# Rajendra Prasad @ Gappu v. State of U.P

- **Citation:** (2023) 3 ILRA 684
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-15
- **Case number:** Criminal Appeal No. 1013 of 2000
- **Bench:** Mrs. Renu Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-prasad-gappu-v-state-of-u-p-49913
- **Pages:** 11

## Headnote

Criminal Law- Indian Penal Code, 1860 -
Sections 363, 366 & 376 - Rape - Indian
Evidence Act, 1872 - 114-A - The Code of
Criminal Procedure, 1973 - Sections 164,
313 - on 05.05.1992 accused entered the
house of complainant and enticed away
her
minor
daughter
-
Incident
was
witnessed by three persons - At the time
of incident, the complainant had gone to
attend a marriage - Complainant lodged
FIR against accused on 12.05.1992 - Trial
Court framed charges under aforesaid
sections and held that victim was minor
on the date of incident and the consent of
minor has no effect - Accused enticed the
victim for the purpose of marriage and
raped her - Impugned order challenged in
appeal - Held, no ambiguity and illegality -
liable to be confirmed and dismissed.
(Para 4, 7, 10, 40)

Held: It was the duty of the Investigating
Officer to verify the age of the victim from the
school document. If it is not verified then it is
fault on behalf of the Investigating Officer for
which the age of the victim could not be
3 All. Rajendra Prasad @ Gappu Vs. State of U.P.
685
disputed. The prosecution case cannot be
brushed aside on the lacuna made by the
Investigating Officer. The St.ment of the victim
was recorded under Section 164 Cr.P.C. on
17.06.1992. But trial court did not discuss the
said St.ment in this judgment. No St.ment under
Section 164 Cr.P.C. is found on record but it is
established law that plethora of judgments of
Hon'ble Apex Court held that the St.ment of the
victim under Section 164 Cr.P.C. is mere piece
of evidence. There is no major contradictions in
the St.ment of the victim recorded during the
trial and the accused may be convicted on the
basis of St.ment of the victim only. The appeal
is dismissed. He is directed to surrender before
the C.J.M concerned. Personal bond and bail
bonds of the accused are cancelled. (Para 30,
35, 36, 42, 43)

The appeal is dismissed. (E-13)

List of Cases cited:

## Text

684 INDIAN LAW REPORTS ALLAHABAD SERIES
that no accused person is incapable of
being reformed and therefore, all measures
should be applied to give them an
opportunity of reformation in order to bring
them in the social stream.

22. As discussed above, 'reformative
theory of punishment' is to be adopted and
for that reason, it is necessary to impose
punishment keeping in view the 'doctrine of
proportionality'. It appears from perusal of
impugned judgment that sentence awarded
by learned trial court for life term is very
harsh keeping in view the entirety of facts
and circumstances of the case and gravity
of offence. Hon'ble Apex Court, as
discussed above, has held that undue
harshness should be avoided taking into
account
the
reformative
approach
underlying in criminal justice system.

23. The accused-appellants are
reported to have undergone 12 years of
sentence and therefore, we hold that the
period
undergone
will
be
sufficient
punishment. Fine and default sentence are
maintained. The accused-appellants be set
free forthwith, if not wanted in any other
case. He will deposit the fine within four
weeks from the date of release and in case
fine is not deposited he will be procured to
undergo the sentence of default.

24. In view of the above, the appeal is
partly allowed. Judgment and order passed
by the learned Sessions Judge shall stand
modified to the aforesaid extent. Record be
sent back to the Trial Court forthwith.

25. Therefore, we convert the
sentence of accused appellants from 'life
imprisonment'
to
10
years'
rigorous
imprisonment. Fine and default sentence
are maintained. If 10 years of incarceration
is over. The accused-appellants be set free,
if period of sentence and default sentence
are over, if not wanted in any other case.
----------
(2023) 3 ILRA 684
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.03.2023

BEFORE

THE HON'BLE MRS. RENU AGARWAL, J.

Criminal Appeal No. 1013 of 2000

Rajendra Prasad @ Gappu ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Ramakant Jaiswal, Amicus Curiae, Gopesh
Tripathi

Counsel for the Respondent:
G.A.

