# Shami Ullah v. State of U.P

- **Citation:** (2010) 1 ILRA 113
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-02-09
- **Case number:** Criminal Appeal No. 2174 of 2007
- **Bench:** Vinod Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shami-ullah-v-state-of-u-p-41619
- **Pages:** 10

## Headnote

Criminal Appeal-offence under section
376/506 IPC and 3 (1)(12) SC/ST Actconviction of 7 years R.I. with fine of
Rs.2000/- victim a 12 years girl-while
returning from guana grove-near the
house
of
appellant-engaged
in
conversation and latter on taken her
fodder room-outraged her modesty by
gagging her mouth-plea of consent-not
available in case of minor-moreover in
absence of eye witness-victim could
have concealed very conventionally so
far delay in lodging FIR-cogent and
sufficient acceptable explanation givenheld-conviction
justified.-appeal
dismissed.

Held: Para 21 & 22

Above view regarding age takes me to
another important aspect of the appeal
that once victim was a minor, her
114 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
consent to Rapuit carnalitor cognovit,
was of no consequence in judging the
offence committed by the appellant.
Albeit not much argument was advanced
by Sri Saran on this aspect but by
making submissions that the victim did
not sustain any injury on her private part
and her person he has advanced two
submissions firstly that it was a consent
case and secondly that no rape was
committed at all. In view of above
discussion, the case of consent is an
impossibility, moreso when there was no
eye witness to the said indecent act and
victim could have concealed it very
conveniently, but she has not done so.
The two counter productive arguments
can not be coalesced to accept defence
suggestion.

Turning towards delay in lodging of the
FIR, I find that the same was lodged
without any delay, which has been
explained
by
cogent,
sufficient
and
acceptable explanation. Now turning
towards some of the decisions of the
apex court, I find that the decision relied
upon by the appellant's counsel reported
in AIR 2009 SC 858: Rajoo And Others
versus State Of M.P. is of no help to him .
That was a case which had entirely
different fact scenario all together in
number
of
accused,
in
manner
of
happening of the incident, victim going
with the accused on a scooter without
rising any alarm etc. and more over that
was a case of gang rape without any
supporting medical evidence. The facts
of that decision as are referred to in para
2 of the said judgement by the apex
court are not in consonance with the
facts of the present appeal. Here, there
was no reason for the victim, a young
girl of 14 years of age, to cook up an
false story and narrate it to her mother
and then to her father to blemish her
own self. Serologist report establishes
her allegations in full.
Case law discussed:
AIR 2006 SC 1267, AIR 2009 SC 858, AIR
2006 SC 1267, AIR 2006 SC 2214, AIR 2005
SC 222.

## Text

1 All] Shami Ullah V. State of U.P.
113
professional
ethics
and
believe
in
maintaining the decorum of courts."

23. In the above perspective, it
cannot be ruled out that the contemnor set
up the entire theory in order to save his
skin. In this view of the matter, the
apology offered does not commend to us
for acceptance and it is turned down.

24. As a result of foregoing
discussion, the reference made to this
Court is allowed and the contemnor Shiv
Raj Singh Chauhan, Advocate is held
guilty of criminal contempt.

25. We accordingly convict him
under section 12 of the Contempt of
Courts Act and sentence him to undergo
simple imprisonment for three months
and to pay a fine of Rs.20,000/-. In
default, it may be prescribed, contemnor
shall
undergo
further
simple
imprisonment for two weeks. However,
the punishment so imposed shall be kept
in abeyance for a period of sixty days so
as to enable the contemnor to approach
the Apex Court if so advised. It needs
hardly be said that immediately after
expiry of sixty days in case no stay order
is furnished by the contemnor, he would
be taken into custody forthwith to serve
out the sentence immediately.

26. The matter shall be listed before
this Court in the second week of May
2010 for ensuring compliance.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.02.2010

BEFORE
THE HON'BLE VINOD PRASAD, J.

Criminal Appeal No. 2174 of 2007

Shami Ullah

...Appellant
Versus
State of U.P.

