# Rajesh Kumar Dubey v. State of U.P. Opp. Party

- **Citation:** (2022) 11 ILRA 1199
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-16
- **Case number:** Jail Appeal No. 2176 of 2010
- **Bench:** Sanjay Kumar Pachori
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-kumar-dubey-v-state-of-u-p-opp-party-47983
- **Pages:** 6

## Headnote

Criminal Law- Indian Penal Code, 1860-
Sections 375 & 376- The important
ingredient of the offence under Section
375 punishable under Section 376, IPC is
penetration. No offence under Section 376
IPC can be made out unless there was
penetration to some extent. In absence of
penetration to any extent would not bring
the offence of the accused within the four
corners of Section 375, IPC. Therefore, the
basic ingredients for proving a charge of
rape are the accomplishment of the act
with force. The other important ingredient
is penetration of the male organ within
the labia majora or the vulva or pudenda
with or without any emission of semen or
even an attempt at penetration into the
private part of the victim completely,
partially or slightly would be enough for
the purpose of Section 375 and 376 IPC.

Penetration to any extent with the use of force
for accomplishment of the act, are sufficient to
make out the offence of rape.

Indian Penal Code, 1860- Section 375-
Section 376- Indian Evidence Act, 1872-
Section 3- It is settled position of law that
a conviction can be based entirely on the
statement of a rape victim- The statement
of the prosecutrix if found to be worthy of
credence,
and
reliable,
requires
no
corroboration. She stands at a higher
pedestal
than
an
injured
witness.
However, if the court may find it difficult
to accept the testimony of the prosecutrix,
it may search for evidence, direct or
circumstantial,
which
would
lend
assurance to her testimony- It is a settled
proposition of law that even if there are
some
omissions,
contradictions,
and
discrepancies, the entire evidence cannot
be disregarded.

Conviction can be secured solely on the
testimony of the victim where her statement is
found to be truthful and credible by the court
1200 INDIAN LAW REPORTS ALLAHABAD SERIES
but
where
the
same
has
contradiction,
omissions etc. then the court may seek
corroboration from other materials.

Code of Criminal Procedure, 1973- Section
154- The delay in lodging the FIR in a
sexual assault cannot normally affect the
prosecution case, as held by the Supreme
Court in various judgments, but where
there is an inordinate delay in registration
of the FIR, in such circumstances, it casts
a cloud of suspicion on the credibility of
the entire prosecution story and such type
of delay would certainly be regarded as
fatal to the prosecution case and thus, the
whole prosecution case is under the cloud
of suspicion and doubt-Overwriting in the
complaint (Ex.Ka.-1) and chik FIR (Ex.Ka.-
4) by the overwriting, date of the
complaint, number of crime have been
changed, G.D. Rapat (Ex.Ka.-5) has no
number, date or time, name of the scribe
is not mentioned in the complaint, PW-1
victim St.d that she did not know the
name of scribe of the complaint, there is
no date on which copy of the FIR (Ex.Ka.-
4) has been sent to the jurisdictional
Magistrate.

Even in an offence of sexual assault, inordinate
delay in lodging the FIR can render the case of
the prosecution doubtful and where the
inordinate delay is accompanied with material
discrepancies in the complaint, chik FIR and
relevant G.D entries then the same may be fatal
to the case of the prosecution.

Indian Penal Code, 1860- Section 375-
Section 376- Indian Evidence Act, 1872-
Section 3- Section 101- It is not the duty
of the defence to explain as to how and
why in a sexual assault case the victim
has falsely implicated the appellant. The
evidence
of
prosecutrix
cannot
be
accepted merely because the appellant
has not been able to say as to why she has
come forward to depose against him. On
the basis of the facts and circumstances
discussed above, an inferrence can easily
be drawn that the prosecution case is
wholly based on sole testimony of PW-1
victim and the evidence of the victim does
not inspire confidence. Therefore, the
entire genesis of the case is in serious
doubt in view of the contradictions and
material inconsistencies.