Criminal Law- Indian Penal Code, 1860 -
Sections 363, 366 & 376 - Rape - Indian
Evidence Act, 1872 - 114-A - The Code of
Criminal Procedure, 1973 - Sections 164,
313 - on 05.05.1992 accused entered the
house of complainant and enticed away
her
minor
daughter
-
Incident
was
witnessed by three persons - At the time
of incident, the complainant had gone to
attend a marriage - Complainant lodged
FIR against accused on 12.05.1992 - Trial
Court framed charges under aforesaid
sections and held that victim was minor
on the date of incident and the consent of
minor has no effect - Accused enticed the
victim for the purpose of marriage and
raped her - Impugned order challenged in
appeal - Held, no ambiguity and illegality -
liable to be confirmed and dismissed.
(Para 4, 7, 10, 40)

Held: It was the duty of the Investigating
Officer to verify the age of the victim from the
school document. If it is not verified then it is
fault on behalf of the Investigating Officer for
which the age of the victim could not be
3 All. Rajendra Prasad @ Gappu Vs. State of U.P.
685
disputed. The prosecution case cannot be
brushed aside on the lacuna made by the
Investigating Officer. The St.ment of the victim
was recorded under Section 164 Cr.P.C. on
17.06.1992. But trial court did not discuss the
said St.ment in this judgment. No St.ment under
Section 164 Cr.P.C. is found on record but it is
established law that plethora of judgments of
Hon'ble Apex Court held that the St.ment of the
victim under Section 164 Cr.P.C. is mere piece
of evidence. There is no major contradictions in
the St.ment of the victim recorded during the
trial and the accused may be convicted on the
basis of St.ment of the victim only. The appeal
is dismissed. He is directed to surrender before
the C.J.M concerned. Personal bond and bail
bonds of the accused are cancelled. (Para 30,
35, 36, 42, 43)

The appeal is dismissed. (E-13)

List of Cases cited:

1. XYZ Vs St. of Guj. reported in (2019) 10 SCC
337

2. Javed Vs St. of NCT of Delhi reported in 2022
SCC OnLine Del 4182

3. Ram Bihari Yadav Vs St. of Bihar & ors.
reported in MANU/SC/0302/1998

4. Phool Singh Vs The St. of M. P. reported in
(2022) 2 SCC 74

(Delivered by Hon'ble Mrs. Renu Agarwal, J.)

1. Heard Sri Gopesh Tripathi, learned
Amicus Curiae for the appellant and Sri
Veer Raghav Chaubey, learned Additional
Government Advocate for the State.

2. The instant Criminal Appeal under
Section 374 (2) Cr.P.C. has been filed
against the judgment and order dated
10.11.2000 passed by the Additional
Sessions Judge, Lucknow in Sessions Trial
No.460 of 1996 arising out of Case Crime
No.234 of 1992, under Sections 363, 366,
376 I.P.C., Police Station Gosaiganj,
District Lucknow, whereby the accusedappellant, Rajendra Prasad @ Gappu has
been sentenced
and convicted under
Section 363 I.P.C. to undergo two years'
rigorous imprisonment alongwith fine of
Rs.1,000/-, under Section 366 I.P.C. to
undergo two years' rigorous imprisonment
alongwith fine of Rs.1,000/- and under
Section 376 I.P.C. to undergo seven years'
rigorous imprisonment alongwith fine of
Rs.5,000/-. It was further directed in the
impugned judgment that in default of
payment of fine, the appellant has to
undergo
six
months'
additional
imprisonment under Section 363 I.P.C., to
undergo
six
months'
additional
imprisonment under Section 363 I.P.C. and
three years' additional imprisonment under
Section 376 I.P.C.

3. In the guidelines of Hon'ble Supreme
Court, the name of victim is not disclosed.
Her name is refereed as letter ''X'.

4. The brief facts of the case are that
on 05.05.1992 at about 11:00 P.M., accused
Rajendra Prasad @ Gappu entered the
house of complainant and enticed away her
minor daughter, whose date of birth is
20.08.1980. The incident was witnessed by
Vinod Kumar, Motilal, Ram Dashrath and
Satrughan. When the accused Rajendra
Prasad @ Gappu and the victim were inside
the house, these witnesses went inside the
house of the complainant. At the time of
incident, the complainant had gone to
Narainpur to attend a marriage. The
complainant searched his daughter but she
could not be found. The complainant came
to know that Rajendra Prasad @ Gappu had
kidnapped his daughter.

