# Ramu v. State of U.P

- **Citation:** (2020) 12 ILRA 307
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-18
- **Case number:** Criminal Appeal No. 309 of 2015
- **Bench:** Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramu-v-state-of-u-p-45572
- **Pages:** 16

## Headnote

Criminal Law -Indian Penal Code,1860
-Sections 376 - 4 POCSO Act - Criminal
Appeal has been filed against conviction U/s
376 I.P.C and 4 POCSO Act.

Relative witnesses: - in heinous offence, the
relative of the victim would not falsely implicate
an innocent person by exonerating the real
culprit and if such plea is taken by the accused
appellant, it has to be proved by him as to why
he is being falsely implicated. (Para 38)

Minor Contradiction: - Do not affect the core
of prosecution- in offence of rape the statement
of victim, supported by medico legal reports, is
sufficient for conviction of accused and no
further corroboration is required. (Para 40)

Offence punishable under POCSO Act as
308 INDIAN LAW REPORTS ALLAHABAD SERIES
well as I.P.C.- relevant provision of POCSO
Act and also in relevant provision of I.P.C., like
376 I.P.C.- Trial Court is bound to punish the
accused either in the relevant provision of
POCSO Act, or under I.P.C. which is greater in
degree. (Para 52)

Conviction by the Trial Court affirmed but the
sentence is modified - sentence under section
376 I.P.C. maintained. Appellant has to
undergone 14 years rigorous imprisonment; no
separate sentence is required for offence under
section 4 OF POCSO Act.

Appeal is partly allowed. (E-2)

List of Cases cited: -

## Text

_Characters 0–39,724 of 53,715. This is a partial read: ask again with offset=39724 for what follows._

12 All. Ramu Vs. State of U.P.
307

44. It is settled principle of sentencing
and penology that undue sympathy in
awarding the sentence with accused is not
required. The object of sentencing in
criminal law should be to protect the
society and also to deter the criminals by
awarding appropriate sentence. In this
regard
Hon'ble
Supreme
Court
has
observed in State of Madhya Pradesh vs.
Saleem @ Chamaru, AIR 2005 SC 3996
which is as under:-

"The Court will be failing in its duty if
appropriate punishment is not awarded for a
crime which has been committed not only
against the individual victim but also against the
society to which the criminal and victim belong.
The punishment to be awarded for a crime must
not be irrelevant but it should conform to and be
consistent with the atrocity and brutality with
which the crime has been perpetrated, the
enormity of the crime warranting public
abhorrence and it should "respond to the
society's cry for justice against the criminal''.

45. Looking into the nature and
gravity of the offence, I am of the view that
the punishment awarded by the Trial Court
is just and appropriate and requires no
interference. Appeal is liable to be
dismissed and impugned judgment and
order passed by the learned Trial Court is
liable to be affirmed.

46. In the light of above discussion,
the appeal lacks merit and is hereby
dismissed. The impugned judgment and
order
dated
19.01.2002
passed
by
Additional Session Judge/Fast Track CourtII, Raibareli in Sessions Trial No. 188 of
1995 (State vs. Ram Shankar and others), is
maintained and affirmed.

47. The appellant-Kamlesh Kumar is
on bail. His bail bond is cancelled. He is
directed to surrender before the concerned
Court forthwith to serve out the aforesaid
sentence.

48. Let a copy of this judgment along with
lower court record be sent to the concerned Court
for necessary information and compliance.
----------
(2020)12ILR A307
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.12.2020

BEFORE
THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 309 of 2015

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

Counsel for the Appellant:
Rana
Mritiunjay
Singh,
Desh
Deepak
Verma, Maneesh Kumar Singh, Neeta Singh
Chandel, Piyush Kumar Singh

Counsel for the Respondent:
Govt. Advocate

Criminal Law -Indian Penal Code,1860
-Sections 376 - 4 POCSO Act - Criminal
Appeal has been filed against conviction U/s
376 I.P.C and 4 POCSO Act.

Relative witnesses: - in heinous offence, the
relative of the victim would not falsely implicate
an innocent person by exonerating the real
culprit and if such plea is taken by the accused
appellant, it has to be proved by him as to why
he is being falsely implicated. (Para 38)

Minor Contradiction: - Do not affect the core
of prosecution- in offence of rape the statement
of victim, supported by medico legal reports, is
sufficient for conviction of accused and no
further corroboration is required. (Para 40)

Offence punishable under POCSO Act as
308 INDIAN LAW REPORTS ALLAHABAD SERIES
well as I.P.C.- relevant provision of POCSO
Act and also in relevant provision of I.P.C., like
376 I.P.C.- Trial Court is bound to punish the
accused either in the relevant provision of
POCSO Act, or under I.P.C. which is greater in
degree. (Para 52)

Conviction by the Trial Court affirmed but the
sentence is modified - sentence under section
376 I.P.C. maintained. Appellant has to
undergone 14 years rigorous imprisonment; no
separate sentence is required for offence under
section 4 OF POCSO Act.

