# Shamim & Ors v. State of U.P

- **Citation:** (2023) 11 ILRA 400
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-09
- **Case number:** J. Criminal Appeal No. 5690 of 2004
- **Bench:** Ashwani Kumar Mishra, Ms. Nand Prabha Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shamim-ors-v-state-of-u-p-49347
- **Pages:** 9

## Headnote

Criminal Law - Indian Penal Code,
1860 - Sections 376 & 452 - Code of
Criminal Procedure, 1973 - Section
374(2) - Criminal Appeal - Rape and
House Trespass - Conviction and Sentence
- False Implication - Lack of Corroboration
-
Property
Dispute
11 All. Shamim & Ors. Vs. State of U.P.
401
The appellants, Shamim, Shafi, and Khurshid,
challenged their conviction and sentence dated
30.10.2004 by the Additional Sessions Judge,
Fast Track Court No. 4, Badaun, in Sessions Trial
No. 438/1996, arising from Case Crime No.
179/1991 under Sections 376 and 452 IPC. They
were sentenced to life imprisonment with a Rs.
10,000
fine
for
rape
and
three
years'
imprisonment with a Rs. 3,000 fine for house
trespass. The prosecution alleged that the
appellants, motivated by a property dispute,
entered the prosecutrix's house, dragged her to
a sugarcane field, and raped her. The appellants
claimed false implication due to enmity and a
pending suit for cancellation of a sale deed.
Held: (1) The appeal was allowed, and the
conviction and sentences were set aside. (2)
The prosecutrix's testimony was uncorroborated
by medical evidence, showing no external or
internal injuries despite claims of being dragged
a mile and raped, and no spermatozoa were
found in the vaginal smear. (3) The recovered
salwar with semen stains was not chemically
examined,
and
no
independent
witnesses
supported the prosecution. (4) PW-2 and PW-3,
eye-witnesses, only saw the accused in the
house, not the alleged rape in the sugarcane
field. (5) A property dispute and prior litigation
provided a motive for false implication. (6) Per
St. of Punjab Vs Gurmeet Singh, Sadashiv
Ramrao Hadbe Vs St. of Maharashtra, Radhu Vs
St. of Madhya Pradesh, and Manak Chand Vs St.
of
Haryana,
the
sole
testimony
of
the
prosecutrix,
when
unreliable
and
uncorroborated,
cannot
sustain
conviction,
especially
given
the
risk
of
false
rape
allegations. (7) The prosecution failed to prove
the case beyond reasonable doubt, and the
appellants were acquitted, with bail bonds
cancelled.

Case Law Cited:

## Text

400 INDIAN LAW REPORTS ALLAHABAD SERIES
this fact that Raj Bahadur lives in his
village and accused Babloo is his cousin.
But the witness has feigned ignorance
about the fact that someone of the family of
the accused has died on the fateful day. He
has also denied that Surjeet, Babloo and
Arvind are of one family and Munni Devi
is the wife of Raj Bahadur, aunt of Surjeet
and maternal aunt (mami) of Arvind. Babu
P.W.-2, who is relative of the informant and
other prosecution witness Pramod P.W.-3,
in their cross-examination by the defence
have admitted this fact that Munni Devi
wife of Raj Bahadur has died on the date of
the incident and the accused persons were
present in her cremation which was
conducted in the evening.

37. From the analysis of evidence on
record, it is clear that the sole testimony of
informant P.W.-1, who is a chance witness,
is not inspiring and trustworthy. There are
serious discrepancies, which makes it
highly doubtful that he has seen the
occurrence. No doubt that the victim
has been sexually assaulted and was
strangled to death but it is not proved
that appellants-accused are the real
culprits and they have committed the
offence. Their false implication on the
basis of suspicion or with ulterior
motive cannot be ruled out. There is
no sufficient evidence on record to
prove the prosecution case beyond
reasonable doubt.

38. We have gone through the
judgement of the learned trial Court. The
learned trial Court has placed reliance on
the ocular testimony of informant P.W.1
without appreciating it in right perspective.
The learned trial Court had failed to notice
the serious discrepancies in the ocular
testimony of informant P.W.-1, who is also
a chance witness and has erred in relying
on it. The finding of guilt returned by the
trial Court on the basis of his testimony is
not sustainable.