5. On the basis of written report, First
Information Report under Sections 363 and
686 INDIAN LAW REPORTS ALLAHABAD SERIES
366 I.P.C. was lodged in the Police Station
Gosaiganj, District Lucknow. Chik report
was also prepared endorsing G.D. No.27 at
about 15:40 hours on 11.05.1992.

6. The investigation was conducted by
the Sub Inspector R.D. Singh, who
recorded the statement of complainant and
victim, visited place of occurrence and
prepared site plan thereof. During the
investigation, victim was recovered from
Kaiserbagh Bus Stand. The Investigating
Officer prepared the recovery memo, Ex.
Ka-2 and site plan of the place of recovery,
Ex. Ka-6 and handed over the victim to her
parents.
The
victim
was
medically
examined by lady doctor, who prepared
medical report, Ex. Ka-4 and she was also
medically examined for the purpose of
determination of age. The X-ray report, Ex.
Ka-3 and X-ray plate, material Ex.-1 is on
record. It was opined by doctor that the
victim was in between 16 to 17 years of
age. After the conclusion of investigation,
the charge sheet was submitted before the
court of competent jurisdiction.

7. The case was committed to the
court of sessions where accused appeared
and charges were framed against him under
Sections 363, 366 and 376 I.P.C. The
accused/appellant denied from the charges
levelled against him and claimed to be
tried.

8. In order to prove its case, the
prosecution
has
presented
following
witnesses.

"(i)
P.W.-1,
Munna
Lal
(Complainant)

(ii) P.W.-2, the Victim.

(iii) P.W.-3, Dr. J.P. Gupta,
Radiologist.

(iv) P.W.-4, Dr. Mridula Sharma

(v) P.W.-5, Sub Inspector R.D.
Singh.

(vi) P.W.-6, Ram Sumiran.

(vii)
P.W.-7,
Retired
Sub
Inspector Dev Nath Dubey."

9. Besides oral evidence, the
following documentary evidences were
also prepared and proved in the court.

"(i) Ex. Ka-1, Written Report.

(ii) Ex. Ka-2, Recovery Memo.

(iii) Ex. Ka-3, X-ray report.

(iv) Ex. Ka-4, Medical report.

(v) Ex. Ka-5, Site Plan.

(vi) Ex. Ka-6, Site Plan of
recovery.

(vii) Ex. Ka-7, Charge sheet.

(viii) Ex. Ka-8, Chik report.

(ix) Ex. Ka-9, Carbon copy of
G.D. dated 11.05.1992."

10. The learned trial court heard
Government Counsel and learned counsel
for the accused and after perusing the
record, reached to the conclusion that the
victim was minor on the date of incident
and the consent of minor has no effect and
the accused enticed the victim of minor age
for the purpose of marriage and raped her.
The trial court also reached to the
conclusion that accused was 25 years' of
age and found the accused guilty of the
alleged offence. Aggrieved with judgment
and order dated 10.11.2000, the present
appeal is preferred.

11. It is submitted by learned counsel
for the appellant that judgment and order
passed by the learned trial court is
erroneous and against the facts of the case.
The victim was 18 years' old at the time of
incident and the first information report
was lodged with inordinate delay. No eye
witness was produced in the court and if
3 All. Rajendra Prasad @ Gappu Vs. State of U.P.
687
the prosecution story may be assumed to be
true, the consent of prosecutrix ought to be
inferred from the material available on
record. Therefore, it is prayed that the
conviction and sentence fixed against the
appellant may be set aside.

12. Per contra, learned A.G.A.
submitted that according to the first
information report, the victim was minor
and her date of birth was mentioned in the
F.I.R. itself as 20.08.1980 and the incident
happened on 05.05.1992. In the light of
above facts, the victim was minor and her
consent cannot be presumed. The judgment
and order of the trial court is in consonance
with the evidence produced in the trial
court hence the appeal is liable to be
rejected.