Appeal is partly allowed. (E-2)

List of Cases cited: -

1. Vahid Khan Vs St. of M.P. (2010) 2 SCC 9,

2. Masalti & ors. Vs St. of U. P., AIR 1965 SC
202

3. Mohabbat Vs St. of M.P., (2009) 13 SCC 630,

4. St.of H.P. Vs Sanjay (2017) 2 SCC 51

5. St. of M.P. Vs Saleem @ Chamaru, AIR 2005
SC 3996,

6. Independent Thought Vs U.O.I. & ors. (2017)
10 SCC 800

(Delivered by Hon'ble Virendra Kumar
Srivastava, J.)

1. The instant appeal, under Section
374(2) of Code of Criminal Procedure,
1973 (in short 'Code'), has been preferred
by appellant Ramu (in short 'appellant')
against the judgment and order dated
28.02.2015, passed by Special Judge,
Protection
of
Children
from
Sexual
Offences Act, 2012 (in short 'POCSO Act')
/Additional Sessions Judge, Court No.9,
Barabanki, in Session Trial No.652 of
2013, (State vs. Ramu), arising out of Case
Crime No.181 of 2013, Police Station
Ramsanehi
Ghat,
District
Barabanki
whereby the appellant has been convicted
for offence under Section 376 IPC and
Section 4 of POCSO Act and has been
sentenced for offence under Section 376
IPC for 14 years rigorous imprisonment
and fine of Rs.10,000/- with further
direction that in default of payment of fine,
the appellant has to further undergo one
year additional rigorous imprisonment and
again has been sentenced for offence under
Section 4 of POCSO Act for same sentence
i.e. 14 years rigorous imprisonment and
fine of Rs.10,000/- with further direction
that in default of payment of fine, the
appellant has to further undergo one year
additional rigorous imprisonment. All the
sentences
were
directed
to
run
concurrently.

2. The prosecution case, in brief, is
that appellant Ramu and Smt.Janak Dulari
(P.W.1), mother of victim (P.W.3) were
resident of village Surajpurwa Lalpur,
Rajpur, Police Station-Ram Sanehighat,
District Barabanki.On 25.07.2013, Smt.
Janak Dulari (P.W.1) had gone to pull the
paddy seedling (beran) by leaving her
daughter (victim), aged about eight years
and son Sumit, aged about three years at
her house.Meanwhile, at about 9:00 a.m.,
appellant came at her house, enticed her
daughter (victim) by alluring to give her
cashew biscuit and took her to his mini rice
mill (palesar) where he gave biscuit to her
and took her into a room of the said rice
mill, laid her on earth, undressed her,
inserted his finger into the vagina of victim
and also raped her.Thereafter, he threatened
her not to tell about the incident to anyone,
otherwise he would kill her.

3. At noon, when Janak Dulari
(P.W.1) came back to her house, she saw
the blood stained undergarment (panty) and
frock of the victim and when she asked
about the incident, the victim (P.W.3) told
12 All. Ramu Vs. State of U.P.
309
her the whole story while weeping. Janak
Dulari (P.W.1) rushed to the concerned
Police Station with victim and lodged a
written report (Ex.Ka.1), on the basis
whereof
Chik
F.I.R.
(Ex.Ka.5)
was
prepared and the said information was
entered in the General Diary report dated
25.07.2013 at about 09:30 p.m. by lady
Constable Sulekha Yadav (P.W.-5). Blood
stained undergarment (panty) and frock of
the victim were taken into custody and its
recovery memo (Ex.Ka.7) was prepared by
Const.
Sulekha
Yadav
(P.W.5).
Investigation of the case was undertaken by
lady police Inspector Bholi Singh Chauhan
(P.W.4), who perused the relevant police
papers and also perused recovery memo
(Ex.Ka.7) of blood stained undergarment
(panty) and frock of the victim.

4. The victim was produced before
Dr. Reena Verma (P.W.2), for medico-legal
examination on 26.7.2013 at 4:30 p.m. In
internal examination of victim, it was found
that labia minora was lacerated, hymen was
torn, marginal bleeding as well as first
degree perineal tear were present, vagina
was abraded, posterior fourchette was
lacerated and the victim was examined by
providing
general
anesthesia.
Vaginal
smear slide was prepared and sent for
examination to trace the presence of
spermatozoa and gonococci.

5. On 29.07.2013, the supplementary
medico-legal report was prepared on the
basis of medico-legal examination report as
well as pathological report and on the
ground of that examination, the age of
victim was determined as eight years but
the presence of gonococci and spermatozoa
was not found.

