that true law in
conviction of an accused on the basis of a
testimony of the prosecutrix alone is
permissible but that is in a case where the
offence of a prosecutrix inspires confidence
and appears to be natural and truthful,
(Vimal
Suresh
Kambley
Vs.
Chaluverapinake, AIR 2003 SC 818).

39. Similar principle was laid down in
State of Rajasthan Vs. Biram Lal, 2005
CrLJ 2561 (SC) the Apex Court has held
that in several cases that once the statement
of the prosecutrix inspires confidence and
is expected by the courts 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 court for corroboration of
her statement. Minor contradictions or
insignificant discrepancies should not be a
ground for throwing out and otherwise
reliable prosecution case. In practice a
conviction for rape almost entirely depends
on the credibility of the woman. All that is
required is that there must be some
additional evidence rendering it probable
that the story of the complainant is true and
that it is reasonably safe to act upon it.
However, if the court of facts may find it
difficult to accept the version of the
prosecutrix on its face value it may search
for evidence, direct or substantial, which
may lend assurance to her testimony. The
court has first to assess the trustworthiness
of the evidence adduced and available on
record and if the court finds the evidence
adduced worthy of being relied on then the
testimony of prosecutrix has to be accepted
and acted on though there may be other
witnesses
available
who
could
have
examined
but
were
not
examined.
Conviction for an offence of rape can be
based on the sole testimony of the
prosecutrix corroborated by the medical
evidence and other circumstantial evidence
such as the report of chemical examination,
etc. The evidence, no doubt, should not
only make it safe to believe that the crime
was committed but must in some way
reasonably connect or tend to connect the
accused with the crime. Corroboration may
be by the facts and circumstances.

40. In State of Karnataka Vs.
Manjanna, AIR 2000 SC 2231 it was held
that the narration of the incident to so many
independent
witnesses
without
any
discrepancy soon after the incident was
held correctly admitted by the court under
Section
157
of
the Act,
1872
as
corroborative of prosecutrix's testimony.
Here the informant and the victim have
changed their case from time to time.
Initially it was a case of molestation and
attempt to rape which had been converted
100 INDIAN LAW REPORTS ALLAHABAD SERIES
later on into a case of rape with molestation
which was not accepted by the concerned
court and the charge under Section 376
read with Section 511 IPC had been framed
against which no revision had been
preferred by the informant or the State and
accepting the modification done by the
concerned court the informant and the
prosecutrix have adduced the evidence
which is against the factum of charge
framed by the concerned court. It has also
been established that there was enmity on
account of civil litigation between both the
family members and no local witness or
witness of remote area came forward to
testify himself in support of the prosecution
version.

41. On the other hand, the medical
evidence is also not in support of the
prosecution except a healed injury on the
base of the little finger of the right hand of the
victim, no injury even simple in nature such
as abrasion or contusion were found on the
person of the victim. Even no injury was
found on the private parts of the victim but
PW-6 found that the victim was habitual of
sexual intercourse and two fingers were
easily entering inside the vaginal cavity. It
was also not found in a tightened position. On
account of observation made by PW-6, Dr.
Sushma Singh it can be concluded that the
alleged offence has not been corroborated
with the medical or an independent evidence
even the prosecution story and the evidence
has been improved from time to time which
creates doubt and the court is bound to accept
the defence version that due to enmity on
account of civil litigation between the parties
two real brothers alongwith other senior
family members of the same family have
been falsely implicated in a case of rape or
attempt to commit rape. Even the prosecution
is not clear that as to whether it is a case of
attempt to rape or is a case of rape.

42. In Santosh Prasad @ Santosh
Kumar Vs. State of Bihar, (2020) 3 SCC
443 it was alleged that after committing an
offence
of
house
trespass
accused
committed rape with a married lady. There
were material contradictions in deposition
of the prosecutrix. Neither the indecent
witness nor the medical witness was
supporting the prosecution case. FSL report
was also not supporting prosecution case.
There was variation in prosecutrix's version
about the given complaint. Prosecutrix
failed to pass test of becoming "sterling
witness". There is also delay in lodging the
FIR.
There
was
also
enmity/dispute
between both the parties with respect to
land. Any other supportive evidence and
the accused was given benefit of doubt and
conviction was reversed. The fact of the
aforesaid case and the case in hand are
almost similar except the fact that the
victim of this case was not a married lady
but it has been concluded by PW-6, Dr.
Sushma Singh that she was habitual of
sexual intercourse, therefore, two fingers
were easily entering and the vagina was
found to be loose.

