# Matru v. State of U.P

- **Citation:** Criminal Appeal No. 828 of 2019
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-28
- **Case number:** Criminal Appeal No. 828 of 2019
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/matru-v-state-of-u-p-46415
- **Pages:** 11

## Headnote

A. Criminal law-Indian Penal Code, 1860 -
Section 376-In the written report, F.I.R.
and the statement under Section 161
Cr.P.C.
there
is
allegation
of
only
attempting
to
commit
rape-
In
her
statement under Section 164 Cr.P.C., the
prosecutrix for the first time has levelled
the allegation of committing rape-The
statement of the prosecutrix at every
stage has improved, changed and has
contradicted its earlier statement and the
testimony of the prosecutrix suffers from
material inconsistency and as per the
settled law conviction cannot be based on
such testimony of the prosecutrix which is
not worthy of credence and therefore
some more corroborative material, may be
even short of corroboration is needed to
convict the accused-appellant-Though an
accused can be convicted under Section
376 I.P.C. on the basis of sole testimony
of the prosecutrix if such testimony is
worthy
of
credence
and
inspires
confidence and is of sterling quality then
corroboration from other evidence is not
required, but like in this case where
statement of the prosecutrix suffers from
material inconsistency and contradictions,
is infirm and does not inspire confidence
and there is no other material may be
even short of corroboration to support the
prosecution case.

Held- Indian Evidence Act- Section 3,
Section 155 - Where the testimony of the
prosecutrix is contradictory on material
points
and

suffers
from
inherent
inconsistencies
and
fails
to
get
corroborated from other evidence, then
such evidence is not worthy of credence.

Although conviction of an accused can be
recorded on the basis of the sole testimony of
the prosecutrix but the same should be credible
and no corroborative material is required to be
looked into, but where the testimony of the
prosecutrix is inconsistent and contradictory,
then the Court has to look for corroboration of
the same from other evidence.
(Para 24,25,26,30, 35)

Criminal Appeal allowed (E-3)

List of case cited:-

## Text

344 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2020)03-05ILR A344
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 28.02.2020

BEFORE
THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Appeal No. 828 of 2019

Matru ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Jail Appeal, Sumit Kumar Srivastava

Counsel for the Opposite Party:
Govt. Advocate

A. Criminal law-Indian Penal Code, 1860 -
Section 376-In the written report, F.I.R.
and the statement under Section 161
Cr.P.C.
there
is
allegation
of
only
attempting
to
commit
rape-
In
her
statement under Section 164 Cr.P.C., the
prosecutrix for the first time has levelled
the allegation of committing rape-The
statement of the prosecutrix at every
stage has improved, changed and has
contradicted its earlier statement and the
testimony of the prosecutrix suffers from
material inconsistency and as per the
settled law conviction cannot be based on
such testimony of the prosecutrix which is
not worthy of credence and therefore
some more corroborative material, may be
even short of corroboration is needed to
convict the accused-appellant-Though an
accused can be convicted under Section
376 I.P.C. on the basis of sole testimony
of the prosecutrix if such testimony is
worthy
of
credence
and
inspires
confidence and is of sterling quality then
corroboration from other evidence is not
required, but like in this case where
statement of the prosecutrix suffers from
material inconsistency and contradictions,
is infirm and does not inspire confidence
and there is no other material may be
even short of corroboration to support the
prosecution case.

Held- Indian Evidence Act- Section 3,
Section 155 - Where the testimony of the
prosecutrix is contradictory on material
points
and

suffers
from
inherent
inconsistencies
and
fails
to
get
corroborated from other evidence, then
such evidence is not worthy of credence.

Although conviction of an accused can be
recorded on the basis of the sole testimony of
the prosecutrix but the same should be credible
and no corroborative material is required to be
looked into, but where the testimony of the
prosecutrix is inconsistent and contradictory,
then the Court has to look for corroboration of
the same from other evidence.
(Para 24,25,26,30, 35)

Criminal Appeal allowed (E-3)

List of case cited:-

1. Mohd. Ali @ Guddu Vs. St. of U.P (2015) 7
SCC 272

2. Hem Raj Vs. St. of Har., (2014) 2 SCC 395

3. Dola Vs. St. of Odisha 2018 SCC Online SC
1224

4. Sham Singh Vs. St. of Har. 2018 SCC Online
SC 1042

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1.

Heard
Sri
Sumit
Kumar
Srivastawa, learned Amicus Curiea and Sri
Diwakar Singh, learned A.G.A. for the
State and perused the record.