6. During investigation, the victim was
produced on 05.08.2013, by the Investigating
Officer (P.W.4) before Additional Chief
Judicial Magistrate, Court No.25, Barabanki,
for recording her statement under Section 164
of the Code, where she stated that about 10
days ago, in the morning the appellant came to
her house, at that time her mother and elder
sister had gone to sow the paddy in field
whereas she and her brother was at the house.
She further stated that appellant came to her
and said that he would give cashew biscuit.
She further stated that she did not want to go
but the appellant dragged her forcibly at his
rice mill (palesar) and gave biscuit. Thereafter,
he carried her inside the rice mill in a room
and put cloth in her mouth and laid her down.
She further stated that he removed her
undergarment (panty) and inserted his finger
into the vagina (female genital organ) and
thereafter also inserted his penis (male genital
organ). She further stated that there was
profuse bleeding from her vagina and she was
weeping. She further stated that the appellant
had put on her frock and advised her to take
painkiller to get relief. She further stated that
the appellant had also wiped blood with the
cloth and also washed the blood and
threatened her not to tell her mother otherwise,
he would beat. She further stated that she had
gone to her house weeping and told the whole
incident to her mother when she came back.
She further stated that she had gone to the
hospital where her private parts were stitched.
She further stated that her undergarment
(panty) as well as frock were also soaked/wet
with blood.

7. During investigation, the appellant
was arrested on 29.07.2013 and was produced
before the Medical Officer at Health Centre,
Ramsanehi Ghat, District Barabanki.

8. Inspector Bholi Singh Chauhan
(P.W.4), visited the place of occurrence,
recorded the statement of witnesses,
prepared site plan (Ex.Ka.3) and after
310 INDIAN LAW REPORTS ALLAHABAD SERIES
investigation,
submitted
charge
sheet
(Ex.Ka.4) against the appellant under
Sections 376, 506 IPC and Section 4 of
POCSO
Act,
2012.
The
concerned
Magistrate took the cognizance and after
providing the copies of relevant police
papers to the appellant, as required under
Section 207 of the Code, committed the
case to the Court of Sessions, Barabanki as
the case was exclusively triable by the
Court of Sessions.

9. The learned trial Court, after
hearing learned counsel for both the parties,
framed charges for the offence under
Sections 376, 506 IPC and Section 4 of
POCSO Act, 2012, against the appellant,
who denied the same and claimed for trial.

10. Prosecution in order to prove its
case, examined Janak Dulari (P.W.1), Dr.
Reena Verma (P.W.2), Victim (P.W.3),
Inspector
Bholi
Singh
Chauhan
Investigating Officer (P.W.4), Constable
C.P.357 Sulekha Yadav (P.W.5) and also
relied on documentary evidences, i.e.
written report (Ex.Ka.1), medico-legal
examination
(Ex.Ka.2),
Site
plan
(Ex.Ka.3), Charge sheet (Ex.Ka.4), Chik
F.I.R. (Ex.Ka.5), G.D. Report (Ex.Ka.6),
Recovery memo (Ex.Ka.7) and chemical
examination report (Ex.Ka.8).

11. After conclusion of prosecution
evidence, the statement of appellant was
recorded under Section 313 of the Code,
who denied the prosecution story as well as
evidence adduced by the prosecution, and
stated that informant Janak Dulari (P.W.1)
is sister-in-law (Bhaujai and Sali) of one
Babu Lal with whom he had inimical
terms, as Babu Lal was defeated in civil
proceedings of land dispute with his father.
It is further stated that informant Janak
Dulari (P.W.1) used to perform domestic
work of said Babulal and in connivance
with said Babu Lal, a false case was lodged
against him.

12. In support of his defence, to rebut
the prosecution story, Chandrika Prasad
(D.W.1), and Ramesh Chand (D.W.2) were
examined by the appellant as defence
witnesses.

13. Upon conclusion of trial, the trial
Court vide impugned judgment and order
dated 28.02.2015, convicted and sentenced
the appellant as above. Aggrieved by the
said judgment and order, the appellant has
preferred this appeal.

