# Raj Veer Singh v. State of U.P. Opp. Party

- **Citation:** (2022) 4 ILRA 557
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-23
- **Case number:** Criminal Appeal No. 3781 of 2002
- **Bench:** Suneet Kumar, Vikram D Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-veer-singh-v-state-of-u-p-opp-party-48266
- **Pages:** 11

## Headnote

Criminal Law- Indian Penal Code, 1860-
Section 376- Indian Evidence Act, 1872-
Section
3-
The
statement
of
the
prosecutrix, if found to be worthy of
credence
and
reliable,
requires
no
corroboration-
The
court
can
record
conviction of the accused on the sole
testimony of the prosecutrix- If for some
reason the court finds it difficult to place
implicit reliance on her testimony, it may
look
for
evidence
which
may
lend
assurance to her testimony, short of
corroboration required in the case of an
accomplice- The evidence of rape victim
stands at par with the evidence of an
injured witness- Even where no external
or internal marks of injury on the private
part of the victim of rape was found in
medical examination, the testimony of the
prosecutrix that she was raped by the
accused,
cannot
be
discarded-
The
medical expert opinion with regard to the
commission of the offence would not
demolish the prosecution case.

Where the court finds the testimony of the
prosecutrix credible, trustworthy, and inspiring
then without seeking further corroboration, the
court can secure the conviction of the accused
solely based on the said testimony as the
testimony of the prosecutrix is held to be at par
with that of an injured witness. Corroboration
would be required only where the testimony of
the prosecutrix has deficiencies and lacunae.

Criminal Law- Indian Penal Code, 1860-
Section 376- Quantum of Punishment-
Proportionate
Punishment-
Theory of
deterrence- On arriving at the conclusion
that
the
appellant
is
liable
to
be
convicted under Section 376 IPC and the
appropriate sentence to be imposed
needs consideration. The incident in
558 INDIAN LAW REPORTS ALLAHABAD SERIES
question is based on the complaint dated
31.3.2001-
Section
376
has
been
amended w.e.f. 21.04.2018 providing for
the minimum sentence of 10 years, the
case on hand is of 2001 and the
conviction of the appellant was on
6.9.2002. The incident having occurred
prior to amendment, the preamended
provision will have to be taken note of.
The
same
provides
that
a
person
committed of rape shall be punished with
rigorous imprisonment for a term which
shall not be less than seven years but
which may extend to imprisonment for
life and shall also be liable to fine. In the
instant case, taking into consideration all
facts
including
that
no
material
is
available on record to indicate that the
appellant has any criminal antecedents
and that there is no reason to apprehend
that the appellant would indulge in
similar acts in future. Further, victim has
left the village where the appellant
resides. In the circumstances, we deem it
appropriate that the sentence of 10 years
rigorous imprisonment would have been
sufficient deterrent to serve the ends of
justice.

As the incident is of before the amendment of
Section 376 hence the applicant/ accused shall
have to be sentenced according to the preamended provision which provides minimum
punishment of 7 years and in view of the
mitigating circumstances in favour of the
appellant, sentence accordingly modified to 10
years R.I ( Para 21, 24, 27, 29, 30, 36)

Criminal Appeal partly allowed. (E-3)

Judgements/ Case law relied upon:-

## Text

4 All. Raj Veer Singh Vs. State of U.P.
557
that the recovery was made from the house
(makaan) but was subsequently scored out
and recorded ''jungle'; similarly, cuttings with
regard to timing, which according to learned
counsel for the appellant, was done so as to
match the timing of arrest. Further, on close
scrutiny of the document (Panchayatnama),
there is no countersign of the police official
on the cuttings, except at one or two places.
The document casts serious doubt with regard
to the arrest and recovery of the mobile
phone and the body at the pointing out of the
accused. The date and time of arrest of the
accused is seriously doubtful. The demand of
ransom or of causing harm to the infant has
not been proved.

42. The appeal is, accordingly, allowed.
The impugned judgment and order of
conviction and sentence is set aside. The
appellant- Arun Chand is directed to be
released forthwith, if not required in any
other offence.

43. The appellant on being released the
mandate of Section 437-A Cr.P.C. to be
complied.

44. Let the lower court record be sent
back to the court below forthwith, along with
a copy of this judgment, for ascertaining
necessary compliance.
----------
(2022)04ILR A557
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.02.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE VIKRAM D CHAUHAN, J.

