# Sita Ram @ Guni & Anr v. State of U.P

- **Citation:** (2020) 1 ILRA 8
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020
- **Case number:** Criminal Appeal No. 79 of 1997
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sita-ram-guni-anr-v-state-of-u-p-45699
- **Pages:** 18

## Headnote

Criminal Law - Indian Penal Code -
Sections
366,
376
-
Appeal
against
conviction.

The law is settled that on sole testimony of the
prosecutrix, conviction can be based and there
is no need for any corroborative material
provided the testimony of the prosecutrix is
worthy of credence. (para 55)

There are two places where the rape is alleged
to have been committed. First the Kothri
situated in the village of prosecutrix where she
was kept for three days and was subjected to
rape for all three days. Second is the house at
Gonda where the prosecutrix was kept for 15
days in a room locked from outside. (para 59)
Here in this case, the statement of prosecutrix
is highly improbable and inconsistent in view of
the fact that while she was kept at Gonda for
15 days in a house inside one room which was
locked from outside and accused persons only
used to come in night, during day time she had
ample opportunity to raise alarm and it appears
quite improbable that inmates of the house
which included several ladies and children did
not hear her alarm for a period of 15 days.
There is material improvement in the testimony
of the prosecutrix from her statement under
Section 161 Cr.P.C. to Section 164 Cr.P.C.
(para 56)

So far as the second place of occurrence i.e.
house at Gonda where the prosecutrix is said
to have been kept and raped for fifteen days,
again no investigation regarding this place has
been done. The medical examination of the
prosexutrix
does
not
corroborates
the
prosecution story. This lack on the part of
Investigating
Agency
in
not
producing
corroborative
material
and
independent
witnesses of fact who in their statement under
Section 161 Cr.P.C. (para 60)

Since the rape in this case could not be proved
beyond reasonable doubt. (para 61)

Appeal is allowed. (E-2)

List of cases cited: -

## Text

_Characters 0–39,983 of 59,119. This is a partial read: ask again with offset=39983 for what follows._

8 INDIAN LAW REPORTS ALLAHABAD SERIES
instituted, appeal preferred and application
made, after the period of limitation
prescribed
therefor
by
Schedule
I
irrespective of the fact whether the
opponent had set up the plea of limitation
or not. It is the duty of the Court not to
proceed with the application if it is made
beyond the period of limitation prescribed.
The Court had no choice and if in
construing the necessary provision of the
Limitation Act or in determining which
provision of the Limitation Act applies, the
subordinate Court comes to an erroneous
decision, it is open to the Court in revision
to interfere with that conclusion as that
conclusion led the Court to assume or not
to assume the jurisdiction to proceed with
the determination of that matter. "

24. The erroneous decision of the
court below on the issue of limitation has
led it to assume jurisdiction which it does
not have in view of the facts of the present
case. Hence this court in exercise of its
revisional powers can interfere in that
conclusions as held by the Supreme Court
in the case of Manindra (supra).

25. The judgement in the matter of
Raghwendra
Sharan
Singh
(supra)
provides that a suit can be dismissed under
the provisions of Order 7 Rule 11 of the
CPC, if the same is barred by limitation
and can be deducible from a bare reading
of the plaint. As observed above, a bare
reading of the plaint itself reveals that the
plaintiff-respondents had discovered the
commission of fraud by the defendantrevisionist prior to the lodging of the FIR
dated 30.07.2002.

26. Of course, there may be instances
where on a bare reading of the plaint it
cannot be found out whether a suit, appeal,
or application are liable to be dismissed
and, a consideration of the entire pleadings
and evidence may be required for that
purpose. However, the present case is not
such a case. Here the starting point of
limitation is evident from a bare reading of
the plaint.

27. Moreover, just because the
defendant-revisionist
has
allegedly
admitted his guilt and liability before the
authorities concerned, without there being
any reference in the plaint with regard to
the date on which the guilt or liability was
admitted by the defendant-revisionist, it
cannot be said that the suit is within
limitation. Reliance by the learned counsel
for the plaintiff-respondents on the date of
the imposition of the penalty of dismissal
on
the
defendant-revisionist
on
11.11.2005, as being the date on which the
cause of action for the suit arose, is
misplaced and is not consonance with the
provisions of Section 17 of the Limitation
Act as has been discussed hereinabove,
particularly in view of the finding recorded
above that the plaintiff-respondents had
discovered the fraud prior to the lodging of
the FIR dated 30.07.2002.

28. In view of the facts and
circumstances stated hereinabove, the
revision
succeeds
and
is
allowed.
Accordingly, the impugned order dated
28.7.2012 passed by the court below is set
aside and the issue no. 1 is decided in the
affirmative. The plaint is, therefore,
rejected. No order as to costs.
----------
(2020)1ILR A8

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 14.01.2020

BEFORE
THE HON'BLE KARUNESH SINGH PAWAR, J.
1 All. Sita Ram @ Guni & Anr. Vs. State of U.P.
9
Criminal Appeal No. 79 of 1997

Sita Ram @ Guni & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
J.N. Chaudhary, Amit Chaudhary

Counsel for the Respondent:
Govt. Advocate

Criminal Law - Indian Penal Code -
Sections
366,
376
-
Appeal
against
conviction.

