# Kishor v. State Of U.P

- **Citation:** (2016) 5 ILRA 901
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-31
- **Bench:** Mrs. Ranjana Pandya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kishor-v-state-of-u-p-43993
- **Pages:** 12

## Headnote

Criminal Appeal - Sections 323, 504, 506, 376 I.P.C. - Delay in lodging FIR - Non-explanation of delay -
Contradictory versions of prosecution witnesses - Reliability of prosecutrix - Medical evidence not supporting
prosecution case - Alleged confinement and repeated rape - Improbability of prosecution story - Absence
of corroboration - Benefit of doubt - Acquittal

## Text

_Characters 0–39,769 of 42,174. This is a partial read: ask again with offset=39769 for what follows._

5 All. Kishor Vs State Of U.P.

901
the demand of illegal gratification nor recovery thereto was proved, the learned lower court had
passed the judgement on surmises and conjectures in convicting the accused-appellant, when both
the fact has not been proved against him beyond reasonable doubt.

37. Thus, on the basis what has been stated and discussed above, I find that the learned
lower court has misled itself in reaching to the conclusion that the accused is guilty for the offence
charged. Thus, the accused is entitled to be acquitted and the appeal is liable to be allowed. Hence,
the impugned conviction and sentence dated 23.5.2015 passed by Special Judge Prevention of
Corruption Act, Varanasi in Special Case No. 19 of 2013 (State Vs. Sadho Ram Singh) arising out
of Crime No. 87 of 2002, under Section 7/13 (1)(d) read with Section 13(2) Prevention of
Corruption Act, Police StationAdalhat, District-Mirzapur is hereby set aside.

33. Accordingly, the appeal is allowed. The appellant is in jail. He shall be released
forthwith in this case. The provisions of Section 437A Cr.P.C. shall be complied with.

34. Let a copy of this order be sent to the trial court concerned.
----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2016

BEFORE

THE HON'BLE MRS. RANJANA PANDYA, J.

Criminal Appeal No.- 3018 Of 2015

Kishor ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for the Appellant:
Salman Ahmad

Counsel for the Respondent:
Govt. Advocate

Criminal Appeal - Sections 323, 504, 506, 376 I.P.C. - Delay in lodging FIR - Non-explanation of delay -
Contradictory versions of prosecution witnesses - Reliability of prosecutrix - Medical evidence not supporting
prosecution case - Alleged confinement and repeated rape - Improbability of prosecution story - Absence
of corroboration - Benefit of doubt - Acquittal

1. The prosecution case in brief is that an application under Section 156(3) Cr.P.C. was moved before the
C.J.M., Orai, which was directed to be registered as a criminal case and investigation was ordered. As per the
application i.e. Exhibit Ka-1, the elder daughter of the informant was married in village Barsaar, Police Station
Kotra, District Jalaun to Nripati son of Chaturbhuj. Three months prior to 26.07.2011, the brother-in-law
(Devar) of Kiran came on motorcycle to the house of the informant and told that Kiran was seriously sick and
902 INDIAN LAW REPORTS ALLAHABAD SERIES
the victim was called by her. The informant sent his 16 years' old daughter with Kishor. After that 4-5 times,
the informant went to the house of his daughter but Kishor, Chaturbhuj and Ramwati did not let him meet
with his daughter and did not make him to see his elder daughter too. On 10.05.2011, the informant along
with Pappu Chamar, the wife of the informant Munni and Gokul went to Barsaar. At this Kishor, Chaturbhuj,
Ramwati, Nirpati and Kiran told that the victim had eloped from their house. The informant and his
companions heard the sound of weeping of the victim, at this, they entered the house of the accused and
found the victim locked in a room. When she was taken out, the accused persons started to assault the
informant and his companions. The matter was complained to the Police Station Mandichowki. Out of shyness,
on that date, the victim did not told anything to anybody that she had been forcibly detained and locked in a
room for 3 months and was continuously raped by Kishor for 3 months. Kishor threatened to kill the victim
and also threatened to set her to fire. Whenever, she tried to raise alarm, she was shown country made
pistol. The informant sent the information about complete incident by registered post to the S.P. He also
himself appeared before the S.S.P., Orai, who directed the police personnel of Police Station, Kotra to look
into the matter. On 17.05.2011, when the informant along with his daughter and other companions reached
the Police Station, Kotra, he was told that the case would be registered and the accused persons would be
arrested on the next day. The informant received a telephone call stating that he should bring the victim to
the police station and the accused had been arrested. On 19.05.2011 at 10:00 A.M., the informant along with
his wife, victim and many other people went to the police station. The incharge of the police station
pressurized the informant to compromise the matter. The informant and his companions were badly beaten
and the caste relating abusive words was also uttered and he was forced to sign the compromise written by
his son-in-law Nripati. The police personnel forcible put the thumb impressions of the mother of the victim
namely Munni on the compromise letter. The victim and the informant were also forced to put their signatures
on the compromise letter and they were threatened that if they would proceed with the matter then many
cases would be slapped on them. There were many political leaders leading to the BJP and Congress who
were sitting in the police station. Nripati was saying that he had influenced over the Kotra police. At this the
informant sent a registered application to S.P., Jalaun, Orai on 01.06.2011 but no action was taken into the
matter. Hence, the application under Section 156(3) Cr.P.C. was moved.(Para 2)