Criminal Appeal No. 3781 of 2002

Raj Veer Singh ...Appellant
Versus
State of U.P. ...Opp. Party

Counsel for the Appellant:
Sri Raj Kumar Khanna, Sri Bharat Singh, Sri
Mohd. Imran Khan

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

Criminal Law- Indian Penal Code, 1860-
Section 376- Indian Evidence Act, 1872-
Section
3-
The
statement
of
the
prosecutrix, if found to be worthy of
credence
and
reliable,
requires
no
corroboration-
The
court
can
record
conviction of the accused on the sole
testimony of the prosecutrix- If for some
reason the court finds it difficult to place
implicit reliance on her testimony, it may
look
for
evidence
which
may
lend
assurance to her testimony, short of
corroboration required in the case of an
accomplice- The evidence of rape victim
stands at par with the evidence of an
injured witness- Even where no external
or internal marks of injury on the private
part of the victim of rape was found in
medical examination, the testimony of the
prosecutrix that she was raped by the
accused,
cannot
be
discarded-
The
medical expert opinion with regard to the
commission of the offence would not
demolish the prosecution case.

Where the court finds the testimony of the
prosecutrix credible, trustworthy, and inspiring
then without seeking further corroboration, the
court can secure the conviction of the accused
solely based on the said testimony as the
testimony of the prosecutrix is held to be at par
with that of an injured witness. Corroboration
would be required only where the testimony of
the prosecutrix has deficiencies and lacunae.

Criminal Law- Indian Penal Code, 1860-
Section 376- Quantum of Punishment-
Proportionate
Punishment-
Theory of
deterrence- On arriving at the conclusion
that
the
appellant
is
liable
to
be
convicted under Section 376 IPC and the
appropriate sentence to be imposed
needs consideration. The incident in
558 INDIAN LAW REPORTS ALLAHABAD SERIES
question is based on the complaint dated
31.3.2001-
Section
376
has
been
amended w.e.f. 21.04.2018 providing for
the minimum sentence of 10 years, the
case on hand is of 2001 and the
conviction of the appellant was on
6.9.2002. The incident having occurred
prior to amendment, the preamended
provision will have to be taken note of.
The
same
provides
that
a
person
committed of rape shall be punished with
rigorous imprisonment for a term which
shall not be less than seven years but
which may extend to imprisonment for
life and shall also be liable to fine. In the
instant case, taking into consideration all
facts
including
that
no
material
is
available on record to indicate that the
appellant has any criminal antecedents
and that there is no reason to apprehend
that the appellant would indulge in
similar acts in future. Further, victim has
left the village where the appellant
resides. In the circumstances, we deem it
appropriate that the sentence of 10 years
rigorous imprisonment would have been
sufficient deterrent to serve the ends of
justice.

As the incident is of before the amendment of
Section 376 hence the applicant/ accused shall
have to be sentenced according to the preamended provision which provides minimum
punishment of 7 years and in view of the
mitigating circumstances in favour of the
appellant, sentence accordingly modified to 10
years R.I ( Para 21, 24, 27, 29, 30, 36)

Criminal Appeal partly allowed. (E-3)

Judgements/ Case law relied upon:-

1. St. of Raj. Vs N.K. The Accused ( 2005) SCC
30

2. St. of Orissa Vs Thakara Besra ( 2002) 9 SC
86

3. St. of H.P. Vs Raghubir Singh ( 1993) 2 SCC
622

4. Rai Sandeep Vs State (NCT of Delhi) ( 20120
8 SCC 21
5. St. of Pun. Vs Gurmit Singh ( 1996) 2 SCC
384

6. Madan Gopal Kakkad Vs. Naval Dubey & anr.
1992 SCC (3) 204

7. Rajinder @ Raju Vs. St. of H.P. (2009) 16
SCC 69

8. St.of U.P. Vs. Chhoteylal ( 2011) 2 SCC 550

9. Ranjit Hazarika Vs The State of Assam (1998)
8 SCC 635

10. St. of H.P. Vs Manga Singh( 2019) 16 SCC
759

11. Sham Singh Vs St. of Har. ( 2018) 18 SCC
34

(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard Sri Bharat Singh, learned
counsel for the appellant, learned AGA for
the State and perused the lower court
record with the assistance of learned
counsels.

