# Smt. Sugara @ Subara v. State of U.P. & Ors

- **Citation:** (2020) 8 ILRA 507
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-18
- **Case number:** Application U/S 378 Defective No. 19 of 2020
- **Bench:** Mrs. Sunita Agarwal, Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sugara-subara-v-state-of-u-p-ors-46057
- **Pages:** 13

## Headnote

Criminal Law-Appeal against acquital
order-u/s 376D, 452, 323 and 506 IPC -
Deposition of prosecutrix/victim-under
cloud-cannot be made solitary basis for
conviction-admission of criminal case
going in between the parties-shows
malafide intention -to rope in -Criminal
Appeal dismissed.

Held, If the evidence of the prosecutrix is
read and considered in totality of facts and
circumstances of the instant case, in which
the crime
is alleged
to have
been
commissioned, we are of the view that the
deposition of the prosecution witnesses
does not inspire confidence of this Court.
Evidence of the prosecutrix is not worthy
of credibility and explicitly unreliable.
Therefore,
in
the
present
matter,
statement of the prosecutrix cannot be
made the solitary basis for conviction of
the accused. There is no substantial and
compelling reasons to reverse the order of
acquittal passed by the Trial Court. (para
26)

Criminal Appeal dismissed. (E-9)

Cases referred:-

## Text

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8 All. Smt. Sugara @ Subara Vs. State of U.P. & Ors.
507
and Pappu, who have been named as
independent
eye
witnesses
of
the
incident, in the witness box. It is
admitted case of the prosecution that Hari
Shankar and Jhandilal are real brothers,
therefore, possibility of dispute between
them with regard to property cannot be
ruled out, but in the present matter,
genesis of occurrence as created by the
prosecution appears to be vague and
cloudy. As per prosecution, younger
brother Jhandilal was trying to kill his
elder brother Hari Shankar (complainant)
with a clear intention to grab his property
despite the fact that the complainant had
already adopted a son namely, Prabhakar,
who as per statements of PWs-2 and 3
was the son of Baleshwar. At the time of
occurrence, Prabhakar was kept behind
the doors in the house to save his life. It
is very astonishing that Baleshwar, who
is natural father of Prabhakar, did not
even bother to come in the witness box to
support his own son. Apart from that,
Prabhakar, who could have been a very
important witness as he was stated to be
present at the place of occurrence i.e. house
of complainant, on the relevant date and
time of incident, had also not been produced
in the witness box. No independent witness
had been produced to corroborate the
statement of PW-2. On the contrary, PW-3
had admitted that the accused persons did
not enter into their house and had not looted
anything therefrom.

23. After careful consideration of
the impugned judgment and entirety of
facts and circumstances of the case as
available on record, we are of the
considered view that the prosecution had
failed to discharge its burden to prove its
accusation beyond reasonable doubt.
There
are
inconsistencies
in
the
statements of the prosecution witnesses.
The deposition of prosecution witnesses
are not worthy of credibility and are
explicitly unreliable.

24.

From
the
facts
and
circumstances of the case, it cannot be
inferred that the accused persons entered
the house of the complainant and
perpetrated the crime attempting to cause
death
and
grievous
hurt
to
the
complainant and his family members. In
such a situation of fact, accused persons
i.e. respondents no.2 to 6 are entitled to
get benefit of doubt and their innocence
could easily be inferred. There are no
substantial and compelling reasons to
reverse the order of acquittal passed by
the trial court. Thus, we find no good
ground to interfere in the finding of fact
returned by the court below in favour of
the accused persons. No case made out
for granting special leave to appeal
against the order of acquittal.

25. In the light of aforesaid reasons
and observations, this application for
Leave to Appeal, is hereby refused. In
the result, present criminal appeal is
dismissed in limine.
----------
(2020)08ILR A507
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.02.2020

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE DINESH PATHAK, J.

Application U/S 378 Defective No. 19 of 2020

Smt. Sugara @ Subara ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
508 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Dan Bahadur, Sri Vikas Srivastava

Counsel for the Opposite Parties:
G.A.

Criminal Law-Appeal against acquital
order-u/s 376D, 452, 323 and 506 IPC -
Deposition of prosecutrix/victim-under
cloud-cannot be made solitary basis for
conviction-admission of criminal case
going in between the parties-shows
malafide intention -to rope in -Criminal
Appeal dismissed.

