# Ishrat (In Jail) v. State of U.P

- **Citation:** (2022) 9 ILRA 1488
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-26
- **Case number:** Criminal Appeal No. 1935 of 1992
- **Bench:** Krishan Pahal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ishrat-in-jail-v-state-of-u-p-49032
- **Pages:** 11

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 222, 313 & 374(2) -
Indian Penal Code, 1860 - Sections - 324,
354, 376 & 511 - Evidence Act, 1872 -
Sections - 134 & 145 - Appeal - against
conviction and sentence - FIR - informant
alleged that accused had committed the diabolic
offence of severely cutting the private parts of
his minor daughter - in defence, plea has been
taken
about
some
discrepancies
and
contradictions are in the St.ment of witnesses -
- Appreciation of evidence - it is settled law that
in the evidence of untutored witnesses such
contradictions are bound to creep in - since,
since witnesses has not be examined in court
immediately after the offence and this case
witnesses were examined after about two years
therefore some trivial and minor contradiction
are natural - further, St.ment of witnesses
including medical evidence proved the case
beyond any reasonable doubt that, offence
committed by the appellant by mutilating the
private part of the minor girl cannot be termed
as an act of a person of normal virtues since
said offence has been committed out of severe
sexual lust and sadistic approach - hence,
appellant does not deserve any kind of leniency
- lower court rightly convicted and sentenced -
impugned judgment is confirmed - appeal is
dismissed. (Para 30, 35, 37, 38)

Appeal dismissed. (E-11)

List of Cases cited:

## Text

1488 INDIAN LAW REPORTS ALLAHABAD SERIES
an absence of the intention to cause death
or such bodily injury which was sufficient
in the ordinary course of nature to cause
death, but it is not a case where there was
also an absence of intention to cause such
bodily injury as was likely to cause death in
the ordinary course of thing.

40. In view of the above discussion,
though we find that the surviving appellant
Sripat Harijan is not guilty of ''murder' under
Section 302 IPC but he is guilty of
committing an offence under Section 304
Part I of the Code "culpable homicide not
amounting to murder" punishable in the First
Part (Part I) of Section 304 of the Code.

41. We, therefore, do not accept the
contentions of the learned counsel for the
surviving
appellant
that
the
offence
committed by the surviving appellant would
fall in the Second Part (Part II) of Section 304
IPC.

42. Having held that the surviving
appellant Sripat Harijan is guilty of the
offence under Section 304 Part I, we partially
accept this appeal and alter the offence from
that of Section 302 of the Code to one under
Section 304 Part-I of the Indian Penal code.

Further giving due consideration to
the facts and circumstances of the present
case, we find that the sentence of ten years
rigorous imprisonment would be adequate for
the offence of which the appellant has been
held guilty.

We, therefore, award a sentence of
ten years rigorous imprisonment to the
appellant.

The judgment under appeal is
modified in the above terms.

The appellant Sripal Harijan is in
jail.

According to the counsel for the
appellant, the period of incarceration of the
appellant is about more than two years as he
remained in jail during the course of trial and
further has been lodged in jail on 2.12.2021
in execution of the non-bailable warrant
issued by this Court.

Be that as it may, the appellant
Sripat Harijan shall serve out the sentence
awarded above.

The appeal is allowed in part.

The office is directed to send back
the lower court record along with a certified
copy of this judgment for information and
necessary compliance.

The compliance report be furnished
to this Court through the Registrar General,
High Court, Allahabad.
----------
(2022) 9 ILRA 1488
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.08.2022

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Criminal Appeal No. 1935 of 1992

Ishrat ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri S.R. Verma, Ms. Aarushi Khare (A.C.)

Counsel for the Opposite Party:
A.G.A.
9 All. Ishrat Vs. State of U.P.
1489
Criminal Law - Criminal Procedure Code,
1973 - Sections 222, 313 & 374(2) -
Indian Penal Code, 1860 - Sections - 324,
354, 376 & 511 - Evidence Act, 1872 -
Sections - 134 & 145 - Appeal - against
conviction and sentence - FIR - informant
alleged that accused had committed the diabolic
offence of severely cutting the private parts of
his minor daughter - in defence, plea has been
taken
about
some
discrepancies
and
contradictions are in the St.ment of witnesses -
- Appreciation of evidence - it is settled law that
in the evidence of untutored witnesses such
contradictions are bound to creep in - since,
since witnesses has not be examined in court
immediately after the offence and this case
witnesses were examined after about two years
therefore some trivial and minor contradiction
are natural - further, St.ment of witnesses
including medical evidence proved the case
beyond any reasonable doubt that, offence
committed by the appellant by mutilating the
private part of the minor girl cannot be termed
as an act of a person of normal virtues since
said offence has been committed out of severe
sexual lust and sadistic approach - hence,
appellant does not deserve any kind of leniency
- lower court rightly convicted and sentenced -
impugned judgment is confirmed - appeal is
dismissed. (Para 30, 35, 37, 38)

Appeal dismissed. (E-11)

List of Cases cited:

1. Bharwada Bhoginbhai Hirjibhai Vs St. of Guj.,
(1983) 3 SCC 217

2. Balu Sonba Shinde Vs St. of Mah. [(2002) 7
SCC 543 : 2003 SCC (Cri) 112]

3. Chacko @ Aniyan Kunju & ors. Vs St. of
Kerala, (2004) 12 SCC 269

4. C. Muniappan Vs St. of T.N., (2010) 9 SCC
567

5. Gagan Kanojia Vs St. of Punj. [(2006) 13
SCC 516 : (2008) 1 SCC (Cri) 109]

6. Radha Mohan Singh Vs St. of U.P. [(2006) 2
SCC 450 : (2006) 1 SCC (Cri) 661]

7. Rameshwar Vs St. of Raj., AIR 1952 SC 54

8. St. of U.P. Vs Ramesh Prasad Misra [(1996)
10 SCC 360 : 1996 SCC (Cri) 1278]

9. Sarvesh Narain Shukla Vs Daroga Singh
[(2007) 13 SCC 360 : (2009) 1 SCC (Cri) 188]

10. Subbu Singh Vs St. [(2009) 6 SCC 462 :
(2009) 2 SCC (Cri) 1106]

11. St. Vs Ishrat, Sessions Trial No.175 of 1990

12. Shiv Ram& anr. Vs St. of U.P., (1998) 1 SCC
149

(Delivered by Hon'ble Krishan Pahal, J.)

1. Heard Ms. Aarushi Khare, learned
Amicus Curiae for the appellant and Sri
Vinod Kumar Singh Parmar, learned AGA
for the State.

2. Present Criminal Appeal under
Section 374(2) of the Cr.P.C. has been
preferred
by
accused-appellant
Ishrat
against the judgment and order dated
20.10.1992 passed by Sri S.C. Nigam,
Seventh Additional District and Sessions
Judge, Kanpur Nagar in Sessions Trial
No.175 of 1990 (State Vs. Ishrat), Police
Station- Chamanganj, District- Kanpur
Nagar, whereby accused-appellant was
convicted u/s 324 IPC and sentenced to
three years rigorous imprisonment. He was
also convicted u/s 354 IPC and sentenced
to two years rigorous imprisonment. Both
sentences were to run separately.

PROSECUTION STORY:

3. Prosecution story, in nutshell, as
unfolded
from
written
report
dated
29.11.1988 (Ex.Ka-1) is that informant
Shaukat Ali (PW-1) filed written report
(Ex.Ka-1) transcribed by Mohd. Aslam,
mentioning therein that on 29.11.1988
1490 INDIAN LAW REPORTS ALLAHABAD SERIES
between 01:00 PM to 03:00 PM, his minor
daughter aged about 4-5 years had gone to
the house of one of the neighbours to play.
On the same day at about 03:00 PM, some
people of the locality were stated to have
brought his minor daughter in a blood
soaked condition from the field and
informed that some unknown person had
assaulted her private parts by a blade. The
victim was taken to the hospital for
treatment. It has also been stated in the FIR
that blood stained blade is still lying in the
field.

4. On the basis of written report
(Ex.Ka-1),
Chik
FIR
(Ex.Ka-5)
was
registered on 29.11.1988 at 09:15 PM as
Case Crime No.274 of 1988, under Section
324
IPC
against
unknown
person.
Thereafter investigation was initiated.

5. The investigation was taken up by
the Investigating Officer Mehfooz Ali,
Sub-Inspector who after recording the
statement of the witnesses, preparing site
plan, taking in possession the blood stained
blade and other materials, arrested the
appellant and prepared the arrest memo
dated 1.12.1988, thereafter submitted the
charge-sheet against him on 16.12.1988.

TRIAL PROCEEDINGS:

6. Charge against the appellant was
framed by the Trial Court on 22.6.1990 u/s
324, 376/511 IPC. The appellant had
claimed himself to be juvenile at the time
of offence but after the radiological
examination, he was found to be major.
The trial was proceeded as such.

7. In order to prove its case, the
prosecution has examined ten witnesses i.e.
PW-1 Shaukat Ali (Informant), PW-2
Victim, PW-3 Dr. Sushma Singh, PW-4
Ram Kishore, PW-5 Dr. H.N. Bahadur,
PW-6 Dr. Ashok Upadhyay, PW-7 Mohd.
Javed, PW-8 Gulshan, PW-9 Shakeela and
PW-10 Mahfooj Ali. The Court was
pleased to examine Dr. Ram Babu as CW-1
to prove the ossification test report of the
appellant wherein the age of the appellant
was found above 18 years.

8. PW-1 informant is the father of the
victim and has corroborated the prosecution
story. He has stated that the appellant had
committed the diabolic offence of severely
cutting the private parts of his minor
daughter after having attempted to rape her.
The witness was cross-examined by the
counsel for the appellant wherein he has
stated that after lodging of the FIR, he was
informed by the victim that it was the
appellant who had committed the said
crime to her as by the time of lodging of
the FIR, she was not in a condition to
speak. He has proved his written report as
Ex.Ka-1.

9. PW-2 is the victim who has stated
that the appellant had taken her behind the
bushes in the field by luring her to give her
a toffee where she was disrobed and her
private part was cut by him with a blade.
She has also stated in the examination-inchief that she had told about the name of
the appellant at the hospital. She had
identified the appellant in the dock.
Nothing material could be extracted from
her in cross-examination by the defence
counsel.

10. PW-3 is Dr. Sushma Singh who has
stated that the victim was in a state of shock at
the time of her medical examination and was
not even able to speak. Her blood pressure was
found
180-50
mm
Hg.
Her
internal
examination was conducted under general
anesthesia. She had observed that her private
9 All. Ishrat Vs. State of U.P.
1491
part was badly damaged and tear were present
of size 06mm x 5mm and 08mm x .5mm. No
spermatozoa were found by the pathologist in
the vaginal smear. Dr. Singh has further
opined that there is a possibility of sexual
intercourse having been committed with the
victim.
She
has
proved
the
medical
examination report as Ex.Ka-2. As per the
Ossification test, the age of the victim was
found to be four years. She has even
confirmed the time of the offence. Dr. Sushma
Singh has further stated that due to the serious
condition of the victim, she had consulted
Senior Dr. Negi and Surgeon Dr. Bahadur and
the medical examination of the victim was
conducted by her in their presence.

11. PW-4 Ram Kishore is the formal
witness. He has proved the FIR as Ex.Ka-5
and the GD of the institution of the FIR as
Ex.Ka-6.

12. PW-5 Dr. H.N. Bahadur, Senior
Consultant who has proved the bed head
ticket of the victim as Ex.Ka-7. The victim
had undergone treatment from 29.11.1988
to 23.12.1988.

13. PW-6 Dr. Ashok Upadhyay who
was the first person to examine the victim
on 29.11.1988 at about 03:45 PM and
found following injuries on her body.

"1. Horizontal incised wound 6cm
x 1cm x muscle deep present on the pubic
region 6cm below the umbilicus fresh
bleeding present.