2. This criminal appeal has been filed
against the judgment and order dated
6.9.2002 passed by Additional Sessions
Judge IV, Moradabad in S.T. No.184 of
2002 (State Vs. Rajveer), under sections
452 and 376 IPC, P.S. Hayat Nagar,
District Moradabad, whereby, the appellant
has been convicted and sentenced under
section 452 IPC with one year rigorous
imprisonment and fine of Rs.5,000/- and
convicted and sentenced under Section 376
IPC with life imprisonment and fine of
Rs.10,000/-. In case of default in payment
of fine, additional simple imprisonment for
a period of two years.

3. As per prosecution case, husband
of the victim i.e. Sukhram lodged a report
on 31.3.2001 at 12:10 p.m. alleging that on
30.3.2001 at about 11:00 p.m. in the night,
4 All. Raj Veer Singh Vs. State of U.P.
559
appellant taking advantage that his wife
was alone in the house, committed offence
of rape. It was further alleged that the
appellant is neighbour and earlier in the
morning of the day of incident, he had
quarrel with the appellant over a drain. On
fear of the appellant, he left the village and
had gone to his cousin's place in another
village.

4.

After
investigation,
police
report/charge sheet came to be filed under
Section 376 IPC against the appellant. The
appellant was summoned to stand trial on
charges under Sections 376 and 452 IPC.

5. The prosecution to prove the
charge, examined in all five witnesses.
Three witnesses of fact and two formal
witnesses. Sukhram, informant/husband of
the victim (PW-1), victim (PW-2), Noshe
(PW-3) an independent witness/neighbour
of the complainant, Constable Harendra
Singh (PW-4) who proved the Chik F.I.R.
and G.D. Entry and Dr. Aruna Pal (PW-5)
proved the medical examination report and
pathology report.

6. Sukhram (PW-1), the complainant
stated that he is aged about 28 years and a
labour. On the day of the incident at about
10:00 a.m., a brawl ensued between him
and the accused-appellant over a drain and
the flowing water, which the accused had
obstructed. He further deposed that out of
fear of the accused, he left the village and
went to neighbouring village, at his cousin's
house. On returning to his village on the
following day, his wife (victim) informed
that at about 11:00 p.m. on the previous
night; accused entered the house after
opening the latch (kundi) and committed
the offence of rape. He further stated that
victim informed him that on hearing her
scream
neighbours,
Noshe
Ali
and
Shamim, came on the spot and saw the
accused escaping from the premises. He
further stated that he had taken his wife to
the Thana and report came to be lodged on
a written complaint, reduced in writing at
his home.

7. He identified his thumb impression
on the complaint (Exhibit Ka-1). He further
stated that the clothes of the victim was
taken, recovery memo was drawn, on
which his thumb impression was taken
(Exhibit Ka-2). In cross examination, he
stated that Maluki Pradhan, and Hari Singh
had not accompanied him to the court, but
they met him within the premises of the
court. He further stated that Maluki
Pradhan, and Hari Singh are facing trial for
murder of the brother of the accused. He
further stated that the house of the accused
is adjacent to his house, as well as, one of
his (appellant) house is opposite to his
house. There is a drain between the house
of the complainant and that of the accused.
The drain vests in gram panchayat and is
not owned by either of the parties. He
further stated that at 6:00 in the evening, he
left the village on foot to the neighbouring
village to his cousin's house. He further
deposed that with regard to the dispute of
the drain, he had not given any written
complaint. He returned to the village at
7:00 in the morning on the following day, it
is then his wife informed him of the
incident that had occurred at 11:00 p.m. in
the night. He further stated that in the
afternoon of the incident he met Maluki
Pradhan, and denied that a false case was
lodged at the behest of Maluki Pradhan and
that Noshe Ali (PW-3) falsely testified, as
he had transferred his house to him. He
further stated that the police had visited his
house on the day, on which the complaint
was lodged and after two days, police
inspected the site.
560 INDIAN LAW REPORTS ALLAHABAD SERIES
8. Victim (PW-2) in her examinationin-chief stated that at the time of incident
she was residing at the village and after the
incident, she left the village out of fear of
the accused-assailant. She further stated
that her husband left the village due to fear
as on the said date, a brawl with regard to a
drain had taken place between the accused
and her husband. At the time of incident
she was alone in the house; the accused
barged into her house and pushed her
down, thereafter, committed the offence of
rape. She further stated that the accused
had pressed her mouth with his hand so she
could not scream. On opportunity she
screamed, her neighbour, Noshe Ali (PW3) and Shamim came; accused escaped
from the room; she identified the accused
in the light of lamp.

