# Ramesh v. State of U.P. Opp. Party

- **Citation:** (2022) 11 ILRA 1148
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-15
- **Case number:** Crl. Appeal No. 691 of 2006
- **Bench:** Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramesh-v-state-of-u-p-opp-party-47973
- **Pages:** 13

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Section 3- Section 134- The identity of the
accused-appellant cannot be doubted by
any stretch of imagination as he is the
step father of victim ''X'. The case right
from the inception is of the accusedappellant taking away victim ''X' from the
11 All. Ramesh Vs. State of U.P.
1149
house of the first informant to his house
and then committing rape upon her in the
night. The manner of the incident is
specific
and
without
any
change
throughout the case. The clothes of the
victim were sent to the Forensic Science
Lab - All the clothes were found to be
stained by semen of human origin. This
would corroborate with the allegation of
victim ''X' being raped -It is the settled
principle of law that the testimony of a
prosecutrix or a victim of rape stands at
par with that of the testimony of an
injured witness- Conviction can be made
on the sole testimony of the rape victimThe examination of a number of witnesses
in a case is not important than the quality
of witnesses.

Where the testimony of the prosecutrix is
consistent and cogent and is also corroborated
by other evidence, then conviction can be
secured solely upon the basis of the testimony
of the prosecutrix as the testimony of the
prosecutrix stands at par with that of an injured
witness. (Para 32, 33, 36)

Criminal Appeal rejected. (E-3)

Case Law/ Judgements relied upon:-

## Text

_Characters 0–39,939 of 43,908. This is a partial read: ask again with offset=39939 for what follows._

1148 INDIAN LAW REPORTS ALLAHABAD SERIES
Ram could not have been taken into
consideration
against
the
accusedappellants."

9. On perusal of Sections 137 and
138 of Evidence Act, 1872, makes it clear
that the victim has to be examined in chief
and then she has to be cross examined by
the defence.

10. In the instant case, it is not the
case of prosecution that defence has
foregone or waived its right for crossexamination or that full opportunity of
cross-examination was not granted, rather,
it appears that the prosecution had not
produced the victim P.W.1 for her complete
cross-examination on the date fixed, nor,
the trial court made an endeavour to take
coercive measures against the witness to
secure her presence for cross-examination
in order to complete her statement. The
record does not indicate that any such
endeavour or steps was taken. The
omission of the prosecution to get the
victim cross examined would sever the root
of the prosecution case. The testimony of
P.W.2, P.W.3, P.W.4 and P.W.6 the doctor,
being mere corroborative, would not
support the prosecution case as the star
witness i.e. victim was not subjected to
cross. The appellant in his statement under
Section 313 Cr.P.C. had denied the incident
and claimed of having been falsely
implicated out of enmity.

11. In the circumstances, we are of the
opinion that the conviction solely based on
the testimony of P.W.1, per se, is illegal and
we are unable to agree and sustain the
judgment and conviction of the appellant
by the trial court.

12. Accordingly, the jail appeal is
allowed.

13. The judgment and order of the
trial court is hereby set aside.

14. The appellant shall be released
from jail forthwith if not wanted in any
other case. The mandate of Section 437-A
of Cr.P.C. shall be complied.

15. Registry to send a copy of this
order to the concerned Jail Superintendent
and the learned C.J.M. for compliance.

16. Record to be returned.

17. We appreciate the assistance of
Shri Mohit Behari Mathur, learned Amicus
Curiae and direct that Rs. 25,000/- shall be
paid to him by the State Government as his
remuneration.
----------
(2022) 11 ILRA 1148
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.11.2022

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Crl. Appeal No. 691 of 2006

Ramesh ...Appellant
Versus
State of U.P. ...Opp. Party

Counsel for the Appellant:
Sri Devendra Saini, Sri Anupam Dubey, Dr.
Hridyawati Misra

Counsel for the Respondents:
Govt. Advocate

Criminal Law- Indian Evidence Act, 1872-
Section 3- Section 134- The identity of the
accused-appellant cannot be doubted by
any stretch of imagination as he is the
step father of victim ''X'. The case right
from the inception is of the accusedappellant taking away victim ''X' from the
11 All. Ramesh Vs. State of U.P.
1149
house of the first informant to his house
and then committing rape upon her in the
night. The manner of the incident is
specific
and
without
any
change
throughout the case. The clothes of the
victim were sent to the Forensic Science
Lab - All the clothes were found to be
stained by semen of human origin. This
would corroborate with the allegation of
victim ''X' being raped -It is the settled
principle of law that the testimony of a
prosecutrix or a victim of rape stands at
par with that of the testimony of an
injured witness- Conviction can be made
on the sole testimony of the rape victimThe examination of a number of witnesses
in a case is not important than the quality
of witnesses.

