# Raj Kumar v. State of Uttar Pradesh - **Citation:** (2016) 4 ILRA 1010 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-04-19 - **Bench:** Mohd. Tahir - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kumar-v-state-of-uttar-pradesh-43620 - **Pages:** 7 ## Headnote A.G.A., Shri S.A. Naseem Held - Para 1-2: Introduction to the appeal against the 1982 conviction. The Court notes it will use the term "prosecutrix" to protect the victim's identity. Para 3-4: The prosecution's case: A 12-year-old girl was raped in a field on July 14, 1981. Witnesses arrived on her alarm, and the accused fled. An FIR was lodged that same night. Para 5: Details of the medical examination, which found contusions, swelling, a perineal tear, bleeding, and traces of semen, confirming sexual assault. Para 6-8: Procedural history: The Investigating Officer (IO) seized the victim's clothing (Garara), recorded statements, and filed a charge sheet. Six witnesses were examined during the trial. Para 9-11: Testimony of witnesses: PW-1 (Brother-in-law): Filed the FIR. PW-2 (Prosecutrix): Initially claimed she couldn't recognize the accused but, upon cross-examination, identified Raj Kumar and detailed the assault. PW-3 & PW-4 (Eye-witnesses): Confirmed hearing cries, seeing the accused flee, and finding the girl bleeding. Para 12-15: Formal evidence from the IOs. The accused denied charges (Section 313 Cr.P.C.), claiming false implication due to village enmity. The trial court convicted him. Para 16-19: Arguments: The defense argued the prosecutrix's initial "hostile" stance should invalidate her entire testimony. The State argued that her subsequent identification was corroborated by independent evidence. 4 All. Raj Kumar Vs State of Uttar Pradesh 1011 Para 20-21: Legal analysis of "Hostile Witnesses." The Court clarifies that under Section 154 of the Evidence Act, the testimony of a hostile witness is not "washed off" and can be relied upon if corroborated. Para 22: The Court finds the prosecutrix's testimony credible because it is corroborated by: Medical evidence (bleeding and injuries). The FIR naming the accused. Physical evidence (the torn clothing). Independent eyewitness accounts. Para 23: Rejection of the "village enmity" defense, noting that families rarely file false rape charges due to the social stigma involved. Para 24-28: Final Decision: The appeal is dismissed. The conviction is affirmed, and the accused is ordered into custody to serve the remainder of his sentence. Appeal Dismissed Case Laws Cited:- 1.Koli Lakhmanbhai Chanabhai vs. State of Gujarat, AIR 2000 SC 210. 2.Lella Srinivasa Rao vs. State of Andhra Pradesh, AIR 2004 SC 1720. ## Text 1010 INDIAN LAW REPORTS ALLAHABAD SERIES APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 19.04.2016 BEFORE THE HON'BLE MOHD. TAHIR, J. Criminal Appeal No.- 2155 Of 1982 Raj Kumar ...Appellant Versus State of Uttar Pradesh ...Respondent Counsel for the Appellant: Shri Tej Pal, Shri R.K. Misra Counsel for the Respondent: A.G.A., Shri S.A. Naseem Held - Para 1-2: Introduction to the appeal against the 1982 conviction. The Court notes it will use the term "prosecutrix" to protect the victim's identity. Para 3-4: The prosecution's case: A 12-year-old girl was raped in a field on July 14, 1981. Witnesses arrived on her alarm, and the accused fled. An FIR was lodged that same night. Para 5: Details of the medical examination, which found contusions, swelling, a perineal tear, bleeding, and traces of semen, confirming sexual assault. Para 6-8: Procedural history: The Investigating Officer (IO) seized the victim's clothing (Garara), recorded statements, and filed a charge sheet. Six witnesses were examined during the trial. Para 9-11: Testimony of witnesses: PW-1 (Brother-in-law): Filed the FIR. PW-2 (Prosecutrix): Initially claimed she couldn't recognize the accused but, upon cross-examination, identified Raj Kumar and detailed the assault. PW-3 & PW-4 (Eye-witnesses): Confirmed hearing cries, seeing the accused flee, and finding the girl bleeding. Para 12-15: Formal evidence from the IOs. The accused denied charges (Section 313 Cr.P.C.), claiming false implication due to village enmity. The trial court convicted him. Para 16-19: Arguments: The defense argued the prosecutrix's initial "hostile" stance should invalidate her entire testimony. The State argued that her subsequent identification was corroborated by independent evidence. 4 All. Raj Kumar Vs State of Uttar Pradesh 1011 Para 20-21: Legal analysis of "Hostile Witnesses." The Court clarifies that under Section 154 of the Evidence Act, the testimony of a hostile witness is not "washed off" and can be relied upon if corroborated. Para 22: The Court finds the prosecutrix's testimony credible because it is corroborated by: Medical evidence (bleeding and injuries). The FIR naming the accused. Physical evidence (the torn clothing). Independent eyewitness accounts. Para 23: Rejection of the "village enmity" defense, noting that families rarely file false rape charges due to the social stigma involved. Para 24-28: Final Decision: The appeal is dismissed. The conviction is affirmed, and the accused is ordered into custody to serve the remainder of his sentence. Appeal Dismissed Case Laws Cited:- 1.Koli Lakhmanbhai Chanabhai vs. State of Gujarat, AIR 2000 SC 210. 