13. To recapitulate the evidence of the
prosecution, P.W.-1 Munna Lal stated that
he went to Narainpur in a marriage of his
relative alongwith his wife Saraswati Debi
and his daughter i.e. the victim and his son
i.e. Brij Mohan were at home. His daughter
was aged about 12 years' old at the time of
incident. Dinesh Chandra Sharma went to
inform him about the incident in Narainpur.
When he came, his daughter was missing
from his house and co-villagers, Vinod
Kumar,
Motilal,
Ram
Dashrath
and
Satrughan had informed him that they had
seen the accused, Rajendra Prasad @
Gappu entering his home and they locked
the door of kothari where there was
accused with the victim. The accused,
Rajendra Prasad @ Gappu removed one
part of the door and took the victim
alongwith him from the back side. It is also
deposed by the complainant that the victim
had taken Rs.3,000/- and jewellery from
the house. He searched his daughter in the
village
but
could
not
ascertain
her
whereabout. This witness proved written
report dated 11.05.1992 and stated on oath
that he mentioned the date of birth of his
daughter as 20.08.1980. P.W.-1 proved
recovery memo of his daughter and
identified his signature on it.

14. P.W.-2, the victim deposed that on
the date of incident, her parents were gone
to attend a marriage. Her brother went to
the shop for sleeping. The accused,
Rajendra Prasad @ Gappu and Urmila
came to her house at about 10:00 P.M. to
11:00 P.M. and knocked the door. The
victim had a small shop in her house. The
accused Rajendra knocked the door and
Urmila was also with him. On hearing the
voice of Urmila, she opened the door. The
accused Rajendra asked for pukar (pan
masala). On this, she replied that shop is
locked and she could not give pukar (pan
masala) at this time. Urmila said that they
are standing outside, she can give pan
masala to them. When she entered the
kothari (small room) from window, the
accused also entered in the kothari (small
room) and the Urmila shut the door from
outside. On hearing hue and cry, the
neighbors gathered there and shut the
door from outside. The accused, Rajendra
Prasad @ Gappu threatened the victim to
kill by knife, if she does not accompany
him and carried the victim with him. The
accused, Rajendra Prasad @ Gappu
carried her to Lucknow then Faizabad
and kept her in a house for one month.
The old land lady provided her food and
clothes. The accused committed rape
upon her. When she was coming to
Lucknow with accused on 10.06.1992,
she saw Ram Autar and Puranmasi, who
were known to her, she raised alarm then
the police personnel arrested the accused
at the distance of 10 steps. Recovery
memo was prepared and she affixed her
thumb impression on it.
688 INDIAN LAW REPORTS ALLAHABAD SERIES

15. P.W.-3, Dr. J.P. Gupta who
performed X-ray and prepared X-ray report
and X-ray plate. Both the papers were
proved by him in the court and he
determined the age of the victim in between
16 to 17 years.

16. P.W.-4 Dr. Mridula Sharma
deposed that she examined the victim on
11.06.1992 at about 12:15 P.M., who was
brought by C.P. 2259 Siddheswari Tiwari.
No external injuries were found on the
person of the victim. According to
pathological and radiological report, no
opinion about rape could be given. P.W.-4
also proved medical report as Ex. Ka-4.

17. P.W.-5, Sub Inspector R.D. Singh
appeared in the court and proved site plan,
Ex. Ka-5, recovery memo, Ex. Ka-2, site
plan of recovery, Ex. Ka-6 and charge
sheet, Ex. Ka-7. He also stated that he
produced the victim for recording of the
statement under Section 164 Cr.P.C.

18. P.W.-6, Ram Sumiran, the scriber
of first information report, who reduced in
writing
which
was
stated
by
the
complainant Munna Lal, proved F.I.R. in
court that it is his hand writing.

19. P.W.-7, Sub Inspector Dev Nath
Dubey is a formal witness, who proved the
chik report no.143 dated 11.05.1992, Ex.
Ka-8 and G.D., Ex. Ka-9.

20.