9. In cross examination, victim deposed
that accused has a house opposite to her house,
as well as, adjacent to her house; two adjacent
houses are separated by a narrow lane, where
only human being can pass through; the drain
between two houses was a bone of contention
between her husband and the accused. She
further stated that accused had obstructed the
drain by putting mud, earlier in the morning,
thereafter, he abused her husband and also beat
him, as well as, her. She further stated that she
did not incur any injury. She stated that she did
not complain of the incident to Maluki
Pradhan of the village and had not informed
any other villager. She further stated that her
husband had left the house after the incident
out of fear. She out of fear kept quite. While
she was sleeping, the door of the house was
bolted with latch. She further deposed that the
face of the assailant was not covered by any
cloth and on her scream, neighbour, including,
Noshe Ali (PW-3) reached the spot.

10. Noshe Ali (PW-3) in his statement
deposed that the complainant and his wife
are resident of the village; he is immediate
neighbour; incident is of 11:00 p.m. and on
hearing scream of the victim, he reached
the spot and on seeing him, accused
escaped from the spot. He saw the victim
half clad and the victim informed him of
the incident and the offence committed by
the accused. He further stated that no other
person was present in the house. In cross
examination, he deposed that earlier he had
submitted an affidavit in the court of Chief
Judicial Magistrate. He identified and
proved the affidavit. He further stated that
he visited the house of the victim on
hearing her scream and saw the accused
escaping from the house of the victim. He
further stated that accused was wearing
nikkar and dhoti and his dhoti was open.
He further stated that he had seen the
victim at her house/kotha. He identified the
accused in torch light. He further stated that
his son had purchased the house of the
complainant/victim. On suggestion, he
denied that due to this reason he is giving
false statement.

11. Clerk Constable Harendra Singh
(PW-4) proved the documentary evidence,
the F.I.R. and G.D. entry being Exhibit Ka3 and Exhibit Ka-4. In cross examination,
PW-4 stated that he asked the complainant
about the scribe of the report, but,
complainant did not tell the name of the
scribe; complainant had come to police
station with a written complaint. He further
stated that on the written complaint, thumb
impression of the complainant was already
made.

12. Dr. Aruna Pal (PW-5) stated that
on 31.3.2001, at about 5:45 p.m., she
examined the victim; she was brought by
constable Bhupendra Chaubey. She proved
the medical examination report and the
pathology report, wherein, it is noted that
4 All. Raj Veer Singh Vs. State of U.P.
561
on general examination there was no mark
of injury over her body. On internal
examination, it is noted that there is no
mark of injury over private parts. Vagina
admits two fingers easily. Uterus and
cervix normal. No bleeding was present.
Vaginal
smear
taken
and
sent
for
histopathology. Medical Expert opined that
no definite opinion about rape can be
given. On a suggestion, PW-5 stated that it
is wrong to say that the offence of rape was
not committed merely in absence of
spermatozoa.

13. The accused on being confronted
with the prosecution evidence and the
incriminating circumstance, in statement
under Section 313 Cr.P.C. denied the
charge and stated that he has been falsely
implicated due to enmity; the prosecution
witnesses have given false statements. On
specific query as to whether accused wants
to say anything in defence, he declined.

14. It is submitted by learned counsel
for the appellant that witnesses of fact PW1, PW-2 and PW-3 have been implanted at
the behest of Maluki, Pradhan of village
and Hari Singh for the reason that brother
of the appellant was murdered by Maluki
Pradhan and Hari Singh. It is urged that
witnesses of fact were won over by them.
This fact is also substantiated by the
statement of PW-1 that after the dispute
and brawl with regard to the drain, he
visited the Pradhan and informed him in the
afternoon. It is further submitted that the
testimony of PW-3, the independent
witness cannot be relied upon, as he is
beneficiary of having purchased the house
of the complainant/victim.

15. It is further submitted that as per
testimony of PW-2 she stated that after
commission of offence, accused left the
Kotha, thereafter, she screamed, on hearing
her scream neighbours came. In other
words, it is submitted that the testimony of
the independent witness PW-3 cannot be
relied
upon/believed,
as
it
is
in
contradiction to the statement of the victim
that the accused had left the site of incident.
It is further submitted that as per medical
examination report and medical expert
opinion, the incident of rape is not
corroborated. There is no internal/external
injury, nor, spermatozoa was found.