 ...Respondent

Counsel for the Appellant:
Sri A.B. Saran
Sri C.B. Mishra
Sri Anil Kumar Srivastava
Sri Apul Mishra
Sri D.S. Yadav
Sri Kamol Krishna
Sri S.K. Chandel
Sri S.K. Chandra
Sri Sudhir Kumar

Counsel for the Respondent:
Sri R.C. Tewari
G.A.

Criminal Appeal-offence under section
376/506 IPC and 3 (1)(12) SC/ST Actconviction of 7 years R.I. with fine of
Rs.2000/- victim a 12 years girl-while
returning from guana grove-near the
house
of
appellant-engaged
in
conversation and latter on taken her
fodder room-outraged her modesty by
gagging her mouth-plea of consent-not
available in case of minor-moreover in
absence of eye witness-victim could
have concealed very conventionally so
far delay in lodging FIR-cogent and
sufficient acceptable explanation givenheld-conviction
justified.-appeal
dismissed.

Held: Para 21 & 22

Above view regarding age takes me to
another important aspect of the appeal
that once victim was a minor, her
114 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
consent to Rapuit carnalitor cognovit,
was of no consequence in judging the
offence committed by the appellant.
Albeit not much argument was advanced
by Sri Saran on this aspect but by
making submissions that the victim did
not sustain any injury on her private part
and her person he has advanced two
submissions firstly that it was a consent
case and secondly that no rape was
committed at all. In view of above
discussion, the case of consent is an
impossibility, moreso when there was no
eye witness to the said indecent act and
victim could have concealed it very
conveniently, but she has not done so.
The two counter productive arguments
can not be coalesced to accept defence
suggestion.

Turning towards delay in lodging of the
FIR, I find that the same was lodged
without any delay, which has been
explained
by
cogent,
sufficient
and
acceptable explanation. Now turning
towards some of the decisions of the
apex court, I find that the decision relied
upon by the appellant's counsel reported
in AIR 2009 SC 858: Rajoo And Others
versus State Of M.P. is of no help to him .
That was a case which had entirely
different fact scenario all together in
number
of
accused,
in
manner
of
happening of the incident, victim going
with the accused on a scooter without
rising any alarm etc. and more over that
was a case of gang rape without any
supporting medical evidence. The facts
of that decision as are referred to in para
2 of the said judgement by the apex
court are not in consonance with the
facts of the present appeal. Here, there
was no reason for the victim, a young
girl of 14 years of age, to cook up an
false story and narrate it to her mother
and then to her father to blemish her
own self. Serologist report establishes
her allegations in full.
Case law discussed:
AIR 2006 SC 1267, AIR 2009 SC 858, AIR
2006 SC 1267, AIR 2006 SC 2214, AIR 2005
SC 222.
(Delivered by Hon'ble Vinod Prasad, J.)

1. Challenge in this appeal by the
appellant accused Shamiullah is to the
judgement and order of his convictions
under sections 376/506 IPC and imposed
sentences of 7 years RI with fine of Rs.
5000/ and in default of payment of fine to
under go six months further imprisonment
on the first score, and one year RI with
fine of Rs. two thousand and in default of
payment of fine to under go further two
months imprisonment on the second
count, with additional direction that both
the sentences shall run concurrently,
recorded by Additional Session's Judge,
Fast track court No. 2, district Kaushambi
in S.T. No. 279 of 2003, State versus
Shamiullah, under sections 376/ 506 IPC
and section 3(1) (12) SC/ST Act, P.S.
Mohammadpur
Paisa,
District
Kaushambi.