Held, If the evidence of the prosecutrix is
read and considered in totality of facts and
circumstances of the instant case, in which
the crime
is alleged
to have
been
commissioned, we are of the view that the
deposition of the prosecution witnesses
does not inspire confidence of this Court.
Evidence of the prosecutrix is not worthy
of credibility and explicitly unreliable.
Therefore,
in
the
present
matter,
statement of the prosecutrix cannot be
made the solitary basis for conviction of
the accused. There is no substantial and
compelling reasons to reverse the order of
acquittal passed by the Trial Court. (para
26)

Criminal Appeal dismissed. (E-9)

Cases referred:-

1. Narendra Kumar Vs. St. (NCT of Delhi)
reported in 2012 AIR SCW 3391

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

3.St. of Karnataka Vs. K. Gopalkrishna
reported in (2005) 9 SCC 291

4. Sudershan Kumar Vs. St. of Himachal
reported in (2014) 15 SCC 666

5. Dilawar Singh Vs. St. of Har., (2015) 1 SCC
737,

(Delivered by Hon'ble Dinesh Pathak, J.)

Order on Criminal Misc. Delay
Condonation Application No. 01 of
2020 :-

1. Heard Shri Vikas Srivastava,
learned counsel for the applicant on the
application filed for condonation of delay
in filing special leave to appeal under
Section 378 (4) Cr.P.C. As per the report
submitted by the Reporting Section, there
is a delay of 18 days in filing of the
present leave to appeal.

2. We have gone through the
affidavit filed in support of the delay
condonation application. Cause shown in
the affidavit filed in support of the delay
condonation
application
is
found
sufficient for condoning the delay.

3. Accordingly, delay in filing the
instant leave to appeal is condoned.
Delay
Condonation
Application
is
allowed.

4. Instant application, on board, is
treated having been filed within time as
prescribed by law.

Order on Appeal :-

1. Heard Sri Vikas Srivastava,
learned counsel for the appellant.

2. The present criminal application
for special leave to file appeal (under
Section 378 (4) Cr.P.C.) has been
preferred
by
the
present
appellant
(prosecutrix) against the judgment and
order
dated
23.10.2019
passed
by
Additional
District
&
Sessions
Judge/Fast Track Court (Offence against
Women), Rampur in Sessions Trial No.
351 of 2015 (State of U.P. vs. Abrar &
8 All. Smt. Sugara @ Subara Vs. State of U.P. & Ors.
509
Others) acquitting all the three accused
persons (respondents no. 2, 3 & 4) under
Sections 376-D, 452, 323 and 506 I.P.C.

3. By means of instant application,
applicant seeks the indulgence of this
Court to grant special leave to appeal
which is arising out of Complaint No.
254 of 2014 moved by the prosecutrix
under Sections 376, 452, 504 and 506
IPC against Abrar (respondent no. 2),
Hidakat Hussain (respondent no. 3) and
Gose Azam (respondent no. 4) in the
court of Chief Judicial Magistrate,
Rampur leveling allegation against them
that
in
the
intervening
night
of
29/30.08.2013 at about 2:00 a.m., while
victim was sleeping alone in her house,
all
the
three
accused
persons,
as
mentioned above, armed with Tamancha
(country made pistol) entered her house
with intention to sexually assault her.
While entering into the room, they
grabbed the victim and subjected her, on
the gun point, to rape and molested her
taking a turn one by one.

4. It is further alleged that while she
protested, accused have beaten her up by
the butt of Tamancha and thrashed her
resulted in inflicting several injuries.
When she raised alarm, Aftab Hussain,
Asiya and other persons have entered
into the scene and challenged the accused
persons but they ran away by brandishing
gun and have threatened them to life, in
case anyone tried to follow them. Asiya,
while seeing the victim in naked
condition, dressed her up. The victim
approached the Police Station, Tanda to
get her report registered but she received
negative response. On 31.08.2013, she
got herself medically examined in the
District Hospital, Rampur and moved
representation before the Superintendent
of Police, Rampur but it went in vain.
Ultimately, on her complaint after
considering her statement under Section
200 Cr.P.C. and statement of her
witnesses namely Aftab Hussain (victim's
son) and Asiya (victim's sister-in-law)
under Section 202 Cr.P.C., the court
below has taken cognizance under
Section 376-D, 452, 323 & 506 IPC and
registered a case as Sessions Trial No.
351 of 2015.

5. Learned court below has framed
charges on 07.01.2016 against the
accused persons under Section 376-D,
452, 323 & 506 I.P.C.