43. In Lalta Prasad Vs. State of MP,
AIR 1979 SC 1276, it could not be
established that the prosecutrix was ever
subjected to any sexual intercourse by the
accused against her will. On the other hand,
there was the evidence of the Doctor that
when
she
was
examined
after
the
occurrence, the Doctor found old torn
hymen and no sign of any rape or any
forcefully intercourse with her. That being
so, the conviction of the appellant under
Section 376 IPC was set aside.

44. In Charan Singh Vs. State of
Haryana, (1988) 3 Crimes 85 (P&H) it
was case of a girl above 16 years who was
allegedly raped. In this case also the
8 All. Gudun & Ors. Vs. The State of U.P.
101
question was whether when she admitted of
having suffered some injuries on her back
during the incident and when the same
were not found then what had to be done.
The lady doctor, however, who examined
her did not find any injury on her private
parts or on her body during the medico
legal examination. No tenderness, swelling
or blood was found in the vagina. She
further found that two fingers could easily
be admitted into the vagina. During the
cross-examination, she rightly admitted that
the
prosecutrix
would
have
suffered
tenderness and swelling of the vagina if she
was subjected to rape by two young boys.
The gap between the occurrence and her
medico legal examination ruled out any
possibility of any abrasion being healed.
Giving the benefit of doubt the accused
were acquitted.

45. In Zahoor Ali Vs. State of UP,
1989 CrLJ 1177 (All) the doctor did not
find any recent injury on the private parts
of the girl. Hymen was found to be torn
from before and healed. Therefore, the
charge was held to be not proved.

46. In Sakariya Vs. State of MP,
1991 CrLJ 1925 (MP) there was an
allegation of rape upon a married women
who was alleged to have been dragged
towards the place of occurrence and then
raped but the report of medical examination
was in the negative so far as the seminal
stains and presence of spermatozoa in the
vagina was concerned and to top it all there
was not even a scratch on her body and the
accused was acquitted.

47. In Maharashtra Vs. Abdul
Hafees Faroki, 1998 CrLJ 3603 (SC),
eight persons were accused for raping a girl
twice by turns and pushing the girl out of
the running train. However, when no
serious injury was found on the person of
the girl and evidence showed that there was
possibility of prosecutrix going with the
accused willingly, the acquittal of the
accused was held proper.

48. In Joseph Vs. State of Kerala,
2000 CrLJ 2467 (SC), the dhoti of the
accused contained no blood or semen stains
and there was no injury caused to the
private part of the body of the victim. The
conviction was sought to be proved by the
fact that vaginal smear's examination
confirmed the presence of semen and
spermatozoa. It was held that this was not a
ground for conviction of accused for the
offence of rape and the accused was
entitled to acquittal on the basis of benefit
of doubt.

49. In Sampad Vs. State of Orissa,
2001 CrLJ 793 (Ori), there was charge of
gang rape against the accused persons who
allegedly had forcibly lifted the victim to a
nearby river bank on knife point and had
committed sexual intercourse with her but
no sign of forcible intercourse or mark of
violence was found either on the spot or
during
the
medical
examination
of
prosecutrix. It was held that in the absence
of a proper proof they could not be
convicted under Section 376 (2)(g).

50. In State of State of Orissa Vs.
Rama Swain and others, 2007 CrLJ 714
(Ori) the accused persons were alleged to
have committed a rape forcibly on the
prosecutrix one after another but the
evidence showed that there was dispute
between the victim and the accused persons
regarding damage of crop by the cattle of
the victim over the land cultivated by the
accused persons. There was no semen stain
on the apparels of the victim found. Thus
the evidence of prosecutrix did not inspire
102 INDIAN LAW REPORTS ALLAHABAD SERIES
confidence and the judgement of acquittal
was upheld.

51. In Goverdhan Vs. State of MP,
2006 CrLJ 4118, the parties were not
keeping good relations in the past and had
lodged FIRs against each other. Medical
report did not corroborate the version given
by the prosecutrix. It was held that guilt
was not proved and conviction was
improper.

52. Similarly due to non support of
medical report, in Mansingh Vs. State of
MP, 2007 CrLJ 201 (MP), the conviction
of the accused was set aside as the
prosecution case was not supported by the
medical report.

53. In State of Maharashtra Vs.
Rameshwar Sridhar Jaware, 2008 CrLJ
675 (Bom), the accused persons were
alleged to have committed rape on a girl of
16 years. Medical report as well as the
report of the chemical analyst was contrary
to the evidence of prosecutrix.