The burden of proof to prove its

## Text

11 All. Rajesh Kumar Dubey Vs. State of U.P.
1199
appellant, it is clear that lacks of sufficient
time and the age of the accused cannot be a
ground to extend any benefit to him in the
crime committed by him.

33. From the discussions as stated
above it is evident that the prosecution has
succeeded in proving the case beyond
reasonable doubt against the accusedappellant. The version of the first informant
and the victim 'X' regarding rape being
committed on her by the accused-appellant
does not get dented throughout the case.
The medical evidence corroborates with the
prosecution version. The opinion of the
doctor also states of rape being committed
on her. The victim 'X' was aged about 10
years at that time. The same has also not
been a matter of challenge by the accusedappellant. Hence, the present appeal is
dismissed.

34. The judgment and order of
conviction of the trial court is upheld. The
appellant is on bail. He shall be taken into
custody to serve out the sentences awarded
to him by the trial court.

35. Office is directed to transmit the
lower court records along with a copy of
this judgment to the trial court forthwith for
its compliance and necessary action.
----------
(2022) 11 ILRA 1199
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.11.2022

BEFORE

THE HON'BLE SANJAY KUMAR PACHORI, J.

Jail Appeal No. 2176 of 2010

Rajesh Kumar Dubey ...Appellant
Versus
State of U.P. ...Opp. Party
Counsel for the Appellant:
Sri Rajesh Kumar Dwivedi, Amicus curiae

Counsel for the Respondents:
Sri Manoj Kumar Sahu, A.G.A.

Criminal Law- Indian Penal Code, 1860-
Sections 375 & 376- The important
ingredient of the offence under Section
375 punishable under Section 376, IPC is
penetration. No offence under Section 376
IPC can be made out unless there was
penetration to some extent. In absence of
penetration to any extent would not bring
the offence of the accused within the four
corners of Section 375, IPC. Therefore, the
basic ingredients for proving a charge of
rape are the accomplishment of the act
with force. The other important ingredient
is penetration of the male organ within
the labia majora or the vulva or pudenda
with or without any emission of semen or
even an attempt at penetration into the
private part of the victim completely,
partially or slightly would be enough for
the purpose of Section 375 and 376 IPC.

Penetration to any extent with the use of force
for accomplishment of the act, are sufficient to
make out the offence of rape.

Indian Penal Code, 1860- Section 375-
Section 376- Indian Evidence Act, 1872-
Section 3- It is settled position of law that
a conviction can be based entirely on the
statement of a rape victim- The statement
of the prosecutrix if found to be worthy of
credence,
and
reliable,
requires
no
corroboration. She stands at a higher
pedestal
than
an
injured
witness.
However, if the court may find it difficult
to accept the testimony of the prosecutrix,
it may search for evidence, direct or
circumstantial,
which
would
lend
assurance to her testimony- It is a settled
proposition of law that even if there are
some
omissions,
contradictions,
and
discrepancies, the entire evidence cannot
be disregarded.

Conviction can be secured solely on the
testimony of the victim where her statement is
found to be truthful and credible by the court
1200 INDIAN LAW REPORTS ALLAHABAD SERIES
but
where
the
same
has
contradiction,
omissions etc. then the court may seek
corroboration from other materials.

Code of Criminal Procedure, 1973- Section
154- The delay in lodging the FIR in a
sexual assault cannot normally affect the
prosecution case, as held by the Supreme
Court in various judgments, but where
there is an inordinate delay in registration
of the FIR, in such circumstances, it casts
a cloud of suspicion on the credibility of
the entire prosecution story and such type
of delay would certainly be regarded as
fatal to the prosecution case and thus, the
whole prosecution case is under the cloud
of suspicion and doubt-Overwriting in the
complaint (Ex.Ka.-1) and chik FIR (Ex.Ka.-
4) by the overwriting, date of the
complaint, number of crime have been
changed, G.D. Rapat (Ex.Ka.-5) has no
number, date or time, name of the scribe
is not mentioned in the complaint, PW-1
victim St.d that she did not know the
name of scribe of the complaint, there is
no date on which copy of the FIR (Ex.Ka.-
4) has been sent to the jurisdictional
Magistrate.