6. In order to substantiate the
accusations, prosecution has examined as
many as three witnesses.

7. PW-1 (Prosecutrix) has deposed
that the incident took place as long as
three years back at about 2:00 a.m. and at
that time she was sleeping alone in her
room. The accused persons namely
Abrar, Hidakat Hussain and Gose Azam
entered the room armed with Tamancha
and put it on her temple. On awakening,
she was threatened to life, if she raises
alarm, thereafter she had been sexually
assaulted by all the three accused persons
by taking a turn one by one. Lastly, when
she raised alarm, Aftab Hussain (victim's
son) and Asiya (victim's sister-in-law),
who were sleeping in another room,
entered into the scene. The accused had
threatened them that they would be shot
dead in case they followed them.
Thereafter they jumped over the wall and
fled away. Asiya dressed up the victim.
In the morning the husband of the victim
came back and along with him she went
to police station. The Police Inspector
had scolded her and refused to register
510 INDIAN LAW REPORTS ALLAHABAD SERIES
the report. Next day she appeared before
the Superintendent of Police, Rampur but
he also did not take any action. Same
day, she went to the District Hospital,
Rampur and got herself medically
examined. Ultimately, she engaged a
counsel and filed the compliant.

8. PW-2 (Aftab Hussain) stated that
the incident took place on 30.08.2013.
He was sleeping with her aunt (Phuphi)
in a room which is adjacent to her
mother's room. While hearing screaming
of her mother, he and his aunt came
outside the room and saw that Abrar,
Hidakat Hussain and Gose Azam, who
are the residents of his village, were
coming out of the room of his mother,
armed with Tamancha, and warned him
that in case he move forward, he would
be killed. Thereafter, trio jumped over
the wall and ran away. His aunt brought
her mother out of the room who had
narrated the incident that Abrar, Hidakat
Hussain and Gose Azam had sexually
assaulted her and thrashed her.

9. PW-3 (Asiya) had stated on oath
that the incident occurred approximately
a quarter to six years back. On the date of
the incident, she was at the residence of
her brother Rahim Uddin in village
Mundia. She came there to know the well
being of his brother. She and Aftab
Hussain were sleeping in one room
whereas her Bhabhi (prosecutrix) was
sleeping in the adjoining room. When the
victim screamed, she along with her
nephew went to the victim's room. Three
persons were coming out of the victim's
room armed with Tamancha. When they
have been asked about their identity,
firstly, Abrar then Hidakat Hussain and
then
Gose
Azam
brandished
their
Tamancha and stated that they came here
to assassinate and thereafter they jumped
over the wall and ran away. When she
entered the room, the victim was lying
naked on the double bed and on close
sight she saw blue marks and injuries on
her body. She dressed her up, who
became
conscious
thereafter.
She
narrated the entire incident to PW-3 as to
what had happened to her in the night at
about 2:00 p.m.

10. The accused have made their
statement under Section 313 Cr.P.C.
They pleaded
innocence
and
false
implication in the present case. In
addition, Abrar Hussain (respondent no.
2) has stated that false implication has
been made, in revenge, to create pressure
upon him so that he may enter into a
compromise in another criminal case. He
stated that Rahim Uddin (husband of
victim), his two sons namely Askar and
Aftab and brother Amin Uddin and
Qutub Uddin fired on his uncle Hidakat
Hussain. In that incident, his cousin
Hamid had also sustained injuries. In the
aforesaid incident, FIR was lodged by
Sadakat (brother of Hidakat Hussain).
Consequently, a case under Section 307
IPC had been registered in the Police
Station Tanda, District Rampur, which is
still pending. Remaining accused persons
namely Hidakat Hussain and Gose Azam
(respondents no. 3 & 4) have also stated
same version as stated by Abrar Hussain
that they have been falsely implicated to
create pressure upon them with respect to
the case registered under Section 307
IPC. In support of their defence, accused
persons have filed a copy of the FIR
registered as Case Crime No. 613-A of
2010 under Sections 147, 148, 149 and
307 IPC, Police Station Tanda District
Rampur and also filed Charge-Sheet No.
193 of 2010 and 193-A of 2010.
8 All. Smt. Sugara @ Subara Vs. State of U.P. & Ors.
511

11. After considering the entire
evidence, learned Trial Court vide
impugned judgment dated 23.10.2019
acquitted
the
accused
persons
(respondents no. 2, 3 & 4) by observing
that the prosecution has failed to
establish its accusation beyond all
reasonable doubts. Consequently, all the
accused persons were acquitted by the
court below.

12. Learned counsel for appellant
has submitted that the Trial Court has
illegally acquitted the accused persons
(respondents no. 2, 3 4) whereas
prosecution has successfully proved it's
accusation. He has further submitted that
the statement of prosecution witnesses
has been misled and misinterpreted by
the court below whereas commission of
crime is fully corroborated by the
statement of the prosecution witnesses
and surrounding circumstances.

13. We have carefully considered
the facts and circumstances of the present
case, submissions advanced by the
learned counsel for the appellant and
perused the impugned judgment.