2. The Counsel for appellant has vehemently submitted that there is an inordinate delay in lodging the first
information report, which would be fatal for the prosecution case. He has specifically stated that no date has
been mentioned as to when the victim was taken away and since when the accused started raping her. No
doubt, delay in lodging the first information report would not be a ground to discard the whole prosecution
case but by and large, if there is an inordinate delay, the prosecution has to explain the delay and if the delay
is explained then it would not be fatal for the prosecution case.Perusal of the record shows that there is no
date on what date the victim was enticed away and from which date the act of rape was started. As far as the
delay is concerned, in the first information report Exhibit Ka-1, which has been proved by PW-1 Babu, father
of the victim, it has been stated that the accused took away the victim on the ground that her sister was ill.
Now as per first information report, on 17.05.2011, he went to the Police Station Kotra. Again on 19.05.2011,
he went to the police station, where he was ill treated and he and all his companions were beaten by the
police. Further, he has stated that on 01.06.2011, he moved an application to the S.P. But none of the
aforesaid applications are on record. Withholding all the copies of such applications, compels the court to
draw adverse inference against the prosecution.(Para 9,10)

Held:(Paras 24,27,28,29)

1. The statement of the victim was recorded by the trial court which does not inspire confidence because the
victim PW-2 has stated that the accused took her to her sister's house. There her sister and her brother-in-law
and his brother locked her in a room and she was raped by the brother-in-law of her sister. This is a bit not a
palatable case that why a sister would get her own real sister being raped in her house for months together.
5 All. Kishor Vs State Of U.P.

903
Further, as per the prosecution version, the victim was detained for many months by the accused whenever,
her father and relatives went to meet her they were not permitted to meet her. PW-1 Babu has stated that he
went 4 to 5 times to meet the victim but he was not permitted to do so. On 10.05.2011, again he went to
meet her daughter with Pappu Chamar, his wife Munni, Gokul and mother of the victim but Kiran and accused
appellant and other said that the victim has eloped away. They heard the weeping sounds of the victim at
which they entered the house and saw that the victim was locked in a room. A very strange averment brought
fourth by this witness is that due to shame the victim did not tell them anything. When they went home, the
victim narrated the whole occurrence. He also stated that the victim told him that she was also threatened to
be set on fire if she resisted, which is wanting in the first information report, which has been written after due
consultation with an Advocate. Further the victim PW-2 has stated that she was locked in the room by the
appellant, Kiran, her real sister and Nripati her real brother-in-law. Whenever, her parents used to come to
take her, they used to lock her inside the room and did not termed her to meet her parents. She has stated
that they told her parents that she had gone to her relative's house. This is in contradiction to the statement
of PW-1.

2. The medical evidence does not support the prosecution version. The statement of all the witnesses are
unreliable, improbable and contradictory to each other. The first information report was got scribed with the
assistance of an Advocate. Even in the statement of the victim recorded under Section 164 Cr.P.C., she has
stated that after some days since she was brought from her house, her parents came to the house of the
accused and got her set free. This statement is against the statement of the victim recorded in court
according to which she stayed in the house of the accused for about three months. Thus, the prosecutrix has
been changing her version again and again which makes her testimony unreliable and unworthy of
credence.Thus, on what has been said and discussed above, the prosecution has miserably failed to prove its
case beyond reasonable doubt against the present appellant and the appeal is liable to be allowed.
Accordingly the appeal is allowed.