The law is settled that on sole testimony of the
prosecutrix, conviction can be based and there
is no need for any corroborative material
provided the testimony of the prosecutrix is
worthy of credence. (para 55)

There are two places where the rape is alleged
to have been committed. First the Kothri
situated in the village of prosecutrix where she
was kept for three days and was subjected to
rape for all three days. Second is the house at
Gonda where the prosecutrix was kept for 15
days in a room locked from outside. (para 59)
Here in this case, the statement of prosecutrix
is highly improbable and inconsistent in view of
the fact that while she was kept at Gonda for
15 days in a house inside one room which was
locked from outside and accused persons only
used to come in night, during day time she had
ample opportunity to raise alarm and it appears
quite improbable that inmates of the house
which included several ladies and children did
not hear her alarm for a period of 15 days.
There is material improvement in the testimony
of the prosecutrix from her statement under
Section 161 Cr.P.C. to Section 164 Cr.P.C.
(para 56)

So far as the second place of occurrence i.e.
house at Gonda where the prosecutrix is said
to have been kept and raped for fifteen days,
again no investigation regarding this place has
been done. The medical examination of the
prosexutrix
does
not
corroborates
the
prosecution story. This lack on the part of
Investigating
Agency
in
not
producing
corroborative
material
and
independent
witnesses of fact who in their statement under
Section 161 Cr.P.C. (para 60)

Since the rape in this case could not be proved
beyond reasonable doubt. (para 61)

Appeal is allowed. (E-2)

List of cases cited: -

1. MD Iqbal & anr. Vs. St. of Jhar. 2013 (14)
SCC 481

2. Puran Chand Vs. St. of H.P. 2014 (5) SCC 689

3. St. of U.P. Vs. Chhotey Lal reported in 2011
(2) SCC 550

4. St. of H.P. Vs. Mango Ram 2007 7 SCC 224

5. St. of Mah. Vs. Chandraprakash Kewalchand
Jain 1990 1 SCC 550

6. St. of Punj. Vs. Gurmit Singh & ors. (1996) 2
SCC 384

7. Vijay @ Chinee Vs. St. of M.P. (2010) 8 SCC
191

8. St. of H.P. Vs. Shree Kant Shekari (2004) 8
SCC 153

9. Devinder Singh & ors Vs. St. of H.P. 2003
AIR (SC) 3365

10. Deepak Vs. St. of Har. 2015 (4) SCC 762

11. Moti Lal Vs. St. of M.P. 2008 (11) SCC 20

12. St. of Raj. Vs. Om Prakash 2007 AIR (SC)
2257

13. St. of U.P. Vs. M.K. Anthony AIR 1985 (SC) 48

14. St. of Mah. & anr. Vs. Madhurkar Narayan
Mardikar 1991 1 SCC

15. St. of Punj. Vs. Gurmit Singh & ors. 1996
AIR (SC) 1393

16. Puran Chand Vs. St. of H.P. (2014) 5 SCC
689
10 INDIAN LAW REPORTS ALLAHABAD SERIES
17. St. of H.P.Vs. Prem Singh reported in
(2009) 1 SCC 420

18. St. of Mah. Vs. Madhukar Narain (1991) 1
SCC 57

19. Deepak Vs. St. of Har. (2015) 4 SCC 762

20. St. of H.P. Vs. Mango Ram (2000) 7 SCC
224

21. Vijay Raikwar Vs. St. of M.P. (2019) 4 SCC
210

22. AIR 1985 SUPC 48 St. of U.P. Vs. M.K.
Antony

23. State of Rajasthan Vs. Om Prakash AIR
2007 SC 2257

24. Vijay @ Chinee Vs. St. of M.P. (2010) 8
SCC 191

25. St. of H.P. Vs. Shri Kant Shikari (2004) 8
SCC 153

26. Devinder Singh Vs. St. of H.P. 2003 SC
3365

27. Deepak Vs. St. of Har. (2015) 4 SCC 762

28. Moti Lal Vs. St. of M.P. (2008) 11 SCC 20

29. Mohd. Ali @ Guddu Vs. St. of U.P. (2015) 7
SCC 272

30. Hem Raj Vs. St. of Har., (2014) 2 SCC 395

31. Dola Vs. St. of Odisha 2018 SCC Online SC
1224

32. Sham Singh Vs. St. of Har. 2018 SCC
Online SC 1042

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. Heard Shri Amit Chaudhary,
learned counsel for the appellants, Shri
Shiv Nath Tilhari, learned AGA for the
State and perused the record.

2. During pendency of this appeal,
the appellant no.1-Sita Ram had died
therefore, in respect of appellant no.1, the
appeal was abated vide order dated
04.04.2017.

3. This criminal appeal has been filed
against the judgment and order dated
13.02.1997 passed in Session Trial No.196
of 1995 in Crime No.97 of 1994 whereby
Special Judge, Unnao vide aforesaid
judgment has convicted and sentenced
each of the appellants under Sections 366,
376
IPC
for
ten
years
rigorous
imprisonment in each sections. The
sentences
were
directed
to
run
concurrently.

4. In brief, prosecution case is that
informant Shiv Shankar, brother of the
prosecutrix gave a written report dated
14.3.1994 at Police Station Maurawan,
District Unnao alleging that her sister Siya
Dulari went to ease herself in the night of
25.2.1994 at around 9:30 p.m. then the
appellants Sita Ram and Ramesh Yadav
with an intent to sell her had taken her
away which has been seen by Billeshwar,
Shiv Pyare, and Rudrapal Singh of the
village. He further stated that his father
had
already
given
an
information
regarding
missing of
his
sister
on
27.2.1994 at Police Station Maurawan.
Lastly, it has been stated in the written
report, that sister of the informant while
going out from the house has taken away
Rs.9000/-, golden ring and other jewellery
with her. The tilak ceremony of the
prosecutrix was fixed on 03.03.1994, and
marriage was fixed on 14.03.1994. Upon a
written report, Chik FIR was registered
which is Exhibit Ka-9. The Investigating
Officer took up the investigation and
recorded the statements of the prosecution
witnesses under Section 161 Cr.P.C. A
1 All. Sita Ram @ Guni & Anr. Vs. State of U.P.
11
spot inspection was done, site plan was
prepared after conducting the inspection,
which is Exhibit Ka-6. On 15.03.1994
during investigation, appellant Ramesh
Yadav was arrested and his statement was
taken and on that basis appellant no.1 was
arrested and the prosecutrix was recovered
at 10:30 a.m. at Charbagh Railway Station.
The prosecutrix was medically examined
on 16.03.1994 by P.W.4. Thereafter,
charge sheet was filed. The prosecution
has produced five witnesses:- P.W.1 Shiv
Shankar, is the informant and brother of
the prosecutrix ; P.W.2 is the prosecutrix;
P.W.3 Mahavir, is father of the prosecutrix
; P.W. 4 is Dr. Kusum Dubey who has
medically examined the prosecutrix; and
P.W.
5
is
Pramod
Kumar
Tiwari,
Investigating Officer.

5. The case was committed to the
court of Sessions by the Court of Munsiff
Magistrate, Unnao vide order dated
17.2.1995. Thereafter charges were framed
against the accused persons and the same
were read out and explained to the accused
persons to which they pleaded not guilty.

6. After examining witnesses,
statements under Section 313 Cr.P.C. of
appellants were taken in which their
defence was of total denial, and of false
implication due to enemity.

7. P.W.1 in his statement before the
Court has stated that accused appellants
Sita Ram and Ramesh Yadav were
residents of his village. He further stated
that accused persons with an intent to sell
the prosecutrix had taken her away on
25.2.1994 when she at around 9:30 p.m.
had gone outside to ease herself, at that
time, her age was 15-16 years while the
accused persons fled with her. A missing
report was lodged by his father on
27.2.1994. On 13.3.1994 Billeshwar, Shiv
Pyare and Rudra Pal Singh told him that
they have seen the accused persons along
with the prosecutrix and who have taken
her away. He has proved the FIR as
Exhibit Ka-1. On 15.03.1994, the accused
appellant no.2 Ramesh Yadav was arrested
by the police who told that accused Sita
Ram and prosecutrix will go to Lucknow.
Then appellant no. 2 along with police
personnel, the informant and his Uncle
Lallu Prasad, came to Charbagh Railway
Station, Lucknow and there at Platform
No.1, he found accused appellant no.1
Sitaram and Siya Dulari sitting. In the
cross examination by the defence, he has
stated that prosecutrix was studying in
Class-V around 13-14 years back. He has
denied the suggestion that when Siya
Dulari, prosecutrix fled with the accused
persons at that time her age was 22 years.

8. P.W.-2, the prosecutrix Siya
Dulari in her statement has stated that at
the time of occurrence, she was not
married however, marriage was fixed. She
has stated she was 15-16 years old. She
further stated that 21⁄2 years back when she
went to ease herself in the night at around
9:30 p.m. then Sita Ram and Ramesh
Yadav were hiding behind Jamun tree and
while she was preparing to return they
caught hold of her. Sita Ram caught her
hands and hold her mouth, Ramesh Yadav
hold her feet and when she tried to raise
alarm Sita Ram threatened her with a
country made pistol and said do not shout
otherwise they will shoot her. Thereafter,
she was locked in the kothri of tubewell.
In the morning she was taken by the
accused persons in the field of mustard
and Rabi thereafter Ramesh Yadav went to
his home and Sita Ram raped her twice.
After sometime, Ramesh Yadav came and
again raped her against her consent.
12 INDIAN LAW REPORTS ALLAHABAD SERIES
During day time, they kept her in the open
mustard field and in the night they used to
lock her in the kothri. This went for three
days and she was subjected to rape 7-8
times in three days by both of the accused
persons. Thereafter, on third day, Sita Ram
and Ramesh took her to Lucknow on a
cycle and when she used to cry she was
shown pistol, therefore, she kept mum.
From Lucknow, they took her to Gonda by
bus and there in Satai ka purwa, she was
locked in a room inside a house, which
was locked from outside. They used to
come in the night and raped her for 15
days
continuously.
On
14.03.1994,
Ramesh
Yadav
returned
home.
On
15.03.1994,
she
came
to
Charbagh
Railway Station, Lucknow. Sita Ram
asked Ramesh Yadav to go to the village
and try to find out the news in the village
and told him to come at Charbagh Railway
Station, Lucknow and he will wait. In the
cross examination, she has stated that 1314 years back she has passed out Class V.
The alleged kothri of tubewell in which
she was kept belongs to one of the villager
which was empty. There was no window
in the kothari only a door was there. It was
situated at a distance of 10-12 fields away
from the village. The accused persons
remained with her in kothari for three
days. All the three persons came to
Lucknow on a cycle. She further stated
that in the bus in which she was sitting few
persons
were
there.
However,
1-2
policemen were also there. She tried to
raise alarm, because of accused persons
she could not do so. Later on, she says that
there were 15-16 persons in the bus. In the
bus Ramesh Yadav and Sita Ram were
armed with country made pistol which
they were carrying in open. She was kept
in Gonda in a house where there were
ladies and children but her room was
locked. She raised alarm which was not
heard by anybody for a period of 15 days.
She has denied suggestion that before the
occurrence, she has written so many letters
to Sita Ram which showed her affair with
him. She has further denied the suggestion
that she took with her Rs.9000/- cash,
golden earring along with other jewellery.
She has further denied the suggestion that
she was 22 years of age at the time of
incident. Suggestion that she on her own
accord went away from her home has also
been
denied.
She
has
also
denied
suggestion that she was having an affair
with Sita Ram. Lastly, she has also denied
that she got a beating by her parents
because of her relation ship with Sita Ram.

9. P.W.3 Mahavir, father of the
prosecutrix stated in his Examination-inchief that on the date of occurrence, his
daughter went away from house and did
not returned. He tried to find out in his
relatives but she could not be traced out.
Regarding incident, he had given a
missing report which has been shown to
him and he has proved as Exhibit Ka-3. In
the cross, he has stated that 13-14 years
back his daughter used to study in class V.
He has re-affirmed his statement under
Section
161
Cr.P.C.
given
to
the
Investigating Officer that her daughter
while going away, took Rs.9000/- cash,
golden earing and other jewellery along
with her. He has further stated that 10-12
years back kothari of tubewell had fallen
down/caved in. Upon a suggestion that
whether his daughter/prosecutrix ran away
on her own accord, he stated that he could
not tell this fact.

10. P.W.4 Dr. Kusum Dubey, who
conducted medical examination of the
prosecutrix has stated that there were no
signs of external or internal injury on the
person of the prosecutrix, hymen was old
1 All. Sita Ram @ Guni & Anr. Vs. State of U.P.
13
and torn. P.W. 4 had proved the medical
examination report of the prosecutrix
which is Exhibit Ka-4. In her opinion, the
age of the prosecutrix according to
ossification test was above 18 years. No
live or dead spermatozoa was found in the
pathology report and no definite opinion of
rape has been given by her.

11. P.W. 5 Shri Pramod Kumar
Tiwari, the Investigating Officer, in his
examination-in-chief has stated that FIR
was lodged in his absence. He got
information on 14.03.1994 itself and on
the same day, he went to Gulal Khera
village
and
took
the
statement
of
complainant Shiv Shankar, mother of the
prosecutrix
Smt.
Rampati,
uncle
of
complainant Lallu Prasad and witnesses
Billeshwar, Shiv Pyare and Krishna Pal,
thereafter conducted the examination of
the spot on the same day and prepared the
site plan in his writing. After seeing the
site plan, he has proved it which is Exhibit
Ka-6. He further stated that on 15.03.1994,
during investigation accused Ramesh
Yadav was arrested. His statement was
recorded on the basis of his statement,
accused Sita Ram was arrested from
Charbagh Railway Station, Lucknow at
10:30 a.m. who was with the prosecutrix.
Fard report was prepared by him and on
which prosecutrix Sita Ram and Ramesh
Yadav had signed and has proved Fard
which is Exhibit Ka-2. On the spot, he
took the statement of the prosecutrix and
accused Sita Ram and on the basis of
statement of prosecutrix, section 376 IPC
was
added.
After
concluding
the
investigation, he has submitted charge
sheet before the lower court and has
proved it which is Exhibit Ka-8. He has
further proved the chik report prepared by
Head Moharrir, Shri Purushottam Narain
Tandon, who was posted with him, Chik
report is Exhibit Ka-9. In his cross
examination he has stated that father,
mother and uncle of the prosecutrix in
their statements under section 161 Cr.P..C.
had informed him that prosecutrix had
gone somewhere after taking Rs.9000/-
cash, golden ring and other jewellery. He
had also taken the statement of Krishna
Pal Singh, Shiv pyare and Billeshwar who
told him that on 25.02.1994 at about 10:00
p.m. Sita Ram, Ramesh Yadav and
prosecutrix were going somewhere. He
lastly stated that at the time of arrest, no
fire arm was recovered from Sita Ram. He
denied the suggestion that he has arrested
the prosecutrix Siya dulari from District
Gonda and Sita Ram and Ramesh Yadav
from their village.

12. Learned counsel for the appellant
has made following submissions :

1. Appellant Ramesh was not
seen by anybody going along with the
prosecutrix and co-accused Sita Rram on
25,02.1997;

The allegation levelled was that
appellant Ramesh was seen by two persons
of the village namely Billeshwar and Shiv
Pyare accompanying the prosecutrix and
co accused Sita Ram on 25.02.1994.
Despite the fact that statements of both the
witnesses were recorded under Section
161 Cr.P.C. by the Investigating Officer,
none was produced in the Court. The truth
is that none had seen the appellant Ramesh
going along with the prosecutrix and coaccused Sita Ram. As witnesses Bileshwar
and Shiv Pyare were not ready to support
the
false
prosecution
story
against
appellant Ramesh, they were deliberately
not produced before the trial Court.

Appellant Ramesh has been
implicated only for the reason that he was
a friend of accused Sita Ram and the
14 INDIAN LAW REPORTS ALLAHABAD SERIES
complainant party suspected that he had a
hand in the elopement of the prosecutrix
with accused Sita Ram.

2. The prosecutrix went with coaccused Sita Ram out of her own free will

(i). The father of the prosecutrix
Mahabir examined as P.W.3 had reported
at the police station regarding the missing
of his daughter and in his report he had
alleged that the prosecutrix had taken
away valuables from the home including
Rs.9000/- cash, gold ear-ring, a pair of
Payal and kamar peti the statement of
witness Mahabir is evidence of the fact
that the prosecutrix was not abducted by
anyone rather she had eloped with coaccused Sita Ram out of her own free will
in a planed manner.

(ii). Admittedly, the prosecutrix
was kept in a ''kothri' for three days in a
village which did not have any door. She
also alleged that during day time she was
kept in the Rabi field while in the night
she was confined in the Kothri. The fact
that still she did not make any attempt to
escape is a pointer to the fact of her
willingness to stay with appellant Sita
Ram.

(iii). Admittedly, the prosecutrix
was later on kept in a room in a house
which had other persons living in it as well
and still the prosecutrix did not make any
attempt to seek help from others also goes
to show that she was not confined there
against her will.

(iv). The prosecutrix was taken
on a cycle to Lucknow during day time
and from Lucknow she was taken by bus
to Gonda. It was stated by the prosecutrix
in her statement that in the bus there were
15-20 persons including policemen also.
The fact that the prosecutrix did not seek
anybody's help in the bus also goes to
show her willingness to accompany the
accused Sita Ram.

3.
The
testimony
of
the
prosecutrix is not reliable.

It has been submitted that from
the facts narrated above, it is evident that
the testimony of the prosecutrix that she
was raped by the accused persons is not
believable and the conviction based on her
testimony cannot be sustained.
4. Medical opinion does not support the
story of forced sex/rape on prosecutrix.

(i) The doctor opined that the
age of the prosecutrix was more than 18
years ;

(ii)
no
dead
or
living
spermatozoa was found in the vaginal
smear ;

(iii) no opinion about rape could
be given.

The medical opinion of the
doctor virtually rules out the story of rape
in the light of the fact that the prosecutrix
had alleged that during rape she used to
struggle and therefore, absence of any
injury on the external or internal part of
the body does not support the prosecution
story of forced sex by the accused.

13. Further contention of learned
counsel for appellant is that the Hon'ble
Supreme Court has held in catena of
decisions that if the statement of the
prosecutrix is of sterling quality and
inspires confidence then corroboration
from other evidence need not be sought,
but where the statement of the prosecutrix
is shaky and does not inspire confidence
then corroboration should be sought from
other
evidence
collected
during
investigation.

14. It is next contended by learned
counsel
for
the
appellant
that
the
prosecutrix was recovered along with
appellant no.1 (at the time of arrest of
appellant no.1) Sita Ram from Charbagh
1 All. Sita Ram @ Guni & Anr. Vs. State of U.P.
15
Railway Station. Admittedly, at the time of
recovery, prosecutrix was sitting at the
railway platform along with accused
appellant Sita Ram. Needless to say that a
railway platform is a crowded place and
there is no evidence of the fact that the
prosecutrix appears to have been confined
at the place of sitting by the appellant no.1
Sita Ram or any force was applied as no
fire-arm was recovered which goes to
show that she was not sitting there against
her wishes. He further submitted that
according to prosecution story, both
accused persons had katta with them
which they used to threaten the prosecutrix
but as admitted by the Investigating
Officer no fire arm was recovered from
both the accused persons.

15. Per contra, Shri Shiv Nath
Tilhari, learned AGA submits that before
entering into the detail arguments, he
would like to submit that main argument
on behalf of State is that it is a matter of
committing
gang
rape
and
a
lady/prosecutrix cannot be a consenting
party to several persons simultaneously.

16. In support, he has placed reliance
on catena of decisions which are as
follows :

(i). MD Iqbal and another vs.
State of Jharkhand 2013 (14) SCC 481;
in this case it has been submitted that in
view of provisions of Section 114-A of
Indian Evidence Act, 1872 there is a
presumption as to the absence of consent
in case of gang rape and it will be
presumed that the prosecutrix did not give
consent.

(ii). Puran Chand vs. State of
Himachal Pradesh 2014 (5) SCC 689. He
submitted that a girl would not put herself
to disrepute and would not go to support
her parents to lodge false FIR of rape due
to enmity as there is no delay in lodging
the FIR.

(iii). State of U.P. vs. Chhotey
Lal reported in 2011 (2) SCC 550; the
Honb'le Court has held in para 30 which is
reproduced as under :

"30. The learned counsel for the
respondent submitted that no alarm was
raised by the prosecutrix at the bus-stand
or the other places where she was taken
and that creates serious doubt about the
truthfulness
of
her
evidence.
This
argument of the learend counsel overlooks
the situation in which the prosecutrix was
placed. She had been kidnapped by two
adult males, one of them, A-1, wielded a
firearm and threatened her and she was
taken away from her village. In the
circumstances, she made sensible decision
not to raise any alarm. Any alarm at
unknown place might have endangered her
life. The absence of an alarm by her at the
public place cannot lead to an inference
that she had willingly accompanied A-1
and A-2. The circumstances made her a
submissive victim and that does not mean
that she was inclined and willing to have
intercourse with A-1. She had no free act
of the mind during her stay with A-1 as she
was under constant fear."

(iv). He further placed reliance
in the case of State of Himachal Pradesh
vs. Mango Ram 2007 7 SCC 224 ;

(v). State of Maharastra vs.
Chandraprakash Kewalchand Jain 1990
1 SCC 550;

(vi).
State
of
Punjab
vs.
Gurmit Singh and others (1996) 2 SCC
384;

(vii). Vijay @ Chinee vs. State
of Madhya Pradesh (2010) 8 SCC 191;
16 INDIAN LAW REPORTS ALLAHABAD SERIES

(viii).
State
of
Himachal
Pradesh vs. Shree Kant Shekari (2004) 8
SCC 153."

17. Next submission of learned AGA
is that absence of injuries on private parts
cannot be a ground to held that the
appellant cannot be convicted. He has also
placed reliance on the judgments reported
in Devinder Singh and ors vs. State of
Himachal Pradesh 2003 AIR (SC) 3365;
and Deepak vs. State of Haryana 2015
(4) SCC 762;

18. Further reliance has been placed
on Moti Lal vs. State of Madhya
Pradesh 2008 (11) SCC 20 and has
submitted
that
corroboration
is
not
required
from
any
other
evidence
including the evidence of Doctor to
examine the victim of rape and does not
find any sign of rape.

19. Next submission of learned AGA
is that while appreciating the evidence of a
witness, minor discrepancies on trival
matters which do not affect the core of the
prosecution case, may not prompt the
Court to reject the evidence in its entirety.
In support he has relied on the judgments
reported in State of Rajasthan vs. Om
Prakash 2007 AIR (SC) 2257 and State
of U.P. vs. M.K. Anthony AIR 1985
(SC) 48.

20. Learned AGA has also submitted
that even in case of immoral character of
prosecutrix, it does not give any right to
the accused persons to commit rape on the
prosecutrix against her consent. In support,
he has relied on State of Maharastra and
another
vs.
Madhurkar
Narayan
Mardikar 1991 1 SCC 57; where it has
been held that even a women of easy
virtue is entitled to privacy. He further
relied on State of Punjab vs. Gurmit
Singh and others 1996 AIR (SC) 1393.
Lastly, it has been submitted by learned
AGA that Investigating Agency not
conducting investigation properly or was
negligent cannot be a mere ground to
discredit the testimony of the prosecutrix
and has submitted that non recovery of
weapon of assault (Katta/country made
pistol) will not come to the aid of the
accused appellant.

21. Having considered the rival
contentions advanced by learned counsel
for the parties, this Court carefully
proceeds to examine the evidence of
prosecution witnesses.

22. Considering the evidence of
prosecution witnesses, it appears that
missing report though was lodged by
father of prosecutrix P.W.3 however, FIR
has been lodged by brother of prosecutrix
who is P.W.1. P.W.1 has stated in his
examination in chief that Billeshwar,
Krishna Pal and Rudrapal Singh of his
village saw the prosecutrix with the
appellants Sita Ram and Ramesh. He has
further
stated
that
prosecutrix
was
recovered along with Sita Ram while both
of them were sitting at Platform No.1 at
Charbagh Railway Station, Lucknow. In
his cross examination, he has stated that
when the prosecutrix eloped she was 22
years of age. He denied the suggestion that
the prosecutrix eloped with Sita Ram on
her own accord. He further denied the
suggestion that prosecutrix can write
letters.

23. P.W.2 prosecutrix Siya Dulari
while giving statement under section 161
Cr.P.C. has not levelled any allegation
against appellant no. 2 Ramesh. She has
clearly stated that appellant no. 2 Ramesh
1 All. Sita Ram @ Guni & Anr. Vs. State of U.P.
17
has done no wrong to her. However, while
giving statement under section 164 Cr.P.C.
before the Court, she made substantial
improvement and levelled the allegation of
committing rape against appellant no. 2
Ramesh also for the first time. In her
statement under section 164 Cr.P.C. she
has stated that she was kept in Gonda for
15-16
days
and
both
the
accused
appellants took her to Lucknow and
appellants Ramesh and Sita Ram both
were arrested from Charbagh railway
station.

24. This statement of prosecutrix
given under section 164 Cr.P.C. that both
accused were arrested at Charbagh, again
changed in the Court while deposing as
P.W.2 before the trial court and stated that
on 14.03.1994 Ramesh went home and she
came along with appellant no. 1 Sita Ram
at Charbagh Railway Station where she
was found sitting along with Sita Ram
only by the police and thereafter Sita Ram
was arrested thus contradicted her earlier
two statements. In her cross examination,
she has stated that while she was sitting in
the bus either at Qaiserbagh or Charbagh
they were one or two police personnels
also, she tried to raise alarm but could not
succeed as both the accused persons were
armed openly with country made pistols.
She further stated that she was kept in
Gonda for 15 days and in that house
several ladies and children were residing
but she was not allowed to meet anybody
since the door of the room was locked. She
cried but no one heard. She has denied the
suggestion that she can write letters. She
further denied the suggestion that before
occurrence, she wrote several letters to
Sita Ram. She denied that she had written
love letters to Sita Ram and said that she
has never written to Sita Ram, that she
could not sleep all night and used to weep.
She has further denied the suggestion that
she eloped with Sita Ram along with
Rs.9000/- golden ear rings, kamar peti and
a pair of payal. She has further denied the
suggestion that she on her own accord
went from her house. She further denied
suggestion that she was in love with Sita
Ram since long. She further denied that
due to this relation ship with Sita Ram, she
was beaten several times by her parents.
She has also denied the suggestion that
after going away from home, she was not
kept in Kothri rather directly taken to
Lucknow. The evidence of prosecutrix
P.W.2 right from the stage of statements
recorded under section 161 Cr.P.C. to 164
Cr.P.C. and in deposition before the Court
suffers from material improvement. Under
Section 161 Cr.P.C. she has not levelled
any allegation of rape against appellant no.
2 whereas for the first time in her
statement under Section 164 Cr.P.C. she
has also roped appellant no.2 and alleged
that rape has been committed by him also.
In her statement under section 164 Cr.P.C.
the prosecutrix has further stated that she
came to Lucknow along with appellant
nos.1 and 2 both whereas while testifying
before the Court below as P.W. 2 she said
that
Ramesh
came
back
home
on
14.3.1994 and she along with Sita Ram
came to the Railway Station where Sita
Ram was caught whereas in the statement
under Section 164 Cr.P.C. she stated that
Sita Ram and Ramesh both were caught at
Charbagh Railway Station, Lucknow. The
inconsistency
in
the
statements
of
prosecutrix goes to the root of the matter,
there is substantial improvement at several
stages and material contradictions which
cannot be said to be minor contradictions.

25. P.W.3 while deposing before the
Court has re-confirmed his statement
under section 161 Cr.P.C. and supported
18 INDIAN LAW REPORTS ALLAHABAD SERIES
the story as stated by him in his missing
report. He has not levelled any allegation
against the appellant No.2. In his cross
examination,
he
has
reiterated
and
confirmed his earlier stand given in the
missing report that the prosecutrix took
away Rs.9000/- cash, golden ear rings,
kamar peti and one pair of payal along
with her. He has not supported the version
of prosecutrix that the aforesaid cash and
ornaments were kept by her at some place
in the house. He has further stated in his
cross that 10-12 years back, kothri near a
tubewell had fallen down/caved in. He has
further stated that he does not know
whether his daughter/prosecutrix was of a
good character. Upon being asked as to
whether prosecutrix had gone on her own
accord he has fairly stated that he could
not tell this fact.

26. P.W.4 Dr. Kusum Dubey who
medically examined the prosecutrix has
stated that she has not found any mark of
injury on the person of the prosecutrix. In
the internal examination, no mark of injury
was found on her private parts. Her hymen
was old and torn and has stated that she
performed one finger test in her vagina.
Lastly, she has stated that she could not
give any definite opinion about rape on the
prosecutrix.

27. P.W.5 in his cross examination,
has stated that complainant, his father,
mother and uncle in their statements have
told him that prosecutrix has gone
somewhere along with Rs.9000/- cash,
golden ear rings, kamar peti and a pair of
payal. He has also stated that he took the
statement of Kishan Pal singh, Shiv Pyare
and Billeshwar who told him that at 10
o'clock in the night on 25.2.1994 Sita
Ram, Ramesh and prosecutrix Siya Dulare
were going somewhere. He further stated
that at the time when Sita Ram was
arrested no fire arm was recovered. He
denied the suggestion that Siya Dulareprosecutrix was recovered from district
Gonda and Sita Ram and Ramesh have
been arrested from their village.

28. So far as the argument of learned
AGA regarding delay in lodging the FIR is
concerned, there is no need to go in detail as
this ground has not been raised by learned
counsel for the appellant. The case law cited
by him are distinguishable on facts because
in the case of MD. Iqbal and others
(Supra) the statement of prosecutrix was
duly corroborated with medical evidence
(Para 14) and was found worthy of
credence. Hence, the conviction of the
accused was upheld by the Supreme Court.

29. In Puran Chand vs. State of
Himachal Pradesh (2014) 5 SCC 689, it
was held that since offence of rape was
proved and prosecution version was relied
on in view of supporting circumstantial
evidence and Section 114-A of Indian
Evidence Act was held to be applicable
impliedly. In this case the offence of rape
has not been proved therefore, there is no
occasion of application of Section 114-A
of Evidence Act to draw the presumption
as to the absence of consent.

30. In Hem Singh vs. State of U.P.
(Supra) a minor girl was taken from
lawful guardianship of her brother. Her
testimony was intact and found trust
worthy and the

31. In State of Himachal Pradesh vs.
Prem Singh reported in (2009) 1 SCC 420
offence of rape was not established.

32. In Mukesh vs. State of
Chattisgarh, (Supra), the prosecution
1 All. Sita Ram @ Guni & Anr. Vs. State of U.P.
19
version was supported by P.W. 3, P.W.11
and 12 as well as injury on the fore head of
the prosecutrix and further there was
ample
corroborative
material
and
testimony of the prosecutrix was found to
be trust worthy which is not in the present
case.

33. In State of Maharastra vs.
Madhukar Narain (1991) 1 SCC 57, it
was a matter of departmental enquiry and
High Court erred in embarking upon reappreciation of the evidence against the
decision in disciplinary proceedings.

34. In Vijay @ Chinee vs. State of
Madhya Pradesh, (Supra) it was held
that statement of the prosecutrix was found
to be worthy of credence and reliable,
which required no corroboration and there
was statement of doctor P.W.3 who opined
that the hymen of the prosecutrix was
found to be completely torn and fresh
blood was oozing out hence presumption
of Section 114-A of Indian Evidence Act
was taken that she did not gave her
consent. In this case, the testimony of the
prosecutrix requires further material in
view of inconsistency in her statement.

35. In State of Himachal Pradesh vs.
Shree Shekari (Supra) it was a case of
minor girl of 14 years old which was made
pregnant by her own teacher. The testimony
of the victim was found worthy of credence
and prosecution was successful in explaining
the delay and the Hon'ble Supreme Court in
para 21 held as under :-

"It
is
well
settled
that
a
prosecutrix complaining of having been a
victim of the offence of rape is not an
accomplice after the crime. There is no
rule of law that her testimony cannot be
acted without corroboration in material
particulars. She stands on a higher
pedestal than an injured witness. In the
latter case, there is injury on the physical
form, while in the former it is physical as
well as psychological and emotional.
However, if the court on facts finds it
difficult to accept the version of the
prosecutrix on its face value, it may search
for evidence, direct or circumstantial,
which would lend assurance to her
testimony.
Assurance,
short
of
corroboration, as understood in the
context of an accomplice, would suffice."

36. In State of Maharastra vs.
Chandraprakash
Kewalchand
Jain
(Supra), the evidence of prosecutrix was
found worthy of credence. The clothes of
the prosecutrix were found to be stained
with human blood and semen. The semen
group found on her clothes tallied with
that of accused.

37. In Deepak vs. State of Haryana
(2015) 4 SCC 762, the victim was a minor
girl. Sexual intercourse was admitted by
the accused and rape was proved and
therefore,
statutory
presumption
was
drawn by the court and also it was duly
corroborated with the medical evidence.

38. In State of Himachal Pradesh
vs. Mango Ram (2000) 7 SCC 224 the
victim was again a minor girl. Rape was
proved. The evidence of prosecutrix was
corroborated
by
medical
and
other
evidences also.

39. In State of Punjab vs. Gurmit
Singh and others, (Supra) the statement
of prosecutrix was found to be intact and
was well supported by medical evidence
and ample corroboration was available on
record to lend further credence to the
testimony of the prosecutrix.
20 INDIAN LAW REPORTS ALLAHABAD SERIES

40. In MD Iqbal and another vs.
State
of
Jharkhand
(Supra)
the
statement of prosecutrix was corroborated
by medical evidence and offence of rape
was proved hence, the trial court rightly
draw presumption that victim did not
consent and this was upheld by the
Hon'ble Supreme Court.

41. In Vijay Raikwar vs. State of
Madhya Pradesh (2019) 4 SCC 210 in
this case chain of circumstance was
complete and the accused could not give
any explanation with regard to the
incriminating evidence against him.

42. In AIR 1985 SUPC 48 State of
U.P. vs. M.K. Antony, the accused
murdered his wife and children and made
extra judicial confession to his friend.
Evidence of friend was found reliable and
trustworthy and conviction of accused on
that basis was held proper.

43.