2. Horizontal incised wound 8cm
x 1cm x muscle deep present half cm below
injury no. One. Fresh bleeding present.

3. Horizontal incised wound
10cm x 2cm x muscle deep present One &
half cm below injury no. Two.

4. Multiple incised wounds over
right labia majora region on its upper
surface & by the side ranging in size from
4cm x 1⁄4cm to 1cm x 1⁄4cm in size depth not
probed. Fresh bleeding present.

5. Multiple incised wounds over
left labia region on its upper surface & by
its side ranging in size from 2cm x 1⁄4cm to
1⁄2cm x 1⁄4cm depth not probed. Fresh
bleeding present.

6. Multiple small incised wounds
present all along the margin of right labia
ranging in size from 1⁄4cm x 1⁄4cm to 1⁄2cm x
1⁄4cm x depth not probed. Fresh bleeding
present.

7. Multiple small incised wounds
present all along the margin of left labia
ranging in size from 1⁄4cm x 1⁄4cm to 1⁄2cm x
1⁄4cm x depth not probed. Fresh bleeding
present.

Opinion

All injuries are fresh caused by
sharp edged object for ascertaining the
nature. All injuries kept under observation.
Patient admitted & referred to E.M.O.
Dufferin Hospital for internal examination
of private parts and necessary action."

14. He opined that the said injuries
could have been sustained by the victim on
29.11.1988 between 1 to 2 PM.

15. PW-7 Mohd. Javed is the
independent witness. He has stated in his
examination-in-chief that he has not seen
the occurrence but had heard of it on
29.11.1988 at about 05:00 PM. He has not
supported the prosecution story and thus,
was
declared
hostile
by
the
public
prosecutor and cross-examined.
1492 INDIAN LAW REPORTS ALLAHABAD SERIES

16.

PW-8
Gulshan
is
another
independent witness who had also resiled from
his statement recorded by the Investigating
Officer and has not supported the prosecution
version.

17. PW-9 is the mother of the victim and
has stated that about 15 days before the
occurrence, an altercation with the appellant
had occurred over watching television in her
house. She has also corroborated the statement
of the victim.

18. PW-10 Mehfooj Ali is the
Investigating Officer who has proved recovery
memo of blood stained blade recovered from
the place of occurrence as Ex.Ka-8. He has
proved the memo blood stained sand and
simple sand as Ex.Ka-9. Ex.Ka-10 is the letter
for medical examination of victim wherein
Doctor has opined that the victim was found in
an unconscious state. He has further stated that
the victim was not able to speak at the time of
her admission on 29.11.1988. Site plan has
been proved as Ex.Ka-11. Ex.Ka-12 is the
memo of blood stained frock of the victim. He
has also proved the recovery memo of blood
stained frock of the victim as Ex.Ka-13. The
charge-sheet has been proved as Ex.Ka-14.

19. Thereafter, the statement of accusedappellant under Section 313 Cr.P.C. was
recorded. He has stated that the prosecution
story is false. Appellant-accused Ishrat
claimed that he has been falsely implicated in
the case to get the house vacated.

20. On appreciation of evidence
available before Trial Court and after
hearing parties, learned Sessions Judge
convicted and sentenced accused-appellant,
Ishrat, as stated above, by judgment and
order impugned in this appeal.

POINTS OF DETERMINATION:

i) Whether the appellant had
committed the said offence of assault
causing grievous hurt by dangerous weapon
to the victim on 29.11.1988 between 1 PM
to 3 PM?

ii) Whether the appellant had
caused any assault or criminal force to the
victim with an intent to outrage her
modesty?

RIVAL CONTENTIONS:

21. Ms. Aarushi Khare, learned
Amicus Curiae appearing for the appellant
has argued that the appellant has been
falsely implicated in the present case. The
FIR is delayed by about six hours and there
is no explanation of the said delay caused.
The appellant is not named in the FIR.
During investigation, his name has come up
in the statement of the victim, informant
and other witnesses. Learned Amicus
Curiae has further stated that there are
several contradictions in the statements of
the witnesses. She has also stated that as
per the statement of the mother of the
victim PW-9, the victim had come to the
house of the appellant walking although
she has denied the said fact later on during
further cross-examination. She has referred
to several contradictions in the said
statement of the prosecution witnesses,
namely, PW-1, PW-2 & PW-9. She has
further stated that the blood stained blade
and the blood stained frock of the victim
has not been seen for chemical examination
by the Investigating Officer. This is the
serious lacuna in the prosecution story. She
has also stated at Bar that the offence is of
the year 1988 and much water has flown
down the Thames, thus, the appellant is
entitled to acquittal. The witnesses are
interested witnesses and the said fact stands
supported by the statements of appellant
9 All. Ishrat Vs. State of U.P.
1493
recorded u/s 313 Cr.P.C. The independent
witnesses PW-7 and PW-8 have turned
hostile. The prosecution story is falsified on
account of absence of corroboration. She
has also stated that if the court is not
inclined in allowing the appeal, the
appellant may be released to the period of
sentence already undergone.

22. Per contra, Sri Vinod Kumar
Singh
Parmar,
learned
AGA
has
vehemently opposed the criminal appeal on
the ground that the victim is a child of
tender age of four years. The offence of
cutting her private parts with a blade and
also attempting to commit rape and
outraging the modesty of the victim has
categorically been proved by the statement
of the PW-1 and PW-2 and has also been
corroborated by PW-9 who happens to be
the mother of the victim. There are no
material contradictions in their statements.
The
treating
Doctors
have
also
categorically corroborated the prosecution
story and have even been asked about the
alleged time of offence regarding the
injuries sustained by the victim which
further
substantiate
the
prosecution
allegations.

23. Learned AGA has further stated
that the FIR was naturally lodged by the
appellant as it was his priority to get the
victim medically examined as her private
part was found mutilated and she was not
in a conscious state. The said delay stands
explained by the statement of the PW-1.
The said fact has also been corroborated by
the statement of PW-2 victim and PW-10
Sub-Inspector
Mehfooj
Ali,
the
Investigating Officer.

24. Learned AGA has further stated
that in the present scenario, no independent
witness is ready to depose against another
person to face ire of the accused later on in
life. To buttress his argument, he has
placed much reliance on the judgement of
Supreme Court in the case of Shiv Ram
and Another vs. State of U.P.1, and the
operative part of para-16 reads as under:-

"16. ...... The witnesses further
admitted that many persons had gathered
at the place of occurrence, if this be so it
was
very
much
necessary
for
the
prosecution to examine some independent
witnesses
to
lend
assurance
to
the
credibility of the evidence of these two
eyewitnesses. These submissions do not
impress us at all. Nowadays it is a common
tendency that no outsider would like to get
involved in a criminal case much less in the
crime of present magnitude and, therefore,
it was quite natural that no independent
witness would come forward to assist the
prosecution. It is well settled that the
evidence of witnesses cannot be discredited
only on the ground that they are close
relatives of the deceased persons. All that
is required in such a situation is that the
court must scrutinize the evidence of such
witnesses with utmost care and caution.
The magnitude of the present crime and
nature of prosecution evidence has put us
on guard to appreciate the evidence of
these two eye witnesses with utmost care
and caution. We have done this exercise
and we are unable to be persuaded to
discard the evidence of these two witnesses
on the grounds urged before us. The
evidence of both these witnesses in our
considered
view
is
absolutely
straightforward, unblemished and without
any infirmity. The first information report
which was lodged within four hours,
naming all the accused also lends asurance
to our conviction that the evidence of these
two witnesses is trustworthy and cannot be
discarded. The contentions of the learned
1494 INDIAN LAW REPORTS ALLAHABAD SERIES
counsel for the accused, therefore, stand
rejected."

25. Learned AGA has also stated that
the prosecution story is itself proved by the
statements of PWs-1, 2 and 9 and they
cannot
be
considered
as
interested
witnesses as there is nothing on record to
suggest that the appellant has been falsely
implicated by the informant.

CONCLUSION:

26. This is one of the most serious
and diabolic offence committed against a
minor girl of tender age of four years.

27. Coming to the first point for
determination,
it
is
proved
beyond
reasonable doubt by the statements of
prosecution witnesses i.e. PW-1 informant,
PW-2 victim, PW-3 Dr. Sushma Singh,
PW-5 Dr. H.N. Bahadur, PW-6 Dr. Ashok
Upadhyay and PW-9 Shakeel, mother of
the victim that the appellant has committed
the aforesaid heinous offence with the
victim of tender age. In the statements of
prosecution witnesses, the date, time and
motive of offence also stands corroborated.
The identification of the appellant in the
dock has been done by the PW-2 victim.
The witnesses have not been crossexamined on this point by the counsel for
the
appellant.
Even
the
minor
contradictions that had crept up in the
statement of the victim, have not been put
to the Investigating Officer as per the
provision of Section 145 of the Indian
Evidence Act, 1872, thus, it also stands
proved and unrebutted.

28. Now, I proceed to consider
second point for determination which is in
regard to commission of any assault or
criminal force by the appellant with the
victim with an intent to outrage her
modesty. The said point has also been
proved beyond reasonable doubt by the
statements of the victim and the doctors
referred above.

29. The learned Trial Court has
rightly taken recourse of Section 222 of
Cr.P.C.
wherein
the
allegations
of
commission of rape by the appellant with
the victim were not found. Although the
internal examination report of the victim
supports
it.
However,
the
evidence
regarding the commission of offence
punishable under Section 354 IPC was
established by the statement of the victim
PW-2 and, therefore, on this count,
learned Trial Court has rightly convicted
the appellant u/s 354 IPC, although, the
charge was framed u/s 376/511 IPC. The
accused-appellant
deserved
harsh
punishment for the diabolic offence
committed by him which depicts his
depraved mental status.

30.

Learned
Amicus
Curiae
appearing for the appellant has pointed out
certain discrepancies in the statements of
the prosecution witnesses. On this count,
this Court is of the considered view that it
is but natural that minor discrepancies and
contradictions may appear in the statement
of witnesses. It is a settled law that in the
evidence of untutored witnesses such
contradictions are bound to creep in. The
witnesses have not been examined in
Court immediately after the offence. They
have been examined after about two years
of the occurrence and some trivial and
minor contradictions are natural to come
up in their statements as they are not
bound to possess a photographic memory.

31. The said view has been vented by
the Apex Court in Bharwada Bhoginbhai
9 All. Ishrat Vs. State of U.P.
1495
Hirjibhai Vs. State of Gujarat2, and the
relevant paragraphs no.5, 6 & 10 are as
under:-

"5. ......... We do not consider it
appropriate or permissible to enter upon a
reappraisal or reappreciation of the
evidence in the context of the minor
discrepancies painstakingly highlighted by
learned counsel for the appellant. Over
much importance cannot be attached to
minor discrepancies. The reasons are
obvious:

(1) By and large a witness cannot
be expected to possess a photographic
memory and to recall the details of an
incident. It is not as if a video tape is
replayed on the mental screen.

(2) ordinarily it so happens that a
witness is overtaken by events. The witness
could not have anticipated the occurrence
which so often has an element of surprise.
The mental faculties therefore cannot be
expected to be attuned to absorb the
details.

(3) The powers of observation differ
from person to person. What one may notice,
another may not. An object or movement
might emboss its image on one person's mind
whereas it might go unnoticed on the part of
another.

(4) By and large people cannot
accurately
recall
a
conversation
and
reproduce the very words used by them or
heard by them. They can only recall the main
purport of the conversation. It is unrealistic to
expect a witness to be a human tape recorder.

(5) In regard to exact time of an
incident, or the time duration of an
occurrence, usually, people make their
estimates by guess work on the spur of the
moment 1.1 at the time of interrogation. And
one cannot expect people to make very precise
or reliable estimates in such matters. Again, it
depends on the time- sense of individuals
which varies from person to person.

(6) Ordinarily a witness cannot be
expected to recall accurately the sequence of
events which take place in rapid succession or
in a short time span. A witness is liable to get
confused, or mixed up when interrogated later
on.

(7) A witness, though wholly
truthful, is liable to be overawed by the court
atmosphere
and
the
piercing
cross
examination made by counsel and out of
nervousness mix up facts, get confused
regarding sequence of events, or fill up details
from imagination on the spur of the moment.
The sub-conscious mind of the witness
sometimes so operates on account of the fear
of looking foolish or being disbelieved though
the witness is giving a truthful and honest
account of the occurrence witnessed by himPerhaps it is a sort of a psychological defence
mechanism activated on the spur of the
moment.

6. Discrepancies which do not go to
the root of the matter and shake the basic
version of the witnesses therefore cannot be
annexed with undue importance. More so
when the all important "probabilities-factor"
echoes in favour of the version narrated by the
witnesses.

....

....

10. Without the fear of making
too wide a statements or of overstating the
case, it can be said that rarely will a girl or
1496 INDIAN LAW REPORTS ALLAHABAD SERIES
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
the whole 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. (11) The fear of the
victim herself being considered to be
promiscuous or in some way responsible
for
the
incident
regardless
of
her
innocence. (12) The reluctance to face
interrogation by the investigating agency,
to face the court, to face the cross
examination by Counsel for the culprit, and
the risk of being disbelieved, acts as a
deterrent."

32. It has also been settled by the
Apex Court in Rameshwar v. State of
Rajasthan3, that corroboration is not the
sine qua non for a conviction in a rape case.

"The rule, which according to the
cases has hardened into one of law, is not
that corroboration is essential before there
can be a conviction but that the necessity of
corroboration, as a matter of prudence,
except where the circumstances make it
safe to dispense with it, must be present to
the mind of the judge .......

The only rule of law is that this
rule of prudence must be present to the
mind of the Judge or the jury as the case
may be and be understood and appreciated
by him or them. There is no rule of practice
that there must, in every case, be
corroboration before a conviction can be
allowed to stand."

33. Section 134 of Indian Evidence
Act, 1872 provides that it is the quality and
not quantity that matters with respect to
proving of fact. The provision clearly states
that no particular number of witnesses are
required to establish a case. In the case
herein, the statement of the victim stands
corroborated by the medical evidence. In
the case of Chacko alias Aniyan Kunju
9 All. Ishrat Vs. State of U.P.
1497
and Others Vs. State of Kerala4, the Apex
Court
has
discussed
in
para-7
the
parameters of Section 134 of the Indian
Evidence Act, 1872 and the same is
reproduced hereunder:-

"7. Coming to the question
whether on the basis of a solitary evidence
conviction can be maintained, a bare
reference to Section 134 of the Evidence
Act, 1872 (in short "the Evidence Act")
would suffice. The provision clearly states
that no particular number of witnesses is
required to establish the case. Conviction
can be based on the testimony of a single
witness
if
he
is
wholly
reliable.
Corroboration may be necessary when he
is only partially reliable. If the evidence is
unblemished and beyond all possible
criticism and the court is satisfied that the
witness was speaking the truth then on his
evidence
alone
conviction
can
be
maintained.
Undisputedly,
there
were
injuries found on the body of the accused
persons on medical evidence. That per se
cannot be a ground to totally discard the
prosecution version. This is a factor which
has to be weighed along with other
materials to see whether the prosecution
version is reliable, cogent and trustworthy.
When the case of the prosecution is
supported by an eyewitness who is found to
be truthful as well, mere non-explanation of
the injuries on the accused persons cannot
be a foundation for discarding the
prosecution version. Additionally, the dying
declaration was found to be acceptable."

34. Regarding the argument tendered
by the learned Amicus Curiae pertaining to
the hostility of the two witnesses i.e. PW-7
and PW-8 in the present case, the statement
of hostile witnesses can be discarded and
only the part which corroborates the
prosecution story has to be considered. The
two
witnesses
have
not denied
the
commissioning of offence, but have only
denied having seen it. The Apex Court in
the case of C. Muniappan v. State of Tamil
Nadu5, has opined as under:-

"81. It is settled legal proposition
that:

"6.
...
the
evidence
of
a
prosecution witness cannot be rejected in
toto merely because the prosecution chose
to treat him as hostile and cross-examined
him. The evidence of such witnesses cannot
be treated as effaced or washed off the
record altogether but the same can be
accepted to the extent their version is found
to be dependable on a careful scrutiny
thereof."

82. In State of U.P. v. Ramesh
Prasad Misra [(1996) 10 SCC 360 : 1996
SCC (Cri) 1278] this Court held that (at
SCC p. 363, para 7) evidence of a hostile
witness would not be totally rejected if
spoken in favour of the prosecution or the
accused but required to be subjected to
close scrutiny and that portion of the
evidence which is consistent with the case
of the prosecution or defence can be relied
upon. A similar view has been reiterated by
this Court in Balu Sonba Shinde v. State of
Maharashtra [(2002) 7 SCC 543 : 2003
SCC (Cri) 112] , Gagan Kanojia v. State of
Punjab [(2006) 13 SCC 516 : (2008) 1
SCC (Cri) 109] , Radha Mohan Singh v.
State of U.P. [(2006) 2 SCC 450 : (2006) 1
SCC (Cri) 661] , Sarvesh Narain Shukla v.
Daroga Singh [(2007) 13 SCC 360 : (2009)
1 SCC (Cri) 188] and Subbu Singh v. State
[(2009) 6 SCC 462 : (2009) 2 SCC (Cri)
1106] .

83. Thus, the law can be
summarised to the effect that the evidence
of a hostile witness cannot be discarded as
1498 INDIAN LAW REPORTS ALLAHABAD SERIES
a whole, and relevant parts thereof which
are admissible in law, can be used by the
prosecution or the defence."

35. Considering the overall facts and
circumstances of the case, statement of the
witnesses, relevant case laws and the fact
that the offence committed by the appellant
by mutilating the private part of the minor
girl cannot be termed as an act of a person
of normal virtues. The said offence has
been committed out of severe sexual lust
and sadistic approach. The appellant does
not deserve any kind of leniency as the said
case stands proved beyond any reasonable
doubt by the statement of the prosecution
witnesses
and
the
medical
evidence
adduced.

36. It is a very sorry state of affairs
that the State has not preferred any appeal
against the leniency observed by the
learned Trial Court in sentencing the
appellant to such a short term. The lethargy
of
the
public
prosecutor
is
highly
deplorable.

37. From the evidence available on
record, it is proved beyond reasonable
doubt that the accused-appellant Ishrat had
committed grave offence and the learned
lower court had rightly convicted and
sentenced him as mentioned above.

38. In above circumstance, I do not
find any merit in the appeal. The appeal is
dismissed, accordingly. The judgement and
order dated 20.10.1992 passed by Sri S.C.
Nigam, Seventh Additional District and
Sessions Judge, Kanpur Nagar in Sessions
Trial No.175 of 1990 (State Vs. Ishrat),
Police
Station-
Chamanganj,
District-
Kanpur Nagar, is hereby affirmed. Bail
bonds of accused-appellant are hereby
cancelled and sureties are discharged from
their liability. He is directed to surrender
before the court below forthwith to serve
out remaining sentence and if he fails to do
so, concerned Chief Judicial Magistrate
shall take appropriate action in this regard.

39. Let a copy of this judgement
along with Lower Court Record be returned
to the court concerned forthwith for
compliance. A compliance report be also
sent to this Court.
----------
(2022) 9 ILRA 1498
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.07.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Criminal Appeal No. 221 of 2011
(U/S 372 Cr.P. C.)

Shakti Singh ...Appellant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Appellant:
Sri Birandra Singh Khokher, Sri Daya Ram
Yadav, Sri Shyam Lal
Counsel for the Opposite Parties:
Govt. Advocate

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 372 - Appeal
against acquittal in case u/s 498A, 304B
IPC r/w s 113B of the Evidence Act and
3/4 of the Dowry Prohibition Act - An
appellate court has the full power to
review, re-appreciate, and reconsider the
evidence upon which an order of acquittal
is founded - However, an appellate court
should not ordinarily set aside a judgment
of
acquittal,
as
there
is
a
double
presumption in favor of the accused in
case of acquittal - appellate court may
interfere if the views of the trial court