# Mustakeem v. State of U.P

- **Citation:** (2022) 2 ILRA 69
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-06
- **Case number:** Criminal Appeal No. 351 of 1990
- **Bench:** Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mustakeem-v-state-of-u-p-48148
- **Pages:** 7

## Headnote

Criminal Law - Indian Penal Code,1860 -
Sections 376 & 511 - Criminal Procedure
Code, 1973 - Section 313 - Offence of Rape -
Attempt to commit Rape - Charged - Victims'
aged about 9 years brother went to find out her
brother who left his house at night - While going
to cross road near biscuit factory, accusedappellant met her - He caught hold hand of
victim and started taking towards a roadside
Mazar, victim (prosecutrix) tried to raise alarm,
accused pressed her mouth by his hand and
threatened her to kill and untied victim's salwar
- He made her to lie on earth and tried to rape
her - When victim shouted, informant arrived
there with torches and caught accused on spot
at 9:00 p.m. - Accused, on being asked,
disclosed his name - Conviction - on the basis
of sole testimony of the prosecutrix - awarded
with sentence - to undergo 4 years of rigorous
imprisonment with fine of Rs. 500/- with default
stipulation.
70 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal Law - Criminal Procedure Code,
1973 - Section - 374 - validity - effect -
statement of the prosecutrix if found to be
worthy of credence and reliable - requires no
corroboration - plea of the accused that this is a
case of consent since there is no any external or
eternal injuries found on body of prosecutrix -
No such question was asked, even remotely, to
prosecutrix
in
her
cross-examination
-
Therefore, aforesaid submission is to be
rejected outright. (Para - 25, 26)

Appeal - dismissed - Conviction - Confirm.
(E-11)

List of Cases cited:

## Text

2 All. Mustakeem Vs. State of U.P.
69
counsel for the revisionists, the facts are
that the burden was on the defendant and
the other party moved the application for
D.N.A. test and in such a situation Hon?ble
the Apex Court in para 16 has observed
thus:-

"16.
The
respondent
cannot
compel the plaintiff to adduce further
evidence in support of the defendant?s
case. In any case, it is the burden on a
litigating party to prove his case adducing
evidence in support of his plea and the
court should not compel the party to prove
his case in the manner, suggested by the
contesting party.?

In this case the burden is on the
plaintiff and to discharge it, he wants to
adduce one particular evidence which may
be relevant so due to above reason the
present case is distinguishable.

8. The revisionist/defendant no.2 is
claiming legal right in the property of
Mohd. Haneef and plaintiff has filed Suit
for declaration that he and his mother
defendant nos. 1 and 2 are the only legal
heirs and owner in possession of property
of the deceased Mohd. Haneef. In the facts
and circumstances of the present case it
will not be just and proper to deny the
opportunity to plaintiff to bring the relevant
scientific evidence on record. From the
aforesaid discussion, it is clear that
impugned order is just and proper, there is
no
illegality
or
impropriety
in
the
impugned order and the revision lacks
merit and liable to be dismissed. However,
it is made clear that revisionists has liberty
to comply or disregard the impugned order
for D.N.A. test, if they don?t comply the
order, the allegations may be determined by
the
concerned
Court
by
drawing
presumption of the nature contemplated in
Section 114 of the Evidence Act and also
the other evidence available on record.

9. With the aforesaid observations, the
civil revision is hereby dismissed.
----------
(2022)02ILR A69
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.01.2022

BEFORE

THE HON'BLE RAJENDRA KUMAR-IV, J.

Criminal Appeal No. 351 of 1990

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

Counsel for the Petitioner:
Sri Ajeet Kumar, Sri Rajesh Kumar Mishra
(A.C.)

Counsel for the Respondent:
A.G.A.

Criminal Law - Indian Penal Code,1860 -
Sections 376 & 511 - Criminal Procedure
Code, 1973 - Section 313 - Offence of Rape -
Attempt to commit Rape - Charged - Victims'
aged about 9 years brother went to find out her
brother who left his house at night - While going
to cross road near biscuit factory, accusedappellant met her - He caught hold hand of
victim and started taking towards a roadside
Mazar, victim (prosecutrix) tried to raise alarm,
accused pressed her mouth by his hand and
threatened her to kill and untied victim's salwar
- He made her to lie on earth and tried to rape
her - When victim shouted, informant arrived
there with torches and caught accused on spot
at 9:00 p.m. - Accused, on being asked,
disclosed his name - Conviction - on the basis
of sole testimony of the prosecutrix - awarded
with sentence - to undergo 4 years of rigorous
imprisonment with fine of Rs. 500/- with default
stipulation.
70 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal Law - Criminal Procedure Code,
1973 - Section - 374 - validity - effect -
statement of the prosecutrix if found to be
worthy of credence and reliable - requires no
corroboration - plea of the accused that this is a
case of consent since there is no any external or
eternal injuries found on body of prosecutrix -
No such question was asked, even remotely, to
prosecutrix
in
her
cross-examination
-
Therefore, aforesaid submission is to be
rejected outright. (Para - 25, 26)

Appeal - dismissed - Conviction - Confirm.
(E-11)

List of Cases cited:

1. Ganesan Vs State (2020 Vol. 10 SCC 573)

2. St. of Pun. Vs Gurmit Singh (1996 Vol. 2 SCC
384)

3. St. of Orissa Vs Thakara Besra (2002 Vol. 9
SCC 86)

4. St. of H.P. Vs Rghubir Singh (1993 Vol. 2 SCC 622)

5. Krishna Kumar Malik Vs St. of Hary. (2011
Vol. 7 SCC 130)

6. NCT of Delhi Vs Pankaj Chaudhary (2019 Vol.
11 SCC 575)

7. Sham Sigh Vs St. of Har. (2018 Vol. 18 SCC 34)

(Delivered by Hon'ble Rajendra Kumar-IV, J.)

1. Feeling aggrieved and dissatisfied
with the impugned judgement and order
dated
13.02.1990
passed
by
IVth
Additional Sessions Judge, Shahjahanpur in
Session Trial No.264 of 1989, under
Sections 376/511 I.P.C., Police Station
Sadar Bazar, District Shahjahanpur by
which trial court convicting the accusedappellant for the offence punishable under
Section 376/511 I.P.C. and sentencing him
to undergo 4 years rigorous imprisonment
with fine of Rs. 500/- with default
stipulation, accused-appellant has preferred
the present appeal.

2. As per prosecution case, on
12.08.1987 in the evening, informant's
brother Shahjad left the house and went to
visit Lal Imli Chauraha, when he did not
get home till late, his younger sister victim
aged about 9 years went to find out her
brother. While going to cross road near
biscuit
factory
of Atiullah,
accusedappellant met her. He caught hold the hand
of victim and started taking towards Mazar,
victim / prosecutrix tried to raise alarm,
accused pressed her mouth by his hand and
threatened her to kill. He took her to Mazar
and untied the victim's salwar. He made her
to lie on the earth and tried to rape her.
When victim shouted , Tahir Hussan Khan
and Rakesh Singh rushed their with torches
and caught the accused on spot at 9:00 p.m.
Accused, on being asked, disclosed his
name as Mustakeem son of Amir Ali. In the
meantime,
informant
arrived
there
searching
his
brother
and
sister
(prosecutrix). Accused-appellant was taken
to police station concerned. F.I.R. was got
registered on the written tehrir Ex.Ka-1 of
informant.

3. Upon the written tehrir, Chick
F.I.R. Ex.Ka.-2 was registered bearing Case
Crime no. 380 of 1987, under Sections
376/511 I.P.C. by constable muharrir P.W.-
4. Entry of case was made in general diary,
copy whereof is on record.

4. Investigating Officer, P.W.-5
Balram Singh, undertook the investigation,
recorded the statement of victim and other
witnesses, visited spot, prepared site plan
and after completing entire formalities of
investigation
submitted
charge
sheet
Ex.Ka.-7 against the accused-appellant
2 All. Mustakeem Vs. State of U.P.
71
before the Magistrate concerned having
competent jurisdiction.

5. Case, being exclusively triable by
Court of Sessions, was committed to
Session Court which came to be transferred
to the concerned Court who framed charges
against the accused-appellant to which he
pleaded not guilty and claimed to be tried.

6. In order to substantiate its case,
prosecution examined as many as five
witnesses, out of whom PW-1, P.W. 2 and
P.W.-3 are the witnesses of fact and rest are
formal witnesses.

7. On closure of prosecution evidence
statement
of
accused-appellant
under
Section 313 Cr.P.C. was recorded by Court
explaining
entire
evidence
and
incriminating circumstances against him.
Accused denied prosecution story in toto
and all formalities of investigation were
said to be wrong. He claimed false
implication due to earlier rivalry with Tahir
(not examined) over the money transaction
but he led no evidence in defence.

8. Trial court, on appreciation of
entire evidence on record, found the
accused-appellant guilty and convicted and
sentenced him as stated above.

9. I have heard Sri Rajesh Kumar
Mishra, learned Amicus Curiae for the
accused-appellant, learned AGA for the
State at length and perused the record.

10. Now, I examine the statement of
witnesses and other evidence.

11. P.W.-1 Shamshad Husain, who is
the informant of the case but not eye
witness of the incident. He deposed in his
statement that on being told by victim and
witnesses, he received information about
the incident and he has filed the F.I.R. as
per their information. Since, this witness is
not eye of the incident, hence close scrutiny
of his deposition is not necessary.

12. P.W.-2 victim / prosecutrix,
supporting the prosecution case, deposed
that she was aged about 9 years at the time
of incident. It was 9:00 p.m. Her brother
Shahjad after taking food went to visit but
he did not come back till late. She went
towards town hall to trace him. When she
was returning to her home and reached near
the shop of Biscuit, accused person caught
her hand and took her to Mazar. When she
tried to shout, accused-appellant pressed
her mouth by his hand and threatened her
to beat. He took her near Mazar and untied
her Salwar, made her to lie on the earth and
threw his underwear and paijama. Accusedappellant tried to rape her. When she
shouted, Tahir Hussain Khan and Rakesh
Singh arrived there with torches and
apprehended the accused-appellant. Her
brother Shamshad also arrived there, she
narrated entire occurrence to her brother
and witnesses. Her brother took the
accused-appellant and her to police station
along with witnesses. On being asked by
witnesses, accused-appellant disclosed his
name as Mustakeem. In her crossexamination made from the side of
accused-appellant, prosecutrix repeated the
incident. She further states that accused
caught and dragged her. When she shouted,
accused pressed her mouth. While untying
her salwar and throwing his underwear and
paijama, accused-appellant kept on putting
his hand on her mouth. Prosecutrix /
witness
withstood
lengthy
crossexamination but nothing could be brought
in his statement so as to disbelieve
testimonial statement. Learned counsel for
72 INDIAN LAW REPORTS ALLAHABAD SERIES
the appellant could not point out any
infirmity, so as to blemish her statement.

13. P.W.-3 Rakesh Singh, eye witness,
deposed that on the fateful night at about
9:00 p.m., he was standing outside of his
house. As he heard the scream of one girl,
he and one Tahir Hussain Khan rushed
there, Tahir was having torch. He lighted
and in the light of torch, they saw that girl
was lying on the earth and accused was
trying
to
commit
rape
her.
They
apprehended the accused on spot and asked
his whereabouts whereupon he disclosed
his name as Mustakeem. Both were dressed
and taken to Theki. On being questioned,
victim told that she was taken by accused
pressing her mouth. Thus, witness was
lengthy cross-examined by accused side but
nothing could be brought on record so as to
disbelieve his statement, it appears that
witness did not know the accused from
before. It has come in the evidence that on
being asked accused disclosed his identity
as
Mustakeem.
Since,
the
accusedappellant
was
not
known
with
the
witnesses, thus it is unlikely that witnesses
falsely implicate the accused.

14. P.W-4 and P.W-5 are the formal
witnesses. P.W.-4 registered the F.I.R. on
the basis of written tehrir Ex.Ka-1 and
P.W.-5 is the Investigating Officer, who
conducted
the
investigation
finding
evidence and filed charge sheet against the
accused-appellant.

15. At the outset, it is required to be
noted that in the present case, the
prosecutrix has fully supported the case of
the prosecution. She has been consistent
right from the very beginning. Nothing has
been specifically pointed out why the sole
testimony of the prosecutrix should not be
believed. Even after thorough crossexamination, she has stood by what she has
stated and has fully supported the case of
the prosecution. I see no reason to doubt
the credibility and/or trustworthiness of the
prosecutrix. The submission on behalf of
the accused that no other independent
witnesses have been examined and/or
supported the case of the prosecution and
the conviction on the basis of the sole
testimony of the prosecutrix cannot be
sustained is concerned, the aforesaid has no
substance.

16. In the case of Ganesan V. State
(2020) 10 SCC 573, Court has observed
and held that there can be a conviction on
the sole testimony of the victim/prosecutrix
when the deposition of the prosecutrix is
found to be trustworthy, unblemished,
credible and her evidence is of sterling
quality. In the aforesaid case, Court had an
occasion
to
consider
the
series
of
judgments of this Court on conviction on
the sole evidence of the prosecutrix.

17. It is well settled that a prosecutrix
complaining of having been a victim of the
offence of rape is not an accomplice after
the crime. There is no rule of law that her
testimony cannot be acted upon without
corroboration in material particulars. She
stands at a higher pedestal than an injured
witness.

18. In State of Punjab v. Gurmit
Singh (State of Punjab v. Gurmit Singh,
(1996) 2 SCC 384), Court held that in
cases
involving
sexual
harassment,
molestation, etc. the court is duty-bound to
deal
with
such
cases
with
utmost
sensitivity.
Minor
contradictions
or
insignificant discrepancies in the statement
of a prosecutrix should not be a ground for
throwing
out
an
otherwise
reliable
prosecution case. Evidence of the victim of
2 All. Mustakeem Vs. State of U.P.
73
sexual assault is enough for conviction and
it does not require any corroboration unless
there are compelling reasons for seeking
corroboration. The court may look for some
assurances of her statement to satisfy
judicial conscience. The statement of the
prosecutrix is more reliable than that of an
injured witness as she is not an accomplice.
The Court further held that the delay in
filing FIR for sexual offence may not be
even properly explained, but if found
natural, the accused cannot be given any
benefit thereof.

19. In State of Orissa v. Thakara
Besra (State of Orissa v. Thakara Besra,
(2002) 9 SCC 86), Court held that rape is
not mere physical assault, rather it often
distracts
(sic
destroys)
the
whole
personality of the victim. The rapist
degrades the very soul of the helpless
female and, therefore, the testimony of the
prosecutrix must be appreciated in the
background of the entire case and in such
cases, non- xamination even of other
witnesses may not be a serious infirmity in
the prosecution case, particularly where the
witnesses had not seen the commission of
the offence.

20. In State of H.P. v. Raghubir
Singh (State of H.P. v. Raghubir Singh,
(1993) 2 SCC 622), Court held that there is
no legal compulsion to look for any other
evidence to corroborate the evidence of the
prosecutrix before recording an order of
conviction. Evidence has to be weighed and
not counted. Conviction can be recorded on
the sole testimony of the prosecutrix, if her
evidence inspires confidence and there is
absence of circumstances which militate
against her veracity. A similar view has
been reiterated by this Court in Wahid
Khan v. State of M.P. [Wahid Khan v. State
of M.P., (2010) 2 SCC 9] placing reliance
on an earlier judgment in Rameshwar v.
State of Rajasthan [Rameshwar v. State of
Rajasthan, AIR 1952 SC 54].

21. Thus, the law that emerges on the
issue is to the effect that the statement of
the prosecutrix, if found to be worthy of
credence
and
reliable,
requires
no
corroboration. The court may convict the
accused on the sole testimony of the
prosecutrix."

22. In Krishan Kumar Malik v.
State of Haryana (Krishan Kumar Malik
v. State of Haryana, (2011) 7 SCC 130), it
is observed and held by Court that to hold
an accused guilty for commission of an
offence of rape, the solitary evidence of the
prosecutrix is sufficient, provided the same
inspires confidence and appears to be
absolutely trustworthy, unblemished and
should be of sterling quality.

23. In the case of State (NCT of
Delhi) vs. Pankaj Chaudhary, (2019) 11
SCC 575, it is observed and held that as a
general rule, if credible, conviction of
accused can be based on sole testimony,
without
corroboration.
It
is
further
observed and held that sole testimony of
prosecutrix should not be doubted by court
merely on basis of assumptions and
surmises. In paragraph 29, it is observed
and held as under:

"29.
It
is
now
well-settled
principle of law that conviction can be
sustained on the sole testimony of the
prosecutrix
if
it
inspires
confidence.
[Vishnu v. State of Maharashtra [Vishnu v.
State of Maharashtra, (2006) 1 SCC 283].
It is well-settled by a catena of decisions of
this Court that there is no rule of law or
practice that the evidence of the prosecutrix
cannot
be
relied
upon
without
74 INDIAN LAW REPORTS ALLAHABAD SERIES
corroboration and as such it has been laid
down that corroboration is not a sine qua
non for conviction in a rape case. If the
evidence of the victim does not suffer from
any basic infirmity and the "probabilities
factor" does not render it unworthy of
credence, as a general rule, there is no
reason to insist on corroboration except
from medical evidence, where, having
regard to the circumstances of the case,
medical evidence can be expected to be
forthcoming. [State of Rajasthan v. N.K.
[State of Rajasthan v. N.K., (2000) 5 SCC
30]."

24. In the case of Sham Singh v.
State of Haryana, (2018) 18 SCC 34, it is
observed that testimony of the victim is
vital and unless there are compelling
reasons which necessitate looking for
corroboration of her statement, the courts
should find no difficulty to act on the
testimony of the victim of sexual assault
alone to convict an accused where her
testimony inspires confidence and is found
to be reliable. It is further observed that
seeking corroboration of her statement
before relying upon the same, as a rule, in
such cases amounts to adding insult to
injury.

25. Applying the law laid down in the
aforesaid decisions to the facts of the case
in hand and as observed hereinabove, I see
no reason to doubt the credibility and/or
trustworthiness of the prosecutrix. She is
found to be reliable and trustworthy.
Therefore,
without
any
further
corroboration,
the
conviction
of
the
accused relying upon the sole testimony of
the prosecutrix can be sustained.

26. Now so far as the submission on
behalf of the accused that as there were no
external or internal injuries found on the body
of the prosecutrix and therefore it may be a
case of consent is concerned, the aforesaid
has no substance at all. No such question was
asked, even remotely, to the prosecutrix in
her
cross-examination.Therefore,
the
aforesaid submission is to be rejected
outright.

27. After considering the facts and
circumstances evidence adduced in trial
court, I find that trial court after appreciating
the evidence rightly found the accusedappellant guilty. I find no reason to take a
different view than that of trial court.

28. In view of the above and for the
reasons stated above, the present appeal fails
and the same deserves to be dismissed and is
accordingly dismissed. The conviction and
sentence awarded to the accused - appellant
herein herein for the offence under Section
376/511 IPC is hereby confirmed.

29. Accused-appellant shall surrender
within 15 days before the trial court
concerned to serve out the remaining
sentence. He shall be entitled to get the
benefit Section 428 Cr.P.C.

30. Before parting we provide that Sri
Rajesh Kumar Mishra, learned Amicus
Curiae for appellant who assisted the Court
very diligently, shall be paid counsel's fee as
Rs. 10,000/-. State Government is directed to
ensure payment of aforesaid fee through
Additional Legal Remembrancer posted in
the office of Advocate General at Allahabad,
to him without any delay and, in any case,
within one month from the date of receipt of
copy of this judgement.

31. Office is directed to transmit copy
of this judgement along with trial court
record to the court concerned through
District Judge.
2 All. Pinkoo @ Jitendra Vs. State of U.P.
75
----------
(2022)02ILR A75
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.01.2022

BEFORE

THE HON'BLE ARVIND KUMAR MISHRA-I, J.
THE HON'BLE VIKAS BUDHWAR, J.

Criminal Appeal No. 633 of 2013
Connected with
Criminal Appeal No. 25 of 2013

Pinkoo @ Jitendra ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Amit Misra, Sri Bhavya Sahai, Sri Brijesh
Sahai, Sri J.S. Audichiya, Sri Pawan Kumar
Bhardwaj

Counsel for the Respondent:
A.G.A.,Sri A.K. Umarao, Sri Imran Ullah, Sri
Mohammad Khalid, Sri Shishir Prakash, Sri
K.K. Upadhyaya

Criminal Law - Indian Penal Code,1860 -
Sections 302 r/w 34, 114 - Arms Act, 1959
- Section 25, - Criminal Procedure Code,
1973 - Section 313, 154 & 437 (A), -
Indian Evidence Act, 1872 - Sections 3, 8,
27 & 118 - Offence of murder - Delay in FIR -
Effect - FIR was scribed by the constable was
pre-written and the same was not been
explained to the informant - the required
general procedure while lodging an FIR has not
followed which aspects casts doubt - producing
the special report with 14 days delay of lodging
FIR
before
the
Magistrate
&
serious
discrepancies creeping in the testimony of the
prosecution witnesses proofs that the FIR was
suspicious and ante-timed - due to this, the
case of prosecution loses its legal significance
and renders whole prosecution story is full of
doubts.(Para 59, 61, 6, 71, 82)

Criminal Law - Indian Penal Code,1860 -
Sections 302 r/w 34, 114 - Arms Act,1959
- Section 25, - Criminal Procedure Code,
1973 - Sections 313, 154 & 437 (A), -
Indian Evidence Act, 1872 - Sections 3, 8,
27 & 118 - Offence of Murder - Absence of
motive - Effect - Testimony of witnesses is
silent about any motive for causing offence -
Noting on the record which support or
corroborate with the verbal allegation - The
testimony of PW1 & PW2 is full of improvement
and embellishments - which proofs that the
prosecution story have lots of doubts. (Para 43,
55, 56)

Criminal Law - Indian Penal Code,1860 -
Sections 302 r/w 34, 114 - Arms Act, 1959
- Section 25, - Criminal Procedure Code,
1973 - Sections 313, 154 & 437 (A), -
Indian Evidence Act, 1872 - Sections 3, 8,
27 & 118 - Offence of Murder - Examination of
Recovery of Gun, Map of Spot of incident & spot
of recovery - Effect - there is no any testimony
of witnesses stands to supports the recovery
gun (whereas there where allegation that rifle
was used in offence) and also there is
discrepancy in Map of spot of incident - Inaction
on the point in not observing precaution qua the
recovery spot map throws lots of doubts on the
prosecution story. (Para 70, 71, 72, 73)

Criminal Law - Indian Penal Code,1860 -
Sections 302 r/w 34, 114 - Arms Act, 1959
- Section 25, - Criminal Procedure Code,
1973 - Sections 313, 154 & 437 (A), -
Indian Evidence Act, 1872 - Sections 3, 8,
27 & 118 - Offence of Murder - charge sheet
was filed in case crime no. 25 of Arms Act
without awaiting the forensic report - Effect -
recovery memo reveals that Gun at the time of
kept in seal was in functional condition but the
Forensic report shows that it weapon was not in
functional condition - Testimony & records
shows that defence any how either managed
report or weapon was either been changed
which casts doubts on the prosecution story.
(Para 74, 75, 76)

Criminal Law - Indian Penal Code,1860 -
Sections 302 r/w 34, 114 - Arms Act, 1959
- Section 25, - Criminal Procedure Code,
1973 - Sections 313, 154 & 437 (A), -
Indian Evidence Act, 1872 - Sections 3, 8,
27 & 118 - Offence of Murder - credibility &
reliability of witnesses - Effect - contradiction in