39. The conviction of the appellantsaccused
for
offences under
Sections
376(2)(g) and Sections 302 read with
Section 34 I.P.C. and sentences imposed
upon them by the trial Court are hereby set
aside. The appellants-accused are acquitted
from all the charges. They are on bail. They
need not surrender, subject to compliance
of Section 437A Cr.P.C. within four weeks.

40. Copy of this judgement and order
along with Lower Court Records be
transmitted to the trial Court immediately
for necessary compliance.
----------
(2023) 11 ILRA 400
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.11.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE MS. NAND PRABHA SHUKLA,
J.

Criminal Appeal No. 5690 of 2004

Shamim & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri A.K. Singh, Sri Sudhir Kumar

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code,
1860 - Sections 376 & 452 - Code of
Criminal Procedure, 1973 - Section
374(2) - Criminal Appeal - Rape and
House Trespass - Conviction and Sentence
- False Implication - Lack of Corroboration
-
Property
Dispute
11 All. Shamim & Ors. Vs. State of U.P.
401
The appellants, Shamim, Shafi, and Khurshid,
challenged their conviction and sentence dated
30.10.2004 by the Additional Sessions Judge,
Fast Track Court No. 4, Badaun, in Sessions Trial
No. 438/1996, arising from Case Crime No.
179/1991 under Sections 376 and 452 IPC. They
were sentenced to life imprisonment with a Rs.
10,000
fine
for
rape
and
three
years'
imprisonment with a Rs. 3,000 fine for house
trespass. The prosecution alleged that the
appellants, motivated by a property dispute,
entered the prosecutrix's house, dragged her to
a sugarcane field, and raped her. The appellants
claimed false implication due to enmity and a
pending suit for cancellation of a sale deed.
Held: (1) The appeal was allowed, and the
conviction and sentences were set aside. (2)
The prosecutrix's testimony was uncorroborated
by medical evidence, showing no external or
internal injuries despite claims of being dragged
a mile and raped, and no spermatozoa were
found in the vaginal smear. (3) The recovered
salwar with semen stains was not chemically
examined,
and
no
independent
witnesses
supported the prosecution. (4) PW-2 and PW-3,
eye-witnesses, only saw the accused in the
house, not the alleged rape in the sugarcane
field. (5) A property dispute and prior litigation
provided a motive for false implication. (6) Per
St. of Punjab Vs Gurmeet Singh, Sadashiv
Ramrao Hadbe Vs St. of Maharashtra, Radhu Vs
St. of Madhya Pradesh, and Manak Chand Vs St.
of
Haryana,
the
sole
testimony
of
the
prosecutrix,
when
unreliable
and
uncorroborated,
cannot
sustain
conviction,
especially
given
the
risk
of
false
rape
allegations. (7) The prosecution failed to prove
the case beyond reasonable doubt, and the
appellants were acquitted, with bail bonds
cancelled.

Case Law Cited:

1. St. of Punjab Vs Gurmeet Singh, (1996) 2
SCC 384

2. Sadashiv Ramrao Hadbe Vs St. of Mah. &
anr., (2006) 10 SCC 92

3. Radhu Vs St. of M.P., (2007) 12 SCC 57

4. Manak Chand @ Mani Vs St. of Har., 2023
SCC OnLine SC 1399
5. Citation: Shamim & Ors. Vs St. of U.P., (2023)
11 ILR A, Criminal Appeal

(Delivered by Hon'ble Ms. Nand Prabha
Shukla, J.)

1. Heard Sri Sudhir Kumar, learned
counsel for the appellants and Sri Rahul
Asthana, learned Additional Government
Advocate for the State.

2. This is an appeal under Section
374(2) Criminal Procedure Code (Cr.P.C.)
preferred by the appellants Shamim, Shafi
and Khurshid challenging the Judgment
and Order dated 30.10.2004 who have been
convicted under Section 376 IPC for
imprisonment of life and a fine of Rs.
10,000/- and under Section 452 IPC for
imprisonment of three years and a fine of
Rs. 3,000/- with default stipulations passed
in Sessions Trial No. 438/1996 by
Additional Sessions Judge (Fast Track
Court No.-4), Badaun.