16. Finally, it is submitted that
appellant is having no previous criminal
history; throughout trial he was on bail;
thereafter, on conviction, he was enlarged
on bail by this Court on 11.9.2002. It is
urged that the accused has not misused his
liberty, nor, indulged in any other criminal
activity. In the circumstances, it is urged
that
maximum
quantum
of
sentence
imposed by the trial court is excessive.
Having due regard to the conduct of
accused-appellant, a lessor sentence would
suffice.

17. The fact in issue to be determined
is as to whether the prosecution was able to
prove
the
incriminating
circumstance
connecting the accused-appellant with the
commission of the offence of rape. As per
prosecution case, complainant, husband of
the victim, reported that the accusedappellant had committed the offence in his
absence taking advantage that his wife was
alone at the house. He further stated that
out of fear, he left the village as he was
threatened by the accused over a dispute of
a drain. On returning to the village on the
subsequent day at 7:00 a.m., victim
informed him about the incident. The
victim in her statement clearly identified
the accused of having committed the
offence taking advantage that she was
562 INDIAN LAW REPORTS ALLAHABAD SERIES
alone at the house and further on hearing
her scream, neighbours rushed and they had
identified the accused. PW-3, a next door
neighbour, clearly stated that he had seen
the accused leaving the door of the house
of the victim at the relevant time of the
incident, he reached the house of the victim
on hearing her scream. He further stated
that he had seen that victim was half clad
and weeping; while accused escaped, he
was wearing nikkar and dhoti, which was
open and his eyes was red. The testimony
of PW-2 and PW-3 prove the commission
of the offence and presence of the accused
at the relevant time at the site beyond
reasonable doubt.

18. The site-map shows both houses of
the accused, one across the road and one
adjacent to the house of the victim. In
between the adjacent houses, a narrow lane
and drain has been shown. On the other side
of the victim's house, house of PW-3 has
been shown. The place of the incident has
also been shown in the site plan. The siteplan corroborates the testimonies of PW-1,
PW-2 and PW-3. The medical examination
report alone is not sufficient to demolish the
testimony of the victim and the independent
witness PW-3. Further, victim (PW-2)
deposed that out of fear, her husband left the
village and after the incident they sold the
house and left the village permanently.

19. On the day of cross examination,
PW-1 admitted that Maluki Singh and Hari
Singh were present in the court premises. In
this backdrop, it is urged that the testimony of
PW-1 and PW-2 is not trustworthy and
reliable. The witnesses were won over by
Pradhan to settle scores with the accused.

20. The questions arising for
consideration before us are: whether the
prosecution story, as alleged, inspires
confidence of the court on the evidence
adduced? Whether the prosecutrix, is a
witness worthy of reliance? Whether the
testimony of a prosecutrix who has been in
victim
of
rape
stands
in
need
of
corroboration and, if so, whether such
corroboration is available in the facts of the
present
case?
Whether
she
was
a
consenting party to the crime?

21. At the outset the testimony of the
prosecutrix cannot be doubted merely for
the reason that her husband met the
Pradhan and Hari Singh and that they were
present in the court premises on the date of
examination of PW-1. The defence has not
produced any evidence or material to
substantiate that the witnesses of fact have
been implanted. The doubt has to be a
reasonable doubt and not on excuse for
acquittal.

22. In State of Rajasthan v. N.K.
The Accused1, Supreme Court has held:

"9. ...A doubt, as understood in
criminal jurisprudence, has to be a
reasonable doubt and not an excuse for a
finding in favour of acquittal. An unmerited
acquittal encourages wolves in the society
being on the prowl for easy prey, more so
when the victims of crime are helpless
females. The courts have to display a
greater sense of responsibility and to be
more sensitive while dealing with charges
of sexual assault on women......In State of
Punjab v. Gurmeet Singh, (1996) 2 SCC
384, "[A] rapist not only violates the
victim's privacy and personal integrity, but
inevitably causes serious psychological as
well as physical harm in the process. Rape
is not merely a physical assault- it is often
destructive of the whole personality of the
victim. A murderer destroys the physical
body of his victim, a rapist degrades the
4 All. Raj Veer Singh Vs. State of U.P.
563
very should of the helpless female. The
courts,
therefore,
shoulder
a
great
responsibility while trying an accused on
charges of rape. The must deal with such
cases with utmost sensitivity. The courts
should examine the broader probabilities of
a case and not get swayed by minor
contradictions
or
insignificant
discrepancies in the statement of the
prosecutrix, which are not of a fatal nature,
to
throw
out
an
otherwise
reliable
prosecution case."