2. Background facts of the appeal
are that victim, PW2, aged about 14 years,
is the daughter of informant Mohan
agriculturist, PW1, resident of village
Jagannathpur, PS Mohammadpur Paisa,
district Kaushambi with the appellant as
her co villager. On the unfortunate day
23.12.2001 at 5 p.m., when the victim
PW2, was returning to her house from the
guava grove of Mian Baba, and reached
near the house of the appellant, she was
engaged in a conversation by the
appellant who then took her to his fodder
room, where he outraged her modesty by
gagging her mouth from a piece of cloth
and intimidating her with life, when she
attempted to raise alarm. On her coming
back to her house, victim divulged the
faux pas to her mother, and later on to the
informant father Mohan, PW1, on his
return after irrigating his field. Informant
PW1 got a written report, Ext. Ka 1,
1 All] Shami Ullah V. State of U.P.
115
scribed by Bachchi Lal and then lodged it
at police station Mohammadpur Paisa,
following
day
of
the
incident
on
24.12.2001 at 4.15 p.m. measuring a
distance of 6 km from his village. Ram
Bahadur Yadav, HCP, PW 4, registered
the crime, prepared the chik FIR, Ext. Ka
4 and the relevant GD entry Ext. Ka 5. An
attir (underwear) of the victim was also
seized by him and it's recovery memo Ext.
Ka 2 was also prepared.

3. Banwari Lal, Circle Officer,
Sirathu, district Kaushambi, PW 6,
commenced the investigation of the
crime, copied the chik FIR and GD entry,
interrogated the victim and the informant
and recorded their statements. Arriving at
the spot and conducting spot inspection
C.O. PW6, prepared the site plan Ext. Ka
8 and thereafter penned down the
statements of Smt. Kalpati, victim's
mother, and those of Indra pal and
Rakesh, two witnesses of attir seizure
memo. PW6 , thereafter copied injury
report and x-ray report of the victim, and
then copied 164 Cr.P.C. statement of the
victim in the case diary. Investigating
Officer had also sent for serologist
examination the under wear of the victim,
which report by the serologist is Ext. Ka
10. Prima facie offences being disclosed
against the appellant accused, that the
C.O. Investigating Officer, charge sheeted
the appellant vide his report/ charge sheet,
Ext. Ka 9 dated 16.1.2002.

4. Medical examination of the
victim was done at district Hospital
Allahabad, by Dr. Usha Singh, PW5, on
25.12.2004 at 11.40 a.m, vide Ext. Ka 6,
who was brought to her by Const. Pyare
Lal. In general examination doctor found
her teeth 7+7 / 7+7, weight 38 kg and
height 5 1⁄2 , breasts developed, pubic and
axillary hair scanty, and no mark of injury
over any part of her body.

5. On internal examination doctor
noted no mark of injury or blood stains on
the private part of the victim, whose
vaginal smear slid was prepared and sent
for pathological examination to MLN
hospital
for
noting
presence
of
spermatozoa. Insertion of two fingers was
made easy. Uterus was of normal size
with no pain and tenderness present in it.
Mensturation had not occurred. Doctor
also advised for x-ray of wrist, elbow and
knee joints and reserved her final opinion
to be given after those test reports.
Pathologist
report
dated
27.12.2001
indicated
that
no
spermatozoa
was
detected in the vaginal smear of the
victim where as Radiologist report dated
26.12.2001(Ext. Ka 3) indicated that
Radius and Ulna Bones of the victim were
not united (fused), the epiphysis of medial
epicondyle head of Radius and old cranor
process of ulna bones have not completely
united with their respective shafts. The
epiphysis of lower end of femer and upper
end of Tibia and Fibula bones have not
completely united with their respective
shafts. According to the supplementary
report Ext. Ka 7, by the doctor PW 5,
based on Radiologists and Pathologist
reports, victim was found to be a minor
aged about 14 years, however no defenite
opinion about rape could be given by her.

6. Serologist report by Forensic
science
laboratory,
Lucknow,
dated
15.5.2002, Ext. Ka 10, indicated that on
the underwear of the victim, semen and
human sperm, both were found.

7.

Civil
Judge,
(JD)/
AJM,
Kaushambi, took cognizance of the
offence on the basis of charge sheet, Ext.
116 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
ka 9 and summoned the accused appellant
on 20.1.2002 and thereafter finding his
case triable by court of Session's,
committed it on 6.10.2003 and resultantly
before the Session's Court S.T. No. 279 of
2003,
State
versus
Samiullah
was
registered against the accused appellant.