PROSECUTION CASE:-

3. The prosecutrix gave a written
Tehrir on 14.11.1991 at 12:30 p.m. at P.S.
Mujariya, District Badaun stating that
about two years back, her husband
purchased two bighas of land from
Shamim. But later he wanted to sell it for
personal necessity. Shamim desired to get
back the land sold by him for the same
amount but her husband was reluctant as he
had a habit of gambling. In revenge,
Shamim expressed his anger and on being
insulted,
he
threatened
of
dire
consequences. About a week before the
incident, her husband went to Dehradun for
a job. Then, on the intervening night of
12/13.11.1991 at around 12:00 at night,
accused
Shamim
along
with
Shafiq,
402 INDIAN LAW REPORTS ALLAHABAD SERIES
Khurshid and Ashfaq of her village, entered
into her house. On hearing the noise, she
woke and enquired as to why they entered
her house in odd hours. Her sister-in-law
(Jethani) Firozi, who was nearyby, also
woke. The accused dragged her towards the
sugarcane field. On being dragged, she
screamed and her sister-in-law (Jethani) too
raised an alarm. The villagers came but the
accused dragged her away towards the
sugarcane field and committed rape for the
whole night one by one. In the morning,
when the tillers saw her, they rushed to
rescue her, the accused fled away. The
prosecutrix came out from the sugarcane
field with their help and then lodged the
FIR.

4. On the basis of the aforesaid Tehrir,
the First Information Report was lodged as
Case Crime No. 179/1991 under Section
452, 376 IPC at P.S. Mujariya, District
Badaun on 14.11.1991 at 12:30 p.m.
against the four named accused Shamim,
Shafi, Khurshid and Ashfaq.

5. On the same day, i.e. 14.11.1991 at
08:30 pm, the prosecutrix was produced for
medical examination at Community Health
Center, Ujhani, Badaun. According to the
doctor, no external injuries were found. As
per the internal examination, the vagina
was two fingers loose and uterus was
normal in size and the vaginal smear was
taken for pathological examination of
sperms. The prosecutrix was then referred
for X-ray for the determination of age.

6. Next day, i.e. on 15.11.1991, salwar
of the prosecutrix having stains of semen
was collected and the recovery memo dated
15.11.1991 was prepared (Exhibit Ka-2).

7. According to the X-ray Report
dated 24.01.1992, the epiphysis around the
right elbow and the right wrist were found
fused. As per the supplementary report
dated 29.01.1992, radiological age of the
prosecutrix was more than 18 years. It was
opined that no opinion could be given
about rape as there were no sperms seen in
the vaginal smear and was habitual to
sexual intercourse.

8. The Investigating Officer made the
spot inspection, prepared the site plan and
recorded the statement of prosecutrix and
the
witnesses
under
Section
161
Cr.P.C. and was produced before the
Magistrate for the recording of her
statement under Section 164 Cr.P.C.
The
charge-sheet
was
submitted
against all the four accused persons
under Sections 452, 376 IPC. The coaccused Ashfaq died during inquiry,
therefore, the proceedings were abated
against him. After the cognizance, the
learned Magistrate committed the case
to
the
Sessions
Court
for
the
commencement
of
the
trial.
The
charges
were
framed
against
the
accused Shamim, Shafiq and Khurshid
under Sections 452 and 376 IPC. The
accused
denied
the
charges
and
claimed to be tried.

9. The prosecution produced as many
as
seven
witnesses.
PW-1-
is
the
prosecutrix/first informant, who proved the
written Tehrir as Exhibit Ka-1. PW-2- Smt.
Firozi
sister-in-law
(Jethani)
of
the
prosecutrix and PW-3- Janab Khan (son of
PW-2) were examined as the eye witnesses,
PW-4- Dr. Suman Nagar proved the injury
report and supplementary report , PW-5-
Dr. M.P. Gangwar proved the X-ray report,
PW-6- Inspector D.K. Baliyan was the
second Investigating Officer and PW-7-
Yashveer Singh was the first Investigating
Officer.
11 All. Shamim & Ors. Vs. State of U.P.
403

10. After the prosecution evidence
was closed, the statement of the accused
were recorded under Section 313 Cr.P.C. in
which they denied the occurrence and
stated that they were falsely implicated.
The accused Shamim denying the incident
stated that a property dispute was pending
amongst them as he sold 2 bighas of land to
the husband of the prosecutrix on being
llured. So his wife instituted a suit for
cancellation of the sale deed against the
prosecutrix. The co-accused Shafiq also
denied the incident and stated that he had
been falsely implicated due to enmity. The
co-accused Khurshid also denied the
incident and stated that he too had been
falsely implicated, due to political rivalry.
In defence, the accused produced the copy
of the sale deed dated 25.04.1991 and the
copy of the Suit No. 242/1991 Shamim vs.
Prosecutrix. But, no oral evidence was
placed in defence.