2. Learned trial court vide judgment
and order dated 03.08.2018 passed in
Sessions Trial No. 21/2016 "State Vs.
Matru" convicted the appellant under
Section 376(1) I.P.C. for a period of seven
3-5 All. Matru Vs. State of U.P.
345
years rigorous imprisonment and a fine of
Rs. 20000/-. Learned trial court has further
convicted the appellant under Section 506
(2) I.P.C. for a period of three years
rigorous imprisonment and a fine of Rs.
5000/-. Both the sentences were to run
concurrently.

3. The prosecution case in brief as per
the written report is that on 08.09.2015
while she was returning from the place of
Ex- Pradhan regarding the ghoor dispute
with her Devar (brother-in-law) and as
soon as she arrived near the field of Raj
Kumar Mahtiyak then the appellant caught
hold of her from behind and dragged her
inside the sugarcane field and tried to
commit rape while threatening to kill and
when she cried he ran away by extending
threats towards his village.

4. A written report regarding the
incident was given by the prosecutrix on
09.09.2015 which is exhibited as Ka-1.
Consequently chik F.I.R. was registered on
09.09.2015 which is exhibited as Ka-7.
Thereafter the statement of the prosecutrix
as
well
as
statement
of
the other
prosecution witnesses were taken by the
investigating officer. The prosecutrix also
gave her statement under Section 161
Cr.P.C. before the court. On 12.09.2015,
the prosecutrix was medically examined
and her clothes were taken by the Doctor
Yamini Badal and sent it for forensic
examination for examining the D.N.A.

5. The investigating officer filed the
charge sheet. Thereafter cognizance was
taken and charges were framed against the
accused
persons
vide
order
dated
13.05.2016 under Section 376/506 I.P.C.
which was read over to the accused to
which he denied and pleaded to be tried.
Thereafter the statement of the accused
under Section 313 Cr.P.C. was taken
wherein his defence of total denial and
false implication due to enmity relating to
the election of Gram Pradhan.

6. The prosecution in support of its
case has examined the prosecutrix as PW-1.
PW-2 is Dr. Yamini Badal, who medically
examined the prosecutrix. PW-3 is women
constable Geeta Rajput, who took the
statement of the prosecutrix under Section
161 Cr.P.C. PW-4 is Constable Longshri,
who wrote the chik report. PW-5 is the
Investigating Officer Sri Jeevan Singh.

7. PW-1 while stating before the
Court has said that written report was
written by the Inspector at the police station
on which she put her thumb impression.
While in her examination-in-chief before
the court she has denied the version in the
written report as well as in the F.I.R. that
she was dragged inside the sugar cane field
and accused was trying to rape her and
once she cried he ran away. She stated that
she has told the Inspector that she was
dragged inside the sugarcane field and was
raped by the accused-applicant. She tried to
escape during the occurrence. She was
medically examined. She further stated that
appellant no. 2 is in collusion with his
Devar and took his side. She further stated
that when she returned from the place of
occurrence to her home, the Pradhan was
called upon by the villagers. She further
stated that she went to lodge the report
along with Gram Pradhan. She further
stated that she has not received any injury
at the time of occurrence. She has also
stated that she is not aware as in whose
field the incident had taken place. In her
chief she has stated that Guddu Pradhan has
called the ambulance and on the ambulance
she went to Bijwa Hospital for medical
examination, but no medical was conducted
346 INDIAN LAW REPORTS ALLAHABAD SERIES
on that date rather the same was conducted
on the next date. The prosecutrix has
denied the suggestion that since the
appellant happens to be the friend of her
brother-in-law, therefore, she is falsely
implicating him. She has further denied the
suggestion that no rape has been committed
on her.

8.
 PW-2
Yamini
Badal,
who
conducted the medical examination of the
prosecutrix has stated that no injury either
upon external or internal has been found on
the person of the prosecutrix. The hymen of
the prosecutrix was old and torn and has
filled up. She has further stated that no
blood was oozing from the person of the
prosecutrix and she has also stated that the
clothes which the prosecutrix was wearing
were taken by her and sent for D.N.A. Test
to the Forensic Laboratory, Mahanagar at
the time of medical examination i.e. on
12.09.2015. Then in the supplementary
report prepared on 16.09.2015 no live or
dead spermatozoa was found. Lastly it has
been stated that on the basis of medical
examination and pathology report, no
opinion regarding the rape can be given.