8. Additional Session's Judge,
Kaushambi,
charged
the
accused
appellant for offences under sections 376,
506 I.P.C. and 3 (1) ( XII) SC/ST Act,
which charges were abjured by the
accused appellant hence trial proceeded
against him.

9. In an effort to cement appellant's
guilt prosecution examined six witnesses
in all, out of whom Mohan informant PW
1 and Victim, PW 2 were the fact
witnesses. Rest of the formal witnesses
included Senior Radiologist Dr. V.K.Sahu
PW3, HCP Ram Bahadur Yadav, PW4,
Dr. Usha Singh, PW5, and C.O. Banwari
Lal, Investigating Officer PW6.

10. PW1 informant Mohan narrated
his
FIR
allegations
during
his
examination in the court and deposed
further that he had returned to his house
after an hour of the incident and victim
was 14 years of age at that time and he
had gone to the police station next day
because of the falling of night. He has
proved his written report as Ext Ka 1
which
he
had
got
scribed
at
Mohammadpur Painsa. He has also
proved his signature on the recovery
memo of the under wear of his daughter.
He had also testified that the victim was
sent for her medical examination to
Allahabad accompanied by a constable,
where she was medically examined and
her x-ray was done on the subsequent day.
This witness was subjected to a very
lengthy cross examination which is
woefully pathetic. Majore portion of it
centers round developing some or the
other unappealing reasons for him to
falsely implicate the appellant on a false
charge of rape. It was suggested firstly
that to get financial aid from the
government that he had implicated the
appellant, then on the caste line the
suggestion was taken and then it was
endevoured that he had falsely implicated
the appellant because of one Ishtiaq
Ahmad, grand son of Mian Baba, whose
quava grove victim was guarding. It was
also suggested to him that because of saw
machine enemity with the appellant and
Istiaq Ahmad because appellant had
complained about sawing of green woods
by Istiaq Ahmad and had got it seized by
the DFO, that the informant has falslely
implicated the appellant. PW 1 further
evidenced that he was irrigating his wheat
field and at the time of the incident the
members of appellant's house were at
their fields. He had further deposed that
he had gone to the police station on a jeep
of village Pradhan, who was a muslim. He
has denied categorically the suggestion
that victim was never subjected to any
rape by the appellant.

11. PW2, victim, in her deposition
before the court narrated the incident
described in the FIR and testified that
appellant had dragged her inside his
fodder room where he had raped her
against her consent on gun point by
gagging her mouth and threatening her
entire family with life. She also narrated
that at the time of the incident she was
wearing frock and an underwear. She
narrated the incident to her mother on her
return to her house and later on the same
was also divulged to the informant after
his return from the field. She has also
1 All] Shami Ullah V. State of U.P.
117
testified that her 164 Cr.P.C. statement
was recorded by a Magistrate. On being
cross examined in bits and pieces at the
interval of many days, she deposed that
she is the youngest of the three sisters and
she had gone to guard guava grove and
after the incident she could move with
difficulty. She confirmed informant's
version of irrigating his field at the time
of the incident. She further evidenced that
the house of accused is at a distance of
three bighas from her house. She showed
her
ignorance
regarding
map
of
appellant's house as she was dragged
inside the room straight way. There are
some embellishment in her statement
regarding sustaining of some abrasions in
dragging
and
actual
raptus
carnal
cognovite and oozing out of blood. She
has further disclosed that she was
undressed
and
thereafter
sexually
molested. She has further deposed that
after her returned to her house she had
changed her cloths and had worn sari and
petticot. She further testified that she had
not washed her under wear but had
washed her rest of attires next day
morning when she had bathed herself. She
had gone to the police station after
bathing. She had accepted that she had
received
some
money
from
the
government but denied the defence
suggestion that she was not ravished of
her prestige and that no such incident as
narrated by her ever took place and she
had falsely implicated accused appellant
because of rapacity under pressure of
leader because of harbingered enemity.