PROSECUTION WITNESSES:-

11. PW-1 (Prosecutrix) in her
examination-in-chief
recorded
on
14.08.2001 deposed that her age was about
30 years. She knew the accused Shamim,
Shafiq, Khurshid and Ashfaq who were the
residents of her village. The prosecutrix
supported the prosecution case and deposed
that all the four accused entered into her
house by crossing over the wall. After
hearing the noise, she woke up and saw
them inside her house and questioned their
presence in odd hours. In the meanwhile,
her sister-in-law (Jethani) Smt. Firozi also
woke up and identified the accused in the
light of Chirag and Lantern. At this, the
accused dragged the prosecutrix outside the
home and pulled her towards sugarcane
field where she was raped in the whole
night one by one. In her extensive crossexamination, she deposed that she was
married about 10-12 years before the
incident and had a son and a daughter. Her
husband was suffering from disease and
was feeble. He was undergoing treatment in
Delhi and Agra. She further deposed that
she was illiterate. She stated that the
accused were not armed with any weapon
at the time of the incident. They came
across the boundary wall and opened the
latch of the door. She was well aware that
before sleeping she had latched the door.
When the accused entered, she was
sleeping and was awakened by accused
Shamim. The accused did not insult or rape
her inside her house rather they dragged her
by holding her hands and legs towards the
sugarcane field. She received injuries in her
legs and back. Even the clothes were torn.
The distance of the sugarcane field from
her house was about a mile. When she was
dragged, she screamed and even her sisterin-law (Jethani) raised an alarm. The
villagers reached but no one chased to
rescue her as the accused were dangerous
miscreants, who forcefully committed rape
and badly tortured her. No blood was
oozing from her back, only marks were
present. Few injuries were on her hands
and back. At the time of incident, the blood
oozed and fell on the ground.

12. PW-2 Smt. Firozi, the sister-inlaw (Jethani) of the prosecutrix deposed
that about ten years before the incident at
around 12:00 at night while she was
sleeping in her Verandah, she heard the
noise of prosecutrix and saw the accused
Shamim, Khurshid, Shafiq and Ashfaq
inside the house in the light of lantern and
Dibbi. She was an illiterate lady. All the
four accused dragged away the prosecutrix
to insult her. Though she raised an alarm
but no villagers chased the accused
persons. During cross-examination, the said
witness deposed that she was present in her
404 INDIAN LAW REPORTS ALLAHABAD SERIES
house. There was no prior enmity with the
accused persons. Before the incident, the
wife of accused Shamim, namely, Tamizan
had instituted a case against the prosecutrix
for cancellation of the sale deed.

13. PW-3 Janab Khan, the son of
Smt. Firozi in his examination-in-chief
deposed that he was sleeping with his
mother and aunt. When the accused entered
his house, he woke up on the alarm of his
aunt and saw the accused persons in the
light of Dibbi who dragged away his aunt
from the house. During extensive crossexamination, the said witness deposed that
he had not seen the torn clothes of his aunt
nor any injuries on her body with the
oozing blood.

14. PW-4 Dr. Suman Nagar was
posted as Medical Officer Incharge at
Community Health Center, Ujhani, District
Badaun stated that on 14.11.1991, she
examined the prosecutrix. There were no
mark of external injuries. The vagina was
two fingers loose and the uterus was
normal in size. The vaginal smear was
taken
to
examine
the
presence
of
spermatozoa. For age determination, the
victim
was
referred
for
X-ray.
A
supplementary X-ray Report was prepared
according to which the age of the victim
was more than 18 years. No opinion could
be given about rape as there was no sperms
seen in the vaginal smear. She was habitual
to sexual intercourse. In her crossexamination, she deposed that there were
no internal injuries. She further deposed
that in case the prosecutrix was dragged
holding her hands and legs then definitely
some injuries could be caused on her body
but no external injuries were found nor any
spot of blood was found on her body nor on
her clothes. In case, any female is
forcefully subjected to rape, the injuries
could be caused on her back. From the
perusal of the injury report, there were no
signs of external or internal injuries nor any
sign of commission of rape.