After
the
conclusion
of
prosecution evidence, the statement of
accused was recorded under Section 313
Cr.P.C. wherein accused stated that he has
been falsely implicated in the case. He had
a dispute with complainant Munna on
account
of
reaping
water
chestnut
(singhada) and, therefore, he is falsely
roped in the case. The appellant adduced
two witnesses in defence i.e. D.W.-1,
Urmila and D.W.-2, Ram Autar:-

"D.W.-1, Urmila stated that she
knew that victim had fled away with
accused but she was at her home because
she had delivered a child two days prior to
the date of incident.

D.W.-2, Ram Autar stated that he
was not present at the time of occurrence.
The Sub Inspector obtained his thumb
impression on a plain paper."

21. From the perusal of record, it is
evident that the incident occurred on
05.05.1992, however, first information
report was lodged on 12.05.1992 with the
delay of five days. The distance of police
station is 7 km. West to the place of
occurrence.

22. Learned counsel for the appellant
argued that the F.I.R. is lodged with
inordinate delay of five days but the delay
is explained in the F.I.R. itself by the
complainant and it is mentioned in the
F.I.R. that he searched his daughter in
village, when he could not find out his
daughter then the F.I.R. was lodged in the
police station. Therefore, the delay in F.I.R.
has no effect on the truthfullness of the
F.I.R.

23. It is also pertinent to mention here
that on 10.06.1992, the victim was
recovered when she was coming with
accused appellant on rickshaw. Recovery
memo is on record as Ex. Ka-2, which is
signed by accused, Rajendra Prasad @
Gappu also. Therefore, it is undisputed fact
that the accused enticed away the victim
with him and she remained in the custody
of Rajendra Prasad @ Gappu during this
period till she was recovered from the
possession of accused.
3 All. Rajendra Prasad @ Gappu Vs. State of U.P.
689

24. Learned counsel for the appellant
has submitted that no external or internal
injury was found on the person of the
victim. P.W.-4, Dr. Mridula Sharma stated
on oath that there are no external fresh
injury on any part of the victim. Hymen
was torn and healed and according to
pathological report, no opinion of rape was
given by the doctor but P.W.-2, the victim
herself corroborated prosecution version
that the accused carried her to Lucknow
and, thereafter, Faizabad by bus. She
explained that she did not raise alarm as
accused threatened her to kill. She has also
stated that if Urmila had not knocked her
house, she would not have opened door.
Witness in so many words stated that
accused raped her against her consent, on
her statement, on page no.8, she stated that
she used force to refrain the accused from
committing rape with her. She could not
escape from the room as accused always
locked that room. Therefore, there is no
question of consent from the side of victim.

25. Section 114-A of the Indian Evidence
Act, 1872 is being quoted hereunder:-

"114A.
Presumption
as
to
absence of consent in certain prosecutions
for rape.--In a prosecution for rape under
clause

(a) or clause (b) or clause (c) or
clause (d) or clause (e) or clause (g) of subsection (2) of section 376 of the Indian Penal
Code, (45 of 1860), where sexual intercourse
by the accused is proved and the question is
whether it was without the consent of the
woman alleged to have been raped and she
states in her evidence before the Court that
she did not consent, the Court shall presume
that she did not consent.]"

26. Hon'ble Supreme Court in the
case of XYZ Vs. State of Gujarat reported
in (2019) 10 SCC 337 has held in para 15
as under:-

"During the course of hearing,
learned counsel for the appellant, brought
to our notice provision/Section 114-A of the
Indian Evidence Act, 1872. Section 114-A
of the Indian Evidence Act, 1872 deals with
the presumption as to absence of consent in
certain prosecution for rape. A reading of
the aforesaid Section makes it clear that,
where sexual intercourse by the accused is
proved and the question is whether it was
without the consent of the woman alleged
to have been raped, and such woman states
in her evidence before the Court that she
did not consent, the court shall presume
that she did not consent."

27. Further, Hon'ble Supreme Court
in the case of Javed Vs. State of NCT of
Delhi reported in 2022 SCC OnLine Del
4182 has held in para 7 as under:-

"The consent of the minor at the
age of 16 years, specially, when the
applicant was 23 years old and already
married also disentitles the applicant for
grant of bail. Consent of a minor is no
consent in the eyes of law."

28. It is submitted by the learned A.G.A.
that the victim was 12 years' of age, therefore,
the consent of minor has no effect.

29. Learned counsel for the appellant
submitted that medical age of the victim is
found between 16 to 17 years as the
epiphysis around knee were partly fused
and epiphysis around wrist not fused,
therefore, in the opinion of doctor, the age
is about 16-17 years.

30. From the perusal of record, it is
clear that no proof of age is collected by the
690 INDIAN LAW REPORTS ALLAHABAD SERIES
Investigating
Officer.
However,
complainant specifically noted the date of
birth of the victim as per school document
as 20.06.1980. It was the duty of the
Investigating Officer to verify the age of
the victim from the school document. If the
date of birth is not verified from the school
certificate by the Investigating Officer, it is
fault on behalf of the Investigating Officer
for which the age of the victim could not be
disputed. The prosecution case cannot be
brushed aside on the lacuna made by the
Investigating Officer.

31. Further, in the case of Ram
Bihari Yadav Vs. State of Bihar and Ors.
reported in MANU/SC/0302/1998, Hon'ble
Supreme Court has held that in a situation
of lapses on the part of the Investigating
Officer, the prosecution evidence must be
looked at de hors such omissions to find
out whether the said evidence is reliable or
not.

"In such cases, the story of the
prosecution will have to be examined de
hors such ommissions and contaminated
conduct of the officials otherwise the
mischief which was deliberately done
would be perpetuated and justice would be
denied to the complainant party and this
would obviously shake the confidence of
the people not merely in the law enforcing
agency but also in the administration of
justice."

32. It is well established law that
where there is specific proof of age from
educational document then the opinion of
doctor could not be taken into account.
However, learned counsel for the appellant
stated that this law has been incorporated
vide amendment in Juvenile Justice Act,
2013. Before this amendment, the medical
evidence was admissible as proof of age. It
is assumed that medical evidence is
admissible then too, the medical age is
merely opinion and the medical opinion is
based on guess work. The complainant had
given specific date of birth in the first
information report itself. It is evident from
the date of birth that victim was 12 years
old at the time of incident.

33. Learned counsel for the appellant
argues that it is stated by P.W.-3 in his
cross-examination that "the age of the
victim can neither be determined as 15
years nor 18 years", therefore, age of victim
cannot be less than 15 years and the age of
the victim as mentioned by the prosecution
is not reliable.

34. Again at the cost of reiteration
that the medical opinion is just an opinion
which cannot substitute the date of birth
mentioned in F.I.R. as well as proved by
complainant who is the father of victim.
Prosecution has discharged its burden
regarding age of victim. No evidence is led
by accused in defence to contradict the age
of victim proved by the prosecution.

35. It is also contended by learned
counsel for the appellant that the statement
of the victim recorded under Section 164
were not found on record. However, the
statement of victim was recorded as such. It
is true that the statement of the victim was
recorded under Section 164 Cr.P.C. on
17.06.1992. But learned trial court did not
discuss the statement recorded under
Section 164 Cr.P.C. in this judgment. No
statement under Section 164 Cr.P.C. is
found on record but it is established law
that plethora of judgments of Hon'ble Apex
Court held that the statement of the victim
under Section 164 Cr.P.C. is mere piece of
evidence.
The
evidentiary
value
of
statement of the victim recorded under
3 All. Rajendra Prasad @ Gappu Vs. State of U.P.
691
Section 164 Cr.P.C. is to corroborate or to
contradict the prosecution version. The
victim had corroborated the prosecution
version in her statement recorded on oath
before P.O. during the trial. Therefore, if
the statement of victim under Section 164
Cr.P.C. are not discussed in the judgment,
it do not render statement of victim
recorded in court false and unreliable.

36. There is no major contradictions
in the statement of the victim recorded
during the trial and statement inspired
confidence to the level that the accused
may be convicted on the basis of statement
of the victim only.

37. The relevant paras of Phool Singh
Vs. The State of Madhya Pradesh
reported in (2022) 2 SCC 74, are being
quoted
hereunder
wherein
Hon'ble
Supreme Court has opined as under:-

4.1 It is submitted that in the
present case both, the learned trial Court
as well as the High Court have rightly
convicted the accused for the offence under
Section 376 IPC, relying upon the sole
testimony of the prosecutrix/victim. It is
submitted that as such there is no reason to
doubt the credibility and trustworthiness of
the prosecutrix. It is submitted that even no
question was asked to the prosecutrix while
cross-examining the prosecutrix that a false
case was filed against the accused.