Where the testimony of the prosecutrix is
consistent and cogent and is also corroborated
by other evidence, then conviction can be
secured solely upon the basis of the testimony
of the prosecutrix as the testimony of the
prosecutrix stands at par with that of an injured
witness. (Para 32, 33, 36)

Criminal Appeal rejected. (E-3)

Case Law/ Judgements relied upon:-

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

2. St. of Punj. Vs Gurmit Singh : (1996) 2 SCC 384

3. Vijay Vs St. of M.P. : (2010) 8 SCC 191

4. St. of U.P. Vs Chhotel Lal : (2011) 2 SCC 550

(Delivered by Hon'ble Samit Gopal, J.)

1. The present Criminal Appeal under
Section 374(2) Cr.P.C. has been preferred
by the appellant Ramesh against the
judgment and order dated 01.02.2006
passed by Additional District and Sessions
Judge, Room No.8, Saharanpur in Sessions
Trial No.175 of 2005 (State Vs. Ramesh)
convicting and sentencing the appellant
under Section 376 IPC to 10 years R.I with
fine of Rs.3,000/- and in default of payment
of fine to 3 months further rigorous
imprisonment. The trial court has further
directed that half of fine as recovered shall
be
paid
to
the
victim/P.W.2
as
compensation.

2. The name of the prosecutrix is not
being disclosed and mentioned in the
present judgment in the light of directions
of the Apex Court in various judgments and
as per Section 228A of the Indian Penal
Code. She is, thus, referred to as ''X' in the
judgment.

3. An application dated 18.01.2005
written by Ghanshyam Singh, S/o Karm
Singh was given by Dheer Singh, S/o
Bholaram, R/o Village Ganeshpur, Police
Station Viharigarh, District Saharanpur to
the S.H.O Police Station Mirzapur, District
Saharanpur alleging therein that his sister
Shishwati
was
married
in
village
Vanjarewala from whom one daughter was
born. Shishwati was abandoned by her
husband after which her court marriage was
done with Ramesh, S/o Bhola (accusedappellant) of village Kashampur around 7
years back. The victim ''X' was sent with
Shishwati considering Ramesh as her father
after which victim ''X' was brought by the
first informant and was kept by him and
she started her studies who was studying in
class VIII. His sister was of unsound
medical condition and used to remain ill.
On 14.1.2005 being Friday, Ramesh came
to his village and took victim ''X' with her
by saying that Shishwati is unwell, victim
''X' would give her medicine and food and
brought her to his village Kashampur. On
the same night, Ramesh took victim ''X'
from near the sister of first informant while
being in an intoxicated condition and took
1150 INDIAN LAW REPORTS ALLAHABAD SERIES
her to another room, tied her hands and
raped her. On the next day victim ''X' told
about the incident to Shushila, the niece of
the first informant who was married in
Kashampur who then on telephone told
about it on the next day to the first
informant on which on 17.1.2005, he and
other persons went to Kashampur and
inquired about it from victim ''X' who told
them that Ramesh tied her hands and raped
her. She was in a bad condition. The first
informant then got many people of village
Kashampur collected and told them about
the incident who deprecated it and told him
to do whatever he likes. The victim ''X' is
aged about 13 years. She has been brought
to the police station. The first informant
report be thus lodged and action be taken.
The said application is Exbt. Ka-1 to the
records.

4. On the basis of the said application,
an FIR was lodged as Case Crime No.12 of
2005 under Section 376 IPC at Police
Station Mirzapur, District Saharanpur on
18.1.2005 at 9.30 a.m. by Dheer Singh
against Ramesh, S/o Bhola. The Chik FIR
is Exbt. Ka-2 to the records.

5. The Investigating Officer took into
possession a printed Salwar and an
underwear of victim ''X'. Dheer Singh and
Smt. Rekha Kiran w/o Dheer Singh are the
witnesses of the same. The recovery memo
of the same is Exbt. Ka-5 to the records.

6. The victim was medically examined
on 18.1.2005 at 9.30 p.m. by Dr. Rashmi
Mehta, the Medical Officer, Womens
Hospital,
Saharanpur.
After
general
examination, the doctor noted as follows:-

"Height-145 cm. Weight-40 kg. teeth14/14

Sec. sex character (breast, pubic and
axillary hair) developed.

No mark of injury seen all over body."

On internal examination, the doctor
noted as follows:-

"No injury seen on private part. Old
torn and healed hymen present. Vagina
admits two finger easily. P/s slight bleeding
per vagina present coming from uterus. No
injury seen on vagina. Vaginal smear made
and sent to pathology for presence of
spermatozoa."

For determination of age, X-Ray of
right elbow, wrist and knee was advised.
For blood grouping she was referred to the
pathology department of S.B.D. Hospital.

She was advised to give her under
clothes at the Police station for being
sealed. The said medical examination
report is Exbt. Ka-10 to the records.

7. The X-Ray of the victim ''X' for
age was done on 19.1.2005. The radiologist
reported as follows:-

"1. Right wrist:- Lower epiphysis of
radius & ulna have not fused.

2. Right Elbow:- All epiphysis around
elbow have fused.

3. Right knee:- Lower ephiphysis of
femur and end of tibia have fused. Upper
epiphysis of tibula partially fused."

The said report is Exbt. Ka-9 to the
records.

8. The Senior Radiologist, S.B.D.
Hospital gave his report. Subsequently a
supplementary report dated 21.1.2005 was
prepared by Dr. Rashmi Mehta mentioning
therein that the blood group as per the
report of the pathologist Dr. Ranjana
Chaudhary is "B Positive". The vaginal
smear
report
tested
negative
for
11 All. Ramesh Vs. State of U.P.
1151
spermatozoa. The opinion of the doctor is
as follows:-

"1. No opinion can be given regarding
recent rape as no fresh injury found.

2. According to radiologist report age
of girl is between 16 and 17 years (sixteen
and seventeen)."

The said supplementary report is Exbt.
Ka-11 to the records.

9. The Salwar and underwear of
victim ''X' were sent to the Forensic
Science Lab, Agra for testing. A report
dated 26.4.2005 was sent by the Assistant
Director of the said lab. The Salwar was
marked as item no.1 and the underwear was
marked as item no.2. The opinion as per the
examination is as follows:-

"1. On item nos.1 and 2 on big pants
blood stains were found.

2. On item no.1 and 2 spermatozoa
were found.

3. On item no.1 and 2 human blood
was found.

4. On item no.1 and 2 human semen
was found.

5. On item no.1 and 2 blood of group
"B" was found.

6. On item no.1 and 2 the spots of
semen could not be tested for their group
and as such no definite opinion could be
given about it.

The said report of the Forensic
Science Lab is Exbt. Ka-8 to the records."

10. A site-plan of the place of
occurrence
was
prepared
by
the
Investigating Officer on 20.1.2005. The
same is Exbt. Ka-6 to the records. In the
site-plan point B which is adjacent to the
kitchen and is a tin-shed which is shown to
be the place of occurrence.

11. The X-Ray plates of victim ''X' for
determination of her age were also filed
and proved which were marked as Exbt. 4
and 5 to the records.

12. The investigation concluded and a
Charge Sheet No.14 of 2005, dated
25.1.2005 under Section 376 IPC was
submitted against the accused-appellant.
The same is Exbt. Ka-7 to the records.

13. Vide order dated 4.5.2005 passed
by Sessions Judge, Saharanpur, charge
under Section 376 IPC was framed against
the accused-appellant. He pleaded not
guilty and claimed to be tried.

14. The charge as was framed on
4.5.2005 read that on 14.1.2005 in the night
some times in village Kashampur within
Police
Station
Mirzapur,
District
Saharanpur, victim ''X' the niece of the first
informant Dheer Singh was forcefully
raped by the accused and as such an
offence under section 376 IPC is made out
which is cognizable by the said court and
hence charge was framed.

15. Subsequently an application being
Application No.11-Kha was moved by the
learned Government counsel before the
trial court stating therein that in the charge
as framed on 4.5.2005, there is an error of
the date of offence. The trial court vide
order dated 28.7.2005 allowed the said
application, set-aside the charge as framed
on 4.5.2005 and in place of it directed that
the date of the incident be mentioned as
15/16.01.2005 in the night and thus
amended the said charge on 10.08.2005 and
framed charge under section 376 IPC
against the accused-appellant. Even on
10.08.2005, the accused pleaded not guilty
and claimed to be tried.
1152 INDIAN LAW REPORTS ALLAHABAD SERIES

16. The trial then started in which the
prosecution produced Dheer Singh, the first
informant as P.W.1, victim ''X' was
produced as P.W.2, Surajpal, Constable
Clerk Police Station Nagal was produced as
P.W.3, Sub Inspector Shiv Kumar Sharma,
the Investigating Officer was produced as
P.W.4, Doctor Sudhakar Verma, the
Radiologist was produced as P.W.5,
Constable Subhash Chand was produced as
P.W.6 and Doctor Rashmi Mehta, Medical
Officer, Womens Hospital, Saharanpur was
produced as P.W.7.

17. The accused-appellant in his
statement recorded under Section 313
Cr.P.C. has stated that Dheer Singh, the
maternal uncle of victim ''X' himself
dropped her to his house. He further states
that he informed Dheer Singh that the girl
has run away from the house. He called
Dheer Singh by informing him on phone.
He further states that he has no children.
Dheer Singh has falsely implicated him just
to grab his property. Victim ''X' has run
away even earlier for about 14 days. Her
mama had dropped her on 15th of the
month. On 16th, she again went away from
the house and then he launched search for
her. He apprehended her along with a boy
with whom she was trying to elope. The
boy ran away but she was recovered. On
17th, he made a telephonic call at the house
of Satish and called Dheer Singh then there
was a Panchayat in the village. In the
Panchayat it was decided to send the
mother and the daughter with Dheer Singh,
due to the said enmity Dheer Singh has
falsely implicated him.

18. The trial court then convicted the
accused-appellant as stated above.

19. Heard Sri Anupam Dubey,
learned Amicus Curiae for the appellant,
Sri Sanjay Kumar Singh, learned counsel
for the State and perused the records of this
appeal and also the trial court records.

20. Learned Amicus Curiae argued
that there are serious contradictions in the
statement of the victim recorded under
section 164 Cr.P.C. and that given before
the trial court. It is argued that in her
statement under Section 164 Cr.P.C., she
states that her father Ramesh took her to a
tin shed room, tied her hands, gagged her
mouth with a cloth and then committed
rape on her after which she became
unconscious but in her statement in court,
she states that she was sleeping with her
mother and her father was sleeping under
the tin-shed outside. When she opened her
eyes she found herself naked. It was about
5 a.m. In between she was unconscious.
She does not know as to what happened
with her. It is further argued that as per the
prosecution case the victim ''X' for the first
time informed about the incident to Smt.
Shushila, the niece of the first informant
who is married in village Kashampur which
is the village where the incident is alleged
to have taken place but Smt. Shushila, the
niece of the first informant has not been
examined in the present matter. It is further
argued that even Smt. Shishwati, the
mother of victim ''X' has also not been
examined in the trial. The said two persons
namely Shushila and Smt. Shishwati are
important
witnesses
and
their
nonexamination in the trial would render the
entire prosecution story as suspect. It is
next argued that the medical evidence does
not corroborate with the prosecution case.
The doctor did not find any injury on the
private parts of the victim. The hymen was
found to be old torn and healed and even
the
opinion
of
the
doctor
in
the
supplementary report is to the effect that no
opinion can be given regarding recent rape
11 All. Ramesh Vs. State of U.P.
1153
as no fresh injury was found. It is argued
next that even the age of the victim as per
the supplementary report was opined to be
between 16 and 17 years which would also
go to show that the version as given in the
FIR that she was aged about 13 years is
incorrect. It is argued that as per the age
given by the doctor in the supplementary
medical examination which is based on the
radiological opinion and by giving benefit
of variation of two years, she would be
major. It is further argued that there is no
cogent and reliable evidence on record to
substantiate the allegations against the
accused-appellant. The accused-appellant is
the step father of the victim ''X'. In his
statement under Section 313 Cr.P.C., he
has in detail stated about the reason for his
false implication which was a motive for
his false implication as the first informant
wanted to grab his property, as such the
present appeal deserves to be allowed. The
impugned
judgement
and
order
of
conviction of the trial court deserves to be
set-aside and the accused-appellant is liable
to be acquitted of the charges levelled
against him.

21. Per contra learned counsel for the
State
has
vehemently
opposed
the
arguments of learned Amicus Curiae for
the appellant and argued that the accusedappellant is named in the FIR. There are
allegations against him of committing rape
upon his step daughter. The medical
examination report although does not state
of the recent rape being committed on her
which was only on the basis of the fact that
there was no fresh injury found on the
victim ''X' but the report of the Forensic
Science Lab Exbt. Ka-8 to the records
corroborates with the allegations of rape as
the chemical examiner has found semen
and spermatozoa in the clothes of the
victim ''X' which were of human origin.
Even the blood group ''B' was found on the
clothes which also co-relates with the blood
group of victim ''X' which would go to
show that there was bleeding from the
private parts of the victim ''X'. It is argued
that the contradictions as has been argued
to be with regards to the statement under
Section 164 Cr.P.C. and the statement
given in the court by the victim ''X' is
concerned, the same is minor in nature
which would not in any manner render the
entire case to be false. It is argued that the
accused-appellant is the step father of the
victim ''X'. There are no chances of false
implication and mis-identity. It is argued
that in so far as the mother of the victim ''X'
being not examined in the trial, the FIR
itself states that she was a lady having
mental retardness. It is argued that Shiv
Kumar
Sharma,
P.W.4
who
is
the
Investigating Officer of the case was crossexamined for this aspect who stated that he
tried to interrogate Smt. Shishwati but he
came to know that she has left the village
Kashampur. He further states that he did
not make an attempt to interrogate her by
going to village Ganeshpur. The statement
of victim ''X' is unimpeachable. She has
stated of the accused-appellant committing
rape on her. The prosecution story is
corroborated by her in her statement. The
same is sufficient to bring home the
charges against the accused-appellant and
recording conviction. It is argued that nonproduction of Smt. Shushila and the mother
of the victim may be a lapse on the part of
the Investigating Officer but the same
would not in any manner go to dislodge the
entire prosecution case. The prosecution
has succeeded in proving its case beyond
reasonable doubt. The present appeal
deserves to be dismissed.

22. P.W.1 Dheer Singh is the first
informant of the present case and the
1154 INDIAN LAW REPORTS ALLAHABAD SERIES
maternal uncle/mama of victim ''X'. He
states that the accused is his brother-in-law.
Shishwati is his sister. She was earlier
married in village Vanjarewala with Nathi.
From the wedlock victim ''X' was born.
Nathi had left Smt. Shishwati. Later on she
performed court marriage with accusedappellant Ramesh. She was then sent with
Ramesh. Victim ''X' used to live with him.
Victim ''X' is aged about 13-14 years and is
living in village Ganeshpur and studying in
a school there in class VIII. His sister is
mentally retarded. On 14.1.2005 accused
Ramesh came to his house and stated that
Shishwati is ill and victim ''X' be sent to
take care of her. On the next day victim ''X'
was sent with him to take care of Smt.
Shishwati. Later on Shushila called him
and told him that the father of the victim
''X' has done illegal act on her. He then
went to Kashampur and inquired it from
victim ''X'. She told him about the entire
incident. Then on the next day he got a
report written by Ghanshyam. He identifies
the said application/report and proves his
signature on it and proved the same. The
same is marked as Exbt. Ka-1. He states
that on the basis of the said application, a
report was lodged at the Police Station.
Police got the medical examination of
victim ''X' conducted. Her clothes which
she was wearing at the time of the incident
were taken into possession by the police of
which a recovery memo was drawn on
which he signed. He identified the same
and his signature on the recovery memo.

23. P.W.2 victim ''X' states that her
mother Smt. Shishwati was married to
Nathi Ram, resident of Vanjarewala who
had left her. She is the child of Nathi Ram.
She was brought by Dheer Singh, her
mama. She was studying in a school in
Ganeshpur. Her date of birth is 15.10.1992.
She files a school certificate for date of
birth. She states that later on her mama
Dheer Singh got her mother married with
Ramesh after which she accepted him as
her father. Her mother Shishwati used to
remain ill. On 14.1.2005 Ramesh came to
Ganeshpur and told her mama Dheer Singh
that Shishwati is unwell and to take care
she has to be taken. He stayed there
overnight. Next day on 15th January she
went with Ramesh. In the night after
preparing the food, she was lying near her
mother. Ramesh gave medicines to her
mother
after
which
she
became
unconscious. He then took her to a room of
tin-shed and gagged her mouth with a cloth
and tied her hands and committed rape on
her. She became unconscious. When she
regained consciousness, she found herself
and Ramesh naked. She then untied her
hands and told about the incident to her
mother and then on the next day told about
it to Shushila who was married in
Kashampur. Shushila then told her mama
on which he came to Kashampur and took
her away. A report was lodged, her medical
examination was conducted. The clothes
which she was wearing, was taken by the
police and a recovery memo was prepared.
She identifies her signature on the said
memo. A packet was opened in the court
containing the clothes of the victim ''X'
which was identified by her as the clothes
which she was wearing at the time of
incident. The same were marked as
material Exbt. 1, 2 and 3.

24. In her cross-examination, she
states that she has studied up-to class VIII
and then left her studies. She was studying
in Inava Public School which is from class
1 to 8. She used to go to school daily. After
the incident, she did not go to the school.
On 14.1.2005 she went to the school. She
can submit the certificate about it. She
denies that she ran away with a boy of the
11 All. Ramesh Vs. State of U.P.
1155
school in the last week of December and
then on 13th January, she was recovered by
her mama along with boy. She further
denies that her mama Dheer Singh had left
her with her mother on 14th January. She
denies that on 16.1.2005 a boy of village
Kashampur came and she was preparing to
run away with him. She further denies that
on 17.1.2005 accused Ramesh has called
her mami Rekha Kiran and mama and
others to village Kashampur. She denies
that a Panchayat was held on 17.1.2005
about it in which her mama Dheer Singh
and relatives were insulted and she and her
mother were thrown out of the house on the
same day. She further denies that due to the
said enmity her mama and mami have
lodged a false report. She denies that due to
the same her mama did not let her go to the
school and she was kept guarded till date.
She states that her statement was recorded
by the Investigating Officer after 2-3 days
of the incident in Mirzapur Police Station.
Her statement was not recorded on the day
the FIR was lodged. It was recorded on the
next day of lodging of the report. She then
states that it was recorded on 18th. She did
not go to the police station after that. She
states that she has told to the Investigating
Officer that Ramesh stayed overnight on
14th. If the same is not written in her
statement, she cannot state about the
reason. She further told the Investigating
Officer that on the day of incident after
preparing the food she laid near her mother
after which Ramesh gave medicines to her
mother who then became unconscious. If
the same is not written in the statement, she
cannot tell the reason. She had slept after
taking food. She does not remember when
she was taken under the tin-shed. She had
reached to Kashampur from Ganeshpur at 8
p.m. When she reached there, her mother
did not cook food. She on reaching
prepared food. She cooked food for about
1-1⁄2 hours. She and her mother had taken
meals. Her father had not eaten it. After
eating food she slept near her mother. Her
father slept outside under tin-shed. When
she opened her eyes, she found herself
naked. It was about 5 a.m. In between she
was unconscious. She does not know what
happened with her. After it she slept near
her mother. She did not prepare tea and
breakfast in the morning. She went to her
sister and stayed there till 17.1.2005 till her
mama came. She denies the suggestion that
in her statement she has stated that no such
incident has taken place. She further denies
that she is giving a false statement on being
prompted by her mama and no such
incident has taken place and her mama is
taking revenge of his insult in the
Panchayat. It is true that in the house of
accused Ramesh there is no child or any
other person but it is incorrect that her
mama has taken the land of the accused
Ramesh and has lodged a false case.

25. P.W.3 Suraj Pal is the Head
Constable of Police Station Mirzapur. He
states of lodging of the present FIR and
also of transcribing the corresponding G.D.
He proves the same. He further states that a
sealed
bundle
was
brought
by
the
Investigating Officer on 20.1.2005 which
was recorded in the G.D. and was
deposited. The report regarding the same
was transcribed by Head Constable Ajit
Singh whose handwriting was identified by
him.

26. P.W.4 Shiv Kumar Sharma is the
Investigating Officer of the matter. He took
up the investigation and recorded the
statement of witnesses, arrested the accused
on 19.1.2005, took the clothes of victim ''X'
and prepared its recovery memo and filed a
charge sheet against the accused. He further
states that a report of the Forensic Science
1156 INDIAN LAW REPORTS ALLAHABAD SERIES
Lab was received by him which is paper
no.15-Kha to the records and was marked
as Exbt. Ka-8.

27. P.W.5 Dr. Sudhakar Garg is the
Senior
Radiologist,
S.B.D.
Hospital,
Saharanpur. He had conducted the X-Ray
examination of victim ''X' and had given
his report regarding the same. He proves
the X-Ray plates and X-Ray report. The
details have already been stated above.

28. P.W.6 Constable Police Subhash
Chand was posted at Police Station
Mirzapur, District Saharanpur. He has
given the link evidence of the material
which was in a sealed bundle and was
taken by him from the Police Station to the
Forensic Science Lab, Agra and deposited
there.

29. P.W.7 Dr. Rashmi Mehta is the
Medical
Officer,
Womens
Hospital,
Saharanpur. She conducted the medical
examination of the victim ''X' and also
prepared the supplementary report. The
details of the reports have already been
stated above. She states about the same in
the court.

30. In her cross-examination to court
she states that victim ''X' as per estimation
of the age could be less than 18 years of
age but cannot be above it. She states that
in any event the age of the victim cannot be
above 18 years.

31. After having heard the learned
counsel for the parties and perusing the
record, it is evident that the appellant is the
step father of the victim ''X' and the
brother-in-law/Jija of P.W.1 Dheer Singh,
the first informant of the matter. The
evidence of the accused-appellant coming
to the house of P.W.1 and taking away the
victim ''X' on the pretext of her mother
being ill and she to attend her and take care
of her is a consistent prosecution case. The
same does not get distorted in any matter.
The identity of the accused-appellant
cannot be doubted by any stretch of
imagination as he is the step father of
victim ''X'. The case right from the
inception is of the accused-appellant taking
away victim ''X' from the house of the first
informant to his house and then committing
rape upon her in the night. The same is
consistent in the FIR and also in the
statement of victim ''X'. The manner of the
incident is specific and without any change
throughout the case. The clothes of the
victim were sent to the Forensic Science
Lab which were the Salwar and her
underwear. All the clothes were found to be
stained by semen of human origin. This
would corroborate with the allegation of
victim ''X' being raped. Smt. Shushila being
not examined although the prosecution has
not come out with any justification about it
but the same would not render the entire
prosecution evidence as false. In so far as
Smt. Shishwati, the mother of the victim
''X' is concerned and the fact that she has
not been examined is concerned, the FIR
itself states that she is mentally retarded.
The Investigating Officer Shiv Kumar
Sharma, P.W.4 in his cross-examination
stated that he tried to interrogate her in
village Kashampur but he was informed
that she has left the said place and gone
somewhere else after which he did not
make an effort to go to village Ganeshpur
and examine her. Moreover, the nonproduction of the said two persons in the
trial
would
not
render
the
entire
prosecution as false or even doubtful.

32. It is the settled principle of law
that the testimony of a prosecutrix or a
victim of rape stands at par with that of the
11 All. Ramesh Vs. State of U.P.
1157
testimony of an injured witness. The same
has been held in the case of State of
Maharashtra
Vs.
Chandraprakash
Kewalchand Jain : (1990) 1 SCC 550 in
para 16 which is extracted herein:

"16. A prosecutrix of a sex offence
cannot be put on par with an 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. What is necessary is
that the court must be alive to and
conscious of the fact that it is dealing with
the evidence of a person who is interested
in the outcome of the charge levelled by
her. If the court keeps this in mind and feels
satisfied that it can act on the evidence of
the prosecutrix, there is no rule of law or
practice incorporated in the Evidence Act
similar to illustration (b) to Section 114
which requires it to look for corroboration.
If for some reason the court is hesitant to
place implicit reliance on the testimony of
the prosecutrix it may look for evidence
which may lend assurance to her testimony
short of corroboration required in the case
of an accomplice. The nature of evidence
required to lend assurance to the testimony
of the prosecutrix must necessarily depend
on the facts and circumstances of each
case. But if a prosecutrix is an adult and of
full understanding the court is entitled to
base a conviction on her evidence unless
the same is shown to be infirm and not
trustworthy.
If
the
totality
of
the
circumstances appearing on the record of
the case disclose that the prosecutrix does
not have a strong motive to falsely involve
the person charged, the court should
ordinarily have no hesitation in accepting
her evidence. We have, therefore, no doubt
in our minds that ordinarily the evidence of
a
prosecutrix
who
does
not
lack
understanding must be accepted. The
degree of proof required must not be higher
than is expected of an injured witness. For
the above reasons we think that exception
has rightly been taken to the approach of
the High Court as is reflected in the
following passage:

"It is only in the rarest of rare cases if
the court finds that the testimony of the
prosecutrix is so trustworthy, truthful and
reliable that other corroboration may not
be necessary."

With respect, the law is not correctly
stated. If we may say so, it is just the
reverse. Ordinarily the evidence of a
prosecutrix must carry the same weight as
is attached to an injured person who is a
victim of violence, unless there are special
circumstances which call for greater
caution, in which case it would be safe to
act on her testimony if there is independent
evidence
lending
assurance
to
her
accusation."

 (emphasis supplied)

33. Further in the case of State of
Punjab Vs. Gurmit Singh : (1996) 2 SCC
384 the Apex Court held that for the
offence under Section 376 IPC, conviction
can be made on the sole testimony of the
rape victim. It was also held that the
negligence of the investigating officer
cannot effect the creditibility of the
statement of the prosecutrix. In paras 8 and
21 it was held as follows:

"8. ... The court overlooked the
situation in which a poor helpless minor
1158 INDIAN LAW REPORTS ALLAHABAD SERIES
girl had found herself in the company of
three desperate young men who were
threatening her and preventing her from
raising
any
alarm.
Again,
if
the
investigating officer did not conduct the
investigation properly or was negligent in
not being able to trace out the driver or the
car, how can that become a ground to
discredit the testimony of the prosecutrix?
The prosecutrix had no control over the
investigating agency and the negligence of
an investigating officer could not affect the
credibility
of
the
statement
of
the
prosecutrix ... The courts must, while
evaluating evidence, remain alive to the
fact that in a case of rape, no selfrespecting 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 ...
Seeking corroboration of her statement
before relying upon the same, as a rule, in
such cases amounts to adding insult to
injury ... Corroboration as a condition for
judicial reliance on the testimony of the
prosecutrix is not a requirement of law but
a guidance of prudence under given
circumstances....

***

21. ... 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 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 trial
court must be alive to its responsibility and
be sensitive while dealing with cases
involving sexual molestations."

34. In the case of Vijay Vs. State of
M.P. : (2010) 8 SCC 191 the Apex Court
referred to its decisions in the cases of State
of
Maharasthra
Vs.
Chandraprakash
Kewalchand Jain : (1990) 1 SCC 550 and
State of Punjab Vs. Gurmit Singh : (1996)
2 SCC 384 and also few other decisions
and in para 14 observed as follows:

"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."

35. Further in the case of State of UP
Vs. Chhotel Lal : (2011) 2 SCC 550 the
Apex Court has postulated the approach to
be adopted by Courts in evaluating the
testimony of victim of rape. In para 26 it
has been held as follows:

"26. The important thing that the
court has to bear in mind is that what is
lost by a rape victim is face. The victim
loses value as a person. Ours is a
conservative society and, therefore, a
woman and more so a young unmarried
woman will not put her reputation in peril
11 All. Ramesh Vs. State of U.P.
1159
by allegingfalsely about forcible sexual
assault. In examining the evidence of the
prosecutrix the courts must be alive to the
conditions prevalent in the Indian society
and must not be swayed by beliefs in other
countries. The courts must be sensitive and
responsive to the plight of the female victim
of sexual assault. Society's belief and value
systems need to be kept uppermost in mind
as rape is the worst form of women's
oppression. A forcible sexual assault brings
in
humiliation,
feeling
of
disgust,
tremendous
embarrassment,
sense
of
shame, trauma and lifelong emotional scar
to a victim and it is, therefore, most
unlikely of a woman, and more so by a
young woman, roping in somebody falsely
in the crime of rape. The stigma that
attaches to the victim of rape in Indian
society ordinarily rules out the levelling of
false accusations. An Indian woman
traditionally will not concoct an untruthful
story and bring charges of rape for the
purpose of blackmail, hatred, spite or
revenge."

36. As such the examination of a
number of witnesses in a case is not
important than the quality of witnesses.
From the perusal of the evidence of the
victim ''X', it is clear that her stand with
regards to rape being committed on her is
specific and consistent. The contradiction
as has been argued drawing the attention to
the statement under Section 164 Cr.P.C.
and the statement in court of victim ''X' is a
minor contradiction and does not in any
manner would go to show that no such
incident had taken place. In both the
statements, the case was specific of rape
being committed upon her. The doctor who
examined
the
victim
and
gave
the
supplementary report being Dr. Rashmi
Mehta, P.W.7 has in the supplementary
report placing her observations on the
radiological examination opined the age of
the victim between 16-17 years and even in
her cross-examination has specifically
stated that her age at the time of incident
was below 18 years and cannot be above 18
years at all. Thus the victim was a minor at
the time of the incident. The accused
although in his statement under Section 313
Cr.P.C. has stated that he is issueless and
the first informant Dheer Singh has an eye
on his property and want to grab his
property and as such he has falsely
implicated him but there is nothing on
record to show as to what was the property
owned by him and also the fact as to who
all are his co-laterals and other persons and
whether the said property was exclusively
under his title or not. The version of a
Panchayat being held is uncorroborated.
The victim denies of any such Panchayat
being held. There is no evidence led by the
accused-appellant to corroborate the said
fact.

37.