# Shushil v. The State Of U.P

- **Citation:** (2016) 5 ILRA 1493
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-13
- **Bench:** Aditya Nath Mittal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shushil-v-the-state-of-u-p-43780
- **Pages:** 11

## Text

5 All. Shushil Vs The State Of U.P.

1493
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 13.05.2016

BEFORE

THE HON'BLE ADITYA NATH MITTAL, J.

Criminal Appeal No.- 422 Of 1994
&
Criminal Appeal No.- 425 Of 1994

Shushil ...Appellant
Versus
The State Of U.P. ...Respondent

Counsel for Appellant:
B.D. Misra, Archana Misra, Suresh Kumar Srivastava

Counsel for Respondent:
Government Advocate

PROCEEDINGS
Both criminal appeals arise out of the common judgment and order dated 19.08.1994 passed by the Vth
Additional Sessions Judge, Gonda in Sessions Trial No. 255 of 1987. By the said judgment, appellant Sushil
was convicted under Sections 366 and 376 IPC, and appellant Ram Prakash @ Raja under Sections 376 and
368 IPC, each sentenced to rigorous imprisonment for five years with fine of Rs. 1,000/-. Aggrieved, the
appellants preferred the present appeals, which were heard together and disposed of by a common judgment.

PROCEDURE
The prosecution case originated from an FIR dated 21.11.1985 relating to an incident dated 19.11.1985,
initially registered under Sections 363 and 366 IPC. During investigation, the prosecutrix was recovered on
04.12.1985 from the custody of appellant Ram Prakash @ Raja. Upon completion of investigation, chargesheet was submitted. The Trial Court framed charges, examined seven prosecution witnesses, and after
recording statements under Section 313 Cr.P.C., convicted the appellants.

PENAL SECTIONS
Section 366 IPC

Section 368 IPC

Section 376 IPC

Section 363 IPC (acquittal)

Section 313 Cr.P.C.

CASE LAW REFERRED
Consent under Sections 375 & 90 IPC
1494 INDIAN LAW REPORTS ALLAHABAD SERIES
Testimony of prosecutrix - evidentiary value

Absence of injuries - effect

Kaini Rajan v. State of Kerala, (2013) 9 SCC 113

Deelip Singh v. State of Bihar, (2005) 1 SCC 88

Santosh Kumar v. State of M.P., (2006) 10 SCC 595

Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635

HEADNOTES (ILR STYLE)
Penal Code, 1860 - Sections 366, 368, 376 - Evidence - Testimony of prosecutrix - Consent - Threat by
weapon - Absence of injuries - Effect - Conviction.

Conviction for rape and abduction can be safely based on the sole testimony of the prosecutrix if it inspires
confidence and is free from material contradictions. Absence of injuries on the body or private parts of the
prosecutrix does not negate the offence of rape where penetration is proved and the evidence establishes
absence of consent.

Consent - Meaning and scope - Sections 375 and 90 IPC.
Consent for the purpose of Section 375 IPC denotes an active and informed will exercised after free choice.

Submission under fear of injury, threat by weapon, or misconception of fact does not amount to consent.
When sexual intercourse is committed by putting the victim under terror, the plea of consent is legally
untenable.

Evidence - Character of prosecutrix - Irrelevance.
Character or alleged easy virtue of the prosecutrix is wholly irrelevant where the offence of rape is otherwise
proved. Even a woman of questionable character has the right to refuse sexual intercourse, and no person
has the right to violate her bodily autonomy without consent.

Criminal Trial - Appreciation of evidence - Appellate interference.
Where the Trial Court has properly appreciated the evidence and recorded conviction on cogent and reliable
testimony, no interference is warranted in appeal.

FACTS
Incident dated 19.11.1985 at about 4:00 p.m.

Prosecutrix aged about 17 years

Alleged abduction at knife-point

Rape committed successively by accused persons

Recovery on 04.12.1985 from custody of Ram Prakash @ Raja

Medical and radiological examination conducted
5 All. Shushil Vs The State Of U.P.

1495
CONTENTIONS
For the Appellants
Prosecutrix was a consenting party

No injuries found on body

False implication alleged

Recovery not proved

For the State
Prosecutrix subjected to rape under threat

Consent absent in law

Medical evidence corroborative

Conviction justified

ANALYSIS
Testimony of prosecutrix is consistent and trustworthy.