4.2 It is submitted that once it is
found that the prosecutrix is reliable and
trustworthy, in that case, there can be a
conviction for the offence of rape - Section
376 IPC, relying upon the deposition of the
sole witness/victim. Reliance is placed on
the decisions of this Court in the cases of
Ganesan v. State, (2020) 10 SCC 573;
Santosh Prasad v. State of Bihar, (2020) 3
SCC 443; State of H.P. v. Manga Singh,
(2019) 16 SCC 759; and State (NCT of
Delhi) v. Pankaj Chaudhary, (2019) 11
SCC 575.

4.3 It is submitted that in the case
of Pankaj Chaudhary (supra), it is
specifically observed and held by this
Court that conviction can be sustained on
the sole testimony of the prosecutrix if it
inspires confidence and that there is no
rule of law or practice that the evidence of
the prosecutrix cannot be relied upon
without corroboration.

5.2 In the case of Ganesan
(supra), this 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, this Court
had an occasion to consider the series of
judgments of this Court on conviction on
the sole evidence of the prosecutrix. In
paragraphs 10.1 to 10.3, it is observed and
held as under:

10.1.
Whether,
in
the
case
involving sexual harassment, molestation,
etc., can there be conviction on the sole
evidence of the prosecutrix, in Vijay [Vijay
v. State of M.P., (2010) 8 SCC 191], it is
observed in paras 9 to 14 as under: (SCC
pp. 195-98)

"9. In State of Maharashtra v.
Chandraprakash Kewalchand Jain [State
of
Maharashtra
v.
Chandraprakash
Kewalchand Jain, (1990) 1 SCC 550] this
Court held that a woman, who is the victim
of sexual assault, is not an accomplice to
the crime but is a victim of another
person's lust and, therefore, her evidence
need not be tested with the same amount of
suspicion as that of an accomplice. The
Court observed as under:

''16. A prosecutrix of a sex
offence cannot be put on a par with an
692 INDIAN LAW REPORTS ALLAHABAD SERIES
accomplice. She is in fact a victim of the
crime. The Evidence Act nowhere says that
her evidence cannot be accepted unless it is
corroborated in material particulars. She is
undoubtedly a competent witness under
Section 118 and her evidence must receive
the same weight as is attached to an
injured in cases of physical violence. The
same degree of care and caution must
attach in the evaluation of her evidence as
in the case of an injured complainant or
witness and no more.

10. In State of U.P. v. Pappu
[State of U.P. v. Pappu, (2005) 3 SCC 594]
this Court held that even in a case where it
is shown that the girl is a girl of easy virtue
or a girl habituated to sexual intercourse, it
may not be a ground to absolve the accused
from the charge of rape. It has to be
established that there was consent by her
for that particular occasion. Absence of
injury on the prosecutrix may not be a
factor that leads the court to absolve the
accused. This Court further held that there
can be conviction on the sole testimony of
the prosecutrix and in case, the court is not
satisfied with the version of the prosecutrix,
it can seek other evidence, direct or
circumstantial, by which it may get
assurance of her testimony. The Court held
as under: (SCC p. 597, para 12).

12. 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. In the latter case,
there is injury on the physical form, while
in the former it is both physical as well as
psychological and emotional. However, if
the court of facts finds it difficult to accept
the version of the prosecutrix on its face
value, it may search for evidence, direct or
circumstantial,
which
would
lend
assurance to her testimony. Assurance,
short of corroboration as understood in the
context of an accomplice, would do.'

11. In State of Punjab v. Gurmit
Singh [State of Punjab v. Gurmit Singh,
(1996) 2 SCC 384], this 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
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.

12. In State of Orissa v. Thakara
Besra [State of Orissa v. Thakara Besra,
(2002) 9 SCC 86], this 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.

13. In State of H.P. v. Raghubir
Singh [State of H.P. v. Raghubir Singh,
(1993) 2 SCC 622], this Court held that
there is no legal compulsion to look for any
other evidence to corroborate the evidence
of the prosecutrix before recording an
3 All. Rajendra Prasad @ Gappu Vs. State of U.P.
693
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].

14. 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."

5.3 In the case of Pankaj
Chaudhary (supra), 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
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]."

38. Learned counsel for the appellant
had drawn attention on the statement of
defence witness Urmila as the same lady
who is said to have come to knock the door
of the victim alongwith accused Rajendra
Prasad @ Gappu and she stated on oath that
she did not come with Rajendra Prasad @
Gappu as she delivered a child two days
back. She is interested witness and to some
extent, she assisted the appellant in
commission
of
crime,
therefore,
the
statement of the defence witness Urmila
cannot be relied upon. So far as D.W.-2
Ram Autar is concerned, he is the witness
of recovery, who affixed his thumb
impression on recovery memo. He admitted
his signature on recovery memo during
trial, but he denied the contents of recovery
memo. It is already proved that victim was
with accused when she was recovered and
recovery memo was signed by accused
Rajendra Prasad @ Gappu, therefore
recovery memo could not be doubted even
though contents are denied by D.W.2 Ram
Autar.

39. It is a case of appellant that he had
dispute over water chestnuts, which were
sown by Munna and reaped by accused
appellant unlawfully but there is no F.I.R.
regarding the incident. It appears that this
was not major incident. In the the entire
evidence the prosecution proved the fact
that the victim was enticed away by
Rajendra Prasad @ Gappu on 05.05.1992
694 INDIAN LAW REPORTS ALLAHABAD SERIES
and she was recovered from the possession
of accused Rajendra Prasad @ Gappu on
10.06.1992. Recovery memo is signed by
accused as well as witnesses, delay is explained,
the age of the victim is specifically mentioned
in F.I.R. by way of date of birth as well as in the
statement of the complainant. The victim is
proved minor and her consent has no effect.
Moreover, the consent of the victim could not
be presumed in favour of the accused. Consent
is to be proved by the accused appellant by
clear evidence.

40. All the factum have been discussed
and dealt by the trial court in its judgment.
There is no ambiguity and illegality in the
judgment of the trial court and the judgment of
the trial court is liable to be confirmed and the
appeal is liable to be dismissed.

41. So far as the punishment is concerned,
learned trial court has considered the young age
of the appellant at the time of passing the order
and passed seven years' rigorous imprisonment
under Section 376 I.P.C., which is bare
minimum punishment prescribed in the case.
Learned counsel for the appellant could not
show any circumstances to mitigate the
sentence awarded by the trial court, therefore,
the punishment awarded by trial court is also
confirmed.

42. The appeal is dismissed. The accused
is on bail, he shall surrender before the C.J.M
concerned within one month from the date of
judgment and shall be sent to jail and serve out
the punishment awarded by the trial court.

43. Personal Bond and bail bonds of the
accused are cancelled.

44. Let certified copy of this
judgment alongwith lower court record be
sent to the trial court concerned for
necessary information and compliance.
----------
(2023) 3 ILRA 694
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.03.2023

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Criminal Appeal No. 1057 of 2015

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

Counsel for the Appellant:
Purnendu Chakravarty, Ramesh Chandra
Pathak

Counsel for the Respondent:
Bireshawr Nath, Shiv P. Shukla

Criminal
Law-
The
Prevention
of
Corruption Act, 1988-Sections 7, 13(1)(d),
13(2), & Sec 20 - Evidence Act, 1872Section 3- Accused-Appellant demanded
bribe-amount for preparing the TCR and
making payment of the work doneConviction U/s 7 and 13(2) r/w Section 13
(i) (d) P.C Act-Complainant in his evidence
fully proved the demand- Evidence of
independent
shadow
witness
fully
corroborated
the
testimony
of
the
complainant-Recovery
of
the
taintedmoney from drawer of office-table of the
accused-appellant creates no doubt- Other
evidence, such as wash of hand and cloth
turning pink also support the recovery of
the "tainted" money-Accused refused to
give his voice sample-Chain of events
points out towards the guilt of the
accused- Prosecution has to first prove
the demand of illegal gratification and the
subsequent acceptance as a matter of
fact, this fact in issue can be proved either
by direct evidence which can be in the
nature of oral evidence or documentary
evidence.

Appeal dismissed. (E-15)