14. As per complaint version, on
the date of occurrence i.e. intervening
night dated 30.08.2013 at about 2:00 a.m.
while prosecutrix was sleeping alone in
her room all three accused persons
(respondents no. 2, 3 & 4) entered the
room. Each
of
them
armed
with
Tamancha had sexually assaulted her and
subjected her to rape on the gun point,
taking a turn one by one. On screaming,
her son Aftab Hussain, Asiya (vicitim's
sister-in-law) and others reached on the
spot and challenged the accused persons
who brandished their Tamancha and
threatened them to be killed in case they
followed them. Thereafter the accused
persons jumped over the boundary wall
and ran away. Asiya entered the room
and dressed up the victim, who was in
naked condition and sustained injuries. In
compelling
circumstances,
wherein
neither her report was registered by the
police personnel nor the Superintendent
of Police had paid any heed to her
grievances, she moved complaint which
has been entertained and cognizance has
been taken by the court below to initiate
criminal
proceedings
against
the
respondents no. 2, 3 & 4.

15. Learned Trial Court has raised
doubt over the facts and circumstances of
the present case, wherein the prosecutrix
was allegedly sexually assaulted by the
accused persons. Learned Trial Court had
pointed out several discrepancies and
contradictions in the statements of the
prosecution witnesses and circumstantial
evidences and found them enough to
acquit the accused persons. Trial Court
has discussed the evidences and pointed
out that :-

(i) PW-1 deposed that there
was no light in the house at the time of
incident whereas PW-2 stated that a wick
lamp was lighting at that time.

(ii) It is very astonishing and
creates suspicion that PW-2 who is
student of Intermediate has not stated the
occurrence to any of his relatives and
neighbours till morning, even not to his
father.

(iii) PW-2 stated that Asiya is
real sister of his father who came in
morning about 6 O' clock, on the date of
incident, whereas Asiya (PW-3) deposed
that she reached at her brother's house
three days prior to the incident. At page
'5', while she had been cross-examined
512 INDIAN LAW REPORTS ALLAHABAD SERIES
by another counsel, states that she came
one day before the incident.

(iv) PW-2 deposed that he was
sleeping with his aunty (Phuphii) in a
room adjacent to his mother's room. But,
on the contrary PW-3 deposed at page '3'
that distance between the two rooms is
about 20 steps. Later on at page '5' she
states that it was dark in the night on the
date of incident and she was sleeping in
the room where cattle were tethered.
Further she deposed that in one room her
sister-in-law (victim) was sleeping and in
the verandah of another room she and
Aftab were sleeping. In this view of the
matter, there is a great contradiction with
respect to the place of sleeping of
important witnesses i.e. PW-2 and PW-3.

(v) PW-3 deposed that she used
to come to her brother's house in a year
or six months, but later on she stated that
she did not come to the house of his
brother.

(vi)
There
is
a
great
contradiction with respect to the time as
to when Asiya reached to his brother's
house and, when his brother (husband of
victim) had left the house along with his
remaining children.

(vii) PW-1 stated that his son
Aftab and sister-in-law Asiya came into
the room, after hearing her screams, and
Asiya had dressed her up whereas Asiya
(PW-3) deposed that when she entered
the room, victim was lying unconscious
on the double bed and while she dressed
her up, victim regained consciousness.

(viii) PW-1 deposed that at the
time of sexual assault white bed-sheet
was spread on the bed and it was soaked
with spermatozoa of accused persons.
Said bed-sheet had never been produced
for examination.

(ix) PW-2 stated that after the
incident he did not enter the room of his
mother. On the contrary, PW-3 stated on
page '6' that while she dressed up the
victim, Aftab (PW-2) entered the room.

(x) PW-3 Asiya deposed at
page '7' that his brother had carried
bedsheet and salwaar to the police station
but in the statement under Section 200
Cr.P.C. no such version was put forward
by the prosecutrix.

(xi) PW-1 stated on page 5 that
she reached the hospital at about 2.00
P.M. and narrated the story, with respect
to sexual assault, to the doctor concerned,
who had examined the injuries of victim.
In the injury report dated 31.08.2013,
there is no endorsement with respect to
the sexual assault on victim. Even doctor
had not opined anything in this respect,
which evinces that the prosecutrix had
narrated anything about sexual assault. In
the application dated 31.08.2013 moved
before the Medical Officer, District
Hospital, Rampur nothing has been
averred with respect to the sexual assault.
No one had been produced on behalf of
the prosecution to prove the injury report.

(xii) PW-1 deposed that she
had not seen as to when the accused
entered her room. They thrashed her but
blood was not oozing out, whereas, on
the contrary, PW-2 Aftab Hussain
deposed on page 3 that he saw injuries on
the body of her mother where-from blood
was oozing out. He further stated that
because of darkness he was not sure
about the seat of injuries. Even he was
not sure about the number of injuries.
PW-3 Asiya states that blood was oozing
out from the injuries.

(xiii) It is admitted to the
prosecution witnesses that right hand,
above elbow, of accused Abrar was
amputated. In light of the said fact, it is
hard to believe that a person, having
amputated right hand above the elbow
8 All. Smt. Sugara @ Subara Vs. State of U.P. & Ors.
513
had raped a lady having a Tamancha in
his left hand and, thereafter, jumped over
the wall and fled away.

16. Prosecution has admitted old
enmity and criminal litigation with
accused
persons
and
their
family
members, in which husband and sons of
the victim, were roped in as accused. It
was vehemently argued by the defence
counsel, before the trial court, that
present case has been filed with a
purpose to create pressure upon the
accused and their family members, so
that earlier criminal case filed against the
husband of victim and her sons, could be
compromised. Documents relating to the
said criminal case, which is filed against
the husband of victim, had been admitted
by the prosecution. It is said that the
prosecutrix is cousin sister of father of
one of the accused Gose Azam meaning
thereby victim is Aunty (Bua) of Gose
Azam. PW-1 had admitted that Hidaqat
is her cousin brother. In this view of the
matter, it is hard to believe that cousin
brother along with his nephew had
committed rape of the prosecutrix.

17. In criminal law, it is imperative
that the prosecution proves its case
beyond reasonable doubt and there
should be evidence on record to hold the
accused guilty. In the matter of rape, in
the case of Narendra Kumar vs. State
(NCT of Delhi) reported in 2012 AIR
SCW 3391, Hon'ble Supreme Court had
expounded the law in paragraphs 23 and
24 as under :-

"23. The courts while trying an
accused on the charge of rape, must deal
with the case with utmost sensitivity,
examining the broader probabilities of a
case and not get swayed by minor
contradictions
or
insignificant
discrepancies
in
the
evidence
of
witnesses which are not of a substantial
character.

However, even in a case of
rape, the onus is always on the
prosecution to prove, affirmatively each
ingredient of the offence it seeks to
establish and such onus never shifts. It is
no part of the duty of the defence to
explain as to how and why in a rape case
the victim and other witness have falsely
implicated the accused. Prosecution case
has to stand on its own legs and cannot
take support from the weakness of the
case of defence. However great the
suspicion against the accused and
however strong the moral belief and
conviction of the court, unless the offence
of the accused is established beyond
reasonable doubt on the basis of legal
evidence and material on the record, he
cannot be convicted for an offence. There
is an initial presumption of innocence of
the accused and the prosecution has to
bring home the offence against the
accused
by
reliable
evidence.
The
accused is entitled to the benefit of every
reasonable doubt. (Vide: Tukaram &
Anr. v. The State of Maharashtra,, AIR
1979 SC 185; and Uday v. State of
Karnataka, AIR 2003 SC 1639).

24. Prosecution has to prove its
case beyond reasonable doubt and
cannot take support from the weakness of
the case of defence. There must be proper
legal evidence and material on record to
record the conviction of the accused.
Conviction can be based on sole
testimony of the prosecutrix provided it
lends
assurance
of
her
testimony.
However, in case the court has reason
not to accept the version of prosecutrix
on its face value, it may look for
corroboration. In case the evidence is
514 INDIAN LAW REPORTS ALLAHABAD SERIES
read in its totality and the story projected
by the prosecutrix is found to be
improbable,
the
prosecutrix
case
becomes liable to be rejected.

The
court
must
act
with
sensitivity and appreciate the evidence in
totality of the background of the entire
case and not in the isolation. Even if the
prosecutrix is of easy virtue/unchaste
woman
that
itself
cannot
be
a
determinative factor and the court is
required to adjudicate whether the
accused committed rape on the victim on
the occasion complained of."

18. It is imperative that to prove the
offence of rape committed by accused,
testimony of the prosecutrix alone could
be made basis for conviction of the
accused persons unless there are some
compelling
reasons
for
seeking
corroboration.
In
several
decisions,
Hon'ble
Supreme
Court
has
laid
emphasis on the testimony of the
prosecutrix unless something can be
inferred adverse to the conclusion of
conviction. In the matter in State of
Punjab vs. Gurmit Singh and Others,
reported in (1996) 2 SCC 384, wherein
prosecutrix aged about 16 years was
abducted and raped, Hon'ble Supreme
Court expounded importance of the
testimony of the victim in paragraph 8 of
the judgment. The relevant portion of
paragraph 8 is being reproduced below :

"8.
............................The
testimony of the victim in such cases is
vital and unless there are compelling
reasons which necessitate looking for
corroboration of her statement, the
courts should find no difficulty to act on
the testimony of a victim of sexual assault
alone to convict an accused where her
testimony inspires confidence and is
found
to
be
reliable.
Seeking
corroboration of her statement before
relying upon the same, as a rule, in such
cases amounts to adding insult to injury.
Why should the evidence of a girl of a
woman who complains of rape or sexual
molestation, be viewed with doubt,
disbelief or suspicion? The Court while
appreciating
the
evidence
of
a
prosecutrix may look for some assurance
of her statement to satisfy its judicial
conscience, since she is a witness who is
interested in the outcome of the charge
levelled by her, but there is no
requirement of law to insist upon
corroboration of her statement to base
conviction of an accused. The evidence of
a victim of sexual assault stands almost
at par with the evidence of an injured
witness and to an extent is even more
reliable. Just as a witness who has
sustained some injury in the occurrence,
which is not found to be self inflicted, is
considered to be a good witness in the
sense that he is least likely to shield the
real culprit, the evidence of a victim of a
sexual offence is entitled to great weight,
absence
of
corroboration
notwithstanding. Corroborative evidence
is not an imperative component of
judicial credence in every case of rape.
Corroboration as a condition for judicial
reliance
on
the
testimony
of
the
prosecutrix is not a requirement of law
but a guidance of prudence under given
circumstances. It must not be over-looked
that a woman or a girl subjected to
sexual assault is not an accomplice to the
crime but is a victim of another persons's
lust and it is improper and undesirable to
test her evidence with a certain amount
of suspicion, treating her as if she were
an accomplice. Inferences have to be
drawn from a given set of facts and
circumstances with realistic diversity and
8 All. Smt. Sugara @ Subara Vs. State of U.P. & Ors.
515
not dead uniformity lest that type of
rigidity in the shape of rule of law is
introduced through a new form of
testimonial tyranny making justice a
casualty. Courts cannot cling to a fossil
formula and insist upon corroboration
even if, taken as a whole, the case spoken
of by the victim of sex crime strikes the
judicial mind as probable. In State of
Maharashtra
Vs.
Chandraprakash
Kewalchand Jain (1990 (1) SCC 550)
Ahmadi, J. (as the Lord Chief Justice
then was) speaking for the Bench
summarised the position in the following
words:

"A prosecutrix of a sex offence
cannot be put on par with an accomplice.
She is in fact a victim of the crime. The
Evidence Act nowhere says that her
evidence cannot be accepted unless it is
corroborated in material particulars. She
is undoubtedly a competent witness
under Section 118 and her evidence must
receive the same weight as is attached to
an injured in cases of physical violence.
The same degree of care and caution
must attach in the evaluation of her
evidence as in the case of an injured
complainant or witness and no more.
What is necessary is that the court must
be alive to and conscious of the fact that
it is dealing with the evidence of a person
who is interested in the outcome of the
charge levelled by her. If the court keeps
this in mind and feels satisfied that it can
act on the evidence of the prosecutrix,
there is no rule of law or practice
incorporated in the Evidence Act similar
to illustration (b) to Section 114 which
requires it to look for corroboration. If
for some reason the court is hesitant to
place implicit reliance on the testimony
of the prosecurtix it may look for
evidence which may lend assurance to
her testimony short of corroboration
required in the case of an accomplice.
The nature of evidence required to lend
assurance to the testimony of the
prosecutrix must necessarily depend on
the facts and circumstances of each case.
But if a prosecutrix is an adult and of full
understanding the court is entitled to
base a conviction of her evidence unless
the same is shown to be infirm and not
trustworthy.
If
the
totality
of
the
circumstances appearing on the record
of the case disclose that the prosecutrix
does not have a strong motive to falsely
involve the person charged, the court
should ordinarily have no hesitation in
accepting her evidence."

19. Further in the matter of Mohd.
Ali alias Guddu vs. State of U.P.
reported in (2015) 7 SCC 272, wherein
14 years age girl was abducted from
outside of her house and raped, Hon'ble
Supreme Court had given importance to
the deposition of prosecutrix. Paragraph
30 of said judgment is being reproduced
below :-

"30. True it is, the grammar of
law
permits
the
testimony
of
a
prosecutrix can be accepted without any
corroboration
without
material
particulars, for she has to be placed on a
higher pedestal than an injured witness,
but, a pregnant one, when a Court, on
studied scrutiny of the evidence finds it
difficult to accept the version of the
prosecutrix,
because
it
is
not
unreproachable, there is requirement for
search of such direct or circumstantial
evidence which would lend assurance to
her testimony. As the present case would
show, her testimony does not inspire
confidence,
and
the
circumstantial
evidence remotely do not lend any
support to the same. In the absence of
516 INDIAN LAW REPORTS ALLAHABAD SERIES
both, we are compelled to hold that the
learned trial Judge has erroneously
convicted the accused-appellants for the
alleged offences and the High Court has
fallen into error, without re-appreciating
the material on record, by giving the
stamp of approval to the same."

20. In the facts and circumstances
of the present case, deposition of the
prosecutrix/victim itself is under cloud
and
requires
corroboration.
Her
testimony cannot be made the solitary
basis to convict the accused persons for
commission of rape. Testimony of the
prosecutrix does not inspire confidence
and the circumstantial evidence remotely
do not lend any support to the same. It
cannot be said that the statement of the
victim
is
not
irreproachable
and,
therefore, there is a requirement for such
direct or circumstantial evidence which
would authenticate the testimony of the
prosecutrix. Unfortunately, deposition of
PW-1 is neither worthy of credibility nor
is corroborated by PWs-2 and 3. After
careful examination, the depositions of
PWs-2 and 3 are found explicitly
unreliable. Admission made by the
prosecutrix with regard to the criminal
litigation going on between the parties
shows mala fide intention of the
prosecution to rope in the accused
persons in a criminal case so that
pressure can be created upon them for
compromise.

21. While considering the scope of
interference in an appeal or revision
against acquittal, it has been held by the
Supreme Court that if two views on
appreciation
of
the
evidence
are
reasonably possible, one supporting the
acquittal and other indicating conviction,
the High Court should not, in such a
situation, reverse the order of acquittal
recorded by the Trial Court. In the matter
of
State
of
Karnataka
vs.
K.
Gopalkrishna reported in (2005) 9 SCC
291, the Hon'ble Supreme Court, while
dealing with an appeal against acquittal,
observed as under:

"In
such
an
appeal
the
Appellate Court does not lightly disturb
the findings of fact recorded by the Court
below. If on the basis of the same
evidence, two views are reasonably
possible, and the view favouring the
accused is accepted by the Court below,
that is sufficient for upholding the order
of acquittal. However, if the Appellate
Court comes to the conclusion that the
findings of the Court below are wholly
unreasonable or perverse and not based
on the evidence on record, or suffers
from
serious
illegality
including
ignorance or misreading of evidence on
record, the Appellate Court will be
justified in setting aside such an order of
acquittal."

22. In Sudershan Kumar v. State
of Himachal reported in (2014) 15 SCC
666,
the
Hon'ble
Supreme
Court
observed thus:-

"31. It has been stated and
restated that a cardinal principle in
criminal jurisprudence that presumption
of innocence of the accused is reinforced
by an order of the acquittal. The
appellate court, in such a case, would
interfere only for very substantial and
compelling reason. There is plethora of
case laws on this proposition and we
need not burden this judgment by
referring to those decisions. Our purpose
would be served by referring to one
reasoned
pronouncement
entitled
8 All. Smt. Sugara @ Subara Vs. State of U.P. & Ors.
517
Dhanapal v. State which is the judgment
where most of the earlier decisions
laying down the aforesaid principle are
referred to. In para 37, propositions laid
down in an earlier case are taken note of
as under:

"37. In Chandrappa v. State of
Karnataka reported in (2005) 9 SCC
291, this Court held:

(1) An appellate court has full
power to review, re-appreciate and
reconsider the evidence upon which the
order of acquittal is founded.

(2) The Code of Criminal
Procedure, 1973 puts no limitation,
restriction or condition on exercise of
such power and an appellate court on the
evidence before it may reach its own
conclusion, both on questions of fact and
of law.

(3) Various expressions, such
as, "substantial and compelling reasons",
"good and sufficient grounds", "very
strong
circumstances",
"distorted
conclusions", "glaring mistakes", etc. are
not intended to curtail extensive powers
of an appellate court in an appeal
against acquittal. Such phraseologies are
more in the nature of "flourishes of
language" to emphasise the reluctance of
an appellate court to interfere with
acquittal than to curtail the power of the
court to review the evidence and to come
to its own conclusion.

(4)
An
appellate
court,
however, must bear in mind that in case
of acquittal, there is double presumption
in favour of the accused. Firstly, the
presumption of innocence is available to
him under the fundamental principle of
criminal jurisprudence that every person
shall be presumed to be innocent unless
he is proved guilty by a competent court
of law. Secondly, the accused having
secured his acquittal, the presumption of
his innocence is further reinforced,
reaffirmed and strengthened by the trial
court.

(5)
If
two
reasonable
conclusions are possible on the basis of
the evidence on record, the appellate
court should not disturb the finding of
acquittal recorded by the trial court."

32. Thereafter, in para 39, the
Court curled out five principles and we
would like to reproduce the said para
here-under:

"39. The following principles
emerge from the cases above:

(1) The accused is presumed to
be innocent until proven guilty. The
accused possessed this presumption when
he was before the trial court. The trial
court's acquittal bolsters the presumption
that he is innocent.

(2) The power of reviewing
evidence is wide and the appellate court
can re-appreciate the entire evidence on
record. It can review the trial court's
conclusion with respect to both facts and
law, but the Appellate Court must give
due weight and consideration to the
decision of the trial court.

(3) The appellate court should
always keep in mind that the trial court
had the distinct advantage of watching
the demeanour of the witnesses. The trial
court is in a better position to evaluate
the credibility of the witnesses.

(4) The appellate court may
only overrule or otherwise disturb the
trial court's acquittal if it has "very
substantial and compelling reasons" for
doing so.
518 INDIAN LAW REPORTS ALLAHABAD SERIES

(5)
If
two
reasonable
or
possible views can be reached - one that
leads to acquittal, the other to conviction
- the High Courts/appellate courts must
rule in favour of the accused."

23. In Dilawar Singh v State of
Haryana, (2015) 1 SCC 737, the
Supreme Court reiterated the same in
paragraphs 36 and 37 as under:

"36. The court of appeal would
not ordinarily interfere with the order of
acquittal unless the approach is vitiated
by manifest illegality. In an appeal
against acquittal, this Court will not
interfere with an order of acquittal
merely because on the evaluation of the
evidence, a different plausible view may
arise and views taken by the courts below
is not correct. In other words, this Court
must come to the conclusion that the
views taken by the learned courts below,
while acquitting, cannot be the views of a
reasonable person on the material on
record."

24. After considering the facts and
circumstances of present case and perusal
of the impugned judgment and the record
filed by the appellant, we are of the
considered
view
and
reach
to
a
conclusion that by any stretch of
imagination it cannot be held that the
prosecution was not known to the
accused persons, prior to incident, who
are in fact in close relation and already
indulged in a previous criminal litigation.
In fact, it appears that the prosecutrix had
tried to frame the accused persons just to
create pressure upon them so that
criminal litigation going on between two
families could be compromised.

25. It cannot be said beyond
reasonable doubt that the victim was
subjected to sexual assault and accused
persons i.e. respondents 2, 3 and 4 are
directly involved in the commission of
such
crime.
There
is
scope
of
probabilities and the prosecution had
failed to discharge its onus to prove its
accusation. There is no proper evidence
and
material
on
record
and
the
surrounding circumstances to hold the
contesting respondents/accused guilty.

26. If the evidence of the
prosecutrix is read and considered in
totality of facts and circumstances of the
instant case, in which the crime is alleged
to have been commissioned, we are of
the view that the deposition of the
prosecution witnesses does not inspire
confidence of this Court. Evidence of the
prosecutrix is not worthy of credibility
and explicitly unreliable. Therefore, in
the present matter, statement of the
prosecutrix cannot be made the solitary
basis for conviction of the accused. There
is no substantial and compelling reasons
to reverse the order of acquittal passed by
the Trial Court.

27. The prosecution has not disclosed
the true genesis of crime. In such a situation
of fact, accused persons i.e. respondents 2, 3
and 4 are entitled to get benefit of doubt and
their innocence could easily be inferred.
Thus, we find no good ground to interfere in
the findings of fact returned by the Court
below in favour of the accused persons and
in our opinion, it should be accepted by this
Court.

28. As such, in the light of the
observations as made above, special
leave to appeal, as prayed, is hereby
refused. Consequently, present criminal
appeal is dismissed in limine.
----------
8 All. Muluwa & Anr. Vs. State of U.P.
519
(2020)08ILR A519
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.08.2020

BEFORE
THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Appeal No. 79 of 1991

Muluwa & Anr. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri S.K.Srivastava, Sri Vijay Bahadur
Shivhare.

Counsel for the Opposite Party:
A.G.A.

Criminal Law- Indian Penal Code, 1860-
Section 307/34.- Appeal against
conviction.

Delay in lodging F.I.R.-
Delay in lodging the FIR cannot be
ground to doubt the prosecution case.

Relative witness -
Relationship is not a factor to affect
the credibility of the witnesses. (Para - 17)

Minor contradiction -
Can be ignored if does not affect the
core of prosecution version.

The entire prosecution evidence, the
oral evidence of injured witness is not
corroborated with medical report. So the
evidence adduced by these witnesses are not
cogent and reliable and also does not inspire
confidence. (Para - 21)