Even in an offence of sexual assault, inordinate
delay in lodging the FIR can render the case of
the prosecution doubtful and where the
inordinate delay is accompanied with material
discrepancies in the complaint, chik FIR and
relevant G.D entries then the same may be fatal
to the case of the prosecution.

Indian Penal Code, 1860- Section 375-
Section 376- Indian Evidence Act, 1872-
Section 3- Section 101- It is not the duty
of the defence to explain as to how and
why in a sexual assault case the victim
has falsely implicated the appellant. The
evidence
of
prosecutrix
cannot
be
accepted merely because the appellant
has not been able to say as to why she has
come forward to depose against him. On
the basis of the facts and circumstances
discussed above, an inferrence can easily
be drawn that the prosecution case is
wholly based on sole testimony of PW-1
victim and the evidence of the victim does
not inspire confidence. Therefore, the
entire genesis of the case is in serious
doubt in view of the contradictions and
material inconsistencies.

The burden of proof to prove its case beyond
reasonable
doubt
is
always
upon
the
prosecution and cannot be shifted upon the
accused to explain his false implication. (Para
60, 62, 63, 64, 65, 66,80,88)

Criminal Appeal allowed. (E-3)

Case Law/ Judgements relied upon:-

1. Narain Saha & anr. Vs St. of Trip., AIR 2005
SC 1452

2. Marudanal Augusti Vs St. of Ker., AIR 1980 SC
638

3. Amitbhai Anilchandra Shah Vs C.B.I. & anr.,
2013 AIR SC 3794

4. Hemraj & ors. Vs St. of Har. 2005 (52) ACC
258 (SC).

5. St. of U.P. Babul Nath (1994) 6 SCC 29

6. Tarkeshwar Sahu Vs St. of Bih. (Now Jhar.)
(2006) 8 SCC 560

7. Madan Lal Vs St. of J. & K., (1997) 7 SCC 677

8. Koppula Venkat Rao Vs St. of A.P. (2004) 3
SCC 602

9. St. of M.P. Vs Mahendra @ Golu 2021 SCC
Online SC 965

10. Aman Kumar & anr. Vs St. of Har. (2004) 4
SCC 379

11. St. of Punj. Vs Major Singh AIR 1967 SC 63

12. Vijay @ Chinee Vs St. of M.P.(2010) 8 SCC 191

13. Phool Singh Vs St. of M.P. (2022) 2 SCC 74

14. Ganesan Vs St. Rep. By its Inspcr. 2021 SCC
OnLine SC 1023

15. St. of H.P. Vs Raghubir Singh (1993) 2 SCC
622
11 All. Rajesh Kumar Dubey Vs. State of U.P.
1201
16. Wahid Khan Vs St. of M.P. (2010) 2 SCC 9

17. Rai Sandeep @ Deepu Vs St. (2012) 8 SCC
21

18. St. of Raj. Vs Babu Meen (2013) 2 SCALE
479

19. Mohd. Iqbal Vs St. of Jhar. (2013) 14 SCC 481

20. Md. Ali Vs St. of U.P. (2015) 3 SCALE 274

21. Rameshwar Vs St. of Raj. AIR 1952 SC 54

22. Sidheshwar Ganguly Vs St. of W.B., AIR
1958 SC 143

23. Gurcharan Singh Vs St. of Har., AIR 1972 SC
2661

24. Modho Ram & anr. Vs St. of U.P., (1973) 1
SCC 533

25. St. of Maha. Vs Chandraprakash Kewalchand
Jain (1990) 1 SCC 550

26. Modam Gopal Kakkad Vs Naval Dubey &
anr.(1992) 3 SCC 204

27. St. of Raj. Vs Shri Narayan (1992) 3 SCC 615

28. Karnel Singh Vs St. of M.P.(1995) 5 SCC 518

29. Bodhisattwa Gautam Vs Miss Subhra
Chakraborty (1996) 1 SCC 490

30. St. of Punj. Vs Gurmit Singh & ors. (1996) 2
SCC 384

31. St. of U.P. Vs Pappu @ Yunus & anr. AIR
2005 SC 1248

32. St. of Raj. Vs Om Prakash AIR 2007 SC 2257

33. St. of U.P. Vs M. K. Anthony AIR 1985 SC 48

34. St. Vs Saravanan & anr. AIR 2009 SC 152

35. Sohrab & anr. Vs St. of M.P. 27. AIR 1972 SC
2020

36. Bharwada Bhogini Bhai Hirji Bhai Vs St. of
Guj. AIR 1983 SC 753
37. Prithu @ Prithi Chand & anr. Vs St. of H.P
(2009) 11 SCC 588

38. St. of U.P. Vs Santosh Kumar & ors.(2009) 9
SCC 626

39. Satyapal Vs St. of Har, AIR 2009 SC 2190

40. Karnel Singh Vs St. of M.P.(1995) 5 SCC 518

41. Gurcharan Singh Vs St. of Har. AIR 1972 SC
2661.

42. Devinder Singh & ors. Vs St. of H.P. AIR
2003 SC 3365

43. Sadashiv Ramrao Hadbe Vs St. of Maha. &
anr.35(2006) 10 SCC 92

44. Dilip & anr. Vs St. of M.P. (2001) 9 SCC 452

45. Vimal Suresh Kamble Vs Chaluverapinake
Apal S.P. & anr.(2003) 3 SCC 175

46. Yerumalla Latchaiah Vs St. of A.P. (2006) 9
SCC 713

47. Mohd. Habib Vs St.(1988) 35 DLT 170 (DB) 40

48. Zahroor Ali Vs St. of U.P.1989 SCC OnLine
All 580

49. St. of Kar. Vs Mapilla P. P. Soapi 2003 (3)
JCC 1543

50. Babu Vs St. of Ker. (2010) 9 SCC 189

51. Rajinder Kumar Kindra Vs Delhi Admin
(1984) 4 SCC 635

52.
Excise
&
Tax.
Officer-cum-Assessing
Authority Vs Gopi Nath & Sons,1992 Supp (2)
SCC 312

53. Triveni Rubber & Plastics Vs CCE,1994 Supp
(3) SCC 665

54. Gaya Din Vs Hanuman Prasad (2001) 1 SCC 501

55. Aruvelu Vs State, (2009) 10 SCC 206

56. Gomini Bala Koteswara Rao Vs St. of A.P.
(2009) 10 SCC 636
1202 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Sanjay Kumar
Pachori, J.)

1. This jail appeal has been preferred
by the appellant, Rajesh Kumar Dubey
against the judgment and order passed by
Additional
Sessions
Judge/FTC-3
Lucknow, on 13.8.2009 in Session Trial
No. 128 of 2009, arising out of Case Crime
No. 645 of 2008, Police Station Hasanganj,
District Lucknow, whereby the appellant
has been convicted under Sections 354, 376
read with section 511 of The Indian Penal
Code (in short "I.P.C.") and sentenced to
undergo one-year imprisonment under
section 354 of IPC and to undergo five
years imprisonment and a fine of Rs.
1,000/- each with a default sentence of one
month under section 376 read with section
511 of IPC.

PROSECUTION CASE

2. The prosecution case in brief as per
the first information report1 (Ex.Ka.-4),
which was lodged on 12.11.2008 at 6:10
(hours, a.m. or p.m. has not been written)
on the basis of written complaint (Ex.Ka.-
1) of the victim 'X' (PW-1) at PS
Hasanganj, District Lucknow by the victim
is that she cooks food at the house of
colonel S. K. Sharma in his presence. On
10.11.2008, at 9:00 p.m., the appellant
reached the house of the victim and told the
victim that colonel sahab had come and
was calling her for cooking food, she
reached the house believing his information
and went inside the house by opening the
gate. The appellant caught her arm and
started molesting her. Hearing her cries,
elder brother of colonel sahab Dr. Uma
Kant Sharma and one other person, who
had come to the house of Ratan Kant
Sharma reached there, and saved the victim
from the appellant by reprimanding him.

3. The FIR dated 12.11.2008 (Ex.Ka4) was registered as case Crime no. 645 of
2008 under section 354 of I.P.C. against the
appellant
at
PS
Hasanganj,
District
Lucknow at 6:10 (hours, a.m. or p.m. has
not been written) by Head Constable
Asharaf Ali (PW-4) on the basis of the
written complaint (Ex.Ka.-1). The distance
between the place of occurrence and the
Police Station is about 1 Km.

4. The investigation was started by
Sub-Inspector2 Ranjit Dubey (PW-3). He
inspected the place of incident, as pointed
out by the informant/victim (PW-1) and
prepared a site map (Ex.Ka.-2) of the place
of occurrence. The investigating officer3
recorded the statement of the victim, Uma
Kant Sharma under section 161 of the Code
of Criminal Procedure 1973 (in short 'Cr.
PC.') on 27.11.2008 and other prosecution
witnesses under Section 161 of Cr. PC. The
statement of the victim under Section 164
of Cr. PC. (Paper No. A-6/23) which had
been seen by the I.O. and endorsed in the
case diary on 28.11.2008. After completing
the investigation, a charge sheet (Ex.Ka.-3)
was submitted against the appellant under
Sections 354, 376 read with Section 511 of
IPC before the court concerned on
11.12.2008.

5. The concerned Magistrate took
cognizance in the matter and committed the
case to Sessions Court on 12.2.2009 for
trial. On committal, the trial court framed
charges
against
the
appellant
under
Sections 354, 376 read with Section 511 of
IPC on 28.3.2009. The appellant denied the
charges and claimed trial. The appellant
was so poor that he could not afford to
engage a lawyer and the case before the
court was conducted by amicus curiae Sri
Pradeep Chand Sharma on the basis of the
appellant's application dated 28.3.2009.
11 All. Rajesh Kumar Dubey Vs. State of U.P.
1203

6. To prove the charges against the
appellant, the prosecution examined as
many as 4 witnesses. PW-1 victim/first
informant; PW-2 Dr. Uma Kant Sharma,
brother of colonel S.K. Sharma, who had
reached
the
place
of
the
incident
immediately after hearing the screaming of
the victim; PW-3 S.I. Ranjit Dubey (I.O.)
and PW-4 HCP Asharaf Ali (scribe of chik
of FIR).

7. After taking the evidence of the
prosecution witnesses, as per Section 313
of Cr. PC., the appellant was questioned
about the evidence led against him by the
prosecution,
wherein
he
denied
the
incriminating evidence put to him and
stated that he has been implicated due to
enmity (MUJHE JABRAN RANJISHAN
(VICTIM'S NAME) NE FASAYA HAI, MAIN
NIRDOSH HUN) and the witnesses have
given evidence due to enmity. The
appellant did not produce any evidence
before the trial court.

8. Before the trial court, the appellant
argued that the FIR has been lodged after
due deliberation and consultation. There is
a contradiction between the statements of
PW-1 victim and PW-3 S.I. Ranjit Dubey
with regard to the injury of the victim. The
victim stated that during the incident she
received injuries, but the Investigating
Officer stated that he did not get medical
examination of the victim because the
victim had not received any injury. It is
further contended that there are material
contradictions between the statement of
PW-1 victim and PW-2 Dr. Uma Kant
Sharma with regard to the presence of PW2 after the incident. It is further argued that
when colonel saheb was not present in his
house, the victim reached there to meet the
appellant and he falsely implicated after
someone saw the incident.

FINDINGS
OF
THE
TRIAL
COURT

9. The trial court found that the victim
has explained the delay in lodging the FIR
on 12.11.2008, wherein she explained that
the FIR was lodged after colonel sahab
reached in his house, after relying upon the
judgment of the Supreme Court in case of
Narain Saha & Anr. v. State of Tripura,
AIR 2005 SC 1452, wherein it was held
that merely because the complaint was
lodged less than promptly, does not raise
the question that the complaint was false.
The reluctance to go to the police is
because of society's attitude towards such
women. It casts doubt and shame upon her
rather than comfort and sympathy towards
her. Therefore, the delay in lodging the FIR
in such cases does not necessarily indicate
that her version is false.

10. The trial court further observed
that the victim was a maid in the house of
colonel S. K. Sharma for 10 years and she
cooked food in his house in his presence
both in the morning and evening, and the
appellant is a security guard in the said
house for 6 to 7 months prior to the
incident. The incident took place after she
opened the main gate of the house, which
has a high boundary wall.

11. The trial court further observed
that there is a discrepancy between the
statements of PW-1 victim and PW-3 Ranjit
Singh with regard to the injuries of the
victim. As per the prosecution case, when
the victim entered the house after opening
the main gate, the appellant caught hold of
the arm of the victim from behind and
pressed her chest, and attempted to rape
her. As per the site map (Ex.Ka.-2) the
incident took place on the lawn situated
nearby the main gate connecting the
1204 INDIAN LAW REPORTS ALLAHABAD SERIES
boundary wall. The victim stated that the
appellant came from behind and was
forcing her and she received injuries in her
leg and knee, but there was no bleeding.
The evidence of the victim is corroborated
by the statement of the victim recorded
under Section 164 of Cr. PC. The trial court
discarded the argument of the appellant and
found that there is no material discrepancy
that affects the case of the prosecution.

12. The trial court discarded the
argument of the appellant that the evidence
of PW-2 Dr. Uma Kant Sharma is not
trustworthy because there are material
contradictions between the evidence of
PW-1 victim and PW-2. The trial court
found that the incident took place on
10.11.2008 from 8:30 P.M. to 9:00 P.M.
The witness is the real brother of colonel
S.K. Sharma and he was residing in the
back portion of the house. PW-2 reached
immediately after hearing the cry of the
victim at the place of the incident and saw
that the appellant was lying over the victim,
at that time the appellant was found nude.
PW-2 called the police on No. 100, in the
meantime, the appellant fled away from the
spot. The trial court observed that the
evidence
of
PW-1
is
satisfactorily
corroborated by PW-2.

13. The trial court further found that if
the presence of another person Ratan Kant
Sharma is found doubtful, it will not affect
the trustworthiness of the evidence of the
victim. The appellant has not put any
question
with
regard
to
his
false
implication due to enmity to the PW-1 and
PW-2 and he has not produced any
evidence in this regard. The trial court
concluded
that
the
prosecution
has
successfully proved the charges against the
appellant under Sections 354, 376 read with
Section 511, I.P.C. beyond reasonable
doubt and thereby convicted and sentenced
the appellant as above.

14. Being aggrieved by the trial
court's judgment and order, the appellant
has preferred this appeal.

SUBMISSIONS
BEFORE
THIS
COURT

15. Heard Sri Rajesh Kumar Dwivedi,
learned counsel amicus curiae for the
appellant; Sri Manoj Kumar Sahu, learned
A.G.A., for the State and perused the
material available on record.

16. Learned amicus curiae for the
appellant vehemently urged that;

(a) PW-1 victim lodged the FIR of the
present case after about 30 hours of
unexplained delay, if the FIR was lodged
on 12.11.2008 at 6:10 a.m. (hours, a.m. and
p.m. has not been mentioned). Though,
PW-3 S.I. Ranjit Dubey had reached the
place of the incident immediately after the
incident and he called the victim;

(b) There is an overwriting over the
date as shown as '12.11.2008' in the
complaint (Ex.Ka.-1) and the word "Aaj",
has been deleted and name of the scribe of
the complaint has not been mentioned.
Therefore, scribe of the complaint was not
examined by the prosecution;

(c) There is an overwriting in case
crime no. of chik FIR (Ex.Ka.-4) as well as
its G.D. Rapat no. (Ex.Ka.-5), it seems that
initially case crime no. '646' was written
but later crime no. '645' had been written.

(d) G.D. Rapat No. (Ex.Ka.-5), which
had been prepared after registering the FIR,
has no number, date, and time;

(e) The date on which the copy of the
FIR had been sent to the Jurisdictional
Magistrate is not mentioned.