# Sushil Sharma v. State of U.P

- **Citation:** (2013) 3 ILRA 1436
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-10-01
- **Case number:** Criminal Appeal No. 986 of 2010
- **Bench:** Anurag Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sushil-sharma-v-state-of-u-p-42721
- **Pages:** 7

## Headnote

Cr.P.C.-Section 374(2), 389-Appeal against
conviction-offence under section 376 IPCon
grounds
of
false
implication,
no
corboration of statements of victim and
delay
in
lodging
FIR-held-such
harm
physical and psychological is much more
harm than physical-where dignity of such
minor girl involve-delay in lodging FIR no
material-on day of accident victim was in
school copy of attendance register-not
proved by class teacher-not admissibleappeal no force-dismissed-conviction heldproper

Held: Para-16
From the evidence of prosecutrix P.W.2 it
is quite clear that the accused-appellant
committed sexual intercourse with her.
The age of the victim is very material. She
is a minor girl aged 12 years old. There is
no reason to falsely implicate any person
in such type of cases. The defence
evidence in this regard that accusedappellant was falsely implicated due to
enmity could not inspire much confidence.

Case Law discussed:
2004(7) SCC 775; 1990(11)1 SCC 550; 1983(3)
SCC 217.

## Text

1436 INDIAN LAW REPORTS ALLAHABAD SERIES
remitted to the appellate court to consider
the application of the defendants/State
afresh in the light of the judgments
mentioned hereinabove.

15. Thus, writ petition is allowed.

16. No order as to costs.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 01.10.2013

BEFORE
THE HON'BLE ANURAG KUMAR, J.

Criminal Appeal No. 986 of 2010

Sushil Sharma... Appellant
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Sri Piyush Kumar Mishra, Sri A.K. Tewari
Sri Jai Prakash Singh, Sri R.P. Mishra
Sri S.P. Singh Somvanshi, Sri Yashwant
Singh

Counsel for the Respondent:
Govt. Advocate

Cr.P.C.-Section 374(2), 389-Appeal against
conviction-offence under section 376 IPCon
grounds
of
false
implication,
no
corboration of statements of victim and
delay
in
lodging
FIR-held-such
harm
physical and psychological is much more
harm than physical-where dignity of such
minor girl involve-delay in lodging FIR no
material-on day of accident victim was in
school copy of attendance register-not
proved by class teacher-not admissibleappeal no force-dismissed-conviction heldproper

Held: Para-16
From the evidence of prosecutrix P.W.2 it
is quite clear that the accused-appellant
committed sexual intercourse with her.
The age of the victim is very material. She
is a minor girl aged 12 years old. There is
no reason to falsely implicate any person
in such type of cases. The defence
evidence in this regard that accusedappellant was falsely implicated due to
enmity could not inspire much confidence.

Case Law discussed:
2004(7) SCC 775; 1990(11)1 SCC 550; 1983(3)
SCC 217.

(Delivered by Hon'ble Anurag Kumar, J.)

1. This is an appeal preferred by the
accused-appellant Sushil Sharma under
Section 374(2) read with Section 389 of the
Criminal Procedure Code against the
judgment and order dated 27.3.2010 passed
by Additional Sessions Judge, Room No. 4,
District Pratapgarh in Sessions Trial No.
156 of 2008, arising out of case crime no.
128 of 2007 under Section 376 I.P.C.,
Police
Station
Mandhata,
District
Pratapgarh, convicting and sentencing the
accused-appellant under Section 376 I.P.C.
for seven years rigorous imprisonment and
a fine of Rs.5,000/- and in default of
payment of fine additional conviction of
two months.

2. Prosecution version in nutshell is
that on an application moved by the
informant Smt. Suman Sharma under
Section 156(3) Cr.P.C. on 5.5.2007 by
Court order F.I.R. was registered against the
accused-appellant Sushil Sharma under
Section 376 I.P.C. on 25.5.2007 at Police
Station Mandhata, District Pratapgarh with
the allegation that on 12.3.2007 when
informant went to her field for collecting
peas at 11.00 a.m. accused-appellant Sushil
Sharma went into the house of informant on
pretext that whether there is whey in the
house, he needs it, and committed sexual
intercourse with her daughter Km. Roshni
Sharma aged about 12-13 years, when her
daughter tried to shout, he closed her
3 All] Sushil Sharma Vs. State of U.P.
1437
mouth. On her return from the field her
daughter-victim narrated the whole story to
her.
Informant's
husband
was
at
Ahmadabad (Gujarat) in connection with
his livelihood. The informant told her
husband about the incident. Informant's
husband advised her to give information at
police station. Informant given a written
information on 15.3.2007 at police station
Mandhata. The F.I.R. was not registered
and only assurance was given to her that an
F.I.R. will be registered after enquiry but no
action was taken then she called her
husband and on 17.4.2007 after coming
from Ahmadabad her husband along with
informant went to police station Mandhata
on 18.4.2007 for lodging of the FIR even
then no action was taken, then an
application
was
given
to
Deputy
Superintendent of Police, Pratapgarh as
Superintendent of Police was not at the
station, even then no action was taken, then
application under Section 156(3) Cr.P.C.
was moved before the court concerned.
After registration of F.I.R. statement of
victim was recorded under Section 164
Cr.P.C. and victim was also examined by
the doctor and as per medical report her age
was about 12 years. After completion of
investigation charge-sheet was submitted
against the accused-appellant Sushil Sharma
under Section 376/511 I.P.C. The case was
committed by the Magistrate to the Court of
Sessions and charge under Section 376
I.P.C. was framed against the accusedappellant.

3. Prosecution examined P.W.1
Suman Sharma-informant, who proved
application under Section 156(3) Cr.P.C. as
Ext. Ka-1 and application to Deputy
Superintendent of Police as Ext. Ka-2, P.W.
2 Kumari Roshni Sharma victim, P.W. 3
Dr. R.S. Verma, who proved medical report
Ext. Ka-4, P.W. 4 Dr. Shail Prabha
Srivastava, who examined victim and
proved report Ext-Ka-5 and Supplementary
report Ext-Ka-6, P.W. 6 Constable Moharrir
Gaya Prasad Patel, who proved F.I.R. and
G.D. entry Ext. Ka-7 and Ka-8, P.W.7 S.I.
Virendra
Kumar
Singh,
Investigating
Officer of the case, who proved site plan
Ext. Ka-9, memo of taking victim into
custody Ext-Ka-10, memo of giving
custody of victim to informant as Ext. Ka11 and charge-sheet Ext. Ka-12.

4. Accused-appellant was examined
under Section 313 Cr.P.C. In the statement
recorded
under
Section
313
Cr.P.C.
accused-appellant denied the allegation and
said that he was falsely implicated due to
property dispute. At the time of incident
victim was in school and in fact, no such
incident took place. In defence accusedappellant examined D.W.1 Sri Har Prasad
Tripathi, principal of the school where
victim was studying, who proved copy of
attendance register Ext. Kha-1, D.W. 2 Sri
Harinath Singh, who is an witness of enmity
between parties.

5. Hearing the arguments of both
sides, learned trial court by his impugned
judgment and order dated 27.3.2010
convicted the accused-appellant under
Section 376 I.P.C. for seven years
rigorous imprisonment and a fine of
Rs.5,000/- and in default of payment of
fine two months imprisonment.

6. Aggrieved by the said judgment
present appeal has been filed by the
accused-appellant, mainly, on the ground
that applicant was convicted by the lower
court without appreciating the evidence
on record. There is a delay in lodging of
the first information report. No such
occurrence took place as victim was in
school at the time of incident.
1438 INDIAN LAW REPORTS ALLAHABAD SERIES

7. Heard Sri R.P. Mishra, learned
counsel for accused-appellant as well as
Sri
S.P.
Singh,
learned
Additional
Government Advocate for the State and
perused the lower court records.

8. In support of appeal learned
counsel for accused-appellant submitted
that
prosecution
version
is
highly
improbable. Accused-appellant was falsely
implicated due to enmity. There is a delay
of two months in lodging of the first
information report. Medical evidence did
not support the prosecution version. At the
time of incident victim was in school. There
is single testimony of victim in support of
prosecution case that too is not supported by
medical evidence and the evidence of the
prosecutrix-victim
lacks
confidence.
Learned Sessions Judge without sufficient
evidence
wrongly
held
the
accusedappellant guilty under Section 376 I.P.C.

