# Mahendra v. State of U.P

- **Citation:** (2019) 2 ILRA 478
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-02
- **Case number:** Jail Appeal No. 1621 of 2014
- **Bench:** Sudhir Agarwal, `Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-v-state-of-u-p-44787
- **Pages:** 18

## Headnote

A. Indian Evidence Act, 1872 - Section
118 - Neither any number of witness
required to prove a fact nor evidence of a
witness can be rejected only on the
ground of his relationship with the
victim. The whole prosecution case can
be proved by a single witness if evidence
is natural and trustworthy. (Para 30)
B.
Under
Criminal
jurisprudence,
particularly in rape cases where offence is
committed in a secret place, by a man with
a woman who is normally physically
weaker than the offender, possibility and
availability of eye-witness is rare. (Para 33)
Jail Appeal dismissed (E-2)
List of Cases Cited: -

## Text

_Characters 0–39,809 of 57,932. This is a partial read: ask again with offset=39809 for what follows._

478 INDIAN LAW REPORTS ALLAHABAD SERIES
having regard to the totality of facts and
circumstances of case, nature of offence
and the manner in which it was executed
or committed, we find that punishment
awarded to accused-appellant by Trial
Court in impugned judgment and order is
not excessive and it appears fit and proper
and no question arises to interfere in the
matter on the point of punishment
imposed upon him.

60. Resultantly. Appeal lacks merit
and is hereby dismissed.

61. Lower Court record along with a
copy of this judgment be sent back
immediately to District Court and Jail
concerned for compliance and apprising
the accused-appellant.

62. Before parting, we provide that
Smt. Archana Singh, Advocate, who has
assisted as Amicus Curiae, appearing for
appellant in present Jail Appeal, shall be
paid counsel's fee as Rs. 15,000/- for his
valuable assistance. State Government is
directed to ensure payment of aforesaid
fee
through
Additional
Legal
Remembrancer, posted in the office of
Advocate General at Allahabad, without
any delay and, in any case, within one
month from the date of receipt of copy of
this judgment.
----------

(2019)10ILR A 478

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. 1621 of 2014

Mahendra ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Mahendra Prasad Mishra

Counsel for the Opposite Party:
Sri M.C. Joshi (A.G.A.)

A. Indian Evidence Act, 1872 - Section
118 - Neither any number of witness
required to prove a fact nor evidence of a
witness can be rejected only on the
ground of his relationship with the
victim. The whole prosecution case can
be proved by a single witness if evidence
is natural and trustworthy. (Para 30)
B.
Under
Criminal
jurisprudence,
particularly in rape cases where offence is
committed in a secret place, by a man with
a woman who is normally physically
weaker than the offender, possibility and
availability of eye-witness is rare. (Para 33)
Jail Appeal dismissed (E-2)
List of Cases Cited: -
1. Masalti & ors. Vs St. of U.P. AIR 1965 SC 202
2. Mohabbat Vs St. of M.P. (2009) 13 SCC 630
3. Bharwada Bhogin Bhai Hirji Bhai Vs St. of
Guj. AIR 1983 SC 753
4. Vahid Khan Vs St. of M.P. (2010) 2 SCC 9
5. Independent Thought Vs UOI & ors. (2017)
10 SCC 800
6. St. of M.P. Vs Saleem @ Chamaru AIR 2005 SC 3996
(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
Mahendra
through
2 All. Mahendra Vs State of U.P.
479
Superintendent of Jail, Firozabad against
the judgment and order dated 21.2.2014
passed in Sessions Trial No. 483 of 2013,
convicted under Section 5 (m), 5 (i) read
with 6 of Protection of Children from
Sexual Offence, 2012 (hereinafter referred
as ''POCSO Act, 2012') whereby he has
been
sentenced
to
undergo
life
imprisonment along with a fine of Rs.
10,000/-for offence under Section 5(m)
read with Section 6 and further has been
sentenced for similar sentence i.e. life
imprisonment and fine of Rs. 10,000/- for
offence under Section 5(i) read with
Section 6 of POCSO Act, 2012. In the
event of default of payment of fine, he has
been directed to further undergo one year
additional imprisonment on each count.
All the sentences were directed to run
concurrently.