15. PW-5 Dr. M.P. Gangwar was the
Radiologist posted at District Hospital
Badaun, who stated that on 24.01.1992, he
performed the X-ray of the right elbow and
the right wrist of the prosecutrix. Both the
epiphysis were found fused. According to
the X-ray Report, the age of the prosecutrix
was determined as above 18 years.

16. PW-6 Inspector D.K. Baliyan
was the second Investigating Officer and
was entrusted with the investigation. He
deposed that the prosecutrix was produced
before the Magistrate for recording her
statement under Section 164 Cr.P.C.,
whereby the prosecutrix supported the
prosecution case. The said witness deposed
that from the perusal of the Medical
Report, no injuries were present on the
body of the prosecutrix nor the doctor
opined about commission of rape.

17. PW-7 Inspector Yashveer Singh
was the first Investigating Officer. In his
examination-in-chief, who deposed that on
14.11.1991, the said case was registered in
his presence and the copy of Chik Report
and General Diary were handed over to
him. On 15.11.1991, he recorded the
statement of the prosecutrix made a spot
inspection and prepared the site plan. He
collected the salwar of the prosecutrix and
prepared the recovery memo. The said
witness deposed that no blood was found
from the place of incident. Though the
sugarcane plants were found broken but he
did not make any such entry in the case
diary. The salwar which was collected from
the prosecutrix was also not sent for the
chemical examination. He did not enquire
11 All. Shamim & Ors. Vs. State of U.P.
405
from the prosecutrix about the reasons for
the delayed FIR.

STATEMENT OF THE ACCUSED
UNDER SECTION 313 Cr.P.C.:-

18. The accused Shamim in his
statement recorded under Section 313
Cr.P.C. stated that he was falsely implicated
due to personal enmity as his wife had
instituted a case against the prosecutrix.
There was a property dispute as the sale
deed of two bighas of land was executed
in favour of the prosecutrix by being
llured. The co-accused Shafiq also stated
that he had been falsely implicated due
to political enmity and rivalry. The coaccused Khurshid stated that he had been
falsely implicated that he too had been
falsely
implicated
due
to
political
rivalry.

SUBMISSIONS ON BEHALF OF
THE APPELLANTS:-

19. Learned counsel for the appellants
challenging the conviction and sentence
argued that they have been falsely
implicated due to personal enmity and
political rivalry. There is a delayed FIR.
Further, it was argued that they have been
falsely implicated due to property dispute
between the prosecutrix and the wife of
accused Shamim as the suit for cancellation
of sale deed was instituted. The main
contention of the learned counsel for the
appellants was that the case of the
prosecutrix does not corroborate with the
medical examination report. The victim in
her examination-in-chief stated that she
was forcefully subjected to rape by the
accused one by one for the whole night but
no such external or internal injuries were
found on the body of the victim. It was
further deposed by the victim that she was
dragged by her hands and legs of a distance
of one mile but no such injuries were found
on her body. The prosecutrix was a married
lady having two children. From the X-ray
Report, it is evident that epiphysis around
the right elbow and the right wrist were
fused. According to the X-ray Report, the
radiological age of the prosecutrix was
more than 18 years. PW-2 and PW-3 were
examined as eye witness account of the
incident but they could only narrate the
incident which took place within the house
but could not depose about the incident
which took place in the sugarcane field. It
is the admitted case of the prosecution that
the prosecutrix was neither insulted nor
subjected to rape inside her house but the
actual incident of rape took place in the
sugarcane field, therefore, the testimony of
the two eye witnesses has no basis. From
the Medical Report, it is obvious that there
were no mark of external or internal
injuries on the body of the prosecutrix.
Neither any blood was found oozing from
her body. The prosecutrix deposed that she
was dragged to the sugarcane field
covering a distance of about one mile but
no such external injury was found on her
body nor the blood was found oozing
which also belies the prosecution story. The
recovered
clothes
of
the
prosecutrix
(salwar) having stained semen was not sent
for chemical examination. No independent
witness was examined to prove the
case. According to the supplementary
report, no opinion about rape was
given as there were no sperms found
in the vaginal smear. The prosecutrix
was habitual to sexual intercourse. It
was strange that despite the alarm
being raised by the prosecutrix and
her sister-in-law (Jethani) PW-2, no
villagers chased the accused to rescue
the prosecutrix, which also belies the
prosecution case.
406 INDIAN LAW REPORTS ALLAHABAD SERIES