12. The two doctors formal
witnesses, Senior radiologists DR. V.K
Sahu PW3 and Dr. Usha Singh PW5, had
evidenced and proved their x-ray report
(Ext Ka 3), and the medical examination
report Ext. Ka 6 and Ext. Ka 7, and have
confirmed
their
findings
already
mentioned above and hence, for the sake
of brevity, the same are not being
repeated here. PW 5 had testified that the
victim was 14 years of age and she has
denied the suggestion that she has reduced
the age of the victim by five years. There
is also a serologist report dated 15.5 2002,
Ext. Ka 10, which indicates that human
semen and sperm were found on the
underwear of the victim alleged to have
been worn by her at the time of the
incident.

13. HCP, Ram Bahadur (PW4) has
proved
registration
of
case
and
preparation of Chik FIR, Ext.Ka 4 and
GD entry Ext. Ka 5. He has also proved
siezure memo of under wear as Ext. Ka
2.He has further disclosed that the victim
was sent for medical examination in
company
of
a
femal
constable.
Investigating officer Banwari Lal, PW 6
testified various investigatory steps taken
by him. He has further deposed that in her
statement under section 161 Cr.P.C.,
victim had stated gagging of her mouth by
the accused. This witness has confirmed
some of the contradictions and omissions
occurred in the testimony of the victim.
Major part of his cross examination is
regarding absence of blood and sperm on
the victim's corpus and her drappers.

14. Trial Judge found the case of the
prosecution proved to the hilt and guilt of
the appellant established beyond any
shadow
of
doubt,
consequently
it
convicted and sentenced him by the
impugned judgement and order, as is
already mentioned above, hence this
appeal questioning the sustainability of
the said judgement.
118 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
15. I have heard Sri A.B. Saran
learned senior counsel in support of this
appeal and Sri Patanjali Misra, learned
AGA in opposition.

16. Learned counsel for the
appellant
threw
challenge
to
the
conviction and sentence of the appellant
by canvassing that the whole prosecution
story is false and bogus and no rape was
committed upon the victim. He submitted
that medical report interdict the charge of
rape and the appellant has been falsely
implicated to settle the scores of rivalry.
Learned senior counsel further harangued
that victim is not a reliable witness and
her testimony does not inspire any
confidence at all and therefore it is very
unsafe to act on her testimony. Neither
her conduct is natural nor the medical
report of internal examination establish
the framed charges against the appellant.
No hue and cry was raised by the victim
and there was no external mark of injury
detected on her person, although she has
stated that she was dragged pulling from
the hand and she had sustained abrasions.
It was submitted that probably for the lust
of economic gains that the appellant was
roped in this false charge and the present
crime was never committed .It was further
argued that the FIR was lodged belatedly
with false allegations. Lastly, it was
concluded by contending that the instant
appeal deserves to be allowed and the
appellant be acquitted of the charges
levelled against him and his conviction
and sentence be set aside.

17. Per contra, learned AGA submits
that
the
impugned
judgement
is
sustainable and the guilt of the appellants
is proved beyond doubt and therefore
instant appeal by the appellant sans merit
and be dismissed.
18. I have considered the advanced
submissions and have perused the trial
court record as well as file of this appeal.
Rape is not only a social crime but is an
ignominy for the victim and faux pas for
the whole family. In our society, false
accusation of rape by a damsel, who is not
a trollop, risking her most esteemed
honour and self prestige with further risk
of ostracization or social spitness, still, is
abhorred with temerity. Seldom such
extreme steps are taken where a young
girl anoint a false rape charge on her
person, that too, by such a rapist, who had
no valentine or cupid connection with her.
Countenancing such a contention that the
victim has done so to settle a dispute, by
her father, is so gibberish a submission
that it deserves rejection without a further
pondering thought. In the decision of
Dinesh @ Budha versus State of
Rajasthan AIR 2006 SC 1267 Supreme
Court has observed thus:-

"6.Sexual violence apart from being
a dehumanizing act is an unlawful
intrusion on the right of privacy and
sanctity of a female. It is a serious blow to
her supreme honour and offends her selfesteem and dignity - it degrades and
humiliates the victim and where the victim
is a helpless innocent child or a minor, it
leaves behind a traumatic experience. A
rapist not only causes physical injuries
but more indelibly leaves a scar on the
most cherished possession of a woman i.e.
her dignity, honour, reputation and not
the least her chastity. Rape is not only a
crime against the person of a woman, it is
a crime against the entire society. It
destroys, as noted by this Court in Shri
Bodhisattwa Gautam v. Miss Subhra
Chakraborty (AIR 1996 SC 922), the
entire psychology of a woman and pushes
her into deep emotional crisis. It is a
1 All] Shami Ullah V. State of U.P.
119
crime against basic human rights, and is
also violative of the victim's most
cherished of the Fundamental Rights,
namely, the Right to Life contained in
Article 21 of the Constitution of India,
1950 (in short the 'Constitution'). The
Courts are, therefore, expected to deal
with cases of sexual crime against women
with utmost sensitivity. Such cases need to
be dealt with sternly and severely. A
socially sensitized Judge, in our opinion,
is a better statutory armour in cases of
crime against women than long clauses of
penal provisions, containing complex
exceptions and provisos."

19. Present appeal is one such
example. Victim, PW2, a young girl of 14
years is alleged to have been ravished
physically by the appellant, when she was
returning to her house after guarding a
guava grove taken on lease by her
informant father PW1. According to the
prosecution allegations, both victim and
the accused, were co villagers, which fact
has not been thrown open to challenge by
the accused hence identity of the appellant
is not in doubt and has not been
challenged as well by the appellant. This
rules out a case of false identity.

20. The report by the doctor
regarding age of the victim is well
established as she was found to be a
minor aged about 14 years. Her physical
examination
with
ossification
test
materials farther such an opinion. Learned
counsel for the appellant also did not
question the deposition of doctor Usha
Singh, where she is categorical in her
statement that the victim was only 14
years of age and has denied the defence
suggestion that she was 19 years of age.
Victim also disclosed her age to be 18
years at the time of her testimony in the
trial court , which was recorded four years
after the incident and hence at the time of
the incident she must have been 14 years
of age. It is very significant to note that
the accused did not seriously questioned
the victim on this aspect of the matter and
her
cross
examination
is
woefully
deficient in that respect. Attour, father
PW 1, has also not been tested seriously
by the accused on the said aspect. In such
background evidences it is not difficult to
conclude that the victim was a minor at
the time when she was deprived of her
most precious honour.

21. Above view regarding age takes
me to another important aspect of the
appeal that once victim was a minor, her
consent to Rapuit carnalitor cognovit, was
of no consequence in judging the offence
committed by the appellant. Albeit not
much argument was advanced by Sri
Saran on this aspect but by making
submissions that the victim did not sustain
any injury on her private part and her
person he has advanced two submissions
firstly that it was a consent case and
secondly that no rape was committed at
all. In view of above discussion, the case
of consent is an impossibility, moreso
when there was no eye witness to the said
indecent act and victim could have
concealed it very conveniently, but she
has not done so. The two counter
productive
arguments
can
not
be
coalesced to accept defence suggestion.

Turning towards another argument
that the incident did not occur at all and
both the facts witnesses are deposing
falsely against the accused appellant, it is
to be noted that both PW 1 and PW 2
have supported their case well. Victim is
the sole witness of actual outraging of her
modesty. Why she will squatt on her own
120 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
honour without any animous towards the
appellant is impossible to perceive. To her
it was suggested that to get the money and
to settle her father's score that she has
falsely implicated the appellant in this
false case of rape. To say the least this is
adding
insult
to
injury.
Victim
categorically denied having any relation
with the accused. Both of them belonged
to two different castes with out any thing
in common. It was not suggested to her
that she was having an affair with the
accused. Residence of the two are also a
part. There has been no love labour lost
between them. Sri Saran also failed to
bring any convincing reason for the
victim to depose falsely against the
appellant. The suggestion that for fiscal
benefit she cooked up a false charge of
ignominy ruining her self prestige is
totally codswallop. PW2 victim was cross
examined very minutely on details of
intercourse, to which she has replied
convincingly. No doubt, there are natural
aberrations and embellishments in her
description of sexual act and some
contradictions
has
creeped
in
her
evidence, but they were bound to occur,
because observations and memory of an
adolescent of 14 years after an interval of
four years are bound to fade. Over and
above, the record of the trial court reveals
that victim was cross examined in bits and
pieces on many dates after long intervals.
This must have hampered her memory by
efflux of time. Had she been a tutored
witness, there would not have been such
contradictions
in
her
testimony
in
describing rape being committed on her.
The natural contradictions makes her even
more reliable and truthful witness, whose
testimony
is
confidence
inspiring.
Omissions and contradictions in her
depositions are not of such a degree as to
whither out the entire prosecution version
as was contended by learned counsel for
the
appellant.
Additionally,
victim's
evidence finds it's corroboration in the
serologist report, Ext. Ka 10, where on
her underwear semen and spermatozoa
were detected. Accused appellant has
failed to question this report for it's
genuineness and acceptability. If there
was no rape, there would not have been
any such report by an independent
agency, having no animous with the
appellant. There was no earthly reason for
the victim and her father to concoct a
false charge against the appellant. They
could have got money, even without
naming the appellant as the culprit. Both
father and daughter have stood the test of
their cross examinations on the anvil of
probability and I find them reliable and
trustworthy witnesses. The second part of
argument raised by appellant's counsel is
also therefore repelled.

22. Turning towards delay in
lodging of the FIR, I find that the same
was lodged without any delay, which has
been explained by cogent, sufficient and
acceptable explanation. Now turning
towards some of the decisions of the apex
court, I find that the decision relied upon
by the appellant's counsel reported in AIR
2009 SC 858: Rajoo And Others versus
State Of M.P. is of no help to him . That
was a case which had entirely different
fact scenario all together in number of
accused, in manner of happening of the
incident, victim going with the accused on
a scooter without rising any alarm etc. and
more over that was a case of gang rape
without any supporting medical evidence.
The facts of that decision as are referred
to in para 2 of the said judgement by the
apex court are not in consonance with the
facts of the present appeal. Here, there
was no reason for the victim, a young girl
1 All] Shami Ullah V. State of U.P.
121
of 14 years of age, to cook up an false
story and narrate it to her mother and then
to her father to blemish her own self.
Serologist
report
establishes
her
allegations in full.

23. In Dinesh @ Budha versus
State of Rajasthan : AIR 2006 SC 1267
it has been observed by the apex court as
follows:-

"11..In the Indian Setting refusal to
act on the testimony of the victim of
sexual
assault
in
the
absence
of
corroboration as a rule, is adding insult
to injury. A girl or a woman in the
tradition bound non-permissive society of
India would be extremely reluctant even
to admit that any incident which is likely
to reflect on her chastity had ever
occurred. She would be conscious of the
danger of being ostracized by the society
and when in the face of these factors the
crime is brought to light, there is inbuilt
assurance that the charge is genuine
rather than fabricated. Just as a witness
who has sustained an injury, which is not
shown or believed to be self-inflicted, is
the best witness in the sense that he is
least likely to exculpate the real offender,
the evidence of a victim of sex offence is
entitled to great weight, absence of
corroboration notwithstanding. A woman
or a girl who is raped is not an
accomplice. Corroboration is not the sine
qua non for conviction in a rape case. The
observations of Vivian Bose, J. in
Rameshwar v. The State of Rajasthan
(AIR 1952 SC 54) were:

"The rule, which according to the
cases has hardened into one of law, is not
that corroboration is essential before
there can be a conviction but that the
necessity of corroboration, as a matter of
prudence, except where the circumstances
make it safe to dispense with it, must be
present to the mind of the judge...".

24. In Om Prakash Versus State of
U.P.: AIR 2006 SC 2214; apex court has
observed thus:-

"13. It is settled law that the victim of
sexual
assault
is
not
treated
as
accomplice and as such, her evidence
does not require corroboration from any
other evidence including the evidence of a
doctor. In a given case even if the doctor
who examined the victim does not find
sign of rape, it is no ground to disbelieve
the sole testimony of the prosecutrix. In
normal course a victim of sexual assault
does not like to disclose such offence even
before her family members much less
before public or before the police. The
Indian women has tendency to conceal
such offence because it involves her
prestige as well as prestige of her family.
Only in few cases, the victim girl or the
family members has courage to go before
the police station and lodge a case. In the
instant case the suggestion given on
behalf of the defence that the victim has
falsely implicated the accused does not
appeal to reasoning. There was no
apparent reason for a married woman to
falsely
implicate
the
accused
after
scatting her own prestige and honour."

25. In yet another decision State of
M.P. Versus Balu: AIR 2005 SC 222; it
has been held by the supreme court as
follows:-

"The Trial Court, in our opinion,
rightly rejected this contention of the
respondent
herein.
The
prosecution
during the course of investigation had
seized the clothes worn by the victim as
122 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
well as the underwear worn by the
respondent which also on examination by
the Serologist was found to contain blood
which also supported the prosecution
case that the respondent had sexual
intercourse with the victim. PW2 who
knew the respondent prior to the incident
had no difficulty in identifying the
respondent as the person who committed
rape on her, also stated that the
respondent had covered her mouth with a
towel to prevent her from shouting for
help. Having perused the evidence like the
trial Court, we also find no reasons to
disbelieve her evidence. Hence, the socalled consent alternatively pleaded by
the counsel for the respondent cannot be
accepted.
The
argument
of
nonconsideration of the statement of the
accused recorded under Section 313,
Cr.P.C. to the effect that there was
animosity between the family of the victim
and the accused is liable to be rejected
because one of the defences of the
accused is that there was consent on the
part of the victim to have sex with him.
These two stands being self-contradictory,
cannot be accepted.
15. Thus, having considered the material
on
record
and
having
heard
the
arguments addressed on behalf of the
parties, we find no merit in the argument
of the learned counsel for the respondent
that the Trial Court erroneously convicted
the respondent."

26. No other argument was
advanced by learned senior counsel for
the appellant in support if this appeal,
which I find to be devoid of merits and is
hereby dismissed and the conviction and
sentence of the appellant as has been
implanted by the trial court in the
impugned judgement and order is hereby
confirmed. Appellant is in jail. He shall
remain in jail to serve out remaining part
of his sentence.

27. Let a copy of this judgement be
certified to the trial court for it's
intimation and further action.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.02.2010

BEFORE
THE HON'BLE SATYA POOT MEHROTRA, J.
THE HON'BLE KASHI NATH PADNEY, J.

Civil Misc. Writ Petition No. 3287 of 2010

Dr. Ramesh Chandra Agarwal ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri K.K. Srivastava
Sri K.P. Tiwari

Counsel for the Respondents:
S.C.

Constitution
of
India,
Article
226Benefits of G.P.F. and Pension Scheme
petitioner a reader in P.G. College-had -
opted-contributory
Provident
Fund
Scheme-retirement due on 30.6.2012
getting benefit of academic session19.11.2007 applied for charge of option
from C.P.F. to G.P.F. Scheme in terms of
G.O. dated 25.08.1999-refusal by placing
reliance upon G.O. 12th July 2000 -not
sustainable keeping in view of judgment
of Shir Gopal Gupta-offered by Apex
Court.

Held: Para 17 & 18

We may mention that in Civil Misc. Writ
Petition No. 13169 of 2008 (Kirti Chand
Gupta and others Vs. State of U.P. and
others) connected with various other
Writ Petitions, similar controversy was
involved. A Division Bench of this Court