2. Prosecution case in short is that on
20.8.2013 at 7:35 p.m., P.W.1, Informant
Nirosh Chandra, went along with his grand
daughter victim (name of victim is not being
disclosed and she is being addressed as a
victim) aged about 9 years at Police Station
(P.S.) Kahairgarh, District Firozabad and
submitted a written report (Ex.Ka.1), stating
therein that on the said day victim had gone to
the fields for grazing she-goats. In the evening
at 6:00 p.m. appellant Mahendra son of
Banvari Jatav, dragged her away in Bajra
(maiz crops) field of Pappu, committed rape
upon her, left victim in injured state and fled
away thereafter. Information of the incident
was given to him by one Ram Sanehi resident
of his village. Thereafter Informant, his son
Ram Avtar and other villagers of his village
rushed to the place of occurrence and found
victim groaning due to pain.

3. On the basis of written report
(Ex.Ka.1), P.W.5 Head Moharrir Dharam
Pal Singh lodged report on 20.8.2013 at
7:35 p.m. at Case Crime No. 114 of 2013,
under Sections 376 I.P.C., 3A and 4 of
POCSO Act, 2012 and also prepared
chick report (Ex.Ka.6). He made relevant
corresponding entry in General Diary at
Report No. 42, a copy whereof is Ex.
Ka.7 on record. After registration of the
case, investigation was undertaken by
P.W.7, Station Officer, Manoj Kumar,
who recorded statement of Informant,
P.W.1 and scribe of the written report,
Mukesh Kumar. Victim was sent for
medical examination and treatment to
District Hospital as she was suffering
from severe pain and agony. Thereafter he
proceeded to spot, prepared site plan
(Ex.Ka.10) of the place of occurrence on
pointing
out
of
Informant.
During
investigation,
he
arrested
accusedappellant Mahendra; copied statement of
victim
recorded
under
Section
164
Cr.P.C. in case diary and sealed clothes of
the victim which were later on sent for
forensic test.

4. The victim was examined by
P.W.3, Dr. Sadhna Rathore, on 20.8.2013
at 9:20 p.m. According to this witness,
victim was a young girl with 138 cm
height and 29 kg weight; breasts were not
developed; auxiliary and pubic hair were
not present, no mark of external injury on
the body was present. On further
examination, bleeding from vagina was
present; blood clots were also present in
vagina; second degree perineal tear at 5:0'
clock position about 1 inch in length and
1⁄2 inch in depth; and oedema was present
around tear. According to P.W.3, she had
prepared vaginal smear slide and sent to
pathology for examination of history and
presence (H/P) of spermatozoa. The
victim was referred to S.N. Medical
College, Agra for expert management and
detailed medico legal examination. She
480 INDIAN LAW REPORTS ALLAHABAD SERIES
was advised for X-ray. According to
P.W.3, injury was caused to victim by
hard and blunt object and possibility of
sexual assault could not be ruled out.

5. As per P.W.8, Dr. Shashikant
Gupta, Radiologist who had conducted xray of victim for determination of her age,
the victim was aged about 9 years at the
time of occurrence. He had prepared Xray report (Ex.Ka.13) which was duly
counter signed by Chief Medical Officer,
Firozabad.

6.

On
27.9.2013,
during
investigation victim was produced before
Additional
Civil
Judge
(Judicial
Magistrate),
II
Firozabad
who
had
recorded her statement under Section 164
Cr.P.C. to the following effect:-

"Today on 27.9.2013, victim has
been produced by the Investigating officer
Manoj Kumar for statement under Section
164 Cr.P.C. Identification and signatures
of victim were certified.

Today since victim, daughter of
Ram Awtar aged 8 years, class III, School
K.P.Singh, School Khairgarh, resident of
Khairgarh, District Firozabad, is minor,
hence she was asked questions about her
education and subject, brothers and
sisters to which she replied that Hindi,
English, Science and Maths subject were
taught in school. Regarding brothers and
sisters she stated that she has one brother
and two sisters. Hence the victim is
capable of tendering statement and
possesses common parlance.

Victim stated that:

When my school gets closed, I go
to graze goats. That day too, I had gone to
graze she-goats and was plucking grass and
feeding them. From behind Mahendra Baba
came and asked her to jump in Bajra field
but I did not go there, whereupon Mahendra
Baba shut my mouth and dragged me by his
hands in the field of Bajra. Thereafter he
undressed my undergarment and committed
bad act with me. He had shut my mouth and
had also warned if she shouted he would
strangulate her.

I had become unconscious.
When it rained, I came to my senses and
came out of the field gradually. On the
field Alka Bua met me, I told her entire
episode whereupon she started crying and
then "Hat waley Baba" came over there
and Alka Bua telephoned at my home and
Praveen uncle came on motorcycle.
Praveen Uncle directly took me to police
station. Subsequently, my parents get my
treatment done."

7. After conclusion of investigation,
P.W.7 S.O. Manoj Kumar submitted a
charge-sheet (Ex.Ka.11) against appellant
under Section 376 I.P.C. and 3(a) / 4 of
POCSO Act, 2012.

8. Cognizance of the offence was taken
by Additonal District and Session Judge, II
Firozabad on 21.9.2013. Copies of relevant
prosecution papers were supplied to appellant
by Trial Court. It appears that case was
transferred and charges were framed by
Additional District and Session Judge, Court
No. 3, Firozabad on 10.10.2013 which read as
under:-

eS Jherh T;ksRluk 'kekZ] vij l=
U;k;k/kh'k] dksVZ la[;k&3] fQjkstkckn vki
egsUnz ij fuEufyf[kr vkjksi yxkrh gwWA

izFke& ;g fd fnukad 20&08&2013]
le; &6 ih0,e0] LFkku&[ksr cktkjk iIiw] ogn
2 All. Mahendra Vs State of U.P.
481
xzke [kSjx<+] ftyk fQjkstkckn esa vkius ihfM+rk
mez&09 o"kZ iq=h jkekSrkj ds lkFk cykRlax
dkfjr fd;kA bl izdkj vkius ,slk vijk/k
dkfjr fd;k gS tks Hkkjrh; n.M lafgrk dh
/kkjk 376 1⁄421⁄2 1⁄4>1⁄2] ;Fkk la'kksf/kr n.M fof/k
1⁄4la'kks/ku1⁄2 vf/kfu;e&2013 ds rgr n.Muh; gS
vkSj bl U;k;ky; ds izlaKku esa gSA

f}rh;& ;g fd mijksDr fnukad]
le; ,oa LFkku ij vkius 1⁄4ihfMrk1⁄2 mez&09 o"kZ
ds lkFk xq:rj izos'ku ySafxd geyk fd;k
ftlls dqekjh ihfM+rk dh ;ksfu esa pksVs vk;h
tSlk fd /kkjk&5 1⁄4>1⁄2 ,oa 5 1⁄4M+1⁄2 ySafxd vijk/kks
ls ckydks dk laj{k.k vf/kfu;e esa ifjHkkf"kr gS
rFkk /kkjk&6] ySafxd vijk/kks ls ckydksa dk
laj{k.k fu;e&2012] ds rgr n.Muh; vijk/k gS
vkSj bl U;k;ky; ds izlaKku esa gSA

,rn~ }kjk vki dks funsZf'kr fd;k
tkrk gS fd mDr vkjksiks ds fy, vkidk
fopkj.k bl U;k;ky; }kjk fd;k tk;saA

I, Jyotsana Sharma, Additional
Session Judge, Court No. 3, Firozabad
hereby charge you Mahendra as follows:

"Firstly That you, on 20.8.2013
at 6:00 p.m. in the filed of Bajra of Pappu
within the limits of Police Station
Khairgarh, District Firozabad committed
rape on victim, daughter of Ram Awtar
aged
about
9
years.
You
thereby
committed an offence which is punishable
under Section 376(2) (i) as amended by
Criminal Amendment Act, 2013 and
within the cognizance of this Court.

Secondly, that on the aforesaid
date, time and place you committed
penetrative sexual assault on the victim
aged about 09 years causing injuries to
her vagina as defined under Section 5 (m)
and 5 (i) of POCSO Act, 2012 and is
punishable under Section 6 of Protection
Of Children From Sexual Offences Act,
2012 and within the cognizance of this
Court.

You are hereby directed to be
tried for the aforesaid charges. (English
translation by Court).

9. Charges were read over and
explained
to
accused-appellant
who
pleaded not guilty and claimed to be tried.

10.

In
order
to
substantiate
prosecution case, as many as eight
witnesses were examined from the side of
prosecution, out of whom Informant,
P.W.1 Nirosh Chandra, and victim P.W.2
victim are witnesses of fact. Rest are
formal witnesses. P.W.3, Dr. Sadhna
Rathore, had initially examined victim
and has proved photocopy of injury report
(Ex.Ka.2) and original injury report
Ex.Ka.9.
She
has
also
proved
supplementary
report
(Ex.Ka.3)
and
reference letter (Ex.Ka.4) for pathology.

11. P.W.4, Dr. Richa Singh, had
undertaken treatment of victim at S.N.
Hospital, Agra and proved discharge slip
(EX.Ka.5).
P.W.5,
Head
Constable
Dharampal had registered F.I.R. and
proved chick report (Ex.Ka.6) as well as
copy of General Diary entry (Ex.Ka.7).
P.W.6, Constable Clerk Brijesh Kumar
has proved letter of request (Ex.Ka.8)
addressed
to
Incharge
PHC/CHC,
Khairgarh for medical examination of
injured victim. P.W.7, S.O. Manoj Kumar
had conducted investigation of the case
and proved charge-sheet (Ex.Ka.11) as
well as site plan and other necessary
documents. P.W.8, Dr. Shashikant Gupta,
Radiologist has proved age certificate of
the victim countersigned by C.M.O. on
the basis of X-ray report submitted by
him.
482 INDIAN LAW REPORTS ALLAHABAD SERIES

12. After conclusion of evidence,
accused-appellant was examined under
Section
313
Cr.P.C.
He
denied
prosecution evidence and stated to be
falsely implicated on account of enmity
with the villagers. He did not adduce any
evidence in defence.

13. After hearing counsel for parties
and on appreciation of evidence available
on record, learned Trial Court convicted
and
sentenced
accused-appellant
as
mentioned in para 1 of this judgment.

14. Feeling dissatisfied, accusedappellant has approached this Court
through Superintendent of Jail, Firozabad
in the instant appeal.

15. Heard Sri Mahendra Prasad
Mishra, learned counsel for appellant and
Sri M.C. Joshi, learned A.G.A. for State.

16. Learned counsel for appellant has
submitted that appellant is innocent and has
been falsely implicated. No eye-witness has
been produced by prosecution; statement of
P.W.1, Nirosh Chand, is self contradictory
and cannot be relied as he is interested witness
and no other witness was examined by the
prosecution; no external injury on the body of
victim was found, no spermatozoa was found
in medical examination, thus ocular evidence
is not corroborated by medical evidence; place
of occurrence is doubtful as the prosecution
has failed to prove whether offence was
committed in the field of maize crops or on
road; thus prosecution has failed to proved its
case beyond reasonable doubt and accusedappellant is liable to be acquitted.

17. Per-contra learned A.G.A. has
submitted that prosecution has succeeded
to prove its case and ocular evidence is
fully supported by medical evidence; the
evidence of victim is wholly reliable,
trustworthy and requires no further
corroboration; accused has committed a
heinous statutory offence and is not
entitled any mercy; hence, appeal is liable
to be dismissed.

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

19. In this appeal it has to be
determined, "whether the prosecution has
succeeded to prove the charge levelled
against the accused-appellant successfully
and beyond reasonable doubt."

20.

P.W.1
Nirosh
Chand,
grandfather of the victim, has stated that
on 20.8.2013 at 6:00 p.m. his grand
daughter, aged about 9 years, had gone to
graze her goats in field. Accusedappellant Mahendra Singh (present before
Trial Court) had dragged her in a maize
crop field of Pappu and raped her. He fled
away leaving her in injured condition. He
has further stated that the said incident
was informed to him by one Ram Sanehi
and upon information he, his son Ram
Awtar and so many people rushed
towards the place of occurrence and saw
that the victim was crying with pain.
Thereafter they took her to police station,
got First Information Report (Ex.Ka.1)
written by one Mukesh Kumar and filed
the same. He has further stated that the
victim was sent by police to hospital for
treatment. As she was badly injured,
therefore, she was referred therefrom to
Firozabad, District Hospital and thereafter
she was further referred to Agra for
treatment.

21. P.W.2 is a victim aged about 9
years. Since she was of tender age. Trial
2 All. Mahendra Vs State of U.P.
483
Court, before her examination, asked
some preliminary questions in order to
testify her competency, whether she was
able to give rational answer to the
questions,
put
to
her
during
her
examination and after satisfaction that she
was competent for deposition, Trial Court
permitted her to give her evidence on
oath. She stated on oath that incident
happened in that year prior to Sanuna
(Raksha Bandhan) on the day when a
sister used to tie band on the wrist of her
brother. It was the evening and not a dark.
She had gone to graze her goats in the
field situated in her village har (outskirt of
village)
where
accused
appellant
Mahendra met her and said her to jump
(come) in the field of maize crops but she
did not jump. Thereafter he shut her
mouth, caught her hand and dragged her
in the filed of maize crops which was
Pappu's field. She has further stated that
the
appellant
had
got
down
her
undergarment and laid her in field and
said that until he would thrust her whole
penis (lund), he would not leave her.
Thereafter, he thrust her penis (munia)
into her vagina whereupon she became
unconscious. She further stated that she
had got severe injuries, profused bleeding
and became totally unconscious. After
sometime when she became conscious,
she started to weep, thereafter people
arrived there including her Alka Bua
(aunty). She was medically examined and
referred
to
Firozabad
Hospital
and
thereafter had also been admitted in Agra
for treatment. Police got her statement
recorded in Court. Accused-appellant
Mahendra had threatened her not to
disclose the incident to anyone otherwise
he would kill her.

22. P.W.3, Dr. Sadhna Rathore, has
stated that on 20.8.2013 she was on duty as
Emergency Medical Officer (E.M.O.) at
District Women Hospital, Firozabad and
examined victim who was brought before her
by Constable 619 Ram Bihari at 9:20 p.m.
(the injuries and examination report has been
mentioned in the preceding paras of this
judgment). She said that during examination
she had prepared Medico Legal Examination
Report (Ex.Ka.9); vaginal smear were sent
for pathological examination to detect the
presence of spermatozoa and its reference
letter (Ex.Ka.4) was prepared by her, but no
sperm was detected; thereafter she had
prepared
supplementary
Medico
Legal
Report (Ex.Ka.3); in her opinion, injury
caused to the victim was of hard and blunt
object and possibility of sexual assault
cannot be ruled out.

23. P.W.4, Dr. Richa Singh has stated
that on 21.8.2013, she was posted as
Professor in S.N. Medical College, Agra and
had given treatment to the victim who was
referred by District Hospital, Firozabad. The
victim was admitted for treatment under his
supervision. Her perineum and vagina was
torn. She (P.W.4) had stitched it and
discharged after three days as her condition
was satisfactory. According to her, discharge
slip (Ex.Ka.5) of the victim was prepared by
one Dr. Harpreet Singh under his dictation.

24. P.W.5, Head Constable 128
Dharamapl posted at Police Station Khairgarh
has stated that he had prepared Chick F.I.R.
(Ex.Ka.6) No. 55 of 2013 on the basis of
written information given by informant and
registered as Case Crime No. 114 of 2013,
under Section 376 I.P.C. and 3⁄4 of POCSO
Act. He has further stated that the said
information was also entered in General Diary
Report No. 42 (Ex.Ka.7) at 19:35 p.m.

25. P.W.6, Constable Clerk 849
Brijesh Kumar has
stated that on
484 INDIAN LAW REPORTS ALLAHABAD SERIES
20.8.2013, he was posted as Const. Clerk
at P.S. Khairgarh, District Firozabad and
prepared Medico Legal Examination
reference letter (Ex.Ka.8) of victim who
was brought at P.S. in serious condition
and referred her with Constable Ram
Bihari at CSC Khairgarh for treatment;
condition of victim was serious as there
was profuse bleeding from her private
part (vagina).

26. P.W.7, S.I. Manoj Kumar posted
as Station Officer at P.S. Khairgarh,
District Firozabad has stated that he had
investigated Case Crime No. 114 of 2013,
under section 376 I.P.C. 3(ka), 4 of
POCSO Act. During investigation, he had
recorded statements of Head Moharrir
Dharampal Singh, P.W.1 Nirosh Chandra,
P.W.7 Mukesh Kumar, subscriber of
F.I.R. and also prepared site plan
(Ex.Ka.10)
of
occurrence;
arrested
accused-appellant Mahendra; recorded
statement
of
victim;
perused
supplementary report, X-ray report, age
determination report and also took the
panty of victim. He has further stated that
victim was produced before Magistrate
for recording her statement under Section
164 Cr.P.C. and he had copied that
statement
in
case
diary.
After
investigation, as sufficient evidence was
found against appellant, he had submitted
a charge-sheet against him under Section
376 I.P.C., 3(ka)/4 POCSO Act. He has
also identified undergarment (Material
Ex.2), produced before him during
examination.

27. P.W.8, Dr. Shashikant Gupta,
posted as Radiologist on 5.9.2013 at
District Hospital, Firozabad, has stated
that victim was referred to him for age
determination
and
her
X-ray
was
conducted under his supervision by X-ray
technician. According to him in X-ray of
her left elbow, epiphysis of lateral
epicondyle
was
not
appeared
but
epiphysis of medial epicondyle and head
of radius appeared but not fixed. He has
further stated that in X-ray of right wrist,
seven carpal bones and right lower head
of right radius and ulna were appeared.
According
to
him,
X-ray
report
(Ex.Ka.12) was prepared by him on the
basis of X-ray plate (Material Ex.3). He
has further stated that age certificate
(Ex.ka.13) of victim was prepared by the
Board and he had also signed it for
determination of age of victim counter
signed by Chief Medical Officer.

28. So far as the first submission of
learned counsel for appellant is that no
eye witness has been produced by
prosecution, statement of P.W.1 Nirosh
Chandra is self-contradictory and cannot
be relied as he is interested witness, is
concerned, this is a case of a brutal rape
with victim aged about 9 years and rape
has been committed by appellant aged
about 50 years at the time of occurrence.
Evidence on record shows that the victim
has called him as ''Mahendra Baba' which
denotes that she treats and respects
appellant as a grand-father or saint
(Baba). The way this loathsome wicked
act has been committed, has shocked the
conscious of the society. Evidently, no
eye-witness, other than the victim, has
been produced by prosecution. P.W.1,
Nirosh Chandra, is the grand-father of the
victim. He has clearly stated that when he
reached the place of occurrence, he saw
that victim was crying and screaming due
to severe pain caused by rape, committed
by
accused-appellant.
This
witness,
though is not a witness of the rape but had
reached the place of occurrence just after
the occurrence and is a witness of brutal
2 All. Mahendra Vs State of U.P.
485
condition of victim caused by appellant.
In his cross-examination he has stated that
his grand daughter (victim) had told him
regarding the occurrence. His evidence
cannot be disregarded in any condition.

29. P.W.2, victim aged about 9
years, victim of brutal rape committed by
appellant and left over by him in an open
field in a pitiable and serious condition is
an innocent child. She has no enmity with
appellant. She has narrated the occurrence
before Trial Court as well as in her
statement under Section 164 Cr.P.C.,
recorded by Judicial Magistrate. Both the
witnesses produced by prosecution have
been
cross-examined
by
counsel
appearing for appellant before Trial Court
but nothing has come out in their crossexamination to disbelieve prosecution
story.

30. It is settled principle of law as
provided in Section 118 of Evidence Act
that specific number of witnesses are not
required to prove any fact. Similarly
evidence of a witness cannot be rejected
only on the ground of relationship of the
victim. The whole prosecution case can
be proved by a single witness if his/her
evidence is natural and trustworthy.

31. It is very pertinent to quote at
this very stage the law laid down in
Masalti and others vs. State of U. P.,
AIR 1965 SC 202, wherein Court said as
under :

"...............But
it
would,
we
think, be unreasonable to contend that
evidence given by witnesses should be
discarded only on the ground that it is
evidence
of
partisan
or
interested
witnesses. Often enough, where factions
prevail in villages and murders are
committed as a result of enmity between
such factions, criminal Courts have to
deal with evidence of a partisan type. The
mechanical rejection of such evidence on
the sole ground that it is partisan would
invariably lead to failure of justice. No
hard and fast rule can be laid down as to
how
much
evidence
should
be
appreciated. Judicial approach has to be
cautious in dealing with such evidence;
but the plea that such evidence should be
rejected because it is partisan cannot be
accepted as correct.........."

32. Similarly, in Mohabbat vs.
State of M.P., (2009) 13 SCC 630, Court
held as under :

"...........Relationship is not a
factor to affect credibility of a witness. It
is more often than not a relation would
not conceal actual culprit and make
allegations against an innocent person.
Foundation has to be laid if plea of false
implication is made. In such cases, the
Court has to adopt a careful approach
and analyse evidence to find out whether
it is cogent and credible."

33. It is settled principle of
Criminal jurisprudence particularly in
rape cases that since this type of offence
is committed in a secret place by a man
with woman who is normally physically
stronger than the victim, possibility and
availability
of
eye-witness
is
rare.
Uncorroborated sole testimony of victim
may be acted upon, if her evidence is
reliable and to refuse the testimony of a
victim of sexual assault in absence of
corroboration would amount to adding an
insult to the victim.

34. In Bharwada Bhogin Bhai
Hirji Bhai vs. State of Gujarat AIR
486 INDIAN LAW REPORTS ALLAHABAD SERIES
1983 SC 753, Court while dealing with
the uncorroborated testimony of the
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 crossexamination. 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
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 notoriety or 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
2 All. Mahendra Vs State of U.P.
487
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. (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.

In view of these factors the
victims and their relatives are not too
keen to bring the culprit to books. And
when in the face of these factors the crime
is brought to light there is a built-in
assurance that the charge is genuine
rather than fabricated.. On principle the
evidence of a victim of sexual assault
stands on par with evidence of an injured
witness. Just as a witness who has
sustained an injury (which is not shown
or believed to be self inflicted) is the best
witness in the sense that he is least likely
to exculpate the real offender, the
evidence of a victim of a sex-offence is
entitled to great weight, absence of
corroboration notwithstanding. And while
corroboration in the form of eye witness
account of an independent witness may
often be forthcoming in physical assault
cases, such evidence cannot be expected
in sex offences, having regard to the very
nature of the offence. It would therefore
be adding insult to injury to insist on
corroboration drawing inspiration from
the rules devised by the courts in the
Western World. Obseisance to which has
perhaps become a habit presumably on
account of the colonial hangover. We are
therefore of the opinion that if the
evidence of the victim does not suffer from
any basic infirmity, and the probabilitiesfactors does not render it unworthy of
credence, as a general rule, there is no
reason to insist on corroboration except
from the medical evidence, where, having
regard to the circumstances of the case,
488 INDIAN LAW REPORTS ALLAHABAD SERIES
medical evidence can be expected to be
forthcoming, subject to the following
qualification: Corroboration may be
insisted upon when a woman having
attained
majority
is
found
in
a
compromising position and there is a
likelihood of her having levelled such an
accusation on account of the instinct of
self-preservation.
Or
when
the
'probabilities-factor' is found to be out of
tune."

35. In the present case, victim is
aged about only 9 years. Neither P.W.1
Nirosh Chandra nor victim had any
grudge or enmity with the appellant. Both
the victim and appellant are residents of
same village. There is no occasion to
presume as to why P.W.1 Nirosh Chandra
will implicate appellant in false case and
stake his honour and dignity in the
society. Generally such type of offence is
committed in remote sequestered and
secluded place, in well pre planned way,
so that none can witness the occurrence. It
is a case of brutal sexual assault caused by
appellant. It is not the case of prosecution
that before or at the time of rape any
person or witness except victim and
appellant was present at the place of
occurrence. Thus in this case, prosecution
cannot be blamed for non production of
any
independent
witness.
Hence
submission
of
learned
counsel
for
appellant, in this regard, has no substance.

36. So far as the argument of learned
counsel for appellant that no external
injuries on the body of victim or any
spermatozoa was found in medical
examination
and
thus
there
is
contradiction between ocular and medical
evidence, is concerned, record shows that
a serious injury was found in the vagina
of victim by P.W.3 Dr. Sadhna Rathore as
well as Dr. Richa Singh (P.W.4). Both
these
medico
legal
expert
have
concurrently deposed that deceased was
seriously injured and the injury was
caused by a blunt object which would
have been caused by sexual assault.
Although no sperm was detected in
pathological report, the same cannot
discredit testimony of victim (P.W.2),
P.W.3 Dr. Sadhna Rathore and P.W.4 Dr.
Richa
Singh.
The
presence
of
spermatozoa depends upon various facts
for
example
whether
accused
had
ejaculated at the time of occurrence or not
or the time gap between the pathological
examination and rape. In this case, victim
had become unconscious due to pain as
appellant penetrated his penis into her
vagina and profused bleeding was started
therefore it might be that appellant
looking into the serious condition of
victim would have not ejaculated.

37. In Vahid Khan vs. State of
M.P. (2010) 2SCC 9, Court reiterating
the consistent view in this regard has held
that even the slightest penetration is
sufficient to make out an offence of rape
and depth of penetration is immaterial.
Record further shows that both the
medical witnesses P.W.3 Dr. Sadhna
Rathore and P.W.4 Dr. Richa Singh have
fully
supported
and
corroborated
prosecution version as alleged by P.W.1
Nirosh Chand and P.W.2 victim. The
injury report and other medical document
provided by these witnesses also support
prosecution case. PW-2, victim in her
examination on oath, before Magistrate,
has categorically stated that she was
sexually assaulted by appellant and
became unconscious due to pain occurred
during rape committed by appellant.
These witnesses were cross-examined at
length at each and every aspect but
2 All. Mahendra Vs State of U.P.
489
nothing has come out in their crossexamination whereby any slightest doubt
can be assumed in their statement. Thus
ocular evidence is wholly corroborated by
medical evidence. In view of above
discussion, submission of learned counsel
for appellant regarding non presence of
spermatozoa, absence of injury on the
external part of body of victim or
contradiction between medical and ocular
evidence has no force in the facts and
circumstances of this case.

38. It is also pertinent to mention at
this juncture that victim was produced
before Judicial Magistrate just after she
was
discharged
from
hospital
after
medical examination and treatment. Her
statement was recorded under section 164
Cr.P.C., where she has narrated whole
occurrence (statement under section 164
Cr.P.C. has been transcribed at para no. 6
of this judgment). This witness in her
examination has also stated that she had
been produced before Magistrate and her
statement was recorded. This witness has
not been cross-examined by defence on
this point before Trial Court. Thus
statement under section 164 Cr.P.C
further corroborates prosecution story.

39. So far as the last submission of
the
learned
counsel
that
place
of
occurrence is doubtful and prosecution
has failed to prove, whether offence was
committed in the field of maize crops or
on the road is concerned, in F.I.R. it has
been clearly mentioned that appellant
dragged victim in the maize crops of
Pappu, committed rape with her and fled
away leaving her alone in that field.
P.W.1 Nirosh Chand and P.W. 2 victim
have also stated that appellant dragged
victim in the maize crops field of Pappu
when she had gone to graze her she-goats.

40. In this case, victim is the sole
eye-witness.
In
examination-in-chief,
victim
has
specifically
stated
that
appellant had called her in the field of
Maize crops and when she did not follow
his command, he shut her mouth and
dragged her in maize crops field which
was of Pappu. In her cross examination
she has unequivocally stated that at the
time of occurrence appellant Mahendra
met with her on road and from where
Pappu's field would be 8-10 steps away;
when she had proceeded from her house,
appellant Mahendra followed her and met
with her after one hour at the place of
occurrence; he had not dragged her on
road; the maize crops plants were situated
4-5 steps away from the place where she
was grazing her goats; there was crushed
stones lying on the place from where
appellant dragged her; and there were clay
pebbles (dheyla).

41. Victim, nowhere, in her
statement, has stated that occurrence was
committed by appellant on the road.
Similarly P.W.1 Nirosh Chand has also
not stated in his statement that occurrence
was committed by appellant on the road.
P.W.7 S.I. Manoj Kumar is Investigating
Officer who had prepared site plan
(Ex.Ka.10) of the occurrence. In Ex.ka.10
it has been specifically mentioned that
offence was committed by appellant with
victim in the field of maize crops, owned
by Pappu @ Amar Singh. The place of
occurrence is shown by ''A'. This witness
has stated in his examination that he had
visited the place of occurrence and
prepared site plan, Ex.ka.10. In his crossexamination he has specifically stated that
he visited the place on the date of
occurrence along with Informant, inmates
of victim and other police officials and
prepared site plan on the pointing out of
490 INDIAN LAW REPORTS ALLAHABAD SERIES
Informant. From perusal of statement of
these
witnesses
and
documentary
evidence, Ex.Ka.1 (F.I.R) and Ex.Ka.10
(site plan), it is clear that the place of
occurrence is the field of maize crops
belonging to one Pappu which has been
fully established without any doubt by
prosecution. Thus the submission raised
by learned counsel for appellant has no
substance.

42.