23. The contention of learned counsel
for the appellant on close scrutiny would
not demolish the prosecution case. PW-1
meeting the village Pradhan (Maluki) in the
afternoon after the dispute/brawl over the
drain is a natural behaviour, PW-1 probably
met the Pradhan either to intervene or settle
the dispute between the neighbours. That
would certainly not mean that witnesses
were won over. The presence of the
Pradhan in the court premises on the day of
the testimony of PW-1 also does not show
that PW-1/PW-2 were influenced in falsely
implicating the accused. It can be a coincidence or an assurance to the PW-1 that
the accused or any person on his behalf
would not harm PW-1 in the court. PW-1
and PW-2 categorically stated that PW-1
left the village out of fear of the accused
and PW-2 stated that after the incident, fear
and humiliation compelled them to sell
their house and permanently leave the
village.

24. The prosecution case must stand
on it legs to bring home the charge beyond
reasonable doubt. The prosecution case
stands proved on the sterling, credible and
trustworthy testimony of the victim duly
corroborated by PW-1 and the independent
witness PW-3. The presence of the accused
was duly proved by PW-3 immediately
after the incident.

25. In State of Orissa v. Thakara
Besra2, Supreme 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 examination 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.

26. In State of H.P. V. Raghubir
Singh3, Supreme 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 in Wahid Khan v. State of
M.P.4, placing reliance on an earlier
judgment in Rameshwar v. State of
Rajasthan5.

27. Thus, the law that emerges on the
issue that the statement of the prosecutrix,
if found to be worthy of credence and
reliable, requires no corroboration. The
court can record conviction of the accused
on the sole testimony of the prosecutrix.

28. Who can be said to be a "sterling
witness",
has
been
dealt
with
and
considered in Rai Sandeep v. State (NCT
564 INDIAN LAW REPORTS ALLAHABAD SERIES
of Delhi)6. In para 22, it is observed and
held as under:

"22. In our considered opinion, the
"sterling witness" should be of a very high
quality and calibre whose version should,
therefore, be unassailable. The court
considering the version of such witness
should be in a position to accept it for its
face value without any hesitation. To test
the quality of such a witness, the status of
the witness would be immaterial and what
would be relevant is the truthfulness of the
statement made by such a witness. What
would be more relevant would be the
consistency of the statement right from the
starting point till the end, namely, at the
time when the witness makes the initial
statement and ultimately before the court. It
should be natural and consistent with the
case of the prosecution qua the accused.
There should not be any prevarication in
the version of such a witness. The witness
should be in a position to withstand the
cross-examination of any length and
howsoever strenuous it may be and under
no circumstance should give room for any
doubt as to the factum of the occurrence,
the persons involved, as well as the
sequence of it. Such a version should have
correlation with each and every one of
other supporting material such as the
recoveries made, the weapons used, the
manner of offence committed, the scientific
evidence and the expert opinion. The said
version should consistently match with the
version of every other witness. It can even
be stated that it should be akin to the test
applied in the case of circumstantial
evidence where there should not be any
missing link in the chain of circumstances
to hold the accused guilty of the offence
alleged against him. Only if the version of
such a witness qualifies the above test as
well as all other such similar tests to be
applied, can it be held that such a witness
can be called as a "sterling witness" whose
version can be accepted by the court
without any corroboration and based on
which the guilty can be punished. To be
more precise, the version of the said
witness on the core spectrum of the crime
should remain intact while all other
attendant
materials,
namely,
oral,
documentary and material objects should
match
the
said
version
in
material
particulars in order to enable the court
trying the offence to rely on the core
version to sieve the other supporting
materials for holding the offender guilty of
the charge alleged."

29. If the 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 to
place implicit reliance on her testimony, it
may look for evidence which may lend
assurance to her testimony, short of
corroboration required in the case of an
accomplice.
The
testimony
of
the
prosecutrix must be appreciated in the
background of the entire case and the court
must be alive to its responsibility and be
sensitive
while
dealing
with
cases
involving sexual molestations or sexual
assaults. [See State of Punjab v. Gurmit
Singh7].

30. It is settled legal position that the
evidence of rape victim stands at par with
the evidence of an injured witness. Injury
of the rape victim being physical, as well
as, psychological in the form of traumatised
assault and ravishment of her chastity and
womanhood. Corroboration from medical
evidence varies from case to case as it
depends upon the circumstances of each
case. (Refer : Ganga Singh Vs. State of
4 All. Raj Veer Singh Vs. State of U.P.
565
M.P.8; Santosh Prasad @ Santosh Kumar
Vs. State of Bihar9).

31. Through judicial pronouncements
rendered in several cases viz, Madan
Gopal Kakkad Vs. Naval Dubey and
another10, Rajinder @ Raju Vs. State of
H.P.11
and
State
of
U.P.
Vs.
Chhoteylal12, the Supreme Court has
clarified that even where no external or
internal marks of injury on the private part
of the victim of rape was found in medical
examination,
the
testimony
of
the
prosecutrix that she was raped by the
accused, cannot be discarded. Where
observations recorded by doctor during
medico-legal examination of prosecutrix
clearly making out that prosecutrix having
been subjected to rape and the doctor as
witness of the prosecution stating in
response to a suggestion put to her by
defence counsel that injury of the nature
found on the hymen of prosecutrix could be
caused by a fall, does not lead the court
anywhere. The Court proceeded to observe
that why would the girl or her mother
charge the accused, who is a near relation,
with rape if the injury was caused by the
fall, that too, when the victim in her
deposition had spoken of penetration.
Further discovery of spermatozoa in the
private part of the victim is not a must to
establish penetration as there are several
factors which may negate the presence of
spermatozoa.

32. In Ranjit Hazarika V. The State
of Assam13 , the victim was aged about 14
years and her testimony was corroborated
by other
evidences
and
was
found
trustworthy, even though the doctor had
opined that there was no sign of rape. The
Supreme Court held that on the given facts
corroboration of testimony of prosecutrix
by medical evidence was not essential.

33. In State of Himanchal Pradesh
v. Manga Singh14, the victim was aged
about nine years and she had levelled
allegations of rape against her cousin. The
medical opinion was not supporting the
factum of rape, however, the victim was
found consistent and corroborated by other
evidences. The Supreme Court dismissed
the appeal against conviction.

34. In the case of Sham Singh v.
State of Haryana15, 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. The
courts should not get swayed by minor or
insignificant
contradictions/discrepancies
in the statement of the prosecutrix. In
paragraphs 6 and 7, it is observed and held
as under:

"6. We are conscious that the courts
shoulder a great responsibility while trying
an accused on charges of rape. They must
deal
with
such
cases
with
utmost
sensitivity. The courts should examine the
broader probabilities of a case and not get
swayed
by
minor
contradictions
or
insignificant discrepancies in the statement
of the prosecutrix, which are not of a fatal
nature, to throw out an otherwise reliable
prosecution case. If the 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
to place implicit reliance on her testimony,
it may look for evidence which may lend
assurance to her testimony, short of
corroboration required in the case of an
566 INDIAN LAW REPORTS ALLAHABAD SERIES
accomplice.
The
testimony
of
the
prosecutrix must be appreciated in the
background of the entire case and the court
must be alive to its responsibility and be
sensitive
while
dealing
with
cases
involving sexual molestations or sexual
assaults. [See State of Punjab v. Gurmit
Singh [State of Punjab v. Gurmit Singh,
(1996) 2 SCC 384] (SCC p. 403, para 21).]

7. It is also by now well settled that
the courts must, while evaluating evidence,
remain alive to the fact that in a case of
rape, no self-respecting woman would
come forward in a court just to make a
humiliating statement against her honour
such as is involved in the commission of
rape on her. In cases involving sexual
molestation,
supposed
considerations
which have no material effect on the
veracity of the prosecution case or even
discrepancies in the statement of the
prosecutrix
should
not,
unless
the
discrepancies are such which are of fatal
nature, be allowed to throw out an
otherwise reliable prosecution case. The
inherent bashfulness of the females and the
tendency to conceal outrage of sexual
aggression are factors which the courts
should not overlook. The testimony of the
victim in such cases 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 a
victim of sexual assault alone to convict an
accused where her testimony inspires
confidence and is found to be reliable.
Seeking corroboration of her statement
before relying upon the same, as a rule, in
such cases amounts to adding insult to
injury. (See Ranjit Hazarika v. State of
Assam (1998) 8 SCC 635)."

35. Applying the principle of law to
the facts of the case at hand, in the
backdrop of the prosecution evidence, the
prosecution version is proved beyond
reasonable
doubt.
The
victim
PW-2
informed her husband PW-1 in the morning
on returning home. The prosecutrix with
clarity stated and identified the appellantaccused of having committed the offence of
rape. The incident is duly corroborated by
the testimony of the neighbour PW-3. The
defence failed to demolish the statements
of PW-1, PW-2 and PW-3 or cast
reasonable doubt. In the backdrop of the
testimony of the witnesses of fact, in
particular, of the prosecutrix, the medical
expert
opinion
with
regard
to
the
commission of the offence would not
demolish the prosecution case.

36. On arriving at the conclusion that
the appellant is liable to be convicted under
Section 376 IPC and the appropriate
sentence
to
be
imposed
needs
consideration. The incident in question is
based on the complaint dated 31.3.2001. In
this circumstance, though it is noted that
Section 376 has been amended w.e.f.
21.04.2018 providing for the minimum
sentence of 10 years, the case on hand is of
2001 and the conviction of the appellant
was on 6.9.2002. The incident having
occurred
prior
to
amendment,
the
preamended provision will have to be taken
note of. The same provides that a person
committed of rape shall be punished with
rigorous imprisonment for a term which
shall not be less than seven years but which
may extend to imprisonment for life and
shall also be liable to fine. In the instant
case, taking into consideration all facts
including that no material is available on
record to indicate that the appellant has any
criminal antecedents and that there is no
reason to apprehend that the appellant
would indulge in similar acts in future.
Further, victim has left the village where
4 All. Satish Sharma Vs. State of U.P.
567
the appellant resides. In the circumstances,
we deem it appropriate that the sentence of
10 years rigorous imprisonment would
have been sufficient deterrent to serve the
ends of justice.

37. The conviction and sentence
under Section 452 IPC is confirmed. The
conviction order made by the trial court
under Section 376 IPC is modified. The
appellant is instead convicted under Section
376 IPC and is sentenced for a period of 10
years rigorous imprisonment. The fine and
default sentence as imposed by the trial
court shall remain unaltered. The fine shall
be
paid
to
the
victim
towards
compensation.

38. The appeal is allowed in part as
provided hereinabove.

39. The record of the trial court shall
be returned forthwith along with a copy of
this order.
----------
(2022)04ILR A567
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.04.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Criminal Appeal No. 5824 of 2010

Satish Sharma ...Appellants
Versus
State of U.P. ...Opp. Parties

Counsel for the Appellants:
Sri Saurabh Gaur, Sri A.B.L. Gaur, Sri
Anurag Shukla, Sri Manish Tandon, Sri
Neeraj Tiwari, Sri Siddharth Singh, Sri
Anshuman Vidhu Chandra, Sri Navin Kumar
Sharma, Sri G.S. Chaturvedi (Sr. Adv.)

Counsel for the Opp. Parties:
A.G.A.

Evidence Law - Indian Evidence Act, 1872-
Sections
3
&
106-
Circumstantial
evidence- Though the prosecution has
been able to prove some kind of initial
relationship and an initial dispute between
the accused-appellant and the deceased
but
it
could
lead
no
evidence
to
demonstrate that that relationship, and
the dispute, continued till about the time
of the incident- The circumstances sought
to be proved throw multiple hypotheses
not inconsistent with the innocence of the
accused-appellants
therefore,
even
if
there had been no proper explanation on
the part of the accused, it would not be
appropriate to presume their guilt by
taking recourse to the provisions of
section 106 of the Evidence Act - There is
complete lack of evidence of the deceased
being last seen alive with the accused, it
would not be safe on our part to convict
the accused-appellants for the charge of
murder of the deceased, particularly,
when the body of the deceased carried
only one fatal injury on the head which
could be a consequence of banging the
head on the wall or on the iron gate or any
hard substance. In so far as the evidence
of recovery of the bamboo stick is
concerned,
that
becomes
doubtful
because the witnesses of recovery have
not only denied the recovery but have also
denied their signatures on the recovery
memo yet, no effort was made by the
Investigating
Officer
to
prove
their
signature.

Evidence Law - Indian Evidence Act, 1872-
Sections 3 , 102 & 106- In a case of
circumstantial evidence there must be a chain of
evidence so far complete as not to leave any
reasonable ground for a conclusion consistent
with the innocence of the accused and therefore
the guilt of the accused cannot be presumed on
the basis of Section 106 of the Evidence Act,
specially where there is no evidence of the
deceased having been last seen in the company
of the accused, there is a possibility of multiple