Case Law discussed:

Abbas Ahmad Chaudhary v. State of Assam, 2010 Cr.L.J. 2060 - Paras 14
Munna v. State of M.P., (2015) 1 SCC (Cri) 59 - Para 15
Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 2017 - Para 16
State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 - Para 17
State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 - Paras 19
Suresh N. Bhusare v. State of Maharashtra, (1999) 1 SCC 220 - Para 20
Jai Krishna Mandal v. State of Jharkhand, (2010) 14 SCC 354 - Para 21
Tukaram v. State of Maharashtra, AIR 1979 SC 186 - Para 23
Udai v. State of Karnataka, AIR 2003 SC 1639 - Para 23

(Delivered by Hon'ble Mrs. Ranjana Pandya, J.)

1. This appeal has been preferred against the conviction and sentence passed against the
order dated 30.06.2015, passed by Additional Sessions Judge / F.T.C., Jalaun at Orai, in S.T. No.
113 of 2012 (State vs. Kishor), arising out of Case Crime No. 52 of 2012, under Sections 323, 504,
506, 376 I.P.C. and S.T. No. 124 of 2012 (State vs. Nripati), arising out of Case Crime No. 52 of
2012, under Sections 323, 504, 506 I.P.C., Police Station Kotra, District Jalaun, whereby the
accused Kishor was found guilty and sentenced to 10 years' rigorous imprisonment and fine of Rs.
3000/-, under Section 376 I.P.C.; 1 year rigorous imprisonment along with fine of Rs. 5000/- under
Section 504 I.P.C and 7 years' rigorous imprisonment along with fine of Rs. 2000/- under Section
904 INDIAN LAW REPORTS ALLAHABAD SERIES
506 I.P.C. with default stipulation, whereas accused Kiran and Nripati were acquitted for the
charges framed against them.

2. Filtering out the unnecessary details, the prosecution case in brief is that an application
under Section 156(3) Cr.P.C. was moved before the C.J.M., Orai, which was directed to be
registered as a criminal case and investigation was ordered. As per the application i.e. Exhibit Ka-1,
the elder daughter of the informant was married in village Barsaar, Police Station Kotra, District
Jalaun to Nripati son of Chaturbhuj. Three months prior to 26.07.2011, the brother-in-law (Devar)
of Kiran came on motorcycle to the house of the informant and told that Kiran was seriously sick
and the victim was called by her. The informant sent his 16 years' old daughter with Kishor. After
that 4-5 times, the informant went to the house of his daughter but Kishor, Chaturbhuj and
Ramwati did not let him meet with his daughter and did not make him to see his elder daughter too.
On 10.05.2011, the informant along with Pappu Chamar, the wife of the informant Munni and
Gokul went to Barsaar. At this Kishor, Chaturbhuj, Ramwati, Nirpati and Kiran told that the victim
had eloped from their house. The informant and his companions heard the sound of weeping of the
victim, at this, they entered the house of the accused and found the victim locked in a room. When
she was taken out, the accused persons started to assault the informant and his companions. The
matter was complained to the Police Station Mandichowki. Out of shyness, on that date, the victim
did not told anything to anybody that she had been forcibly detained and locked in a room for 3
months and was continuously raped by Kishor for 3 months. Kishor threatened to kill the victim
and also threatened to set her to fire. Whenever, she tried to raise alarm, she was shown country
made pistol. The informant sent the information about complete incident by registered post to the
S.P. He also himself appeared before the S.S.P., Orai, who directed the police personnel of Police
Station, Kotra to look into the matter. On 17.05.2011, when the informant along with his daughter
and other companions reached the Police Station, Kotra, he was told that the case would be
registered and the accused persons would be arrested on the next day. The informant received a
telephone call stating that he should bring the victim to the police station and the accused had been
arrested. On 19.05.2011 at 10:00 A.M., the informant along with his wife, victim and many other
people went to the police station. The incharge of the police station pressurized the informant to
compromise the matter. The informant and his companions were badly beaten and the caste relating
abusive words was also uttered and he was forced to sign the compromise written by his son-in-law
Nripati. The police personnel forcible put the thumb impressions of the mother of the victim
namely Munni on the compromise letter. The victim and the informant were also forced to put their
signatures on the compromise letter and they were threatened that if they would proceed with the
matter then many cases would be slapped on them. There were many political leaders leading to the
BJP and Congress who were sitting in the police station. Nripati was saying that he had influenced
over the Kotra police. At this the informant sent a registered application to S.P., Jalaun, Orai on
01.06.2011 but no action was taken into the matter. Hence, the application under Section 156(3)
Cr.P.C. was moved.

3. Dr. Sunita is PW-3, who conducted the medical examination on the victim. She did not
find any external or internal injury on the body of the victim. She proved the medical report as
Exhibit Ka-3. Smear slides were prepared for pathological examination and the victim was sent for
5 All. Kishor Vs State Of U.P.

905
age determination test on which supplementary report was produced. This witness proved the
supplementary report as Exhibit Ka-4. Constable Clerk Rakesh Pratap Singh, PW-4, prepared the
chik report. He proved the chik report as Exhibit Ka-5. Further, this witness scribed the G.D.,
whose copy was proved by this witness as Exhibit Ka-6. The investigation was entrusted to A.K.
Singh, S.I. On 07.02.2012. He inspected the spot on 09.02.2012. He recorded the statements of
Munni Devi, the victim, witness Rinku Singh and Radha. On 10.02.2012, he recorded the statement
of lady Constable Shabnam, Alka Dwivedi, copied the medical report in the case diary. He further
recorded the statements of doctor and Pinki. On 14.02.2012, the statement of all the accused
persons were recorded. Thereafter, the investigation was transferred to Brijraj Singh. This witness
proved the charge sheet submitted against all the accused persons as Exhibits Ka-7 and Ka-8.
Further, this witness proved the site plan prepared by him and proved it as Exhibits Ka-9 and Ka10.

4. Besides these witnesses, the prosecution also proceeded to examine Babu PW-1, who is
the informant, who proved the application submitted under Section 156(3) Cr.P.C. as Exhibit Ka-1.
PW-2 is the victim, who proved her statement recorded under Section 164 Cr.P.C. as Exhibit Ka-2.
PW-5 is Munni Devi, who is the mother of the victim and wife of the informant. She has stated
about the occurrence as to how she went to the house of the accused to bring back her daughter.
After examining as many as six witnesses, the prosecution has closed its evidence.

5. The statement of the accused persons were recorded under Section 313 Cr.P.C., in which
all the accused persons denied the occurrence. Further, the accused appellant, in question, Kishor
has stated that there was dispute between his sister-in-law and her father (informant) regarding
jewellery, hence he also had been falsely implicated. However, no evidence in defence was
adduced.

6. After hearing the learned counsel for the parties, the learned lower court convicted and
sentenced the accused as stated in para 1 of the judgment.

7. Feeling aggrieved, the accused has come up in appeal.

8. Heard Sri Salman Ahmad, learned counsel for the appellants, learned Additional
Government Advocate for the opposite party and perused the lower court record.

Delay in lodging the first information report :-

9. Counsel for the appellant has vehemently submitted that there is an inordinate delay in
lodging the first information report, which would be fatal for the prosecution case. He has
specifically stated that no date has been mentioned as to when the victim was taken away and since
when the accused started raping her. No doubt, delay in lodging the first information report would
not be a ground to discard the whole prosecution case but by and large, if there is an inordinate
delay, the prosecution has to explain the delay and if the delay is explained then it would not be
fatal for the prosecution case.
906 INDIAN LAW REPORTS ALLAHABAD SERIES
10. Perusal of the record shows that there is no date on what date the victim was enticed
away and from which date the act of rape was started. As far as the delay is concerned, in the first
information report Exhibit Ka-1, which has been proved by PW-1 Babu, father of the victim, it has
been stated that the accused took away the victim on the ground that her sister was ill. Now as per
first information report, on 17.05.2011, he went to the Police Station Kotra. Again on 19.05.2011,
he went to the police station, where he was ill treated and he and all his companions were beaten by
the police. Further, he has stated that on 01.06.2011, he moved an application to the S.P. But none
of the aforesaid applications are on record. Withholding all the copies of such applications,
compels the court to draw adverse inference against the prosecution.

11. The informant has stated that he moved a written application but his report was not
lodged. Even the victim has stated that she went to the police station to lodge the report but her
report was not lodged. The same version was stated by the mother of the victim namely PW-5
Munni Devi but neither copies of such applications has been brought on record by the witnesses
nor copes of any report has been summoned to substantiate this averment that prior to moving of an
application under Section 156(3) Cr.P.C., any application was moved at the police station or to any
superior police officer. Even, the concerned relevant G.D. was not got summoned from the police
station.

12. Be it clearly stated here that delay in lodging FIR in cases under Section 376 I.P.C.
would depend upon facts and circumstances of each case and this Court has given immense
allowance to such delay, regard being had to the trauma suffered by the prosecutrix and various
other factors, but a significant one, in the present case, it has to be appreciated from a different
perspective. The prosecutrix was missing from home. In such a situation, it was a normal
expectation that either the mother or the brother would have lodged a missing report at the police
station, but the same was not done. This action really throws a great challenge to common sense.
No explanation has been offered for such delay. The learned trial Judge has adverted to this facet
on an unacceptable backdrop by referring to the principle that prosecutrix suffered from trauma and
the constraint of the social stigma. The prosecutrix at that time was nowhere in the scene. It is the
mother who was required to inform the police about missing of her grown-up daughter. In the
absence of any explanation, it gives rise to a sense of doubt. Thus, delay in lodging the first
information report is fatal for the prosecution case.

Reliability of the statement of victim :-

13. Perusal of the application moved under Section 156(3) Cr.P.C. was addressed to the
C.J.M., Orai, Jalaun. It was addressed and signed by an Advocate and the accused Kishor, Nripati,
Smt. Ramawati and Kiran were made the accused in the case. It has to be borne in mind that Kiran
is the daughter of the informant, Nripati is the son-in-law of the informant and Kishor and
Ramawati are the relatives of Nripati.

14. In cases of rape, the statement of the prosecutrix should be given due importance. In
2010 Cr.L.J. 2060, Abbas Ahmad Chaudhary vs. State of Assam, the Hon'ble Apex Court has
5 All. Kishor Vs State Of U.P.

907
observed that we are conscious of the fact that in a matter of rape, the statement of the prosecutrix
must be given primary consideration. But, at the same time, the broad principle that the prosecution
has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no
presumption that a prosecutrix would always tell the entire story truthfully.

15. In Munna vs. State of M.P., 2015 (1) SCC (Cri) 59, the Hon'ble Apex Court has held
that if the statement of the victim has inherent infirmities, creating doubt about its veracity, same
may not be acted upon and the statutory presumption under Section 114A of the Evidence Act
should not be drawn in such cases.

16. In Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, 1983 3 SCC 2017, the
Hon'ble Apex Court has laid down as under:-

"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 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."

17. In State of Maharashtra vs, Chandraprakash Kewalchand Jain, 1990 1 SCC 550, the
Hon'ble Apex Court had held as under :-
908 INDIAN LAW REPORTS ALLAHABAD SERIES
"It is necessary at tile outset to state what the approach of the Court should be
while evaluating the prosecution evidence, particularly the evidence of the prosecutrix, in sexoffences. Is it essential that the evidence of the prosecutrix should be corroborated in material
particulars before the Court basis a conviction on her testimony? Does the rule of prudence
demand that in all cases save the rarest of rare the Court should look for corroboration before
acting on the evidence of the prosecutrix? Let us see if the Evidence Act provides the clue. Under
the said statute 'Evidence' means and includes all statements which the Court permits or requires
to be made before it by witnesses, in relation to the matters of fact under inquiry. Under Section 59
all facts, except the contents of documents, may be proved by oral evidence. Section 118 then tells
us who may give oral evidence. According to that section all per- sons are competent to testify
unless the Court considers that they are prevented from understanding the questions put to them, or
from giving rational answers to those questions, by tender years, extreme old age, disease, whether
of body or mind, or any other cause of the same kind. Even in the case of an accomplice Section
133 provides that he shall be a competent witness against an accused person; and a conviction is
not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
However, illustration (b) to Section. 114, which lays down a rule of practice, says that the Court
'may' presume that an accomplice is unworthy of credit, unless he is corroborated in material
particulars. Thus under Section 133, which lays down a rule of law, an accomplice is a competent
witness and a conviction based solely on his uncorroborated evidence is not illegal although in
view of Section 114, illustration (b)."

18. No doubt to insist on corroboration except in the rarest of rare cases is to equate a
woman who is a victim of the lust of another with an accomplice to a crime and thereby insult
womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be
believed unless it is corroborated in material particulars as in the case of an accomplice to a crime.
Ours is a conservative society where it concerns sexual behaviour. Ours is not a permissive society
as in some of the western and European countries. Our standard of decency and morality in public
life is not the same as in those countries. It is, however, unfortunate that respect for womanhood in
our country is on the decline and cases of molestation and rape are steadily growing. An Indian
woman is now required to suffer indignities in different forms, from lewd remarks to eve-teasing,
from molestation to rape. Decency and morality in public life can be promoted and protected only
if we deal strictly with those who violate the societal norms. The standard of proof to be expected
by the court in such cases must take into account the fact that such crime are generally committed
on the sly and very rarely direct evidence of a person other than the prosecutrix is available.

19. In State of Punjab vs. Gurmit Singh, 1996 (2) SCC page 384, the following
observation were made by the Hon'ble Apex Court:-

"The courts must, while evaluating evidence, remain alive to the fact that in a case
of rape, no self-respecting woman would come forward in a court just to make a humiliating
statement against her honour such as is involved in the commission of rape on her. In cases
involving sexual molestation, supposed considerations which have no material effect on the
veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should
5 All. Kishor Vs State Of U.P.

909
not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an
otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to
conceal outrage of sexual aggression are factors which the Courts should not over-look. The
testimony of the victim in such cases is vital and unless there are compelling reasons which
necessitate looking for corroboration of her statement, the courts should find no difficulty to act on
the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires
confidence and is found to be reliable. Seeking corroboration of her statement before relying upon
the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a
girl of a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or
suspicion? The Court while appreciating the evidence of a prosecutrix may look for some
assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested
in the outcome of the charge levelled by her, but there is no requirement of law to insist upon
corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual
assault stands almost at par with the evidence of an injured witness and to an extent is even more
reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to
be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the
real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of
corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial
credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony
of the prosecutrix is not a requirement of law but a guidance of prudence under given
circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not
an accomplice to the crime but is a victim of another persons's lust and it is improper and
undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an
accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic
diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced
through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil
formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of
sex crime strikes the judicial mind as probable."

20. But on the same hand where the evidence of the prosecutrix is found suffering from
serious infirmities and inconsistencies as other material, prosecutrix making deleberate
improvements on material point with a view to rule out consent of her part and there being no
injury on her person even though her version may be otherwise, no reliance can be placed upon her
evidence. As has been held in Suresh N. Bhusare vs. State of Maharashtra, (1999) 1 SCC page
220.

21. In the same context, The Hon'ble Apex Court in Jai Krishna Mandal vs. State of
Jharkhand, (2010) 14 SCC page 354 has observed as follows:-

"The only evidence of rape was the statement of the prosecutrix herself and when
this evidence was read in its totality, the story projected by the prosecutrix was so improbable that
it could not be believed."
910 INDIAN LAW REPORTS ALLAHABAD SERIES
22. The courts while trying an accused on the charge of rape, must deal with the case with
utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor
contradictions or insignificant discrepancies in the evidence of witnesses which are not of a
substantial character. However, even 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.
It is no part of the duty of the defence to explain as to how and why in a rape case the victim and
other witness have falsely implicated the accused. Prosecution case has to stand on its own legs and
cannot take support from the weakness of the case of defence. However great the suspicion against
the accused and however strong the moral belief and conviction of the court, unless the offence of
the accused is established beyond reasonable doubt on the basis of legal evidence and material on
the record, he cannot be convicted for an offence.

23. There is an initial presumption of innocence of the accused and the prosecution has to
bring home the offence against the accused by relying evidence. The accused is entitled to the
benefit of every reasonable doubt vide, AIR 1979 Supreme Court page 186, (Tukaram and
another vs. State of Maharashtra) and AIR 2003 Supreme Court page 1639, (Udai vs. State of
Karnataka).

24. The statement of the victim was recorded by the trial court which does not inspire
confidence because the victim PW-2 has stated that the accused took her to her sister's house. There
her sister and her brother-in-law and his brother locked her in a room and she was raped by the
brother-in-law of her sister. This is a bit not a palatable case that why a sister would get her own
real sister being raped in her house for months together. Further, as per the prosecution version, the
victim was detained for many months by the accused whenever, her father and relatives went to
meet her they were not permitted to meet her. PW-1 Babu has stated that he went 4 to 5 times to
meet the victim but he was not permitted to do so. On 10.05.2011, again he went to meet her
daughter with Pappu Chamar, his wife Munni, Gokul and mother of the victim but Kiran and
accused appellant and other said that the victim has eloped away. They heard the weeping sounds
of the victim at which they entered the house and saw that the victim was locked in a room. A very
strange averment brought fourth by this witness is that due to shame the victim did not tell them
anything. When they went home, the victim narrated the whole occurrence. He also stated that the
victim told him that she was also threatened to be set on fire if she resisted, which is wanting in the
first information report, which has been written after due consultation with an Advocate. Further
the victim PW-2 has stated that she was locked in the room by the appellant, Kiran, her real sister
and Nripati her real brother-in-law. Whenever, her parents used to come to take her, they used to
lock her inside the room and did not termed her to meet her parents. She has stated that they told
her parents that she had gone to her relative's house. This is in contradiction to the statement of
PW-1. According to whom, the accused persons said that the victim had eloped. she has further
stated that when she was taken out of the room by her parents and other people, Kishor, Kiran,
Nripati and Ramawati assaulted her parents, the victim and her family members who had come
along. She has admitted that she stayed at the house of her sister for three months. there is no latrin
in the house. She used to go out of the house to attend the call of nature but she did not meet
anybody there. Why she did not raise alarm for three months is a million dollar question which
5 All. Kishor Vs State Of U.P.

911
remains unanswered through out the trial. She has further stated that Kishor used to make signs and
gestures to call her in the room, this was stated by her to the I.O. If at all Kishor used to call her by
gestures and signs in her room then obviously it would be a case of consent, inasmuch as, the age
of the victim on the date of occurrence was above 18 years, whereas the age of consent on the date
of occurrence was 16 years.

25. PW-5 is Munni Devi, the mother of the victim who has stated that when the accused
took the victim to his house, 15 days after that her father went to bring her back but the accused
said that they would later on send the victim. This is the third story coming forth from the side of
the prosecution. As per this witness, again after 15 days, her husband went to bring the victim when
her weeping sound was heard and she was recovered, thus, according to the version of this witness,
the victim was detained in the house of the accused only for one month. The statement of this
witness shatters the whole prosecution case.

26. Counsel for the appellant has further submitted that there was some money dispute
between the parties due to which the appellant had been falsely implicated. This finds support from
the version of the prosecution witnesses, inasmuch as, Babu PW-1 has admitted that at Kotra Police
Station, he was forced to sign some papers by the police. Even the victim has stated that when the
victim and her family members went to the police station Nripati, Kiran and Kishor threatened
them and got the compromise deed written, which was got signed by the victim, her father and the
thumb impression of her mother were forcible obtained on that paper. Even the mother of the
victim has stated about this paper which is Exhibit Ka-2 on record. This paper was got proved by
the prosecution itself who placed reliance on this document. This document says that Nripati had
moved an application on behalf of his wife Kiran against his father-in-law and brother-in-law
against which Babu had moved an application in the police station but the parties compromised.
They did not want any action to be taken in the matter and Nripati Singh, accused also
compromised by agreeing to pay Rs. 25,000/- in the marriage of the victim which again goes to
show that a handsome amount was desired to be extracted from Nripati, accused the sonin-law of
the informant.

27. The medical evidence does not support the prosecution version. The statement of all the
witnesses are unreliable, improbable and contradictory to each other. The first information report
was got scribed with the assistance of an Advocate. Even in the statement of the victim recorded
under Section 164 Cr.P.C., she has stated that after some days since she was brought from her
house, her parents came to the house of the accused and got her set free. This statement is against
the statement of the victim recorded in court according to which she stayed in the house of the
accused for about three months. Thus, the prosecutrix has been changing her version again and
again which makes her testimony unreliable and unworthy of credence.

28.