Threat by knife clearly negates consent.

Absence of injuries does not discredit prosecution case.

Allegation of easy virtue is irrelevant and unproved.

Recovery from custody of appellant Ram Prakash stands established.

Trial Court rightly appreciated evidence and law.

CONCLUSION
The prosecution proved beyond reasonable doubt that appellant Sushil abducted the prosecutrix with intent to
compel illicit intercourse and committed rape, and that appellant Ram Prakash @ Raja wrongfully confined
and raped the prosecutrix. The convictions under Sections 366, 368 and 376 IPC are legally sustainable.
Sentence awarded is neither excessive nor harsh.

Both appeals are dismissed. Conviction and sentence are affirmed. Bail bonds are cancelled and appellants are
directed to surrender forthwith.

(Delivered by Hon'ble Aditya Nath Mittal, J.)

1. Both these appeals arise out from the same judgement and order dated 19.08.1994 and
they are being taken up together.

2. Both these appeals have been filed challenging the judgement and order dated
19.08.1994 passed by the 5th Additional Sessions Judge, Gonda in Sessions Trial No.255 of 1987
1496 INDIAN LAW REPORTS ALLAHABAD SERIES
(State vs. Sushil and others) whereby the appellant Sushil has been convicted for the offence
punishable under section 366 IPC and 376 IPC for rigorous imprisonment of five years along with
fine of Rs.1000/- while the appellant Ram Prakash @ Raja has been convicted for the offence
punishable under sections 376/368 IPC to undergo five years imprisonment along with fine of
Rs.1000/-.

3. The prosecution case, in brief, is that the complainant - Sirtaji lodged a first information
report alleging that on 19.11.1985, at about 4.00PM, when she was cutting grass along-with her
daughter, the son of complainant came and called her to come in the house, upon which she left her
daughter in the field. When her daughter did not return home, she went to the place where she was
cutting grass but she was not there. She was aged about 15-16 years. The complainant searched her
daughter and the witnesses told that she was seen with Sushil. When she was not traced out, a first
information report was lodged on 21.11.1985, which was registered as Case Crime No.725 of 1985
under sections 363, 366 IPC. The matter was investigated and during the investigation, the victim
was recovered on 04.12.1985 from the place where Ram Prakash @ Raja was staying. After
investigation, the charge-sheet was filed and the appellants were charged for the said offences. The
appellants denied the charges and claimed trial.

4. The prosecution has examined the complainant Sirtaji as PW-1 who has supported the
first information report version and the report as Ext. Ka.-1.

5. PW-2 is the victim of offence, who has stated that when she was cutting grass in the
field, accused Sushil finding all alone had committed rape with him and showing the knife, she was
told that he will take away to Ludhiana and will keep him with him. When she resisted, she was
threatened by putting the knife on her neck. She has further stated that he took away him towards
the railway station Gonda and handed over to Gurgur @ Kishan Lal by saying that he will come
back after arranging some money. Gurgur @ Kishan Lal also shown the knife to her and committed
rape with her. On 9th day, she was handed over to Ram Prakash @ Raja who brought her to the
house of his sister at Bhatpurwa and he had also committed rape against her will. After 9th day of
incident, she was recovered by the police from the place where Ram Prakash @ Raja has kept her.
She was brought to the hospital where she was subjected to medical examination and she also gave
her statement in the Court.

6. Dr. Smt. Ranjana Singh has been examined as PW-3, who has proved the medical
examination of the victim and has stated that she was aged about 17 years at the time of
examination.

7. Sri P. C. Shukla has been examined as PW-4 who has proved the x-ray examination and
x-ray plates.

8. Head Constable Devi Bux Singh has been examined as PW-5 who has proved the chik
FIR and the copy of GD. He has also proved the formal papers of the investigation and has stated
that the investigation was done by Sri Ram Krishna Yadav. It is to be mentioned here that by
5 All. Shushil Vs The State Of U.P.

1497
application Kha-72, the prosecution has submitted the application that investigating officer Sri Ram
Krishna Yadav had died on 09.12.1993, therefore, it is not possible to examine him.