9. PW-3 is Sheela Rajput, women
constable, who recorded the statement of
the prosecutrix under Section 161 Cr.P.C.
and has proved Exhibit Ka-6. She recorded
the statement of the prosecutrix under
Section 161 Cr.P.C. and she sent the
prosecutrix to Nari Niketan after the
medical examination.

10. PW-4 who is scribe of the chik
report and has proved it. She has denied the
suggestion that on the saying of gram
pradhan, the F.I.R. has been lodged.

11. PW-5 is the investigating officer
who has prepared the site plan and has
proved it as Exhibit Ka-7. He has taken the
statements of the prosecution witnesses. He
has further stated that on 17.09.2015 he has
seized the clothes which were stained by
blood and semen and prepared the fard
which is Ex. Ka-3 which is in his writing
and signature. Later on, he has stated that
he tried to record the statement of the
prosecutrix under Section 164 Cr.P.C. On
04.10.2015 and on 10.10.2015 but the
prosecutrix refused to give the statement
under Section 164 Cr.P.C. and he further
stated that it appears to him that the
prosecutrix does not want to give statement
under Section 164 Cr.P.C., however, on
19.10.2015, the statement of prosecutrix
was recorded under Section 164 Cr.P.C.
and on the basis of the statement the
prosecutrix under Section 164 Cr.P.C., the
offence was converted under Section
376/506 I.P.C. and the offence under
Section 511 I.P.C. was dropped. He further
stated that on 10.11.2015, the statements of
the witness of fard namely Jagdish Gautam,
Mahila Arakshi Geeta Rajput and Sripal
were recorded under Section 161 Cr.P.C. as
witnesses of Fard. He again stated that the
clothes worn by the prosecutrix at the time
of occurrence were sealed and sent to the
forensic laboratory on 09.11.2015. He
further stated that the restatement of the
prosecutrix was recorded on 30.10.2015.

12. Learned counsel for the appellant
contends that at the time of occurrence the
prosecutrix is 40 to 45 years old widow
lady having one child. He further contends
that there is unexplained delay of one day
in lodging the F.I.R. In the written report as
well as in the F.I.R. and also in the
statement under Section 161 Cr.P.C., no
allegation of rape has been made by the
prosecutrix
upon
the
appellant.
The
allegation of rape has been levelled for the
first time in her statement under Section
3-5 All. Matru Vs. State of U.P.
347
164 Cr.P.C. He further submits that even in
the statement under Section 164 Cr.P.C.,
she has stated that she lost lot of blood
during the occurrence, however, while
testifying before the court as PW-1, she has
clearly stated that no blood was lost during
the occurrence, whereas in the statement
under Section 164 Cr.P.C. she has stated
that her entire clothes were dipped in blood
and that blood had oozed out due to the
offence committed by the appellant.

13. The next submission of learned
counsel for the appellant is that once PW-2
has taken the clothes of the prosecutrix
after the medical examination which were
containing human blood and semen and
sent it for forensic examination on
12.09.2015 after that there is no occasion
for the I.O. to recover and seize the clothes
of the prosecutrix which were worn by her
on the date of incident. The alleged seizure
memo of the investigating officer dated
17.09.2015 is false and planted and no
explanation
has
been
given by
the
prosecution as to what happened in the
forensic examination of the clothes which
were sent by the PW-2 on 12.09.2015. The
silence of the prosecution falsifies the
entire prosecution story. The independent
fard witness Sri Pal, in whose presence, the
clothes of the proseuctrix have been seized,
has not been produced before the Court and
therefore, the fard recovery cannot said to
be proved.

14. Learned counsel for the appellant
further contends that in the F.S.L. Report
only human blood said to have been found
which is not enough. In support he has
relied on the judgment of this Court in the
case of "Khalid and another Vs. State of
U.P." Criminal Appeal no. 2717/2011, para
no. 29 and 31. Para No. 29 and 31 is
reproduced herein as under:-

"29. Although in the forensic lab
report the Salwar bore the spot of sperm
and human semen, but that alone would not
be sufficient to record a finding of the
conviction against the accused.

31. No doubt, when the forensic
lab examines semen and blood on the
garments of the victim, the part of the cloth
is cut and examined, which contains spots
of blood, semen or spermatozoa. But at
least the cloth i.e. Salwar will remain in its
original shape. In this particular case a 10
to 12 inches cloth cannot be termed to be a
Salwar, hence this part of the prosecution
case too, is not reliable."

He further submits that in the
medical examination of the prosecutrix, no
injury on her internal or external part has
been found, whereas the statement of the
prosecutrix under Section 164 Cr.P.C.
depicts that the clothes of the prosecutrix
were dipped in the blood as she lost lot of
blood during the occurrence, however,
while testifying before the court she has
denied her earlier version and said that no
blood was lost due to the offence. He
further submits that enmity with the
accused
has
been
admitted
by
the
prosecutrix in her examination-in-chief,
statement under Section 161 Cr.P.C. and
under Section 164 Cr.P.C. The accused
persons have taken the defence of enmity
under Section 313 Cr.P.C. and stated that
they have been falsely implicated due to the
village enmity relating to the election of
Pradhan. It is next contended that the
ambulance driver has not been examined to
support the prosecution story as prosecutrix
went to the police station initially on the
ambulance along with Pradhan. He further
submits that Sub-Inspector/scribe of the
written report who has written it has not
been produced before the court therefore
the written report has not been proved. It is
lastly contended that the Village Pradhan
348 INDIAN LAW REPORTS ALLAHABAD SERIES
was present at every stage of the
proceedings as per the statement of the
PW-1, however, the investigating officer
has not produced him which casts a doubt
on the prosecution story. Lastly it is
contended that apart from the testimony of
the
prosecutrix
alone,
there
is
no
corroborative material to hold the appellant
guilty. He submits that the testimony of the
prosecutrix has changed at every stage. In
the written report, F.I.R. and statement
under Section 161 Cr.P.C. there is
allegation of attempting to commit rape,
whereas in the statement under Section 164
Cr.P.C., , for the first time, there is
allegation of committing rape. While
giving statement under Section 164 Cr.P.C.
she has stated that she was laying in pool of
blood and lost lot of blood during
occurrence, whereas while deposing before
the court she has stated that she has not lost
any blood during the occurrence.

15. It is further contended by the
learned counsel for the appellant that the
testimony of the prosecutrix is inconsistent
at every stage, does not inspire confidence
and as such the other corroborative material
is needed to sustain the conviction. He
further submits that learned trial court has
not given any finding on the fact that how
blood stained/semen stained clothes of the
prosecutrix could be seized twice, first by
the doctor on 12.09.2015 and second by the
investigating officer on 17.09.2015 and
what happened to the clothes seized by the
doctor which was sent to the forensic lab.
The prosecution is silent at this aspect and
therefore the benefit of doubt must go in
favour of the appellant as the prosecution
has failed to prove its case beyond
reasonable doubt.

16. Learned A.G.A. opposed the
appeal but could not dispute the fact that
the clothes of the prosecutrix which were
seized on 12.09.2015 and sent for forensic
lab. There is no forensic lab report neither
there is any examination, however he
submits that I.O. on 17.09.2015 has seized
the clothes of the prosecutrix and sent it for
forensic examination on which human
blood has been found. The statement of the
prosecutrix has supported the prosecution
version. The prosecutrix has denied the
suggestion regarding the enmity and false
implication of the accused-appellant. He
further submits that the defence taken by
the accused person in their statement under
Section 313 Cr.P.C., is vague and is of no
benefit to him.

17. Having heard the arguments of
learned counsel for the parties, this Court
carefully proceeds to examine the evidence
of prosecution witnesses. A written report
regarding the occurrence was lodged
09.09.2015 and the F.I.R. is of the same
day. In the written report, it has been
alleged by the prosecutrix that the appellant
has
tried/attempted
to
commit
rape,
however, since she raised alarm, then he
left the prosecutrix and ran towards village.
In the F.I.R. same story has narrated in the
written report has been reiterated by the
prosecutrix, however, in her statement
under Section 164 Cr.P.C. recorded on
19.10.2015
for
the
first
time.
The
prosecutrix has levelled the allegations of
committing rape on the appellant and has
further stated that her entire clothes were
dipped in blood and the police took those
clothes. Then she came home and narrated
the incident to one Ram Chandra and
thereafter the Pradhan Gudde called the
ambulance and took her to Bijwa but there
her medical was not conducted and till
19.10.2015 she has not been medically
examined. The report was lodged on the
next day at police station.
3-5 All. Matru Vs. State of U.P.
349

18. The record reveals that the
prosecutrix was medically examined on
12.09.2015 at 2:00 P.M. at District Hospital
Lakhimpur Kheri. No abnormality was
detected in internal genital examination.
The clothes of the prosecutrix were sealed
and sent for DNA examination by the
concerned doctor. No injury was found in
the external examination of the prosecutrix.
As per the pathology report no spermatozoa
was seen either dead or alive. The report of
the district hospital is exhibited as Ka-5. In
her statement under Section 161 Cr.P.C. the
prosecutrix has not levelled allegation of
rape on the appellant rather has alleged that
he attempted to rape her and on her raising
alarm he ran towards the village by
extending threat to her. While deposing
before the Court, PW-1 prosecutrix in her
examination-in-chief stated that one year
eight months before while she was
returning after talking to the Pradhan of
Bibipur, the appellant met her on the way
of Bibipur to Kamiapur, he followed the
prosecutrix, hence she ran and fell on the
khadanja (brick road) then the appellant
showed her knife and picked her in her lap
and took her into the sugarcane field and
there she was raped by the appellant and
due to this her clothes were stained with
blood. After coming home, she told the
incident to Ram Chandra who is son of her
elder sister and then Guddu Pradhan called
the ambulance from which she went to
Bijua
hospital
there
no
medical
examination took place and the next day
she went to police station and written report
was written by an unknown person. She
proved her statement under Section 164
Cr.P.C. after seeying it. In her cross she
stated that clothes which were taken by the
police are not produced in the Court. She
contradicted
her
statement
in
the
examination-in-chief and said in the crossexamination that the written report was
written by the inspector at police station.
She admitted the enmity with the appellant
Matru as he took side of her brother-in-law.
In the cross she further stated that at the
time of occurrence she did not receive any
injury.

19. PW-2 Doctor Yamini Badal in her
statement has stated that in her internal and
external examination no injury was found
on the person of the prosecutrix. Hymen
was old and torn and filled up and no
bleeding was found on the person of the
prosecutrix. She further stated that the
clothes of the prosecutrix were sent for
DNA examination to the forensic lab
Mahanagar, Lucknow. She further stated
that on the basis of the pathology report,
the supplementary medical report was
prepared by her in which no live or dead
spermatozoa was found and on the basis of
the medical examination and the pathology
report, she stated that no definite opinion
about rape could be given.

20. PW-3 is the woman constable
who took the statement of the prosecutrix
under Section 161 Cr.P.C. She stated that
after taking statement of the prosecutrix she
took the prosecutrix to the District Hospital
where she was medically examined on the
same day.

21. PW-4 is constable Longshri who
has written the chik first information report
and has proved it.

22. PW-5 is Jeevan Singh, the
investigating officer who has stated that on
17.09.2015, the clothes of the prosecutrix
which she was wearing at the time of
incident and which were stained with blood
and semen were sealed. He further stated
that the prosecutrix twice refused to give
statement under Section 164 Cr.P.C. and
350 INDIAN LAW REPORTS ALLAHABAD SERIES
because of that he felt that she is not
willing to give statement under Section 164
Cr.P.C. However, ultimately she gave
statement under Section 164 Cr.P.C. and on
that basis Section 376/506 were added and
Section 511 Cr.P.C. was dropped. In his
cross examination he again stated that the
clothes of the prosecutrix which she worn
at the time of incident were sealed on
19.11.2015 for forensic examination. He in
the cross examination, further stated that he
has taken restatement of the prosecutrix on
30.10.2015.

23. In the offence of rape, statement
of the prosecutrix is of utmost importance
and law in this regard is settled that on the
sole statement of the prosecutrix the
accused can be convicted.

24. In this case, in the written
report as well as in the F.I.R. the
allegation
of
committing
rape
is
absent rather attempt to commit rape
has been alleged by the prosecutrix. In
her
statement
under
Section
161
Cr.P.C. again the attempt to commit
rape has been alleged against the
accused-applicant. Second/restatement
of the prosecutrix taken on 30.10.2015
has not been exhibited. For the first
time while giving statement under
Section 164 Cr.P.C. i.e. after more
than one month and eight days, for the
first time the prosecutrix has levelled
allegation
of
rape
against
the
appellant and on that basis section
376/506 I.P.C. have been added and
Section 511 I.P.C. has been dropped
by the investigating officer. In her
statement before the Court as PW-1,
the prosecutrix stated that village
Pradhan called the ambulance and
from the ambulance she was taken to
hospital and in the hospital no medical
examination was conducted and on the
second day, the F.I.R. was lodged
through an unknown person. She
further
stated
that
blood/semen
stained clothes were taken by the
police, however, in the cross she has
stated that the clothes sealed by the
police have not been produced in the
Court. She has further admitted the
enmity with the appellant in her cross.

25. On the contrary, the medical
report which is exhibited as exhibit
Ka-4 shows that the prosecutrix was
medically examined on 12.09.2015
between 2 PM to 3 PM and clothes of
the prosecutrix were sealed and sent
for
D.N.A.
examination.
In
her
statement under Section 164 Cr.P.C.,
the prosecutrix stated that she lost lot
of
blood
during
the
occurrence,
however, it is while testiying before
the Court as PW-1, she contradicted
her earlier statement and stated that
no
blood
was
lost
during
the
occurrence. The testimony of the
prosecutrix has changed at various
stages. In the written report, F.I.R.
and the statement under Section 161
Cr.P.C. there is allegation of only
attempting to commit rape. In her
statement under Section 164 Cr.P.C.,
the prosecutrix for the first time has
levelled the allegation of committing
rape and stated that she was lying in
the pool of blood and lost lot of blood
during the occurrence. On the contrary
when deposing before the Court as
PW-1 she stated that she has not lost
any blood during the occurrence.
Thus,
the
above
contradictory
statement of the prosecutrix are not
worthy of credence and do not inspire
confidence particularly looking into
the facts that the prosecutrix has
3-5 All. Matru Vs. State of U.P.
351
admitted enmity with the accused, the
ambulance
driver
has
not
been
examined from whom the prosecutrix
says that he went to police station
initially, the village Pradhan who
arranged the ambulance and went with
the prosecutrix to the police station,
has also not been produced, further
casts a doubt on the statement of the
prosecutrix as well as the prosecution
case.

26. After going through the evidence
of the prosecutrix witness, it is evident that
the statement of the prosecutrix at every
stage has improved, changed and has
contradicted its earlier statement and the
testimony of the prosecutrix suffers from
material inconsistency and as per the
settled law conviction cannot be based on
such testimony of the prosecutrix which is
not worthy of credence and therefore some
more corroborative material, may be even
short of corroboration is needed to convict
the accused-appellant.

27. PW-2 doctor Yamini Badal has
stated that she had taken the clothes of the
prosecutrix
and
sent
it
for
D.N.A.
examination
to
the
forensic
lab,
Mahanagar,
Lucknow.
The
medical
examination report of the prosecutrix which
is on record shows that the prosecutrix was
medically
examined
on
12.09.2015
between 2 to 3 PM and her clothes were
sent for forensic examination and once the
bold stained and semen stained clothes of
the prosecutrix have been taken during the
medical examination and sent by the doctor
for forensic examination on 12.09.2015
then there was no occasion for the
investigating officer to take the clothes of
the prosecutrix on 17.09.2015 and there
could not be a second set of clothes for the
investigating officer to seize them and sent
them
for
forensic
lab.
The
entire
prosecution story is silent on this aspect as
to what happened to the clothes of the
prosecutrix which were sent by the doctor
on 12.09.2015 and this casts a doubt on the
prosecution case and the appellant is
entitled to be given the benefit of doubt.
The PW-2 doctor Yamini Badal has not
supported the prosecution story. She has
clearly stated that no injury was found on
the person of the prosecution either on the
internal or external part. Hymen of the
prosecutrix was old and torn and filled up
and she was not bleeding and therefore, no
opinion of rape has been given by her.

28. The investigating officer at one
place while deposing before the court has
stated that on 17.09.2015 he seize the
clothes of the prosecutrix which were
stained of blood and semen and prepared
the fard. Later on in the cross examination
he stated that the clothes worn by the
prosecutrix at the time of occurrence were
sealed and sent for forensic lab on
09.11.2015 which is in contradiction to his
earlier statement.

29. The independent fard witness
Sripal in whose presence the clothes of the
prosecutrix are said to be seized by the
investigating officer which has not been
produced before the Court. This fact
coupled with the contradictory statement of
the investigating officer wherein he has
said that the clothes worn by the
prosecutrix were sealed and sent for
forensic examination. The seizure memo
prepared by the investigating officer dated
17.09.2015 of the clothes of the prosecutrix
is doubtful. In view of the fact that once the
clothes of the prosecutrix containing human
blood and semen were already taken by
PW-2 on 12.09.2015, the Investigating
Officer could not seal it again on
352 INDIAN LAW REPORTS ALLAHABAD SERIES
17.09.2015. Coupled with the fact that
independent witness of fard Sripal in whose
presence the clothes are said to have been
seized has not been produced before the
Court creates a serious doubt on the fard
recovery and this Court has noticed that the
learned trial court while convicting the
appellant has not given any finding on this
aspect as to what happened to the clothes of
the prosecutrix which were seized by PW-2
and sent for forensic examination to
Mahanagar laboratory.

30. Since the statements of the
prosecutrix has changed at various stages
and do not inspire confidence, the other
corroborative material may be even short of
corroboration is needed. The statement of
PW-2 does not support the prosecution
case. The statement of PW-5 also does not
inspire confidence as once the clothes of
the prosecutrix were already seized and
sent for forensic examination by the PW-2
on 12.09.2015, the I.O. could not have
taken clothes of the prosecutrix again on
17.09.2015. Coupled with the fact that
independent witness of the alleged seizure
on 17.09.2015 namely Sripal has not been
produced before the court.

31. The Hon'ble Supreme Court in
Mohd. Ali @ Guddu vs. State of Uttar
Pradesh (2015) 7 SCC 272 has held as
under :-

"Be it noted, there can be no iota
of doubt that on the basis of the sole
testimony of the prosecutrix, if it is
unimpeachable and beyond reproach, a
conviction can be based. In the case at
hand, the learned Trial Judge as well as the
High Court have persuaded themselves
away
with
this
principle
without
appreciating
the
acceptability
and
reliability of the testimony of the witness. In
fact, it would not be appropriate to say that
whatever the analysis in the impugned
judgment, it would only indicate an
impropriety of approach. The prosecutrix
has deposed that she was taken from one
place to the other and remained at various
houses for almost two months. The only
explanation given by her is that she was
threatened by the accused persons. It is not
in her testiony that she was confined to one
place. In fact, it has been borne out from
the material on record that she had
travelled from place to place and she was
ravished a number of times. Under these
circumstances, the medical evidence gains
significance, for the examining doctor has
categorically deposed that there are no
injuries on the private parts. The delay in
FIR, the non-examination of the witnesses,
the testimony of the prosecutrix, the
associated circumstances and the medical
evidence, leave a mark of doubt to treat the
testimony of the prosecutrix as so natural
and truthful to inspire confidence. It can be
stated with certitude that the evidence of
the prosecutrix is not of such quality which
can be placed reliance upon."

32. In Hem Raj v. State of Haryana,
(2014) 2 SCC 395 it has been held that :-

"10. Faced with such a situation,
we were anxious to find out whether there
can be any clinching medical evidence
suggesting rape, but, unfortunately, the
prosecuton has failed to examine Dr.Anjali
Shah, who had examined the prosecutrix.
The MLR was produced in the Court by
P.W.6 J.B. Bhardwaj, Medical Record
Technician. This is a serious lapse on the
part of the prosecution. We are aware that
lapses on the part of the prosecution should
not lead to unmerited acquittals. This is,
however subject to the rider that in such a
situation the evidence on record must be
3-5 All. Matru Vs. State of U.P.
353
clinching so that the lapses of the
prosecution could be condoned. Such is not
the case here. The MLR does suggest that
the hymen of the prosecutrix was torn. It is
also true that the prosecutrix has brought
on record FSL report which shows that
human semen was detected on the salwar of
the prosecutrix and on the underwear of the
accused. However, it is difficult to infer
from this that the prosecutrix was raped by
the appellant. The prosecutrix herself has
vacillated on this aspect. It was pointed out
that no injuries were found on the
prosecutrix. We do not attach much
importance to this aspect because presence
of injures is not a must to prove
commission of rape. But the prosecutrix's
evidence is so infirm that it deserves to be
rejected. Her brother has come out with a
case that the appellant tried to rape the
prosecutrix. He did not say that the
appellant raped the prosecutrix. Taking an
overall view of the matter, we find it
difficult to sustain the prosecution case that
the prosecutrix was raped by the appellant.
This is a case where the appellant must be
given benefit of doubt. "

33. In Dola vs. State of Odisha 2018
SCC Online SC 1224 it has been held that
in para 31 which is reproduced as under :-

31. In our considered opinion, the
Trial Court as well as the High Court have
convicted
the
appellants
without
considering the aforementioned factors in
their proper perspective. The testimony of
the victim is full of inconsistencies and does
not find support from any other evidence
whatsoever. Moreover, the evidence of the
informant/victim is inconsistent and selfdestructive at different places. It is
noticeable that the medical record and the
Doctor's evidence do not specify whether
there were any signs of forcible sexual
intercourse. It seems that the First
Information Report was lodged with false
allegations to extract revenge from the
appellants, who had uncovered the theft of
forest produce by the informant and her
husband. The High Court has, in our
considered opinion, brushed aside the
various inconsistencies pointed out by us
only on the ground that the victim could not
have deposed falsely before the Court. The
High Court has proceeded on the basis of
assumptions, conjectures and surmises,
inasmuch as such assumptions are not
corroborated by any reliable evidence. The
medical evidence does not support the case
of the prosecution relating to the offence of
rape. Having regard to the totality of the
material on record and on facts and
circumstances of this case, it is not possible
for this Court to agree with the concurrent
conclusions reached by the courts below.
At best, it may be said that the accused
have committed the offence of hurt, for
which they have already undergone a
sufficient
duration
of
imprisonment,
inasmuch as they have been stated to have
undergone two years of imprisonment.
Accordingly, the appeal is allowed. The
judgments of the Trial Court as well as the
High Court are set aside. The appellants
are acquitted of the charges levelled
against them. They should be released
forthwith, if they are not required in any
other case."

34. In Sham Singh vs. State of
Haryana 2018 SCC Online SC 1042, it
has been held in paras 26 and 27:

"26.
The
evidence
of
the
victim/prosecutrix and the Aunt P.W.10 are
unreliable, untrustworthy inasmuch as they
are not credible witnesses. Their evidence
bristles with contradictions and is full of
improbabilities. We cannot resist ourselves
354 INDIAN LAW REPORTS ALLAHABAD SERIES
to place on record that the prosecution has
tried to rope in the appellant merely on
assumption, surmises and conjectures. The
story of the prosecution is built on the
materials placed on record, which seems to
be neither the truth, nor wholly the truth.
The findings of the court below, though
concurrent, do not desire the merit of
acceptance or approval in our hands with
regard to the glaring infirmities and
illegalities vitiating them, and the patent
errors apparent on the face of record
resulting in serious and grave miscarriage
of justice to the appellant.

27. We find that the trial court
and the High Court have convicted the
accused
merely
on
conjectures
and
surmises. The Courts have come to the
conclusion based on assumptions and not
on legally acceptable evidence, but such
assumptions
were
not
well
founded,
inasmuch as such assumptions are not
corroborated by any reliable evidence.
Medical evidence does not support the case
of the prosecution relating to offence of
rape."

35. In view of the aforesaid law laid
down by the Hon'ble Supreme Court
(supra), law can be reiterated that though
an accused can be convicted under Section
376 I.P.C. on the basis of sole testimony of
the prosecutrix if such testimony is worthy
of credence and inspires confidence and is
of sterling quality then corroboration from
other evidence is not required, but like in
this case where statement of the prosecutrix
suffers from material inconsistency and
contradictions, is infirm and does not
inspire confidence and there is no other
material
may
be
even
short
of
corroboration to support the prosecution
case, so also the fact that statement of PW2 (Dr. Yamini Badal) does not support the
prosecution case and the statement of PW-5
(investigating officer) also does not inspire
confidence as once the clothes of the
prosecutrix were already seized and sent
for forensic examination by PW-2 on
12.09.2015, the investigating officer (PW5) could not have again seized the clothes
of the prosecutrix on 17.09.2015 and no
explanation regarding this could be given
by the prosecution and coupled with the
fact that independent witness of the alleged
seizure on 17.09.2015 namely Sri Pal has
not been produced before the Court and no
finding on this aspect has been recorded by
the learned trial court, I am of the view that
looking to the totality of the evidence and
other material on record, I am unable to
agree with the conclusion arrived at the
trial court. Accordingly, the judgment dated
03.08.2018 passed by Additional Sessions
Judge, F.T.C., Lakhimpur Kheri, is set
aside. The appellant is acquitted of all the
charges levelled against him. The appellant
is directed to be released forthwith if he is
not required in any other case.

36. The appeal is accordingly
allowed.
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(2020)03-05ILR A354
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.05.2020

BEFORE
THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE RAVI NATH TILHARI, J.

Criminal Appeal No. 871 of 1996

Mohan @ Mohan Singh ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri A.R.B. Kher, Ms. Mahima Maurya[A.C.]

Counsel
for
the
Opposite
Party: