# Munna @ Teerathraj (In Jail) v. State of U.P

- **Citation:** (2021) 5 ILRA 25
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-05-20
- **Case number:** Criminal Appeal No. 4080 of 2007
- **Bench:** Bachchoo Lal, Subhash Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/munna-teerathraj-in-jail-v-state-of-u-p-46960
- **Pages:** 18

## Headnote

Code,1860-Section
376,506
-
Code
of
Criminal
Procedure,1973-Section
313,207conviction-appellant took the victim in
sugarcane
field
on
the
pretext
of
sprinkling insecticide, committed rape
with 8 year old girl-no inordinate delay in
FIR-
no
occasion
for
suspicion
in
commission of incident- statement of
victim, her mother and father inspire
confidence and gets support with the
medical report as well as testimony of
doctor-prosecution
was
successful
in
establishing its case beyond reasonable
doubt
against
the
appellant-since
appellant has already been in jail for a
considerable
period-sentence
of
imprisonment for life is modified to
imprisonment of 14 years.(Para 1 to 62)

The appeal is disposed off.

List of Cases cited:-

## Text

_Characters 0–39,956 of 59,704. This is a partial read: ask again with offset=39956 for what follows._

5 All. Munna @ Teerathraj Vs. State of U.P.
25

56. Thus, on the basis of analysis
made herein above, this Court is of the
view that the trial court's finding on the
point of recording conviction against the
accused-appellants for the offence under
Section 324 I.P.C. is not in accordance with
the evidence and law and the prevailing
facts and circumstances of the case and the
same is not sustainable, in the result, the
judgment
and
order
of
conviction
impugned here in this appeal is liable to be
set aside and the appellants are liable to be
acquitted and the appeal is liable to be
allowed.

57. For all the reasons stated above,
the appellants are entitled to the benefit of
doubt
and,
accordingly,
entitled
to
acquittal.

58. In the result, the appeal is allowed
and the the judgment and order of
conviction and sentence dated 08.06.2011
passed by the Additional Sessions Judge /
Special Judge, J.P. Nagar, in Session Trial
No.225 of 2007 State Vs. Kuwarpal and
others, arising out of Case Crime No.834 of
2006, under Section 324 I.P.C., Police
Station Naugawa Sadat, District J.P. Nagar,
is hereby set aside.

59. Appellants Kuwarpal, Vijendra
and Santram are acquitted of the charge
levelled against them in this case. They are
on bail. They need not surrender. Their bail
bonds
cancelled
and
sureties
stand
discharged. They are required to furnish
bonds within a month in compliance of
Section 437A of the Criminal Procedure
Code.

60. Let a copy of this judgment/order
be certified to the court concerned for
necessary informant and follow up action.
----------
(2021)05ILR A25
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.05.2021

BEFORE

THE HON'BLE BACHCHOO LAL, J.
THE HON'BLE SUBHASH CHANDRA
SHARMA, J.

Criminal Appeal No. 4080 of 2007

Munna @ Teerathraj ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Vinay Saran, Sri Balwant Singh

Counsel for the Opposite Party:
A.G.A.

A.
Indian
Penal
Code,1860-Section
376,506
-
Code
of
Criminal
Procedure,1973-Section
313,207conviction-appellant took the victim in
sugarcane
field
on
the
pretext
of
sprinkling insecticide, committed rape
with 8 year old girl-no inordinate delay in
FIR-
no
occasion
for
suspicion
in
commission of incident- statement of
victim, her mother and father inspire
confidence and gets support with the
medical report as well as testimony of
doctor-prosecution
was
successful
in
establishing its case beyond reasonable
doubt
against
the
appellant-since
appellant has already been in jail for a
considerable
period-sentence
of
imprisonment for life is modified to
imprisonment of 14 years.(Para 1 to 62)

The appeal is disposed off.

List of Cases cited:-

1. H.P. Vs Shree Kant Shekari, (2004) 8 SCC
153
26 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Sohan Singh & anr Vs St. of Bih. (2010) 1
SCC 68

3. St. of Punj. Vs. Gurmit Singh & ors (1996)
AIR SC 1393,

4. St. of Punj. Vs Ram Dev (2009) AIR SC 1290

5. M.P. Vs Dayal Sahu (2005) CLJ 4374 SC

6. Wahid Khan Vs St. of U.P. (2010) 2 SCC 9

7. Rameshwar Vs St. of Raj. (1952) AIR SC 54

8. Narianamma Vs St. of Karnataka, (1994) SCC
5 728

9. Punj. Vs Gurmit Singh (1996) SCC 2 384

10. Bavo @ Manubhai Ambalal Thakore Vs St. of
Guj. (2012) 2 SCC 684

11. Dagdu & ors Vs St. of Mah. (1977) 3 SCC
68

12. Muniappan Vs. St. of T.N. (1981) AIR SC
1220

13. Hazara Singh Vs Raj kumar (2013) 9 SCC
518''

14. Devidas Ramachandra Tuljapurkar Vs St. of
Mah.(2015) 6 SCC 1

(Delivered by Hon'ble Subhash Chandra
Sharma, J.)

1. This criminal appeal emanates from
the judgment and order dated 23.05.2007
passed by learned Additional Sessions
Judge/F.T.C.-2, Kushi Nagar at Padrauna in
Session Trial No. 111 of 1999 (State Vs.
Munna Alias Teerathraj) arising out of
Crime No. 142 of 1996, under Section 376
of Indian Penal Code, Police Station
Kotwali Hata, District Kushinagar by
which appellant has been convicted and
sentenced under Section 376(1) IPC with
life imprisonment and fine of Rs.50,000/-.
out of which 80 percent amount was to be
given to the victim and the amount was to
be realized as arrears of land revenue. No
additional sentence for imprisonment was
provided in case of default in making
payment of fine.

2. The prosecution case in brief is that
on 19.06.1996, victim aged about 8 years
was alone at her house at about 2 p.m.
Appellant Munna Alias Teerathraj went
there and on the pretext of sprinkling
insecticide, took her in the field of
sugarcane and there he committed rape
with the victim. Consequently, she became
unconscious
and
younger
brother
of
appellant, Raj Kumar brought her to his
home where his mother gave some
treatment to her. At that time parents of
victim were not at home. Father of victim
returned on 20.06.1996 and then they went
to police station and lodged an F.I.R. on
21.06.1996 at 11.15 o'clock at Police
Station Kotwali Hata against accusedappellant as Case Crime No. 142 of 1996
under Sections 376 & 506 IPC.

3. Victim was taken to Women
Hospital,
Padrauna
where
she
was
medically examined. The detail of medical
examination is as under:-

General Examination: Height 129
c.m. Weight 20 Kg. Number of teeth upper
jaw 13 and lower jaw 11. The incident as
narrated by uncle (maternal) Bhikhu of the
patient has occurred at about 2 p.m. on
19.6.1996.

Injuries: No marks of external
injury present over any part of body. A
linear tear, margin of tear is whitish in
colour. Vascularisation, seen, about 2 c.m.
present at posterior wall at the midline of
fornix. Vagina admits little finger. Hymen
not present. Uterus very small in size.
5 All. Munna @ Teerathraj Vs. State of U.P.
27
Bleeding on finger examination. Vaginal
smear taken and handed-over to constable
Prem Shankar Singh C.P. for vaginal smear
test to District Hospital Deoria for
pathological examination for presence of
spermatozoa and gonococci. Girl was also
sent to District Hospital, Deoria for x-ray
examination of right knee, right ankle, right
elbow
and
right
shoulder
joint
for
verification of age. Duration about 3-4 days
old.

Opinion: Vaginal injury is caused
by some hard and blunt object by forceful
penetration. Opinion about rape is to be
given after the pathological report.

Supplementary
report
of
the
victim: All the epiphysis around ankle,
knee, elbow and wrist joint are not fused.
Carpal bones 7 in number present.

Pathological
report:
No
spermatozoa and gonococci are seen in
vaginal smear as reported by Dr. L.P.
Gupta,
Pathologist,
District
Hospital,
Deoria. Opinion: Evidence of rape is found.

4. One piece of trouser worn by
victim was taken into possession by the
police which was already washed but some
blood stains were seen to be present on its
miyani. Memo was prepared.

5. The investigation of the case was
handed-over to Sub-Inspector R.N. Tandon,
who after recording the statements of
informant and other witnesses including
victim, visited the place of occurrence and
prepared site plan. Prima-facie commission
of offence under Section 376 IPC was found
to be established against the accused
appellant Munna Alias Teerathraj and
charge-sheet was submitted.

6. The court concerned, took
cognizance of the offence and having
provided essential papers to the appellant in
compliance
of
Section
207
Cr.P.C,
committed the case to the court of Sessions
for trial.

7. The learned Sessions Judge framed
charge under Section 376 IPC against the
appellant on the basis of material on record
which was read-over and explained to the
appellant. He did not plead guilty but claimed
for trial.

8. In support of its case prosecution
examined P.W.1 Ramakant who is informant
and father of victim, P.W.2 Dr. Rita Barnwal
who examined victim, P.W.3 Victim herself,
P.W.4 Smt. Phoolmati mother of victim,
P.W.5
Shambhu
Kushwaha-head-master
Primary School, Singhpur and P.W.6 Subinspector Virendra Pratap Singh who lodged
F.I.R. on the basis of written Tahreer given
by informant at police station and also proved
the handwriting of Sub-inspector R.N.
Tandon who submitted charge-sheet.

9. After conclusion of prosecution
evidence statement of appellant under Section
313 Cr.P.C. was recorded in which he stated
that wrongful statements had been given by
the witnesses against him. He did not adduce
any evidence in defence.

10. After hearing the arguments for
accused/appellant as well as the State,
learned trial court passed the impugned
judgment dated 23.5.2007 in which he
found appellant guilty under Section 376(1)
IPC and punished him as aforesaid.

11. Being aggrieved with the
conviction and sentence this criminal
appeal has been preferred by the appellant.
28 INDIAN LAW REPORTS ALLAHABAD SERIES

12. Heard Shri Balwant Singh,
learned counsel for appellant as well as
Shri R.P. Pandey, learned A.G.A. for State
and perused the record.

13. Learned counsel for the appellant
submits that he is innocent and has falsely
been implicated in this case. The conviction
and sentence passed against him is against
weight of evidence on record which is bad
in law. He further submitted that in this
case, F.I.R. had been lodged after two days'
delay without sufficient cause. There is no
any independent witness of the occurrence.
P.W.1-informant is father of victim and
P.W. 4 is mother of victim. Both of them
are not eye-witnesses. The sole witness of
the incident is victim herself. None saw the
victim to be taken by the appellant to the
field
of
sugarcane.
Even
during
pathological examination, no spermatozoa
and gonococci were found in the vaginal
smear. This fact has not been taken into
consideration by the learned trial court. The
injury found on the private part of the
victim would have been caused by falling
on some hard and blunt object like cut root
of sugarcane. No any external injury was
found on any part of body of victim. The
absence of spermatozoa in vaginal smear
also verify that injury was not caused by
penetration but by falling on the cut root of
sugarcane. The trouser of the victim was
also not sent for chemical examination to
assure as to whether it was blood stained or
not. In this way, it cannot be concluded that
the injury to the private part of the victim
was caused by appellant while committing
rape. He further argued that the incident
was narrated by the victim to her mother
and father. Her father lodged the F.I.R. but
in written Tahreer Ext. Ka-1 informant has
not disclosed that incident was narrated to
him by the victim. Even during his
examination before the court, he has
disclosed that he came to know about the
incident from the villagers not from the
victim. The statement made by the
informant and victim are contradictory, yet
learned trial court has relied on such
statements. The statement of victim is also
not reliable and does not get corroboration
with the medical report. He has further
argued that in this case investigation was
conducted by the Sub-Inspector R.N.
Tandon but he has not been examined
before the court by the prosecution. In such
a way, learned trial court has held guilty to
the appellant against established principle
of law and conviction and sentence based
on such evidence is not sustainable,
therefore, impugned judgment is liable to
be set aside and appeal to be allowed.

14. Learned A.G.A. vehemently
opposed the contentions made by learned
counsel for the appellant and submitted that
in this case delay in lodging the F.I.R. has
been explained properly by the informant
even in his written Tahreer as Ext. Ka-1
and also during his examination before the
court. Appellant took the victim with him
into the field of sugarcane on the pretext of
sprinkling insecticide when she was alone
at her house and parents were out. As soon
as they returned, she narrated the incident
to them, thereafter they lodged an F.I.R.
She was medically examined and injury
was found at her private part. Though,
spermatozoa and gonococci were not found
in vaginal smear but there was bleeding
present from the tear of hymen of the
victim. On the basis of which doctor
conducting the medical examination has
opined that rape was committed with the
victim. It is not necessary that spermatozoa
and gonococci would be present on the
private part of the victim or in the vaginal
smear. For the offence of rape only
penetration is sufficient as defined under
5 All. Munna @ Teerathraj Vs. State of U.P.
29
Section 375 IPC. There was no cut root in
the field of sugarcane at that time as is clear
from the statement of victim herself. Even
the doctor-P.W.2 has also not expressed
possibility about the injury to be caused
otherwise. Victim has stated categorically
about the incident as taken place with her
and she also complained of it to her mother
and also stated about it before the court.
During cross-examination also she has
supported the version of rape with her.
There is no any material contradiction
which is likely to affect her testimony
adversely.
The
medical
report
and
testimony deposed by doctor-P.W.2 also
corroborates the version of rape as stated
by the victim and supported by her mother
as P.W.4. It cannot be said that lack of
independent
witnesses
falsify
the
prosecution case. In such cases of rape
accused always chooses some secret place
where ingress and egress of people would
not be possible. It is settled principle of law
that in case of rape the testimony of victim
is sufficient to hold conviction of accused,
corroboration is not necessary at all, if the
account given by the victim inspire
confidence. In the present case, victim was
aged about 8 years, she was alone at her
house and on the pretext of sprinkling
insecticide in the field appellant took her
with him to the field of sugarcane where he
committed rape with her. She became
unconscious on the place and was brought
to the home of appellant by his younger
brother and after giving some primary
treatment by his mother, she was left to her
home. As soon as the parents of victim
came back from outside to their house,
victim narrated the incident as happened
with her to her mother on which F.I.R. was
lodged. The testimony of victim as well as
her mother inspire confidence and it is
corroborated with the testimony of medical
expert, therefore, no suspicion arises in
the case about the complicity of appellant
in committing rape with victim. Learned
trial court has considered all facts along
with evidence and concluded that rape was
committed with victim by the appellant and
convicted him which is based on sound
principle of law. The impugned judgment is
not bad in the eye of law but the appeal
lacks merit which is liable to be dismissed.

15.
Learned
counsel
for
the
appellant
has
lastly
submitted
that
appellant has been languishing in jail
since long and at the time of commission
of offence he was too young i.e. about 25
years old. It was his first offence. He
comes from a poor family. The award of
life imprisonment and fine of Rs.
50,000/- is excessive. This fact was also
mentioned before the trial court but not
considered at the time of awarding
punishment and without assigning any
reason maximum punishment for said
offence was awarded which should be
mitigated in the present case. The learned
A.G.A.
appearing
for
the
State
vehemently opposed the submission.

16. From the submissions and perusal
of record, the following questions emerge
for consideration of this court as to whether
there was delay in lodging the F.I.R,
witnesses are relative and no independent
witness
have
been
examined.
No
spermatozoa and gonococci found in the
vaginal smear, nature of injury is not likely
to be caused with penetration but it
suggests to be caused by falling on cut root
of sugarcane or some other hard and blunt
object. Contradictions in the statements of
witnesses,
none
examination
of
Investigating Officer and at last the excess
of punishment.
30 INDIAN LAW REPORTS ALLAHABAD SERIES

17. Before we deal with the
contentions raised by learned counsel for
the appellant, it will be convenient to take
note of the evidence which has been
adduced by the prosecution.

18. P.W.1 Ramakant is father of
victim who has deposed that age of his
daughter (victim) was about 8 years. She
was playing at the door at about 2 p.m.
His wife was at home. The house of
appellant Munna Alias Teerathraj was
located in south of his house. He works in
the field of Munna Alias Teerathraj. On
the pretext of sprinkling insecticide in the
field of sugarcane, he took his daughter.
There being loneliness, he committed
rape with his daughter. She became
unconscious from where, she was brought
by her mother. He was not at home but
came back on the next day evening. Her
mother narrated the story to him. He was
going to lodge the F.I.R. but prevented by
the people belonging to the caste of
Munna Alias Teerathraj, thereafter on the
next day, he went to police station with
written Tahreer in company of other
persons where F.I.R. was lodged. He
identified his signature on the written
Tahreer which was marked as Ext. Ka-1.
Her daughter was examined medically by
lady doctor. The statement of his
daughter was recorded by the policemen.
Her trouser was also taken and memo was
prepared by the police. Site plan was also
prepared by Sub-Inspector R.N. Tandon
after visiting the site. This witness was
subjected to gruel cross-examination by
the learned counsel for the appellant in
which he has disclosed that on the day of
incident, he was out and when he came
back the villagers narrated him about the
incident. His wife did not tell him,
thereafter he went to police station for
lodging the F.I.R. He got the Tahreer
written by Vairister. Victim was also
brought to police station.

19. P.W.2 Dr. Rita Barnwal has
deposed that on 22.6.1996, she was posted
as in-charge Medical Officer, Women
Hospital, Padrauna. On that day, victim
aged about 11 years was brought to her by
constable
Prem
Shankar
Singh.
She
examined her. General examination:- Her
height 129 c.m. Weight 20 Kg. Teeth
13/11. The maternal uncle was with her.
According to him incident took place at
about 2 p.m. on 19.6.1996. There was no
any mark of external injury on the body of
victim. Linear tear 2 c.m. on posterior wall
of vagina was found. A linear tear margin
of tear in whitish in colour. Vascularisation
seen in the wound. Hymen not present.
Vagina
admits
little
finger.
During
examination, blood was oozing from the
tear. Vaginal smear was taken and handedover to constable Prem Shankar Singh C.P.
for
pathological
examination
about
spermatozoa and gonococci. Victim was
sent to District Hospital Deoria for
verification of age and x-ray of right knee,
right ankle, right elbow and right shoulder
joint. Vaginal injury was found to be
caused with some hard and blunt object by
forceful penetration. Injury was simple in
nature and 3-4 days old. Medical report
was prepared in her writing and signature
and on which identification mark and
thumb impression of victim was affixed,
which has been proved as Ext. Ka-2. X-ray
and pathological reports were received on
26.6.1996 and then supplementary report
was prepared. As per x-ray report elbow,
ankle, knee, wrist epiphysis joint were not
fused. Number of carpal bone in wrist was
seven. In pathological report, there was no
spermatozoa and gonococci in vaginal
smear. On the basis of radio-logical and
pathological report, the evidence of rape
5 All. Munna @ Teerathraj Vs. State of U.P.
31
was found. The age of victim was about 9
years old. She prepared supplementary
report and proved it as Ext. Ka-3.

This witness was also subjected
to cross-examination by the learned
counsel for the appellant, during her
cross-examination she has cleared that
there were no mark of teeth bite on the
cheek or breast of the victim. The injury
sustained on the vagina could be possible
with penis which could be hard and blunt
object. She has further cleared that if
victim fell in the field of sugarcane or on
stone, such type of injury could not be
sustained because by falling in such a
way injury on other near by parts might
also be sustained. Since, there was no any
such injury, therefore, injury could not be
sustained by falling. She has also opined
that for the offence of rape presence of
spermatozoa is not necessary. She found
the evidence of rape on the basis of
nature of injury which disclosed that rape
was
committed.
Further
she
has
categorically denied that such injury
could be sustained by falling on any
pointed thing.

20. P.W.3 victim has deposed that at
about 2 p.m. she was at her door where
appellant Munna Alias Teerathraj came
and took her on the pretext of sprinkling
insecticide in the field of sugarcane.
There was, Raj Kumar younger brother of
appellant, present whom he sent for
purchasing biscuit from chauraha. When
there was loneliness he opened her
trouser by force and committed rape with
her. Blood began to ooze from her private
part. She became unconscious. Younger
brother of appellant, Raj Kumar brought
to her to his home. She was feeling pain
and was weeping. Mother of appellant
said to her that she would treat her.
After treatment she left her at her home.
At evening about 4 o'clock her parents
came back, at the time of incident her
parents were not present at home. She
narrated the incident to her parents. Her
father took her to the police station from
where she was brought to Government
Hospital for medical examination. She
was examined medically and treatment
was given in Government Hospital,
Deoria. Her statement was also recorded
in the court before the Magistrate and
also she was examined by Investigating
Officer.

This witness was also subjected
to gruel cross-examination by the learned
counsel for the appellant in which she
stated that the house of appellant Munna
Alias Teerathraj was near to her house.
When the appellant came to call, she was
alone. Her parents were not present. She
went to the field. Appellant was having
machine used for sprinkling pesticide. He
told to sprinkle pesticide. She also stated
that appellant made her fall down, opened
her trouser and made her naked. He put off
her sameej and committed rape with her in
the mid of sugarcane field. He put off his
pant. She became unconscious on account
of rape. When she cried, Raj Kumar came
there who lifted her then she became
conscious and took her to his house. Blood
was oozing from her vagina. There was no
other injury. He made her wear her trouser.
Her parents were out and came back about
4 o'clock then she narrated the incident to
them. In the meantime, mother of Raj
Kumar
provided
treatment
to
her.
Appellant did not bite on her cheek. F.I.R.
was lodged on the next date of incident.
She has denied the suggestion that while
cutting sugarcane, she fell down and
32 INDIAN LAW REPORTS ALLAHABAD SERIES
sustained injury with the sugarcane. She
has
also
denied
the
suggestion
for
implicating him falsely.

21. P.W.4 Phoolmati, mother of
victim has deposed that she was out in
relation to Jajmani. Victim was alone at her
house. When she came back about 4
o'clock her daughter was at home and was
weeping. She was lying disorderly. She
told her that appellant took her on the
pretext of sprinkling insecticide in the field
of sugarcane and he sent his younger
brother Raj Kumar, to bring biscuit from
Chauraha and he committed rape in the
field of sugarcane forcefully. Blood was
oozing from the vagina of the girl and
blood stains were present on her trouser.
She also narrated that brother of appellant,
Raj Kumar brought her to his home and his
mother provided treatment to her and
dropped her at home. On the next day her
husband went to police station with the
victim and lodged an F.I.R.

This witness was also subjected
to exhaustive cross-examination by the
learned counsel for the appellant in which
she has answered clearly the questions put
to her. She stated that she was out in
relation to Jajmani and came back at 4
o'clock. She examined the body of her
daughter. The clothes worn by the victim
were blood stained. There was no other
injury on the body of victim except oozing
blood from her vagina. Her husband came
back on the next day, she narrated the story
to her husband then he took the victim to
police station. She has also stated that she
went to the place of occurrence with the
victim. The incident took place in the mid
of the field of sugarcane. No person of the
village told her to have seen the incident.
There was tear in the vagina of the girl
from where blood was oozing. She has
denied the suggestion put to her on behalf
of appellant that there was quarrel with the
family of the appellant from before and
also there was party-bandi in the village
with her.

22. P.W.5 Shambhu Kushwaha, headmaster of primary school has deposed
about date of birth of victim as 04.07.1991
on the basis of school record.

23. P.W.6 Sub-Inspector Virendra
Pratap
Singh
has
deposed
that
on
21.06.1996 he was posted as headconstable in the police station and on the
basis of written Tahreer, he lodged an
F.I.R. as Crime No. 142 of 1996 under
Sections 376 & 506 IPC in his writing &
signature and proved as Ext. Ka-4. Detail
of which was entered into G.D. in his
writing & signature which he proved as
Ext. Ka-5. He has also stated that
investigation of the case was handed-over
to Sub-Inspector R.N. Tandon. He has
further stated that Sub-Inspector R.N.
Tandon was also posted at police station
and he saw him while reading and writing
and
was
well
acquainted
with
his
handwriting. He proved site plan as Ext.
Ka-6 and charge sheet as Ext. Ka-7 being
in writing and signature of Sub-Inspector
R.N. Tandon. He further stated that SubInspector R.N. Tandon has died.

24. So far as the argument relating to
delay in lodging the F.I.R. in a rape case is
concerned, it is not of much "significance"
as the victim has to muster courage to come
out in open and expose herself in a
"conservative social milieu".

In rape cases the delay in filing
the FIR by the prosecutrix or by the parents
in all circumstance is not of significance.
Sometimes the fear of social stigma and on
5 All. Munna @ Teerathraj Vs. State of U.P.
33
occasions the availability of medical
treatment to gain normalcy and above all
psychological inner strength to undertake
such a legal battle.

25. In the case of H.P. vs. Shree
Kant Shekari, (2004) 8 SCC 153 the
Hon'ble Supreme Court has held that:-

"18. The unusual circumstances
satisfactorily explained the delay in lodging
of the first information report. In any event,
delay
per
se
is
not
a
mitigating
circumstance
for
the
accused
when
accusations of rape are involved. Delay in
lodging first information report cannot be
used as a ritualistic formula for discarding
prosecution
case
and
doubting
its
authenticity. It only puts the court on guard
to search for and consider if any
explanation has been offered for the delay.
Once it is offered, the Court is to only see
whether it is satisfactory or not. In a case if
the prosecution fails to satisfactory explain
the delay and there is possibility of
embellishment or exaggeration in the
prosecution version on account of such
delay, it is a relevant factor. On the other
hand satisfactory explanation of the delay
is weighty enough to reject the plea of false
implication or vulnerability of prosecution
case. As the factual scenario shows, the
victim
was
totally
unaware
of
the
catastrophe which had befallen her. That
being so, the mere delay in lodging of first
information report does not in any way
render the prosecution version brittle.
These
aspects
were
highlighted
in
Tulshidas Kanolkar v. State of Goa."

26. In the case of Sohan Singh and
another vs. state of Bihar (2010) 1 SCC
68 the Hon'ble Supreme Court has held as
under:-

"12. As far as delay in lodging
the FIR is concerned, we are also satisfied
that it cannot be termed to be inordinately
delayed. Even otherwise, in our considered
opinion too, it cannot be said that there has
been inordinate or unexplained delay in
lodging the FIR.

13. When FIR by a Hindu lady is
to be lodged with regard to commission of
offence like rape, many questions would
obviously crop up for consideration before
one finally decides to lodge the FIR. It is
difficult to appreciate the plight of the
victim who has been criminally assaulted in
such a manner. Obviously, the prosecutrix
must have also gone through great turmoil
and only after giving it a serious thought,
must have decided to lodge the FIR.
Precisely this appears to be the reason for
little
delayed
FIR.
As
mentioned
hereinabove, the delay has already been
found to be properly explained by both the
courts below. Thus, we are not required to
deal with this issue any more."

27. In the instant case, incident took
place on 19.6.1996 and F.I.R. was lodged
on 21.6.1996 at 11.15 o'clock after two
days. In the written Tahreer as Ext. Ka-1
the cause of delay has been explained by
informant as he was not present at his home
on the day, incident took place. When he
came back on 20.6.1996 to his house, he
went to police station for lodging the F.I.R.
but was prevented by some people related
to the appellant. He has also expressed the
cause of delay in similar words in his
statement during the examination before
the court. This fact was also supported by
P.W.4 Smt. Phoolmati wife of informant in
the words that on the day of incident, she
was not present at her home, she went to
Ram Nagar in Jajmani with her husband,
34 INDIAN LAW REPORTS ALLAHABAD SERIES
she came back on the same day but her
husband went in Barat who came back on
the next day of incident, thereafter, he went
to police station with the victim. The victim
P.W.3 has also stated that at the time of
incident her parents were not present at
home. In this way delay in lodging the
F.I.R. has been explained by the informant
while in the Tahreer and also in his
statement made before the court. There was
sufficient cause in lodging the F.I.R. after
two days, therefore, the cause of delay
seems to be sufficient and natural. It is not
likely to affect the prosecution case.

28. Coming to the first submission
relating to the delay in lodging the FIR for
the commission of the offence, in our
considered opinion, there was no delay in
the lodging of the FIR either and if at all
there was some delay, the same has not
only been properly explained by the
prosecution but also considering the facts
and circumstances of the case, it was
natural."

29. Regarding non-availability of
independent witnesses, it is noteworthy that
in such type of cases of rape accused
always chooses separate or solitary place
for committing the offence where approach
of independent witnesses cannot become
possible. In this case, the girl was taken by
the appellant to the field of sugarcane and
where no other persons was present except
younger brother of appellant who was sent
by him for bringing biscuit from the
Chauraha.
Meanwhile
offence
was
committed with the victim in the field of
sugarcane. It cannot be expected from
younger brother of appellant that he would
come in evidence against his real brother.
So lack of independent witness does not
affect the credibility of the testimony of
victim. Victim herself is injured witness
and her testimony cannot be said to be
unreliable on the basis of lack of
independent witness because she herself is
injured and she would not like to conceal
the real culprit and to implicate false one.

30. Evidence of the prosecutrix or
woman, who has been raped, is very crucial
piece of testimony to prove the case against
the accused. It is now well settled that
conviction for an offence of rape can be
based on the sole testimony of the
prosecutrix if it is found to be natural,
trustworthy and reliable. In the case of
rape, the onus rests on prosecution to prove
firmly with evidence each ingredient it
seeks to establish and such onus never
shifts. The victim, who reports a rape case,
suffers at each stage i.e. after reporting to
the police, during investigation and trial.
Witness of victim also suffers harassment,
humiliation, financial loss, loss of time
resulting mental pain and suffering to the
victim and her witnesses.

31. The most important question in a
prosecution for the offence of rape is how
exactly to appreciate the testimony of the
rape victim. One important aspect is
whether the testimony invariably requires
corroboration
or
not
and
in
case
corroboration is required or desired, what is
the nature and extent of such corroboration
and the source of such corroboration.

32. In the case of State of Punjab vs.
Gurmit Singh and others AIR 1996 SC
1393, the Hon'ble Supreme Court held that
"the Court can rely upon the evidence of
the prosecutrix even without seeking
corroboration.
If
evidence
of
the
prosecutrix inspires confidence, it must be
relied upon without seeking corroboration
of her statement in material particulars. If
for some reason the Court finds it difficult
5 All. Munna @ Teerathraj Vs. State of U.P.
35
to place implicit reliance on her testimony,
it may look for evidence which may lend
assurance to her testimony. The Hon'ble
Supreme Court further observed that the
evidence of a girl or of a woman who
complains of rape or sexual molestation
should not be viewed with doubt, disbelief
or suspicion. The Hon'ble Supreme Court
further held that the evidence of a victim of
a sexual offence is entitled to great weight
even without corroboration."

33. In the case of State of Punjab vs.
Ram Dev (AIR) 2009 SC 1290, the
Hon'ble Supreme Court held that there is no
rule of law that testimony of the prosecutrix
cannot be acted without corroboration in
material particulars.

34. In the case of State of M.P. vs.
Dayal Sahu 2005 Criminal Law Journal
4374 (SC) the Hon'ble Supreme Court
observed as follows:-

"once
the
statement
of
prosecutrix
inspires
confidence
and
accepted by the courts as such, conviction
can be based only on the solitary evidence
of the prosecutrix and no corroboration
would be required .........Corroboration of
testimony of the prosecutrix as a condition
for judicial reliance is not a requirement of
law but a guidance of prudence."

35. In the case of Wahid Khan vs.
State of U.P. (2010) 2 SCC 9 the Hon'ble
Supreme Court held that :-

" 16.The law on the point is now
too well settled. No doubt, it is true that Dr.
B. Biswas, who had initially conducted the
medical examination of the prosecutrix, has
not appeared on behalf of the prosecution
to depose. But, that alone is not sufficient
to
discard
the
prosecution
story.
Corroboration is not the sine qua non for
conviction in a rape case."

36. In this regard, the most celebrated
observations of Justice Vivian Bose in the
case of Rameshwar v. State of Rajasthan
AIR 1952 SC 54 may be quoted :

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

It is also a matter of common law
that in Indian society any girl or woman
would not make such allegations against a
person as she is fully aware of the
repercussions flowing therefrom. If she is
found to be false, she would be looked by
the society with contempt throughout her
life. For an unmarried girl, it will be
difficult
to
find
a
suitable
groom.
Therefore, unless an offence has really
been committed, a girl or a woman would
be extremely reluctant even to admit that
any such incident had taken place which is
likely to reflect on her chastity. She would
also be conscious of the danger of being
ostracized by the society. It would indeed
be difficult for her to survive in Indian
society which is, of course, not as forward
looking as the western countries are.

Thus, in a case of rape, testimony
of a prosecutrix stands at par with that of an
injured witness. It is really not necessary to
insist for corroboration if the evidence of
the prosecutrix inspires confidence and
appears to be credible............"
36 INDIAN LAW REPORTS ALLAHABAD SERIES

37. The witnesses are father and
mother of victim, those are near relative.
Their testimony cannot be discarded. Being
mother, it is natural that victim would
narrate the incident as happened with her
because such incident cannot be disclosed
before other person who is not related to
her on account of social insult. Therefore,
the argument that there is no independent
witness of the incident has no force in
regard to such type of offence like rape.

38. The contention made by learned
counsel for the appellant regarding nonavailability of spermatozoa and gonococci
in the pathological report does not keep too
much importance because in sexual offence
as rape, it is not necessary that spermatozoa
or gonococci be present in the pathological
examination. Section 375 IPC, which
contains definition of rape, does not require
the presence of spermatozoa or gonococci.
For the commission of rape penetration is
sufficient.

39. Explanation to Section 375 IPC
provides:- "Penetration is sufficient to
constitute the sexual intercourse necessary
to the offence of rape."

40. In the case of Narainamma Vs.
State of Karnataka, 1994 SCC(5)728
Hon'ble the Supreme Court has held as
under:-

"(vi) With regard to the vaginal
smear examination conducted at a different
hospital, Dr Reeta, PW 3 has reported that
no spermatozoa was seen on it, and the
absence of sperms has been viewed against
the version of the prosecutrix. It was never
elicited from the prosecutrix as to whether
the two persons who committed rape on her
had reached orgasm emitting semen in her
private parts. No presumption can be made
that penetration of penis in the private
parts of a rape victim must necessarily lead
to the discovery of spermatozoa. It is a
question of detail and has to be put to test
by cross-examination. Otherwise also there
may be various other factors which may
negative the presence of spermatozoa such
as
faulty
taking of
the
smear,
its
preservation, quality of semen etc. The
absence of spermatozoa prima facie could
not be allowed to tell against the version of
the prosecutrix."

41. In this particular case, hymen was
found not present. At the time of medical
examination, there was linear tear in the
vagina oozing blood as shown in Ext. Ka-2
and stated by doctor conducting medical
examination on the person of victim. She
has also opined that the injury was caused
by some hard and blunt object like
forcefully penetration. She has affirmed the
injury to have been caused by penetration
on the basis of nature of injury. During her
examination before the court, she has
categorically explained the injury found on
the vagina of victim to have been caused by
penetration. She has expressly denied the
suggestion that such kind of injury was
possible by falling on some pointed stone
or object or in the field of sugarcane. Thus,
the testimony of P.W.2 Dr. Rita Barnwal
rules out the possibility of injury to have
been caused by falling on some pointed
object or cut root of sugarcane in the field.
It also ruled out any other kind of
possibility of injury to the victim. From the
version of victim P.W.3, P.W.4 mother of
victim and P.W.2 Dr. Rita Barnwal
conducting the medical examination of the
victim, it can be concluded without any
hesitation that the injury sustained in the
vagina of the victim was caused by
penetration and not by falling on any
object. The argument in this regard by
5 All. Munna @ Teerathraj Vs.