9. Gafur has been examined as PW-6, who is the witness of recovery but he has not
supported the prosecution version.

10. Dr. O.P. Srivastava has been examined as PW-7, who has proved the smear test of the
victim and the report as Ext. Ka-11.

11. After recording the evidence of the prosecution, the appellants were examined under
section 313 Cr.P.C. in which they had denied the evidence. Sushil Kumar- appellant has stated that
Ujagir and others had taken forcible possession of his field and there was a dispute, therefore, he
has been falsely implicated.

Ram Prakash @ Raja another appellant has stated that he has been falsely implicated
due to enmity. No evidence in defence has been adduced by any of the appellants.

12. After appreciating the evidence on record, learned trial court has held guilty Sushil for
the offence punishable under section 366 and 376 IPC but acquitted him for the offence punishable
under section 363 IPC. Ram Prakash @ Raja another appellant has been convicted for the offence
punishable under section 376 and 368 IPC. It is also relevant to mention here that accused Gurgur
@ Kishan Lal was absconding therefore, the charge-sheet against him has been filed as absconder
and he could not be tried.

13. Learned counsel for the appellants has submitted that the alleged recovery of the victim
from the possession of Ram Prakash is not proved because Gafur (PW-6) is not the witness of
recovery. It has also been submitted that the recovery memo has also not been proved and the
appellant has been falsely implicated.

14. Learned counsel appearing for another appellant Sushil has submitted that in the
evidence, it has been found that the victim was above 18 years, therefore, he has been acquitted for
the offence punishable under section 363 IPC, therefore, he should also have been acquitted for the
offence punishable under section 366 and 376 IPC.

15. Learned counsel for the appellants have also submitted that the victim was a consenting
party and no injury has been found on the body of the victim. Therefore, it cannot be presumed that
she was subjected to rape. It has also been submitted that the victim was a girl of easy virtue and
the appellants have been falsely implicated.

16. On the other hand, learned AGA has defended the impugned judgement and has
submitted that victim was subjected to rape by three persons and there is sufficient evidence on
record to upheld the conviction of the appellants. It has also been submitted that the statement of
1498 INDIAN LAW REPORTS ALLAHABAD SERIES
the victim regarding recovery from the place of Ram Prakash is proved, therefore, there was no
requirement to have examined other witnesses.

17. I have considered the rival submissions of the learned counsel for the appellants,
learned AGA and perused the record.

18. From the judicial decisions rendered by the Apex Court the law as regards the
credibility of the testimony of prosecutrix may be summarized thus:-

i. There is no rule of law that corroboration is essential before there can be a
conviction solely on the testimony of the prosecutrix. But as a matter of prudence, the necessity of
corroboration must be present to the mind of the Judge.

ii. There may be circumstances in a given case which might make it safe to dispense
with such a corroboration.

iii. On the other hand, there may be factors in a case tending to show that the
testimony of the prosecutrix suffers from infirmities in a manner so as to make it either unsafe or
impossible to base a finding of guilt to the same. Some of the salient factors of this type may
briefly be stated thus:

(a) circumstances showing on the part of prosecutrix an animus against the accused;

(b) where the question of want of consent is material, circumstances tending to show
consent e.g. absence of material showing an attempt at resistance, absence of any marks of
struggle;

(c) attempt at improvement or exaggeration in the version as attempted by the
prosecutrix;

(d) conduct on the part of the prosecutrix inconsistency with the credibility of the
version e.g. omission to make a disclosure at the earliest opportunity:

(e) element of artificiality or unnatural-ness in the story as attempted by the
prosecutrix, and

(f) absence of signs of rape in the findings of the medical examination or on
chemical analysis.

19. From the above principles as laid down by Hon'ble the Apex Court, it is settled law that
conviction can be based on the sole testimony of the prosecutrix provided it inspires confidence.
5 All. Shushil Vs The State Of U.P.

1499
20. As far as the submission of learned counsel for appellants that victim was a consenting
party, an inference as to consent can be drawn if only based on evidence or probabilities of the
case. Consent is also stated to be an act of reason coupled with deliberation. It denotes an active
will in the mind of a person to permit the doing of an act complained of. Section 90 I.P.C. refers to
the expression "Consent" and describes what is not consent.

21. For the purpose of Section 375, voluntarily participation is required after the exercise
of intelligence based on the knowledge of the significance and moral quality of the act but after
having fully exercised the choice between resistance and assent. Whether there was consent or not,
is to be ascertained only on a careful study of all relevant circumstances.

22. In the case of Kaini Rajan vs. State of Kerala reported in (2013) 9 SCC 113 Hon'ble
the Apex Court has interpreted the word "consent" as under:-

"'Consent' is stated to be an act of reason coupled with deliberation. It denotes an
active will in the mind of a person to permit the doing of an act complained of "Consent", for the
purpose of Section 375, requires voluntary participation not only after the exercise of intelligence
based on the knowledge of the significance and moral quality of the act but after having fully
exercised the choice between resistance and assent. Whether there was consent or not, is to be
ascertained only on a careful study of all relevant circumstances. An inference as to consent can be
drawn if only based on evidence or probabilities of the case."

It has been further held that the consent is intended by Sections 375 and 376 IPC
should not be under a misconception of fact.

23. In the case of Deelip Singh alias Dilip Kumar vs. State of Bihar reported in (2005) 1
SCC 88, Hon'ble the Apex Court has held that:-

"In the matter of consent, the court has to see whether the person giving the consent
had gone it under fear of injury or misconception of fact and the court should also be satisfied that
the person doing the act i.e. alleged offender is 1499onscious of the fact or should have reason but
think that but for the fear or misconception, the consent would not have been given."

24. Learned counsel for the appellant has further submitted that in the medical examination
report, no injuries were found on the body of the victim, therefore, the incident is doubtful.

In the case of Santosh Kumar vs. State of M.P. reported in (2006) 10 SCC 595, the
Hon'ble Apex Court has held that mere fact that no injuries were found on her private parts, cannot
be a ground to hold that no rape was committed upon her. Again in the case of State of Rajasthan
vs. N.K. (accused) decided on 30.03.2000, the Hon'ble Apex Court has held that the absence of
injuries and delay in the First Information Report cannot be a ground to disbelieve the prosecution
story, if otherwise found reliable.
1500 INDIAN LAW REPORTS ALLAHABAD SERIES

In the case of Ranjit Hazarika vs. State of Assam reported in (1998) 8 SCC 635, the
Hon'ble Supreme Court has held as under:-

"The argument of the learned counsel for the appellant that the medical evidence
belies that testimony of the prosecutrix and her parents does not impress us. The mere fact that no
injury was found on the private parts of the prosecutrix or her hymen was found to be intact does
not belie the statement of the prosecutrix as she nowhere stated that she bled per vagina as a result
of penetration of the penis in her vagina. She was subjected to sexual intercourse in a standing
posture and that itself indicates the absence of any injury on her private parts. To constitute the
offence of rape, penetration, however slight, is sufficient. The prosecutrix deposed about the
performance of sexual intercourse by the appellant and her statement has remained unchallenged in
the cross-examination. Neither the non-rupture of the hymen nor the absence of injuries on her
private parts, therefore, belies the testimony of the prosecutrix particularly when we find that in the
cross-examination of the prosecutrix, , nothing has been brought out to doubt her veracity or to
suggest as to why she would falsely implicate the appellant and put her own reputation at stake.
The opinion of the doctor that no rape appeared to have been committed was based only on the
absence of rupture of the hymen and injuries on the private parts of the prosecutrix. This opinion
cannot throw out an otherwise cogent and trustworthy evidence of the prosecutrix. Besides, the
opinion of the doctor appears to be based on "no reasons".

25. In the present case, learned counsel appearing for the appellant Ram Prakash @ Raja
has tried to assassinate the character of the victim in his argument that the victim was a girl of easy
virtue, therefore, he has been falsely implicated.

26. From the perusal of the cross-examination conducted at the trial court, it appears that
the learned counsel in the Trial Court also tried to assassinate the character of the complainant.

In the traditional non-permissive bounds of society of India, no girl or woman of
self-respect and dignity would depose falsely implicating somebody of ravishing her chastity by
sacrificing and jeopardizing her future prospect of getting married with suitable match. Not only
she would be sacrificing her future prospect of getting married and having family life, but also
would invite the wrath of being ostracized and outcast from the society she belongs to and also
from her family circle.

27. The victim in this case is a married lady. In my opinion, every woman has self respect
and dignity and the argument of the appellants' counsel that the victim was a lady of bad character
has no relevance because there is no evidence in this regard. The appellants were given the
opportunity to adduce evidence in their defence but no such evidence has been adduced. It appears
that the appellant Ram Prakash @ Raja do not have any regard to the dignity and self-respect of an
women. I take worst case of a prostitute. Even if a prostitute lodges a report of rape and her
evidence inspires confidence, there is no rule of law that the statement of the prostitute cannot be
believed. Even a prostitute has the fundamental right as well as the moral and social rights and she
is at her liberty to permit a person for sexual intercourse. Nobody can commit sexual intercourse
5 All. Shushil Vs The State Of U.P.

1501
even with prostitute under the threat or upon the gun point. It is highly painful that the dignity and
self respect of victim has unnecessarily been tossed in the trial court as well as before this Court but
I am of the opinion that howsoever a girl may be of easy virtue, even she may be a prostitute, no
one has the right to commit intercourse with her or to outrage her modesty without her consent
provided such consent is not obtained under the threat of weapon or misrepresentation and further
provided that she is capable of making consent.

28. As far the argument of consent is concerned, when the consent s pleaded, it
automatically admits the incident in question and the only fact of consent is required to be proved.
In case of alleged consent the incident cannot be denied and the accused cannot blow hot and cold
at the same time.

29. In this case, if the girl was of easy virtue, then why the appellants had chosen to put
their pious mouth in the dirty drain. Learned counsel for the appellants could not answer the query
of the Court that when the appellants were matured persons of 21 years, then why they selected to
commit intercourse with such a girl.

30. As far as the offence of abduction is concerned, the complainant (PW-1) has
specifically stated in her statement that she was cutting grass along with her daughter and she went
to her house upon the call of her son and left her daughter alone in the field, the accused finding her
daughter alone came near him and had shown the knife and has also stated that if she will raise
alarm, he will kill him.

31. The victim (PW-2) in her statement has stated that she was terrorised and the appellant
Sushil had committed rape with him. After committing the rape, Sushil offered her to go Ludhiana
and when she resisted, she was again threatened by putting the knife on her neck. The appellant
Sushil went to the railway station Gonda and handed over the victim to Gurgur @ Kishan Lal
stating that he will come back after managing some money. The unfortunate part of the incident is
that Gurgur @ Kishan Lal had also committed rape with him on the strength of knife and kept the
victim with him for about eight days. The further unfortunate part of this incident is that on 9th day,
Gurgur @ Kishan Lal handed over the victim to Ram Prakash @ Raja who kept the victim at the
house of his sister and also committed rape with her. It appears that the appellants used the victim
as playing toy and the possibility cannot be ruled out that Sushil and then Kishan Lal might have
handed over the victim to Ram Prakash as an article of sale. In the statement of the victim, it has
come that whenever she was transported from one place to another place, she was covered by bedsheet. She has also stated that Ram Prakash @ Raja had committed rape alike Sushil upon the point
of knife. She has further stated in her statement that due to fear, she could not make alarm. She has
further stated that the police had reached the place of Ram Prakash @ Raja where the victim was
kept and Ram Prakash was closing the door at that time. She was recovered by the police in
presence of her brother and she was brought to the police station and then she was subjected to
medical examination. The victim has been cross examined by the counsel for both the appellants at
length. She has also stated that she had given her statement before the court (it might be the
statement under section 164 Cr.P.C.).
1502 INDIAN LAW REPORTS ALLAHABAD SERIES
32. The victim has been cross examined on the point of age as well as regarding the
incident. In the cross examination, she has categorically stated that when Sushil started forcible act
then she had not raised alarm because she was all alone and Sushil was having knife in his hand.
She has further stated in the cross-examination that when she tried to raise alarm, then again Sushil
threatened to kill him. In the cross-examination, she has further narrated the story of handing over
to Gurmur @ Kishan Lal and regarding the appellant Ram Prakash @ Raja, she has stated in her
cross-examination that she has raised alarm when Ram Prakash @ Raja was taking away her by
Rickshaw, but no person has helped him. Upon the cross-examination by the learned counsel for
the appellant Sushil, she has further reiterated that Sushil had committed rape with him after
threatening him.

33. Rape is committed in a lonely place and it is not possible to procure the witness
regarding the act of rape. The circumstances must prove that the rape was committed with her. In
the present case, the occurrence took place on 19.11.1985 at about 4.00 pm and as per recovery
memo, she has been recovered on 04.12.1985 from Bhatpurwa along with Ram Prakash. Ram
Prakash has not given any explanation as to why he was keeping the victim at the place of his sister
at Bhatpura. In the present case, there is absolutely no enmity either with Ram Prakash @ Raja or
with Sushil so as to believe that they have been falsely implicated due to enmity.

34. I have carefully examined the cross-examination of the victim and I do not find any
infirmity in her statement so as to make it unsafe or impossible to base the finding of guilt against
the appellants. In the present case, I do not find that it was a case of consent because in the
statement of the prosecutrix, it has come categorically that all the three accused persons including
the present appellants had committed rape with her on the point of knife and she was helpless. It
has also come in the evidence that she tried to resist the incident but because she was under fear,
therefore, she could not get rid from the possession of the appellants. In the statements in chief as
well as in cross examination, I do not find any improvement or exaggeration by the prosecutrix and
I also do not find any element of artificiality or unnaturalness in the story as narrated by the
prosecutrix. The prosecutrix was a married woman but her 'gauna' had not taken place. Therefore,
she was residing with her mother. In the villages, it is common factor that the marriage is
solemnized in the childhood, and the 'gauna' is done when the bride and bridegroom becomes
mature. She has further specifically stated that she did not have any intercourse prior to the
intercourse made by the appellant Sushil.

35. From the evidence on record, it is proved beyond reasonable doubt that the appellant
Sushil abducted her with intention that she will be compelled for illicit course against her will. Both
the appellants were matured persons aged about 21 years at the date of incident and they very well
understood the consequences of such action. It is also proved from the evidence that the appellant
Ram Prakash wrongfully kept in confinement the abducted victim and also committed rape with
her. The offence of rape is proved against both the appellants beyond any reasonable doubt.

36. Learned trial court has also considered the evidence on record very carefully and has
categorically appreciated each and every part of the evidence on record.
5 All. Rajendra & Ors. Vs State Of U.P.

1503
37. For the aforesaid reasons, I am also in agreement with the findings of the learned Court
below. After appreciating the evidence on record, I am also of the view that the appellants Sushil is
guilty for the offence punishable under section 366 and 376 IPC while the appellant Ram Prakash
@ Raja is guilty for the offence punishable under section 368 and 376 IPC. The conviction of both
the appellants is accordingly upheld.

38. As far as the quantum of punishment is concerned, learned court below has already
taken a lenient view and has sentenced the appellants Sushil with an imprisonment of five years for
the offence punishable under section 366 IPC along with fine of Rs.1000/- and he has further been
sentenced to five years rigorous imprisonment along with fine of Rs.1000/- for the offence
punishable under section 376 IPC; while the appellant Ram Prakash @ Raja has been convicted
with an imprisonment of five years and fine of Rs.1000/- for the offence punishable under section
368 IPC and he has also been convicted for the offence punishable under section 376 IPC with the
same sentence.

39. The circumstances in which the offence was committed and looking to the conduct of
the appellants, the appellants do not require any leniency or sympathy. Thus, I do not find any
sufficient ground to interfere with the sentence.

40. For the facts and circumstances mentioned above, the appeal is liable to be dismissed.

41. Both the appeals are dismissed. The conviction and sentence of both the appellants is
upheld. The appellants are directed to surrender before the court below within fifteen days from
today to serve out the sentence, failing which the trial court shall be at liberty to take coercive steps
against them. The bail granted to the appellants stands cancelled.

Office is directed to send a certified copy of this judgement along-with the lower
court record to the court concerned at an early date for its compliance and necessary action.

Let a copy of this judgement be kept on record of Criminal Appeal No.425 of 1994.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 17.05.2016

BEFORE

THE HON'BLE ADITYA NATH MITTAL, J.

Criminal Appeal No.- 607 Of 1995

Rajendra & Ors. ...Appellants
Versus
State Of U.P. ...Respondent