2.Lella Srinivasa Rao vs. State of Andhra Pradesh, AIR 2004 SC 1720. (Delivered by Hon'ble Mohd. Tahir, J.) 1. This criminal appeal has been filed against the judgment and order dated 17.8.1982 passed by IInd Additional Sessions Judge, Saharanpur in Sessions Trial No.245 of 1981, State vs. Raj Kumar whereby the trial court had convicted the accused appellant of the charge under Section 376 IPC and sentenced him to undergo rigorous imprisonment for 3 years. 2. This is the case of rape, so the word 'prosecutrix' will be used in place of the name of the victim girl hereinafter in the judgment. 3. The prosecution case, in brief, is that the prosecutrix aged about 12 years had come to her sister's matrimonial house in village Karali as delivery to her sister was to take place. Her sister Vidya Wati is married to Tellu complainant. At about 3 p.m. on 14.7.1981 the prosecutrix went to bring grass from the field of Phullu Singh along with Raj Kumar accused where Raj Kumar is alleged to have committed rape on her. On the alarm of the prosecutrix, Rohtash, Suresh and others reached there who witnessed the occurrence and recognised the accused. On seeing them the accused started running away leaving the prosecutrix there. He was chased by the witnesses but could not be caught. Suresh informed Tellu complainant, who took the prosecutrix to the hospital and got her injuries examined on the same day at 8 p.m. by Medical Officer Incharge Primary Health Centre, Rampur. Her medical examination was again done on 15.7.1981 by Dr. M.D. Sharma, Medical Officer of District Hospital, Saharanpur who sent the girl for x-ray examination. On the basis of the medial reports and the x-ray report, the age of the girl was found to be about 12 years only. 1012 INDIAN LAW REPORTS ALLAHABAD SERIES 4. On the basis of the written FIR a case under Section 376 IPC was registered at case crime no.149 of 1981 on 14.7.1981 at 9.10 p.m. in P.S. Deoband, District Saharanpur against the accused. 5. The prosecutrix was medically examined by Dr. S. Kumar and medical examination report is Ext.Ka.8. According to this report, the following things were found by the doctor on the person of the prosecutrix: Injuries:- (I) Contusion 2 cm x 1 cm on the back of right side over the scapular region reddish. (II) Swelling on the face seen.No mark of injury seen. On P/v examination: Thigh ANM P/v Bleeding seen Perenial tear about 1'' seen bleeding Vaginal wall swollen and tender rupture of membrane hymen No pubic heirs, a few dried semen partially present on the swelling area. Cervix - Teared and tender The genuineness of the document was admitted and the formal proof was dispensed with by the defence counsel. 6. The Investigating Officer S.I. Sri Ram Swarup Yadav (PW-6) took into his possession the Garara of the prosecutrix on 16.7.1981 and prepared the memo in that regard which is Ext.Ka.3. He thereafter recorded the statement of witnesses Rohtash, Suresh, complainant Tellu and the prosecutrix. He also prepared the site plan (Ext.Ka.5). After his transfer, the investigation was handed over to Sri Bal Kishore Tyagi (PW-5) who recorded the statement of the accused Raj Kumar and after completing the investigation, submitted charge sheet (Ext.Ka.2) under Section 376 IPC against the accused appellant. 7. The trial court framed charge under Section 376 IPC against the accused appellant. The accused appellant pleaded not guilty and claimed trial. 8. The prosecution in order to prove its case examined six witnesses in all. They are PW-1 Tellu, PW-2 the prosecutrix, PW-3 Rohtash, PW-4 Suresh, PW-5 S.I. Bal Kishore Tyagi and PW-6 S.I. Ram Swarup Yadav. 9. PW-1 Tellu is the first informant of this case. He is the Bahnoi of the prosecutrix. He has proved the FIR (Ext.Ka.1). He is not the eye witness of the occurrence in question. 4 All. Raj Kumar Vs State of Uttar Pradesh 1013 10. PW-2 is the prosecutrix and she is the victim of the crime in question. What she has stated in her examination-in-chief, in brief, is that she cannot say as to who had committed rape on her and she could not recognize his face. She had further stated that on the arrival of the witnesses the person who had committed rape on her had run away and the witnesses had not told the name of that person to her. There had been bleeding from her private part and she had felt pain by the sexual intercourse committed on her. She had raised alarm. The State counsel was permitted to cross examine this witness. In her cross-examination she had stated that she did not know Raj Kumar accused but when she was confronted with her statement recorded under Section 161 Cr.P.C. she had admitted that her Jija had told her that Raj Kumar is his Khandani. She had further stated that it was not Raj Kumar who had committed sexual intercourse with her. But in further crossexamination she admitted that whatever she had stated to Investigating Officer she had stated the truth. After stating so she then started stating that it was true that it was Raj Kumar, who is present in court, who had committed sexual intercourse with her. When she was asked as to why she had told this lie, earlier she kept mum. Again she stated that it was Raj Kumar who had caught hold of her in the field of Phullu Saini and had committed rape on her. She described how the accused broke the Nara (string) of her Garara and made her naked and inserted his penis into her vagina. When she had raised alarm, Rohtash and Suresh reached there. She had also stated that Raj Kumar was putting on nicker and on seeing Rohtash and Suresh, he had left the place and ran away after wearing his nicker. She had told the entire things about the occurrence to her sister (Tellu's wife). 11. PW-3 Rohtash and PW-4 Suresh are said to be the witnesses of fact. They had stated in their examination-in-chief before the trial court that they were cutting grass in the field of Kalu Ram. When they heard the cries of the girl, they ran towards the place of occurrence. They had seen the accused Raj Kumar committing rape on the prosecutrix and that on seeing them the accused Raj Kumar left the prosecutrix and ran away. They chased him upto the thrasher in front of Rithan of Dharam Singh but he could not be caught and thereafter they returned back to the place of occurrence and found the prosecturix tying her Nara and she was bleeding. They asked her to go to house. They identified the Garara of the prosecutrix in the trial court. 12. PW-5 S.I. Bal Kishore Tyagi and PW-6 S.I. Ram Swarup Yadav are the Investigating Officer of the case. They are formal witnesses. So their examination-in-chief need not be repeated. 13. The accused appellant in his statement recorded under Section 313 Cr.P.C. denied the prosecution version and further stated that he has been falsely implicated in this case due to enmity with Tellu on account of partibandi of the village. 14. No evidence was adduced from the side of the accused appellant in the trial court. 15. The trial court after hearing the counsel for both the sides and perusing the evidence available on record, convicted and sentenced the accused appellant as hereinbefore mentioned in the beginning of the judgment 1014 INDIAN LAW REPORTS ALLAHABAD SERIES 16. Aggrieved by the judgment and order of the trial court, accused appellant Raj Kumar has filed this criminal appeal. 17. I have heard Sri Pankaj Kumar Tyagi, learned counsel for the accused appellant, Sri S.A. Naseem, learned AGA for the State and perused the evidence available on record. 18. Learned counsel for the accused appellant has submitted that the prosecutrix did not support the prosecution case in her examination-in-chief before the trial court and she had clearly stated that she cannot say as to who had committed rape on her and that the person who had committed rape on her cannot be identified by her. Thus, she turned hostile and the prosecution was permitted to cross examine this witness. Therefore, the testimony of this witness cannot be believed in part or disbelieved in part but the same ought to have been excluded altogether by the trial court. Thus, the trial court has committed error in convicting and sentencing the accused appellant on the basis of the testimony of the said prosecutrix. 19. On the other hand, learned AGA has supported the impugned judgment and has submitted that the prosecutrix in her cross-examination done by the prosecutor has stated that she had told the Investigating Officer the truth and that it is accused Raj Kumar who had committed rape on her and that this very statement of this prosecutrix is corroborated by independent evidence. So the trial court has committed no error in convicting and sentencing the accused appellant. 20. I have considered the rival submissions of learned counsel for the parties and perused the record. 21. Firstly it is pertinent to mention that the term 'hostile' is nowhere mentioned in the Evidence Act. There is nothing in Section 154 of the Evidence Act as to declaring a witness hostile. This Section provides that the Court may in its discretion permit a person who calls a witness, to put any question to him which might be put in cross-examination. The purpose to cross examine a party's own witness is not to impeach the credit of that witness but also to compel to make him to make admissions favourable to the cross-examiner and to find out the truth. Hostile witness is not necessarily a false witness. Merely describing a person as hostile witness does not completely efface his/her evidence. If such evidence is corroborated by other evidence, there is no legal bar to convict the accused. Where the public prosecutor seeks permission to question his own witness by resorting to Section 154 of the Evidence Act and the Court permits him to cross examine his own witnesses, in that case the trial Judge has discretionary power to examine the entire testimony and accept that part of testimony which he finds to be creditworthy and can act upon it. In this regard I can do no better than to refer the following case laws of the Apex Court:- (I) Koli Lakhmanbhai Chanabhai vs. State of Gujarat, reported in AIR 2000 SC 210. In this case it has been held by the Supreme Court that it is settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version. Evidence of such witness cannot be treated as washed off the record. It remains 4 All. Raj Kumar Vs State of Uttar Pradesh 1015 admissible in the trial and there is no legal bar to base his conviction of the accused upon his testimony if corroborated by other reliable evidence. (II) Lella Srinivasa Rao vs. State of Andhra Pradesh, reported in AIR 2004 SC 1720, wherein also it has been held by the Supreme Court that the fact that witnesses have been declared hostile does not result in automatic rejection of their evidence. Even the evidence of a hostile witness if it finds corroboration from the facts of the case may be taken into account while judging the guilt of an accused. 22. Now the question is this as to whether the testimony of the prosecutrix in the case at hand inspires confidence. In my opinion, her testimony as regards the commission of rape on her by the accused appellant inspires confidence because; Firstly the same is corroborated by the medical evidence, according to which injury was found on her private part and bleeding was also present on her private part. Perenial torn was also seen in her private part and these injuries, according to the doctor, were about 1-6 hours old. The incident is said to have taken place on 14.7.1981 at 3 p.m. and the prosecutrix was braught by her Bahnoi to PHC Rampur on the same day where her injuries were examined at 8 p.m. Her medical examination was again done on 15.7.1981 by Dr. M.D. Sharma, Medical Officer of District Hospital, Saharanpur. The genuineness of the medical examination report (Ext.Ka.8) was admitted by the defence counsel. Thus, the medical examination report had gone unchallenged. There is nothing on record to show that the injuries of the prosecutrix were got fabricated or manufactured. In this way, the testimony of the prosecutrix as regards the commission of rape is fully corroborated by the medical evidence. Secondly the FIR of this case also supports the testimony of the prosecutrix. It was lodged on the date of incident itself i.e. 14.7.1981 by the Bahnoi of the prosecutrix on 9.10 p.m. and the accused appellant is named in this FIR as an accused. It is clearly stated in this FIR that the accused appellant had committed rape on the prosecutrix. So the FIR also corroborates the testimony of the prosecutrix as regards the commission of rape by the accused appellant. Thirdly the testimony of the prosecutrix further finds support from the seizure memo of her Garara and the Garara itself which was identified by the prosecutrix in the trial court. The proseucutrix had stated that Nara of her Garara was in broken condition and that she was wearing this very Garara at the time of occurrence in question. In her statement she had clearly stated that the Nara of that Garara was broken by the accused appellant. Thus, from the seizure memo of the Garara as well as the position of the Garara itself also corroborates the testimony of the prosecutrix. Fourthly the testimony of the prosecutrix as regards the commission of rape with her by the accused appellant also finds support from the testimony of two independent witnesses namely Rohtash (PW-3) and Suresh (PW-4) respectively who stated that they had seen the 1016 INDIAN LAW REPORTS ALLAHABAD SERIES accused appellant running away from the place of occurrence and they had chased him and also seen the prosecutrix tying up her Nara (string) in bleeding condition. 23. The defence of the accused appellant that he has been falsely implicated in this case due to partibandi of the village has no leg to stand because there is nothing on record to show that there was any enmity of the accused appellant with the Bahnoi of the prosecutrix and moreover, the prosecutrix was an unmarried girl and no near relative would make a false case of rape against anyone in which the future of the unmarried girl as well as the reputation of the family remains at stake and is adversely affected. 24. For the foregoing reasons, I am of the opinion that the prosecution case is fully proved and the trial Court has committed no error in convicting and sentencing the accused/appellant. The appeal has no merit and is liable to be dismissed. 25. Consequently, the appeal is dismissed. The conviction and sentence recorded by the trial Court against the accused/appellant Raj Kumar are affirmed. 26. The accused appellant is on bail. He shall be taken into custody by the trial court concerned and he shall be sent to jail to serve out the remaining sentence. After sending the accused/appellant to jail his sureties and surety bonds shall stand discharged. 27. Office is directed to return the lower court record expeditiously along with a copy of this judgment for necessary action. 28. Compliance report be sent by the Trial Court within two months. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 02.03.2016 BEFORE THE HON'BLE ARUN TANDON, J. THE HON'BLE HARSH KUMAR, J. Writ C No.- 2558 Of 2016 Mohammad Yunus Hasan ...Petitioner Versus State of U.P. & Ors. ...Respondents Counsel for Petitioner: Javed Husain Khan, Gulrez Khan, W.H. Khan