14. Heard Ms. Neeta Singh Chandel,
learned counsel for the appellant and Shri
G.D. Bhatt, learned AGA for the State.

15. Learned counsel for the appellant
submitted that appellant is innocent and has
been falsely implicated due to enmity.
Learned counsel further submitted that
father of victim Sohan Lal had died and the
victim's mother Janak Dulari (P.W.1) had
illicit relations with Babulal and there was
a land dispute between said Babulal and
Ghanshyam, father of appellant.Learned
counsel further submitted that the said
offence was committed by son of Babulal
and due to the said enmity, in connivance
with Babulal, Janak Dulari (P.W.1) has
falsely implicated the appellant in this
case.Learned counsel also submitted that
no sexual intercourse happened between
the victim and the appellant, thus, offence
of rape has not been committed. Learned
counsel further submitted that medico-legal
report is not in consonance with ocular
evidence of the prosecution. Learned
counsel further submitted that the learned
trial Court, without application of proper
judicial
mind
as
well
as
without
12 All. Ramu Vs. State of U.P.
311
considering the evidence available on
record, convicted the appellant; and the
said judgment and order is against the
provision of law, which is liable to be set
aside. Learned counsel further submitted
that the appellant is languishing in jail since
2013; he has no criminal history and he
was 25 years old at the time of offence
therefore, if the offence is made out, linent
view may be adopted by the Court.

16. Per contra, Learned AGA
vehemently
opposed
the
submission
advanced by learned counsel for the
appellant and submitted that at the time of
occurrence, victim was aged about eight
years. Her statement recorded by the
Magistrate under Section 164 of the Code
as well as her statement taken before the
trial Court and the statement of medicolegal expert Dr. Reena Verma (P.W.2) fully
corroborated the prosecution story. Learned
AGA further submitted that there is no
delay either in lodging of F.I.R. or in
medico-legal examination. Learned AGA
further submitted that in view of injury
present on the private parts of body of the
victim and the ocular evidence adduced by
the prosecution, offence of rape is made
out.There is no illegality in the impugned
judgment and order passed by the Court
below and the appeal is liable to be
dismissed.

17. I have considered the submissions
of learned counsel for the parties and
perused the record.

18. Janak Dulari (P.W.1) mother of
victim, while supporting the prosecution
story, has stated that at the time of
occurrence, she had gone to pull the paddy
seedling (besar) with her elder daughter
Manju, leaving the victim (P.W.3) and her
son Sumit, in her house. She further stated
that appellant Ramu allured her daughter
(victim) to give cashew biscuit and took her
to his mini rice mill (palesar). She further
stated that when she returned to her house,
her daughter (victim) (P.W.3) told her that
Ramu had committed rape with her. She
further stated that she had seen blood stain
on her daughter's frock and undergarment
(panty). Thereafter, she, with her daughtervictim, rushed to Police Station Kotwali
and got the report (Ex.Ka.1) written by a
person and gave the same to the concerned
Police Station by putting her thumb
impression.
She
further
stated
that
statement of her daughter was recorded and
she was medically examined.

19. Victim (P.W.3), aged about eight
years at the time of occurrence, has stated
that she was at her house and her mother
Janak Dulari (P.W.1) had gone towards the
field with her sister Manju to pull the
paddy seedling. She further stated that at
the time of occurrence, she with her
younger brother was playing. She further
stated that at that time, appellant Ramu
took her to his mini rice mill (palesar) by
alluring her to give cashew biscuit. She
further stated that appellant had undressed
her, inserted his finger and then his penis
(male genital organ) into her vagina and
forcibly put cloth in her mouth. She further
stated that after the said occurrence, the
appellant washed and clean her under
handpump (bumba) and thereafter he
dropped her at her home. She further stated
that when her mother came back to her
house, she narrated the whole occurrence to
her, whereafter she went to Police Station
Ramsanehi ghat with her mother, where
report was lodged. Thereafter, she was
carried to Women Hospital, Barabanki with
police and her mother Janaki Devi (P.W.1)
where she was medically examined and
police had also recorded her statement. She
312 INDIAN LAW REPORTS ALLAHABAD SERIES
further stated that she made two thumb
impressions at Police Station and also two
thumb impressions at Women Hospital,
Barabanki.

20. Both Janak Dulari (P.W.1) and
victim (P.W.3) were cross examined at
length. But in cross examination, they
again narrated the same occurrence and
nothing has come out in their cross
examination to create any doubt in the
prosecution story.

21. In addition to above, according to
prosecution, the said incident took place on
25.07.2013 at about 9 a.m. and the FIR was
lodged on same day at 21:30 p.m. Police
Inspector
Ms.
Bholi
Singh
Chauhan
(P.W.4), Investigating Officer, has stated
that she was posted on 25.07.2013 as
Inspector, Police Station Ramsanehi Ghat,
District Barabanki and investigated the
case. She further stated that during
investigation, she had copied the recovery
memo of the blood stained undergarment
(panty) and frock of the victim in case
diary, recorded the statement of victim as
well as other witnesses, inspected the place
of occurrence, prepared site plan (Ex.Ka.3)
and also made attempt to arrest the
appellant but he could not be arrested as he
was absconding. She further stated that
appellant
was
arrested
by
her
on
29.07.2013, who was sent for medico-legal
examination. She further stated that during
investigation, victim was also produced
before the Magistrate where her statement
under Section 164 of Code was recorded
and after conclusion of investigation, she
filed charge sheet (Ex.Ka.4).

22. Lady Constable CP-357 Sulekha
Yadav (P.W.5) stated that on 25.07.2013,
on the basis of written report (Ex.Ka.1), she
had prepared Chik F.I.R. No.102 of 2013
(Ex.Ka.5), pertaining to Crime No.181 of
2013, under Sections 376, 506 IPC and
Section 6 POCSO Act against the appellant
and entered the said information in the
General Diary (Ex.Ka.6) at about 21:30
p.m. on 25.07.2013. She further stated that
on that day, she had also taken into her
custody the blood stained undergarment
and frock of the victim, prepared the
recovery memo (Ex.Ka.7) in the presence
of mother of victim (P.W.1) and sent the
said clothes worn by victim for chemical
examination
to
Forensic
Science
Laboratory, Lucknow.

23. As per Chik FIR (Ex.Ka.5), place
of occurrence is 08 kms away from the
concerned Police Station. According to
prosecution
story,
occurrence
was
happened at about 9:00 a.m. and Janak
Dulari (P.W.1), mother of victim got the
information of the occurrence from her
daughter victim (P.W.3) at noon when she
returned from her field. Thus, in view of
the facts and circumstances of the case, as
the offence is pertaining to rape with a
child,
aged
about
eight
years,
and
information was lodged by an illiterate lady
Janak Dulari (P.W.1) (mother of victim),
there is no delay in lodging the FIR.

24. So far as submission of learned
counsel, regarding contradiction between
medical and ocular evidence as no sexual
intercourse had taken place is concerned, in
this case, the victim (P.W.3) was produced
before Dr. Reena Verma (P.W.2) on
26.07.2013, where she was medically
examined. According to Dr. Reena Verma
(P.W.2), labia minora was lacerated and
hymen of victim was torn and marginal
bleeding was present. The victim, aged
about 08 years, has also specifically stated
that at the time of occurrence, the appellant
had inserted his finger into her vagina,
12 All. Ramu Vs. State of U.P.
313
thereafter inserted his penis and again put
his finger into her private parts and also
forcibly put cloth in her mouth. She further
stated that appellant had washed her under
handpump (bumba). In cross examination,
she stated that appellant had only inserted
his finger into her vagina and did nothing
else.

25. At this stage, it is relevant to
discuss the definition of rape as provided
under Section 375 I.P.C.

375- Rape--A man is said to
commit "rape" if he :

(a) penetrates his penis, to any
extent, into the vagina, mouth, urethra or
anus of a woman or makes her to do so
with him or any other person; or

(b) inserts, to any extent, any
object or a part of the body, not being the
penis, into the vagina, the urethra or anus
of a woman or makes her to do so with
him or any other person ; or

(c) manipulates any part of the
body of a woman so as to cause penetration
into the vagina, urethra, anus or any part
of body of such woman or makes her to do
so with him or any other person ; or

(d) applies his mouth to the
vagina, anus, urethra of a woman or makes
her to do so with him or any other person,

under the circumstances falling
under
any
of
the
following
seven
descriptions:--

(First) -- Against her will.

(Secondly) --Without her consent.

(Thirdly) -- With her consent,
when her consent has been obtained by
putting her or any person in whom she is
interested in fear of death or of hurt.

(Fourthly) --With her consent,
when the man knows that he is not her
husband, and that her consent is given
because she believes that he is another man
to whom she is or believes herself to be
lawfully married.

(Fifthly) -- With her consent, when,
at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the
administration by him personally or through
another of any stupefying or unwholesome
substance, she is unable to understand the
nature and consequences of that to which she
gives consent.

(Sixthly) -- With or without her
consent, when she is under sixteen years of
age.

(Seventhly.-- When she is unable
to communicate consent."

26. Thus, in view of the aforesaid
definition of rape, it is clear that offence of
rape includes not only sexual assault by
penetration of penis to any extent but also
includes inserting to any extent of any
object or part of the body, not being the
penis into the vagina of the victim.

27. In Vahid Khan vs. State of M.P.
(2010) 2 SCC 9, Court reiterating the
consistent view, held that even a slightest
penetration is sufficient to make out an
offence of rape and depth of penetration is
immaterial.

28. The victim (P.W.3), the sole star
witness, in this case was aged about only
eight years at the time of occurrence. She,
in her statement recorded under Section
164 of the Code, has categorically stated
that appellant had inserted his finger and
also entered his penis (male genital organ)
into her vagina (female genital organ). She
has also stated about the profused bleeding
and pain occurred to her due to rape,
committed with her by appellant.

29. Before the trial Court she has
again categorically stated that at the time of
314 INDIAN LAW REPORTS ALLAHABAD SERIES
occurrence, the appellant had taken her
away to rice mill (palesar) and had inserted
his finger and also his penis into her
vagina. She further stated that the appellant
had washed her at handpump (bumba). In
cross examination, she has admitted that
appellant had only inserted his finger and
nothing else. Thus, it is crystal clear that
victim
had
categorically
stated
that
appellant had inserted his finger into her
vagina. In medical examination, conducted
by Dr. Reena Verma (P.W.2), it was
established that at the time of examination
there was profuse bleeding from vagina of
the victim, labia minora and hymen were
torn, including her perineum, torn to first
degree.

30. Therefore, in view of statement of
Dr. Reena Verma (P.W.2), and statement of
victim (P.W.3), it is crystal clear that
offence of rape was committed by the
appellant with the victim. Further, it is also
clear that act committed by the appellant
with victim (P.W.3) is covered under the
meaning and definition of rape as provided
under Section 375 IPC. In the result, there
is no contradiction between medical and
ocular
evidence
produced
by
the
prosecution.

31. So far as next submission raised
by learned counsel for appellant that the
appellant is innocent and has been falsely
implicated only due to enmity with one
Babulal,
resident
of
his
village,
is
concerned, Janak Dulari (P.W.1) in her
cross examination, has stated that she was
earlier married to one Shiv Baksh, resident
of Pahalwanpurwa and out of that wedlock,
daughter Manju was born, but due to some
disputes arose between them, she married
with another person, resident of village
Benipurwa and out of that wedlock, victim
(P.W.3) was born. He further stated that
again she got married with one Sohan and
out of this wedlock, a son, named Sumit
took birth. Further stating that all her three
children are residing with her, she further
stated that her third husband had died in
motor accident and after his death, she is
living as a widow. She also stated that
Babulal used to help her and she also used
to do domestic work in house of many
people including Babulal. She further
stated that she had sold her 04 biswa land
for Rs.10.5 lac and purchased another 02
bigha land for Rs.8 lacs with the help of
Babulal. She further stated that at the time
of occurrence, she was residing in a hut,
situated adjacent to house of Babulal. She
further stated that Babulal had two sons,
one was married and the other was
unmarried. She specifically denied the
suggestion, put to her by the defence
counsel before the trial Court, that victim,
at the time of occurrence, was in the house
of Babulal where son of Babulal had tried
to commit such bad act. Victim (P.W.3) has
also denied suggestion, put to her during
trial by defence counsel, that Sanjay, son of
Babulal had inserted finger in her vagina.

32. Chandrika Prasad (D.W.1),
examined by appellant in his defence, has
stated that Janak Dulari (P.W.3) used to
reside with one Babulal and he has no
information
whether
appellant
had
committed rape with victim (P.W.3).
According to him, there was civil dispute
of abadi land between Babulal and
appellant's father which was decreed in
favour of father of appellant and main gate
of house of Babulal was closed due to said
decree. He further stated that according to
rumour, prevailing in the village, Babulal's
son had committed rape with victim but in
connivance with Babulal, due to aforesaid
enmity,
the
appellant
was
falsely
implicated.
12 All. Ramu Vs. State of U.P.
315

33. Ramesh Chandra (D.W.2) has
stated that on the day of occurrence he was
present at the rice mill (palesar) of
appellant from 7 a.m. to 10 a.m. where his
paddy grain was being grinded and on that
day at about 9 a.m. Ramu had not
committed rape with victim. Stating further
that on that day his paddy grains was
grinded till 11:00 a.m. -12:00 p.m., he
further stated that his uncle's cycle
repairing shop was situated in front of
appellant's rice mill (palesar) where his
uncle Sahdev was present from morning till
night. He further stated that the house of
Janak
Dulari
(informant)
is
situated
adjacent to the house of Babulal, after the
death of her husband, she used to reside at
the house of Babulal and did his domestic
work. He further stated that Babulal had
two sons namely Raju and Sanjay, Raju
was married whereas another son Sanjay @
Ramu, aged about 17-18 years, was
unmarried. He further stated that as per
rumour prevailing in the village said Ramu
had committed rape with victim and due to
enmity of civil dispute with Babulal, the
appellant was falsely implicated.

34. Appellant, in his statement
recorded under Section 313 of the Code,
has stated that the informant Janak Dulari
(P.W.1) was sister-in-law (Bhaujai and
Sali) of Babulal who was inimical to him
due to defeat in civil dispute and as the
informant (P.W.1) used to do his (Babulal)
domestic
work,
in
connivance
with
Babulal, she had falsely implicated the
appellant.

35. Offence of rape in all over the
world is treated as heinous offence against
humanity and hateful offence. This offence
exploits the future life of victim and also
defame the character and status of accused.
Generally
such
type
of
offence
is
committed in sequestered and secluded
place, in well and pre-planned manner, so
that none can witness the occurrence. It is a
case of brutal sexual assault committed by
appellant. Thus, evidence of defence
witnesses that they did not see the offence
committed by the appellant and there was
rumour in the village that appellant had not
committed rape with victim, cannot be
accepted because it cannot be expected
from
the
appellant
to
provide
an
opportunity to defence witnesses to watch
the offence, committed by appellant.

36. Informant Janak Dulari (P.W.1),
in her cross examination, has denied the
suggestion put to her that she had relations
with said Babulal. She had also denied the
suggestion put to her by defence counsel
that the alleged rape was committed by son
of Babulal and due to inimical terms of
appellant with Babulal, she had falsely
implicated the appellant. Victim (P.W.3)
had stated that although her house is
situated adjacent to the house of Babulal
but Sanjay, son of Babulal has not inserted
his finger into her vagina. She again stated
that appellant had inserted his finger into
her vagina.

37. In addition to above, the appellant
had stated that there was enmity of civil
dispute with Babulal which was decreed in
favour of appellant but the appellant had
not filed any document in this regard nor
filed the said decree which was passed in
his father's favour against Babulal. Thus,
submission of learned counsel for appellant
that there was enmity between Babulal and
appellant, due to land dispute, Janak Dulari
(P.W.1) in connivance with Babulal falsely
implicated the appellant, has no force.

38. It is also pertinent to note at this
juncture that the victim was aged about
316 INDIAN LAW REPORTS ALLAHABAD SERIES
only eight years at the time occurrence and
grievous injuries were caused to her due to
brutal rape committed by the appellant. The
prosecution case is fully supported and
corroborated by the ocular evidence of victim
(P.W.3), her mother Janak Dulari (P.W.1) and
also Dr. Reena Verma (P.W.2). It is well
settled principle of law in such type of heinous
offence, the relative of the victim or specially
her mother would not falsely implicate an
innocent person by exonerating the real culprit
and if such plea is taken by the accused
appellant, it has to be proved by him as to why
he is being falsely implicated. It is very
pertinent to quote at this very stage the law
laid down in Masalti and others vs. State of
U. P., AIR 1965 SC 202, wherein Court said
as under :

"...............But it would, we think,
be unreasonable to contend that evidence
given by witnesses should be discarded
only on the ground that it is evidence of
partisan or interested witnesses. Often
enough, where factions prevail in villages
and murders are committed as a result of
enmity between such factions, criminal
Courts have to deal with evidence of a
partisan type. The mechanical rejection of
such evidence on the sole ground that it is
partisan would invariably lead to failure of
justice. No hard and fast rule can be laid
down as to how much evidence should be
appreciated. Judicial approach has to be
cautious in dealing with such evidence; but
the plea that such evidence should be
rejected because it is partisan cannot be
accepted as correct.........."

39. Similarly, in Mohabbat vs. State
of M.P., (2009) 13 SCC 630, Court held as
under :

"...........Relationship is not a
factor to affect credibility of a witness. It is
more often than not a relation would not
conceal actual culprit and make allegations
against an innocent person. Foundation
has to be laid if plea of false implication is
made. In such cases, the Court has to adopt
a careful approach and analyse evidence to
find out whether it is cogent and credible."

40. Victim (P.W.3) and her mother
Janak Dulari (P.W.1), both belonging to
rural area, are illiterate. They were crossexamined before the trial Court for the first
time by skilled counsel of appellant. In
such situation, it is inevitable to appear
some contradiction in their statement which
creates their statement more reliable.
Victim, although categorically, has stated
that appellant had inserted his finger and
his penis into her vagina but in cross
examination, she stated that the appellant
had inserted his finger and nothing else. On
the
account
of
such
contradiction,
prosecution case cannot be said to be
unreliable
or
doubtful
because
such
contradiction is minor and natural. It is
settled principle of law that in offence of
rape the statement of victim, supported by
medico legal reports, is sufficient for
conviction of accused and no further
corroboration is required.

41. In State of Himachal Pradesh
vs. Sanjay (2017) 2 SCC 51 where offence
of rape was committed by the uncle of the
victim aged about 9 years, Supreme Court,
relying the testimony of victim and her
mother, where FIR was lodged after three
days and there was some disputes between
the parties, reversing the judgment of
acquittal, passed by the High Court and
allowing the appeal, has held as under :-

"29. Likewise, delay of three days
in lodging the FIR by PW-1, after eliciting
the information from her daughter PW-2, is
12 All. Ramu Vs. State of U.P.
317
inconsequential in the facts of this case. It
is not to be forgotten that the person
accused by the prosecutrix was none else
than her Uncle. It is not easy to lodge a
complaint
of
this
nature
exposing
prosecutrix to the risk of social stigma
which unfortunately still prevails in our
society. A decision to lodge FIR becomes
more difficult and hard when accused
happens to be a family member. In fact,
incestuous abuse is still regarded as a
taboo to be discussed in pubic. This
reticence hurts the victims or other family
members who struggle to report. After all,
in such a situation, not only the honour of
the family is at stake, it may antagonize
other relations as well, as in the first
blush, such other members of family
would not take charge of this nature very
kindly. We also find that the so-called
dispute between the parties was so trivial
in nature that it would not have prompted
PW-1 to lodge a false complaint, putting
her minor daughter of impressionable age
to risks of serious kinds, as pointed out
above.

30. By no means, it is suggested
that whenever such charge of rape is made,
where the victim is a child, it has to be
treated as a gospel truth and the accused
person has to be convicted. We have
already discussed above the manner in
which testimony of the prosecutrix is to be
examined and analysed in order to find out
the truth therein and to ensure that
deposition of the victim is trustworthy. At
the same time, after taking all due
precautions which are necessary, when it is
found that the prosecution version is worth
believing, the case is to be dealt with all
sensitivity that is needed in such cases. In
such a situation one has to take stock of the
realities of life as well. Various studies
show that in more than 80% cases of such
abuses, perpetrators have acquaintance
with the victims who are not strangers. The
danger is more within than outside. Most of
the time, acquaintance rapes, when the
culprit is a family member, are not even
reported for various reasons, not difficult
to fathom. The strongest among those is the
fear of attracting social stigma. Another
deterring factor which many times prevent
such victims or their families to lodge a
complaint is that they find whole process of
criminal
justice
system
extremely
intimidating coupled with absence of victim
protection mechanism. Therefore, time is
ripe to bring about significant reforms in
the criminal justice system as well. Equally,
there is also a dire need to have a survivor
centric approach towards victims of sexual
violence, particularly, the children, keeping
in view the traumatic long lasting effects on
such victims.

31. After thorough analysis of all
relevant and attendant factors, we are of
the opinion that none of the grounds, on
which the High Court has cleared the
respondent, has any merit. By now it is
well settled that the testimony of a victim
in cases of sexual offences is vital and
unless there are compelling reasons which
necessitate looking for corroboration of a
statement, the courts should find no
difficulty to act on the testimony of the
victim of a sexual assault alone to convict
the accused. No doubt, her testimony has
to
inspire
confidence.
Seeking
corroboration to a statement before
relying upon the same as a rule, in such
cases, would literally amount to adding
insult to injury. The deposition of the
prosecutrix has, thus, to be taken as a
whole. Needless to reiterate that the victim
of rape is not an accomplice and her
evidence can be acted upon without
corroboration. She stands at a higher
pedestal than an injured witness does. If
the court finds it difficult to accept her
318 INDIAN LAW REPORTS ALLAHABAD SERIES
version, it may seek corroboration from
some evidence which lends assurance to
her version. To insist on corroboration,
except in the rarest of rare cases, is to
equate one who is a victim of the lust of
another with an accomplice to a crime and
thereby insult womanhood. It would be
adding insult to injury to tell a woman
that her claim of rape will not be believed
unless it is corroborated in material
particulars, as in the case
of an
accomplice to a crime. Why should the
evidence of the girl or the woman who
complains of rape or sexual molestation
be viewed with the aid of spectacles fitted
with lenses tinged with doubt, disbelief or
suspicion? The plea about lack of
corroboration has no substance (See
Bhupinder Sharma v. State of Himachal
Pradesh).
Notwithstanding
this
legal
position, in the instant case, we even find
enough corroborative material as well,
which
is
discussed
hereinabove."
(Emphasis supplied)

42. Coming to the facts of this case
again, admittedly, Janak Dulari (P.W.1)
was residing with her children including
the victim, she has no source of income, as
she was earning her livelihood by doing
domestic work as well as labour work. She
was aware of the fact that she was deposing
for such type of gruesome and serious
offence wherein she might loose her social
respect in the Society particularly in the
village where she was residing. She was
also aware of the consequence of exposing
the offence of rape, committed with her
daughter (P.W.3), because due to such
offence the whole life of victim might
spoiled by society, particularly in rural
areas. Generally, in rural areas, due to
illiteracy
and
unawareness,
no
one,
particularly a woman, can be expected to
lodge false criminal case for offence of
rape committed with her daughter. In this
backdrop, if it is alleged by accusedappellant
that
he
has
falsely
been
implicated, onus shifts upon him to prove
such fact. Section 29 of the POCSO Act,
2012 is also relevant at this stage which is
as under:-