SUBMISSIONS ON BEHALF OF
THE STATE

20. Per contra, learned Additional
Government Advocate vehemently opposed
the arguments advanced by the counsel for
the
appellants
and
argued
that
the
prosecutrix
supported
the
prosecution
version. In her statement recorded under
Section 164 Cr.P.C. as well as in her
examination-in-chief
and
the
crossexamination, the prosecutrix was firm and
consistent. PW-2 and PW-3 were the eye
witnesses account of the incident and had
supported the prosecution case. There was
sufficient source of light. The accused had
strong motive of insulting the prosecutrix
as there was a property dispute between the
co-accused Shamim and the husband of the
prosecturix who purchased two bighas of
land by alluring him due to which accused
Shamim felt insulted and wanted to take the
revenge.
The
Medical
Report
also
corroborates with the prosecution version.
The accused crossed over the boundary
wall of the prosecutrix' house and entered
their house and were seen in the light of
lantern and dibbi. The salwar of prosecutrix
contained the stains of semen. During spot
inspection, the Investigating Officer found
the broken sugarcane plants.

ANALYSIS:-

21.

Having
heard
the
rival
submissions and arguments advanced by
learned counsel for the parties and after the
perusal of records, we find that though
there was slight delay in lodging the FIR
but in rape matters it is a normal
phenomenon. In cases of sexual assault, the
victim is often bashful and carries trauma
in her mind and requires some time to
master the courage to undertake a legal
battle against the culprit. The appellant
counsel has emphasized the property
dispute as the main motive of implicating
them for the accusation of rape finds
substance. Enemity is a double edged
weapon. The property dispute amongst the
party is a strong reason for false
implication. It has been found that already
a suit was instituted by the wife of accused
Shamim for the cancellation of the sale
deed therefore, there was no occasion for
the accused to unnecessary insult the
prosecutrix by committing rape. The
prosecutrix was a married young lady
having two children and was medically
examined within 48 hours of the incident
on 14.11.1991 at 08:30 p.m., therefore,
there was no reason to question its
credibility. According to the doctor, no
external injuries were found on her body.
As per the internal examination, the vaginal
smear did not contain any sperm. The
prosecutrix
was
habitual
to
sexual
intercourse, therefore, no opinion about
rape could be given. According to the Xray report, the age of victim was more than
18 years. The testimony of the prosecutrix
of commission of rape is not substantiated
and does not corroborates with the medical
evidence. The statement of the prosecutrix
is unworthy of credence. It is the admitted
case of the prosecution that the accused
were not carrying any weapon. PW-2 and
PW-3 were examined as eye witness
account of the incident but they could only
narrate the incident which took place
within the house but could not depose
about the incident which took place in the
sugarcane field. It has also been admitted
by PW-1 that the accused neither insulted
nor raped her inside the house. The
evidence adduced by PW-2 and PW-3 does
not support the case of commission of rape
on the prosecutrix. The recovered clothes
of the prosecutrix (salwar) having stained
semen,
was
not
sent
for
chemical
11 All. Shamim & Ors. Vs. State of U.P.
407
examination which also does not fortify the
prosecution case. No independent witnesses
were examined. Though the Investigating
Officer found the fallen sugarcane plants
but no such entry was made in the Case
Diary. The site plan does not indicate the
height of the boundary wall which was
crossed by the accused while entering into
the house. It is a clear case of false
implication due to political rivalry and
property dispute. There is no material
evidence to substantiate the prosecution
case.

22. In view of aforesaid facts and
circumstances, the prosecution has failed to
prove its case beyond the reasonable doubt.
The statement of the prosecutrix is full of
discrepancies
and
does
not
inspire
confidence. Though, the conviction can be
based on the sole testimony of the
prosecutrix but the evidence of the
prosecutrix when read as a whole does not
corroborates with the medical evidence and
is not worthy of credence.

23. In light of the observations of the
Hon'ble Supreme Court, it is a settled
position of law that the conviction can be
based on the sole testimony of the
prosecutrix but at the same time the Courts
have to
be
exremely
careful
while
examining the sole testimony as cautioned
in State of Punjab vs. Gurmeet Singh
(1996) 2 SCC 384:

"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 molestation."

24. This was reiterated in Sadashiv
Ramrao Hadbe vs. State of Maharashtra
and Another (2006) 10 SCC 92.

25. Similarly, the Hon'ble Supreme
Court in Radhu Vs. State of Madhya
Pradesh (2007) 12 SCC 57 has held that:

"It is now well settled that a finding of
guilt in a case of rape, can be based on the
uncorroborated evidence of the prosecutrix.
The very nature ofoffence makes it difficult
to get direct corroborating evidence. The
evidence of the prosecutrix should not be
rejected on the basis of minor discrepancies
and contradictions. If the victim of rape
states on oath that she was forcibly
subjected
to
sexual
intercourse,
her
statement will normally be accepted, even if
it is uncorroborated, unless the material on
record requires drawing of an inference
that there was consent or that the entire
incident was improbable or imaginary.
Even if there is consent, the act will still be
a "rape", if the girl is under 16 years of
age. It is also well settled that absence of
injuries on the private parts of the victim
will not by itself falsify the case of rape,
nor construed as evidence of consent.
Similarly, the opinion of a doctor that there
was no evidence of any sexual intercourse
or rape, may not be sufficient to disbelieve
the accusation of rape by the victim.
Bruises, abrasions and scratches on the
victim especially on the forearms, wrists,
face, breast, thighs and back are indicative
of struggle and will support the allegation
of sexual assault.The courts should, at the
same time,b ear in mind that false charges
408 INDIAN LAW REPORTS ALLAHABAD SERIES
of rape are not uncommon. There have also
been rare instances where a parent has
persuaded a gullible or obedient daughter
to make a false charge of a rape either to
take revenge or extort money or to get rid
of financial liability. Whether there was
rape or not would depend ultimately on the
facts and circumstances of each case."

26. Recently, in Manak Chand @
Mani vs. State of Haryana, 2023 SC
Online SC 1399, in three Judge's Bench of
the Hon'ble Supreme Court while making
observation in the matters of false cases of
rape has held that:

"It cannot be lost sight of that rape
causes the greatest distress and humiliation
to the victim but at the same time a false
allegation of rape can cause equal distress,
humiliation and damage to the accused as
well. The accused must also be protected
against the possibility of false implication,
particularly where a large number of
accused are involved. It must, further, be
borne in mind that the broad principle is
that an injured witness was present at the
time when the incident happened and that
ordinarily such a witness would not tell a
lie as to the actual assailants, but there is
no presumption or any basis for assuming
that the statement of such a witness is
always
correct
or
without
any
embellishment or exaggeration."

27. Thus, considering the entire facts
and circumstances of the case, the
evidence as well as the law laid down
by the Hon'ble Apex Court in various
judgments
discussed
in
foregoing
paragraphs, we hold that in cases of a
false accusation of rape, the accused
must be protected from the indictment.

28. Hence, on the basis of the
discussions as above, we are of the view
that the prosecution has failed to prove its
case beyond reasonable doubt and the
appeal is liable to be allowed.

29. Accordingly, the appeal is
allowed. The impugned Judgment and
Order of conviction and sentence dated
30.10.2004 passed by Additional Sessions
Judge/ Fast Track Court-IV, Badaun in
Sessions Trial No. 438/1996 registered as
Case Crime No. 179/91, under Section 452
and 376 IPC, P.S. Mujariya, District
Badaun is hereby set aside. The appellants
Shamim, Shafiq and Khurshid are on
bail. Their bail bonds are cancelled and the
sureties are discharged.

30. Office is directed to transmit a
certified copy of this judgment and order to
the
concerned
Court
for
necessary
information. It is further directed that the
original record of the case be returned
forthwith which shall be kept safely by the
Trial Court.
----------
(2023) 11 ILRA 408
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 28.11.2023

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Crl. Misc. Application U/S 389 (2) 1 of 2023

Banwari Lal Kanchhal ...Applicant
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Amit Jaiswal Ojus Law, Ambrish Singh Yadav,
Nadeem Murtaza

Counsel
for
the
Opp.
Parties: