# Gyanendra Singh@Raja Singh v. State of U.P

- **Citation:** (2019) 1 ILRA 416
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-02
- **Bench:** Sudhir Agarwal, Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gyanendra-singh-raja-singh-v-state-of-u-p-44482
- **Pages:** 18

## Headnote

A.G.A.,
Sri
Ratan
Singh
1 All. Gyanendra Singh @ Raja Singh Vs. State of U.P.
417
A. Section 376 (2) (f), 2 (i) I.P.C. and
Section 3/4 of POCSO Act, 2012. Jail
Appeal against conviction. - minor
variations in statements, effect of - The
principle of law that minor variations or
contradictions in the
statements
of
witnesses are inevitable and natural
because
every
person
states
and
narrates facts in his own way. (Para 39)

B. Principle of sentencing and penology-
undue sympathy in awarding sentence
with accused is not required. The object
of sentencing in criminal law should be
to protect society and also to deter
criminals
by
awarding
appropriate
sentence.(Para 45)

C. Section 42 POCSO Act, 2012 , Section
71 I.P.C. Normally where any criminal
act is punishable in two or more Statute
or in different provision of same statutes
sentence, punishment has to be provided
in accordance with statute providing
lesser
punishment.
However,
that
general principle does not apply in view
of section 42 of POCSO Act, to offenders
under that Act. Greater punishment
under POCSO Act to be awarded.(Para 51)

Jail Appeal is partly allowed.

Chronological list of Cases Cited: -

## Text

_Characters 0–39,953 of 59,994. This is a partial read: ask again with offset=39953 for what follows._

416 INDIAN LAW REPORTS ALLAHABAD SERIES
considering the submissions advanced
before him by the learned counsel for the
parties and scrutinizing the evidence on
record, acquitted the opposite party nos. 2
to 5 by the impugned judgment and order.

(100) Hence this application.

(101) It is contended by the learned
counsel for the applicant that the finding
of the acquittal recorded by the learned
trial judge is vitiated by non consideration
of the material evidence on record. The
impugned judgment and order which is
per se illegal and is liable to be set aside.

(102) Having heard the learned
counsel for the applicant and perused the
entire lower court record very carefully,
we find that the two witnesses of fact
examined during the trial were declared
hostile after they failed to support the
prosecution case regarding the complicity
of the opposite parties.

(103) The learned trial judge after
considering the evidence on record, came
to the conclusion that the prosecution has
miserably failed to establish the charges
framed against the opposite party nos. 2 to
5 and proceeded to acquit them after
giving benefit of doubt to them.

(104) We have very carefully
perused the impugned judgment and order
as well as the entire lower court record
including the statements of the witnesses
recorded during the trial and we do not
find that the learned trial judge committed
any illegality or legal infirmity in
acquitting the opposite party nos. 2 to 5.
Both the eye-witnesses of the occurrence
had failed to support the prosecution case
during the trial and were declared hostile.
The finding of acquittal recorded by the
learned trial court is supported by cogent
reasons
and
relevant
considerations.
Learned counsel for the appellants has
failed to demonstrate that the finding of
acquittal recorded by the trial court is
vitiated by non-consideration of any
relevant material or is perverse. The
application for leave to appeal is liable to
be rejected.

(105) We accordingly refuse to grant
leave to the applicant-Rajendra Singh to
file
appeal
against
the
impugned
judgment and order.

(106) These are the reasons upon
which we had allowed Capital Case No.
1368 of 2017 along with connected Criminal
Appeal Nos. 1289 of 2017, 1296 of 2017,
1302 of 2017, 1370 of 2017, 1371 of 2017,
1440 of 2017, 1473 of 2017 and dismissed
Reference No. 3 of 2017 and Criminal Misc.
Application u/s 372 Cr.P.C. (Leave to
Appeal) No. 284 of 2017.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.08.2019

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

JAIL APPEAL No. 6590 OF 2016

Gyanendra Singh@Raja Singh
 ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Sameer Jain (A.C.).

Counsel for the Opposite Party:
A.G.A.,
Sri
Ratan
Singh
1 All. Gyanendra Singh @ Raja Singh Vs. State of U.P.
417
A. Section 376 (2) (f), 2 (i) I.P.C. and
Section 3/4 of POCSO Act, 2012. Jail
Appeal against conviction. - minor
variations in statements, effect of - The
principle of law that minor variations or
contradictions in the
statements
of
witnesses are inevitable and natural
because
every
person
states
and
narrates facts in his own way. (Para 39)

B. Principle of sentencing and penology-
undue sympathy in awarding sentence
with accused is not required. The object
of sentencing in criminal law should be
to protect society and also to deter
criminals
by
awarding
appropriate
sentence.(Para 45)

C. Section 42 POCSO Act, 2012 , Section
71 I.P.C. Normally where any criminal
act is punishable in two or more Statute
or in different provision of same statutes
sentence, punishment has to be provided
in accordance with statute providing
lesser
punishment.
However,
that
general principle does not apply in view
of section 42 of POCSO Act, to offenders
under that Act. Greater punishment
under POCSO Act to be awarded.(Para 51)

Jail Appeal is partly allowed.

Chronological list of Cases Cited: -
1. Karnel Singh vs. State of M.P. 1995 (5) SCC
518

2. State of Punjab vs. Gurmeet Singh and
others 1996 (2) SCC 384

3. Vahid Khan vs. State of M.P. (2010) 2 SCC 9

4. Bharwada Bhogin Bhai Hirji Bhai vs. State of
Gujarat AIR 1983 SC 753

5. State of Madhya Pradesh Vs. Saleem @
Chamaru, AIR 2005 SC 3996

6. Independent Thought vs. Union of Indian and
Others (2017) 10 SCC 800, paras 79 and 80. (E-2)
(Delivered by Hon'ble Virendra Kumar
Srivastava, J.)

1. The present jail appeal under
Section 383 Cr.P.C. has been filed by
accused-appellant Gyanendra Singh @
Raja Singh (hereinafter referred to as
'appellant') through Superintendent of
Jail, Fatehpur against the judgment and
order
dated
16.9.2016
passed
by
Additional Session in S.T. No. 06 of 2016
(State vs. Gyanendra Singh @ Raja
Singh) arising out of Case Crime No.
236/2015, Police Station (hereinafter
referred to as ''P.S.') Chandpur, District
Fatehpur, whereby he has been convicted
U/s 376 (2) (f), 2 (i) I.P.C. and U/s 3/4 of
Protection of Children from Sexual
Offences Act, 2012 (hereinafter referred
to as 'POCSO Act, 2012') and has been
sentenced to undergo life imprisonment
along with a fine of Rs. 25,000/- for
offence u/s 376 (2) (f), 2 (i) I.P.C. and
also has been sentenced for offence 3 / 4
of
POCSO
Act,
2012
for
life
imprisonment and fine of Rs. 25,000/-. In
default of payment of above fine, he has
to undergo two months of additional
imprisonment for each fine.

2. The brief facts of prosecution case
are that the accused-appellant Gyanendra
Singh @ Raja Singh is father of victim
(PW-2) (name of the victim is not being
disclosed in this judgment) aged about 9
years. PW-1, Smt. Rajani @ Deepa is real
mother of PW-2, victim whereas PW-3,
Ram Naresh Singh @ Thakur Deen is
grand-father
of
the
victim.
On
28.10.2015, at about 14:15 p.m., PW-1,
Smt. Rajani lodged First Information
Report (hereinafter referred to as ''F.I.R.')
(Ex.Ka.1) at P.S. Chandpur, District
Fatehpur alleging that she had gone to her
parental house about two months ago with
her youngest son Krishna, aged about 2
years, leaving her minor daughter, victim
aged about 9 years and a son named
418 INDIAN LAW REPORTS ALLAHABAD SERIES
Vishnu, aged about 4 years at her
matrimonial house in the custody of her
husband-appellant. On 22.10.2015 at
about 8:00 p.m., her daughter victim was
sleeping in her house. At that very time
her husband Gyanendra Singh @ Raja
Singh came to victim, enticed and took
her away at the roof of the house where
he committed rape with the victim, and
detained her on roof by threatening her. In
the morning when victim came down
from the roof, narrated whole occurrence
to her grand-father PW-3 Ram Naresh
Singh. It has further been alleged that the
whole occurrence was informed by PW-3
Ram Naresh to Informant on phone. After
the occurrence, since appellant was
absconding, PW-1, informant could not
dare to go to her matrimonial house due to
terror of the appellant. On 28.10.2015,
she, by taking courageous steps, went to
P.S. Chandpur, District Fatehpur with her
father Ranjeet Singh, PW-3 father-in-law
Ram Naresh Singh along with her
daughter (victim) and filed a F.I.R.
against appellant with prayer for medical
examination of the victim. It has further
been mentioned in the F.I.R. that a day
before, Informant had gone to District
Headquarter, Fatehpur where she was
directed to approach P.S. Chandpur to
lodge F.I.R. Upon such information,
Chick F.I.R. (Ex.Ka.4) was prepared and
the said information was entered in
General Diary (Ex.Ka.5) at 14:15 p.m.
and Case Crime No. 236/15, U/s 376 (2)
(f), 2 (i) I.P.C. and 3/4 of POCSO Act,
2012 was registered against appellant
Gyanendra Singh @ Raja Singh.

3. Investigation was undertaken by
PW-7, Rajesh Kumar Singh, Investigation
Officer (I.O). Victim was sent for medical
examinationn and examined by PW-4, Dr.
Manisha Shukla. According to her, no
external injury was found on the body of
the victim. On internal examination, there
was a redness present over the labia
minora in the vagina of the victim;
Hymen was intact; Victim was then
referred for x-ray examination in order to
determine her age. She (PW-4) had
prepared medical examination report
(Ex.Ka.3). Oral, vaginal, vulval and anal
swab were taken, slide was prepared and
sent for pathological examination for
D.N.A. test as well as for examination of
spermatozoa.

4. During investigation, PW-7, S.I.,
Rajesh Kumar Singh recorded statement
of witnesses and inspected place of
occurrence, prepared site plan Ex.Ka.6,
and arrested appellant. The certificate of
date of birth from the victim's school was
taken. Victim was produced before
Judicial Magistrate for recording her
statement under Section 164 of Code of
Criminal Procedure, 1973 (Code) where
her statement (Ex.Ka.2) was recorded to
the following effect:-

"The victim (.......) has been
presented by the I.O. Rajesh Kumar Singh
under the Order of Chief Judicial
Magistrate dated 3.11.2015 for recording
the statement in relation to C.C. No.
236/15, U/s 376 (2 cha) (2 jha) I.P.C. and
Sectio 3⁄4 POCSO Act, P.S. Chandpur,
District Fatehpur. The Victim (.........)
stated that her father's name Raja @
Gyanendra
Singh
R/o
Chandpur,
Fatehpur aged 9 years, occupation
student. I in the night of 22.10.2015
around 9:00 pm was sleeping. Just then
my father took me up to the roof. Then my
father brought mustard oil; then he
opened my underwear and then he
committed a bad act with me. He inserted
his private part into my private part and
1 All. Gyanendra Singh @ Raja Singh Vs. State of U.P.
419
kept on rubbing. I was crying but he
clasped my mouth. My mother was not
there at home. There was only me, grandfather, grand-mother and my 4 year old
brother was there at home. I got faint
around 3:00 a.m. My father continued this
bad act with me upto 3:00 a.m. My father
kissed also my private part. I gained my
conscious at 8:00 a.m. and I felt
excruciating pain in my private part. The
statement dictated by the witness have
been recorded verbatim by me."

5. Thereafter, investigation was taken
over by PW-6, S.I. Ranvijay Singh due to the
transfer of PW-7, S.I. Rajesh Kumar Singh,
who copied medical examination report of
victim in case diary. The investigation was
further taken over by PW-8, S.I. Shubh
Narain due to the transfer of PW-6, S.I.
Ranvijay Singh. The undergarment of victim
was taken into custody by him and he
prepared recovery memo (Ex.Ka.7) perused
and verified statement of witnesses available
in case diary, concluded investigation and
filed
charge-sheet
(Ex.Ka.8)
against
appellant U/s 376 (2) (f), 2 (i) I.P.C. and 3/4
of POCSO Act, 2012.

6. Cognizance of the offence was
taken by Trial Court. Copies of relevant
papers were served on the appellant. After
hearing appellant, Trial Court framed
charges against appellant as follows:-

eSa _pk tks'kh fo'ks"k U;k;k/kh'k 1⁄4ySafxd
vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e1⁄2@vij l=
U;k;k/kh'k@QkLV Vsad dksVZ uEcj&2 Qrsgiqj ,rn~
}kjk vki vfHk;qDr KkusUnz flag mQZ jktk flag ij
fuEufyf[kr vkjksi yxkrh gWw&

;g fd fnukWd 22&10&2015 dks le;
djhc 08-00 cts ogn LFkku pkWniqj Fkkuk pkWniqj
ftyk Qrsgiqj esa vkius okfnuh eqdnek jtuh dh
vo;Ld iq=h सससससस mez 9 o"kZ mlds firk
gksrs gq;s ySafxd geyk@cykRdkj fd;kA bl izdkj
vkius Hkk0na0la0 dh /kkjk&376 1⁄42p1⁄21⁄42>1⁄2 ds rgr
n.Muh; vijk/k dkfjr fd;k] tks bl U;k;ky; ds
izlaKku esa gSA

;g fd mDr fnukWd le; o LFkku ij
vkius okfnuh eqdnek dh vo;Ld iq=h पीवडताmez 9
o"kZ ds lkFk izos'ku ySafxd geyk fd;kA bl izdkj
vkius /kkjk 3@4 ySafxd vijk/kksa ls ckydksa dk
laj{k.k vf/kfu;e 2012 ds vUrxZr n.Muh; vijk/k
dkfjr fd;k gS] tks bl U;k;ky; ds izlaKku esa gSA

vr,r eSa vknsf'kr djrh gwW fd mDr
vkjksi dk fopkj.k bl U;k;ky; }kjk fd;k tkosA

vfHk;qDr dks vkjksi i<+dj सुिायाx;kA
vfHk;qDr us mDr vkjksi ls badkj fd;k ,oa fopkj.k
fd;s tkus dh ekWx dhA

I Richa Joshi, Special Judge
(POCSO) / Additional Sessions Judge
Fast Track Court No. 2, Fatehpur hereby
charge you the accused Gyanendra Singh
@ Raja Singh as follows:-

That
you
the
accused,
on
22.10.2015 around 8.00 ''O' clock at the place
Chandpur P.S. Chandpur, District Fatehpur
raped minor daughter of the complainant of
this Case Rajni viz. (victim), aged 9 years even
after being her father. This way you committed
a cognizable offence U/s 376 (2 cha) (2 jha)
I.P.C. which is in the cognizance of this Court.

That on the said date, time and
place
you
the
accused
committed
penetrative sexual assault on the minor
daughter of the complainant of this case,
namely, (victim) aged 9 years. This way
you committed a cognizable offence U/s 3
/4 POCSO Act, 2012 which is in the
cognizance of this Court.

I hereby direct that your trial
for the above charges be heard by this
Court.

The accused was read aloud the
charges which he denied and claimed to
be tried. (English translation by Court)

7. Charges were read over and
explained
to
accused-appellant
who
pleaded not guilty and claimed to be tried.
420 INDIAN LAW REPORTS ALLAHABAD SERIES

8. In support of prosecution case, it
examined nine witnesses out of whom PW-1,
Smt. Rajani (wife of appellant), PW-2, victim
(daughter of appellant) and PW-3, Ram
Naresh (father of appellant) are witnesses of
fact and rest are formal witnesses. PW-4, Dr.
Manisha Shukla has examined victim and
prepared Medico Legal Examination Report
(Ex.Ka.3); PW-5, Const. Sukhdeo Prasad is a
witness who registered the F.I.R. (Ex.Ka.4)
and made entry of information in General
Diary (Ex.Ka.5); PW-6, S.I. Ranvijay Singh,
PW-7, S.I. Rajesh Kumar Singh and PW-8,
S.I. Shubh Narain are the Investigating
Officers of the case who have investigated the
case, prepared site plan (Ex.Ka.6), seizure
memo of undergarment of victim (Ex.Ka.7)
and filed charge-sheet (Ex.Ka.8) and PW-9,
Deepika Singh, Ex-Principal of school where
victim was studying at the time of occurrence
who has proved her age certificate (Ex.Ka.9).

9. After closure of prosecution
evidence, appellant was examined under
Section 313 of Code wherein he denied
prosecution version and stated that he is
innocent and has been falsely implicated.
Admitting date of birth of deceased as
20.10.2006, he has further stated that
earlier he had lodged F.I.R. against his
wife and his father, hence she had lodged
a false report against him. He has further
stated that at the time of occurrence,
victim was residing with his sisters (didi)
and charge-sheet has wrongly been
submitted upon a false investigation
conducted by I.O. against him.

10. The appellant was offered to
lead evidence in his defence but he
refused to produce the same.

11. On hearing learned counsels for
both the parties, Trial Judge found
appellant guilty of the charges framed
against him and accordingly convicted
and sentenced as above. Aggrieved by the
impugned judgment and order, appellant
has preferred this appeal.

12. We have heard Sri Sameer Jain,
learned Amicus Curiae for appellant and
Sri Ratan Singh, learned A.G.A. for State.

13. Learned Amicus Curiae has
submitted that the appellant is innocent
and has been falsely implicated. In this
case F.I.R. has been lodged after six days
from
the
occurrence
without
any
justification; medical examination was
conducted after seven days of the
occurrence;
medical
evidence
is
contradictory to ocular evidence as
neither any injury was found on the body
of the victim nor any proof of rape has
been found in medical examination;
statement of victim is contradictory to the
statement of PW-3 (appellant's father); He
has been falsely roped in this case as there
was disputes between him and his father
along with his wife; and impugned
judgment and order is against the
provision of law, hence is liable to be set
aside.

14. Per-contra, learned A.G.A.
vehemently opposed the submission made
by learned Amicus Curiae and submitted
that this is a case of rape committed on
victim by his own father and in support of
offence, the evidence has been produced
by victim (daughter), wife and father of
appellant; delay in lodging F.I.R. and
getting medical examination of victim
conducted, is justified; there is no
contradiction between medical and ocular
evidence as even after seven days, a
symptom of rape has been found in
medical
examination;
statements
of
witnesses are corroborated by each other;
1 All. Gyanendra Singh @ Raja Singh Vs. State of U.P.
421
offence against accused has been proved
beyond
all
reasonable
doubt;
the
judgment and order passed by lower
Court is liable to be affirmed and appeal
be dismissed.

15. We have considered rival
submission of the learned counsel for the
parties and have gone through the entire
record.

16. PW-1, Rajani, mother of victim and
wife of appellant, is not an eye witness. On the
fateful date of occurrence, she was at her
parental home. She has stated that before two
months of the occurrence she had gone to her
parental house with her two kids, Krishna and
Vishnu, by leaving her daughter (victim) aged
about 9 years with her husband as she was
studying in class 4th at Chandpur. She has
further stated on 22.10.2015 when victim was
sleeping in her house at about 8:00 p.m.,
appellant (father of victim) came and enticed
her away on roof of the house. He shut her
mouth, committed rape with her and by
threatening, detained her whole night. On next
morning when victim came down from roof,
she narrated the occurrence to her grandfather.
She has further stated that her father-in-law,
Ram Naresh (PW-3), informed her regarding
the incident and also told that appellant had
fled away. She further stated that due to fear
she had no courage to return her matrimonial
house. After 5-6 days, by taking courageous
steps, she went with her father Ranjit Singh,
father-in-law Ram Naresh (PW-3) and her
brothers at Police Station Chandpur, District
Fatehpur and submitted F.I.R. (Ex.Ka.1)
which was written on her dictation by one
Rakesh Singh.

17. PW-2 (Victim) aged about 9
years was examined by Trial Court after
ascertaining, whether she was able to give
rational answers to the questions put to
her during examination. She has stated
that on 22.10.2015 at about 8:00 p.m., she
was sleeping with her grand mother on a
cot. At that time, her mother Rajani (PW1) had gone to her grand father-in-law
(nana) . Only her grandmother (PW-3),
grandfather, her younger brother Harsh
and Vishnu were at home. At the time of
occurrence, her father (appellant) came
and taken her away and her brother on the
roof of the house. She has further stated
that her father made her brother sleep and
thereafter came down in the house and
returned with a bowl containing mustard
oil. He slapped her 2-4 times and applied
mustard oil in her vagina, placed his penis
on her vagina and penetrated into it. As
she
tried
to
raise
alarm
to
her
grandmother, he threatened to throw her
into well, and shut her mouth whereby she
became unconcious. She has further stated
that she had narrated whole story to her
grandmother in the next morning and also
told to her mother (PW-1) when she met
her. She has further stated that she was
medically examined and her statement
was also recorded by Police as well as by
a Judge in the Court. During examination,
her statement under Section 164 of Code
(Ex.Ka.2) was narrated to her whereupon
she affirmed it and stated that the
statement was given by her to Judge.

18. PW-3 Ram Naresh Singh,
grandfather of victim (PW-2) as well as
father of appellant, has stated that on
22.10.2015, victim was sleeping on a cot
near to him at about 8:00 p.m. His son,
appellant Gyanendra Singh, enticed away
her on the roof of the house. The victim
had stated to him, in the next morning,
that her father had sexually assaulted her
by shutting her mouth and detained her on
the roof by threatening. He has further
stated that he had narrated the occurrence
422 INDIAN LAW REPORTS ALLAHABAD SERIES
on phone to her daughter-in-law (PW-1)
who was at that time at her parental house
and after 2 or 3 days he had gone to the
parental house of her daughter-in-law. On
27.10.2015, he had gone to Fatehpur to
file an application. On 28.10.2015, her
daughter in law had returned at her house
and thereafter she lodged F.I.R.

19. PW-4 Dr. Manisha Shukla, has
stated that on 29.10.2015, she was posted at
DistrictWomenHospital, Fatehpur. On that
day, she had examined victim at 10:50 a.m.
She aged about 9 years, had been brought by
a lady Const. Ramendri. She (PW-4)
prepared a medico legal examination report
(Ex.Ka.3). She has further stated that upon
query, made by her, victim had stated that
she was sexually assaulted and beaten by her
own father. According to her, victim had also
stated that after the occurrence she had
changed her clothes and also gone to natural
call. At the time of examination, victim's
pulse rate was 76 and blood pressure was
110/80. There was no external injury on the
body of victim, whereas, on internal
examination, redness was present on labia
minora. According to her, for the age
determination of victim, x-rays of corpal
bone, right wrist joint, right elbow joint and
right knee joint were advised; slides of
vaginal smear, oral swab, vaginal swab,
vulval swab, anal swab were prepared and
for DNA examination and examination for
spermatozoa. According to her, force was
used on victim and possibility of sexual
assault cannot be ruled out. In crossexamination, she has specifically stated that
the injury present on the labia minora of
victim could not be caused by falling of the
victim.

20. PW-5 Const. Sukhdeo Prasad
was posted on 28.10.2015 at P.S.
Chandpur, District Fatehpur, who has
stated that he had prepared Chick F.I.R.
(Ex.Ka.4) on the basis of written
information given by Informant Rajani @
Deepa (PW-1) and registered case crime
no. 236/2015, U/s 376 (2) (f), 2 (i) I.P.C.
and U/s 3/4 of POCSO Act against
appellant Gyanendra Singh @ Raja Singh.
He has further stated that the said
information was also entered in General
Diary Report (Ex.Ka.5) on that very day
at 14:15 p.m.

21. PW-7, Rajesh Kumar Singh, I.O.
of the case has stated that on 28.10.2015,
he was posted as Station House Officer,
P.S. Chandpur, District Fatehpur; a case
crime no. 236/2015, registered during his
posting, was investigated by him. He had
recorded the statement of victim (PW-2),
Rajani (PW-1), Ram Naresh (PW-3), Smt.
Champa Devi and police officials. He has
further stated that he had inspected the
place of occurrence and prepared site plan
(Ex.Ka.6). He has further stated that he
has taken the certificate of date of birth of
victim from her school where she had
studied; he had produced the victim
before the Court for getting her statement
recorded under Section 164 Cr.P.C;
appellant
was
arrested
during
investigation, and his statement was also
recorded by him.

22. PW-6, Ranvijay Singh, is second
I.O. after the transfer of PW-7, S.I. Rajesh
Kumar. He had only perused the copied of
the medical examination report of victim.

23. PW-8, Shubh Narain, is third
I.O. who had taken over the investigation
after transfer of PW-6 S.I. Ranvijay
Singh, has stated that he had perused the
statement under Section 164 Cr.P.C.
given by the victim before the Court and
copied
it
in
case
diary.
During
1 All. Gyanendra Singh @ Raja Singh Vs. State of U.P.
423
investigation,
he
had
verified
the
statement of witnesses and also recorded
statement of PW-4, Dr. Manisha and upon
conclusion of investigation, submitted a
charge-sheet (Ex.Ka.8) against appellant
u/s 376 (2) (f), 2 (i) I.P.C. and U/s 3/4 of
POCSO Act, 2012. This witness has also
proved recovery memo (Ex.Ka.7) of
victim's panty, prepared by him.

24. PW-9, Dipika Singh, ExPrincipal
of
Sadna
Public
School,
Chandpur has stated that on 25.7.2014,
she was posted as a principal of the
school. In Scholar Admission Register
(Nk= izos'k iaftdk), the age of victim has
been shown as 20.10.2006. She has
further stated that victim was admitted in
class III on 25.7.2014. This witness has
filed (Ex.Ka.9) certified photocopy of
relevant portion of the register wherein
details of victim has been mentioned.

25. So far as the submission of
learned Amicus Curiae that there is delay
of seven days in lodging the F.I.R., hence,
prosecution case is not reliable is
concerned, in this case, father of the
victim is accused for committing offence
of rape with his own daughter and F.I.R.
has been lodged by mother of the victim
who is wife of the appellant. In F.I.R., it
has been specifically mentioned that she
(PW-1) was not at the place of occurrence
at the time of incident; she had gone to
her parental house and incident was
informed to her by her father in law (PW3), Ram Naresh. PW-1 in her examination
in chief has specifically stated that her
father in law told her that after causing
occurrence, appellant had fled away to
unknown place. Upon such information,
she could not dare to go to her
matrimonial house, but after 5-6 days, she
dared to go to police station on
28.10.2015 with her father Ranjeet Singh,
her father-in-law Ram Naresh (PW-3)
along with her brother and lodged the
F.I.R. This witness has been crossexamined by the defence counsel. In her
cross-examination, she has specifically
stated that she was informed by her
father-in-law
regarding
the
incident
occurred on 22nd (month not known) and
she came to her matrimonial house at 9th10th O'clock on 28th day of the month.

26. PW-3, Ram Naresh Singh, who
is father of the appellant has also stated
that he had informed his daughter-in-law
(PW-1) regarding the occurrence who was
at that time at her parental house. He has
further stated that after 2-3 days of the
occurrence, he had gone to parental house
of her daughter-in-law PW-1, village
Pathreda, District Banda with victim
(PW-2) and on 28.10.2015, she came
back. This witness has stated that on
27.10.2015, he had also gone to Fatehpur
to lodge F.I.R. and thereafter her
daughter-in-law had the F.I.R. at Police
Station. This witness has also been crossexamined by the defence counsel. In his
cross-examination, he has specifically
stated that he was present with her
daughter-in-law at the time of filing F.I.R.
He has denied the suggestion put by the
defence counsel to him that the appellant
has been falsely implicated.

27. It is settled principle of law that
there is no fixed time to lodge F.I.R. Some
times F.I.R. is lodged very promptly and
sometimes some delay may be caused in
lodging the same. Only on the ground that
prompt F.I.R. has been lodged, prosecution
story cannot be presumed as true and similarly
on the ground that the delay has been caused
in lodging F.I.R., prosecution case cannot be
thrown out. If the delay caused in lodging
424 INDIAN LAW REPORTS ALLAHABAD SERIES
F.I.R. is natural and justifiable, in the facts and
circumstances of the case, it cannot affect the
veracity of prosecution case. It depends upon
the facts and circumstances of each case. In
this case, appellant has been charged for
committing rape with her own daughter aged
about 9 years and Informant is neither outsider
nor inimical to appellant. She is wife of the
appellant. Normally where the accused is the
family member of the victim and also the
guardian of the victim and Informant, the
family members firstly tried to avoid to
disclose offence in society and also avoid to
lodge F.I.R in order to protect future life and
carrier of victim, which may be affected by
social stigma. In this case, it has been
specifically alleged that from the date of
occurrence, appellant was absconding and
Informant could not dare to lodge F.I.R.
against her husband. We know very well that
our society is male dominated, and male
member of family usually is head of the
family. PW-1 Rajani in her cross-examination
has stated that appellant was the only son of
her father-in-law. It might be that the family
members of Informant firstly decided not to
lodge F.I.R. because they knew very well that
if a criminal case is lodged, they might loose
the company of appellant but afterwards they
decided to go for justice and lodge F.I.R. In
such a situation, it appears that in peculiar
facts and circumstances, the said delay was
caused in lodging F.I.R.

28.

At
this
very
juncture
observations made by Supreme Court in
Karnel Singh vs. State of M.P. 1995 (5)
SCC 518, on the point of delay in lodging
F.I.R. in case of sexual assault, are very
relevant and read as under:-

"..............The
submission
overlooks the fact that in India women are
slow and hesitant to complain of such
assaults and if the prosecutrix happens to
be a married person she will not do
anything without informing her husband.
Merely because the complaint was lodged
less than promptly does not raise the
inference that the complaint was false.
The reluctance to go to the police is
because of society's attitude towards such
women; it casts doubt and shame upon
her rather than comfort and sympathise
with her. Therefore, delay in lodging
complaints in such cases does not
necessarily indicate that her version is
false.........."

29. Similarly in State of Punjab vs.
Gurmeet Singh and others 1996 (2)
SCC 384, Court held as under:-

".............The
courts
cannot
over-look the fact that in sexual offences
delay in the lodging of the FIR can be due
to variety of reasons particularly the
reluctance of the prosecutrix or her family
members to go to the police and complain
about the incident which concerns the
reputation of the prosecutrix and the
honour of her family. It is only after
giving it a cool thought that a complaint
of
sexual
offence
is
generally
lodged..........."

30. Thus in view of peculiar facts
and circumstances of this case and also
the law laid down by Apex Court, we are
of the view that delay caused in lodging
F.I.R. is reasonable and justified. There is
no substance in the submission made by
learned Amicus Curiae.

31. So far as the submission of
learned
counsel
regarding
medical
evidence, that no external injury was
found; a delay has been caused in medical
examination; the ocular evidence is not
supported by the medical evidence,
1 All. Gyanendra Singh @ Raja Singh Vs. State of U.P.
425
hymen was found intact and no injury was
found on the vagina of the victim, and the
redness has been found in medical
examination in labia minora may be due
to the infection, hence no symptom of
rape was found is concerned, we find that
offence of rape has been committed by
the appellant who is father of victim aged
about 9 years. Offence of rape has been
defined in Section 375 I.P.C, as follows:-

Section 375 - A man is said to
commit "rape" if he:

a. penetrates his penis, to any
extent, into the vagina, mouth, urethra or
anus of a woman or makes her to do so
with him or any other person; or

b. inserts, to any extent, any
object or a part of the body, not being the
penis, into the vagina, the urethra or anus
of a woman or makes her to do so with
him or any other person; or

c. manipulates any part of the
body of a woman so as to cause
penetration into the vagina, urethra, anus
or any party of body of such woman or
makes her to do so with him or any other
person; or

d. applies his mouth to the
vagina, anus, urethra of a woman or
makes her to do so with him or any other
person, under the circumstances falling
under any of the following
seven
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 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, 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 eighteen years
of age.

Seventhly - When she is unable
to communicate consent.

32. Thus the aforesaid definition
shows that the penetration of penis by a
man to any extent into vagina, mouth,
urethra or anus of a women or making her
to do so with him or any other person
amounts to rape, if it has been committed
against her will or without her consent.

33. In Vahid Khan vs. State of
M.P. (2010) 2 SCC 9, Court reiterating
the consistent view, held that even a
slightest penetration is sufficient to make
out an offence of rape and depth of
penetration is immaterial.

34. In this case, victim was aged
about 9 years. Her medical examination
was conducted on 29.10.2015 whereas the
offence was committed on 22.10.2015.
PW-4, Dr. Manisha Shukla has clearly
stated that victim has stated to her that her
father carried her on the roof top and
committed sexual assault by force.
Redness was found on the labia minora of
victim's vagina. In cross-examination, she
has specifically stated that the injuries
found on the labia minora in victim's
vagina could not be caused by fall of the
victim. It is notable point at this stage that
though this witness has stated that hymen
of victim was intact and there was no
426 INDIAN LAW REPORTS ALLAHABAD SERIES
swelling on the vagina of victim but we
cannot overlook the fact that the medical
examination was conducted after seven
days and according to victim, appellant
had applied mustard oil (lubricant) before
committing rape with her. The victim had
also specifically stated that due to pain,
she had become unconscious. It might be
possible that after seven days, swelling,
tenderness of the injury of vagina might
have subsidised and minimised. Neither
complete
penetration
nor
complete
intercourse is required for offence of rape
as provided in Section 375 I.P.C.
Penetration to any extent is sufficient.
Presence of redness even after 7 days on
the labia minora in the vagina of the
victim clearly shows that sexual assault
was committed with victim.

35. At the time of occurrence, PW-1,
Rajani, mohter of victim was not with her.
She had gone to her parental house and
when she came, she dared to lodge F.I.R.
against appellant. Looking into the gravity
of offence as there was no female adult in
the house of victim at the time of
occurrence, who might carry the victim to
hospital for medical examination, after
lodging F.I.R., victim was carried by
Police for medical examination, hence,
delay, in getting medical examination
conducted, is justified.

36. In Bharwada Bhogin Bhai
Hirji Bhai vs. State of Gujarat AIR
1983 SC 753, Court while dealing with
the uncorroborated testimony of victim of
sexual assault, has held as under:-

"In the Indian setting, refusal to
act on the testimony of a victim of sexual
assault in the absence of corroboration as
a rule, is adding insult to injury. Why
should the evidence of the girl or the
woman who complains of rape or sexual
molestation be viewed with the aid of
spectacles fitted with lenses tinged with
doubt, disbelief or suspicion ? To do so is to
justify the charge of male chauvinism in a
male dominated society. We must analyze the
argument in support of the need for
corroboration and subject it to relentless and
remorseless cross-examination. And we must
do so with a logical, and not an opiniated,
eye in the light of probabilities with our feet
firmly planted on the soil of India and with
our eyes focussed on the Indian horizon. We
must not be swept off the feet by the
approach made in the Western World which
has its own social mileu, its own social
mores, its own permissive values, and its
own code of life. Corroboration may be
considered essential to establish a sexual
offence in the backdrop of the social ecology
of the Western World. It is wholly
unnecessary to import the said concept on a
turn-key basis and to transplate it on the
Indian soil regardless of the altogether
different
atmosphere,
attitudes,
mores,
responses of the Indian Society and its
profile. The identities of the two worlds are
different. The solution of problems cannot
therefore be identical. It is conceivable in the
Western Society that a female may level false
accusation as regards sexual molestation
against a male for several reasons such as:

(1) The female may be a 'gold
digger' and may well have an economic
motive to extract money by holding out
the gun of prosecution or public exposure.

(2) She may be suffering from
psychological neurosis and may seek an
escape from the neurotic prison by
phantasizing or imagining a situation
where she is desired, wanted, and chased
by males.

(3) She may want to wreak
vengence on the male for real or
imaginary wrongs. She may have a
1 All. Gyanendra Singh @ Raja Singh Vs. State of U.P.
427
grudge against a particular male, or
males in general, and may have the
design to square the account.

(4) She may have been induced
to do so in consideration of economic
rewards, by a person interested in placing
the accused in a compromising or
embarassing position, on account of
personal or political vendatta. (5) She
may do so to gain notorietyor publicity or
to appease her own ego or to satisfy her
feeling of self-importance in the context of
her inferiority complex.

(6) She may do so on account of
jealousy. (7) She may do so to win
sympathy of others. (8) She may do so
upon being repulsed.

By and large these factors are
not relevant to India, and the Indian
conditions. Without the fear of making too
wide a statements or of overstating the
case, it can be said that rarely will a girl
or a woman in India make false
allegations of sexual assault on account
of any such factor as has been just
enlisted. The statement is generally true
in the context of the urban as also rural
Society. It is also by and large true in the
context of the sophisticated, not so
sophisticated,
and
unsophisticated
society. Only very rarely can one
conceivably come across an exception or
two and that too possibly from amongst
the urban elites. Because: (1) A girl or a
woman in the tradition bound non-
permissive Society of India would be
extremely reluctant even to admit that any
incident which is likely to reflect on her
chastity had ever occurred. (2) She would
be conscious of the danger of being
ostracised by the Society or being looked
down by the Society including by her own
family members, relatives, friends and
neighbours. (3) She would have to brave
thewhole world. (4) She would face the
risk of losing the love and respect of her
own husband and near relatives, and of
her matrimonial home and happiness
being shattered. (S) If she is unmarried,
she would apprehend that it would be
difficult to secure an alliance with a
suitable match from a respectable or an
acceptable family. (6) It would almost
inevitably and almost invariably result in
mental torture and suffering to herself. (7)
The fear of being taunted by others will
always haunt her. (8) She would feel
extremely embarrassed in relating the
incident to others being over powered by
a feeling of shame on account of the
upbringing in a tradition bound society
where by and large sex is taboo. (9) The
natural inclination would be to avoid
giving publicity to the incident lest the
family name and family honour is brought
into controversy. (10) The parents of an
unmarried girl as also the husband and
members of the husband's family of a
married woman would also more often
than not, want to avoid publicity on
account of the fear of social stigma on the
family name and family honour.