9. Per-contra learned Additional
Government Advocate submitted that
prosecution fully proved its case beyond
all
reasonable
doubts.
He
further
submitted that a minor girl would not
tornish or damage her own reputation or
image merely because of a family dispute.
The accused-appellant voluntarily alleged
false implication that she had been raped.
From the evidence of the victim who is a
minor girl of 12 years old has no reason to
falsely implicate the accused-appellant.
Medical evidence is two and half months
after the incident and is not of much
value. The evidence of the victim alone is
sufficient to prove prosecution case.
Learned trial court after well discussion
rightly held the accused-appellant guilty
under Section 376 of the I.P.C.

10. As per prosecution case incident
was of 12.3.2007 and admittedly the F.I.R.
was registered on 22.5.2007, as such, there
is a delay of about two months and ten days
in lodging the F.I.R. The explanation given
by the prosecution is clear by the
application under Section 156(3) Cr.P.C. on
the basis of which F.I.R. was registered
against the accused-appellant. At the time of
incident the father of the victim was at
Ahmadabad (Gujarat) in connection with
his employment and the victim and her
mother alone were in the village. The
informant informed her husband, who
advised her to move an application at police
station Mandhata, district Pratapgarh. The
informant moved an application to the
police station concerned but no action was
taken and false assurance was given to her
that firstly they will enquire into the matter
and then they will lodge the F.I.R.
Informant called her husband and on his
arrival they again went to the police station
and when no action was taken then they
moved an application before Deputy
Superintendent of Police, Pratapgarh which
was proved as Ext. Ka-2. Even on that
application when no action was taken then
application under Section 156(3) Cr.P.C.
was moved, thus, the explanation given by
the prosecution is sufficient. In spite of
delay in lodging the F.I.R., in a case of
sexual assault delay is not of much value
because the dignity of a female was
involved in such type of cases.

11. The Hon'ble Apex Court in the
case of Sri Narayan Saha and another Vs.
State of Tripura [2004(7) Supreme Court
Cases 775] in para-5 held as under:

"5.We wish to first deal with the plea
relating to the delayed lodging of the
F.I.R. As held in a large number of cases,
mere delay in lodging the FIR is really of
no
consequence,
if
the
reason
is
explained. In the instant case, the
3 All] Sushil Sharma Vs. State of U.P.
1439
evidence of P.W.3, the victim and that of
her husband, P.W.4, clearly shows that
there was initial reluctance to report the
matter to the police by P.W.4. He, in fact,
had taken his wife to task for the incident
and had slapped her." Thus, the delay in
lodging
the
F.I.R.
was
reasonably
explained.

12. The next submission of learned
counsel for accused-appellant is that there
are major contradictions in the statement
of victim. There is no corroboration of her
evidence. Even the medical report did not
support the prosecution version. As per
statement of victim the accused-appellant
committed sexual intercourse for 2-3
minutes and the hymen of the victim was
found intact and as per evidence of P.W.4
Dr. Shail Prabha Srivastava, if there is
sexual intercourse for 2-3 minutes, hymen
must be torned. Victim in her statement
never
stated
that
accused-appellant
committed sexual intercourse with her for
2-3 minutes. She only stated that accusedappellant was lying over her for 2-3
minutes, which does not mean that for 2-3
minutes accused-appellant has committed
sexual intercourse with the victim. The
law is very clear in this respect that in a
case of rape prosecutrix complaining of
having been a victim of the offence of
rape is not an accomplice to the crime.
There is no rule of law that her testimony
cannot be acted without corroboration of
any material particulars. She stands at
higher pedestral then an injured witness in
the later case there is injury on the
physical form while in the former it is
both physical as well as psychological and
emotional.

13. In State of Maharashtra vs.
Chandraprakash Kewalchand Jain [1990(11)
1 SCC 550] it was held that "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 prosecutrix 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 on 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."

24. In 1996 SCC (Cri) 316, State of
Punjab vs. Gurmit Singh, the Hon'ble
1440 INDIAN LAW REPORTS ALLAHABAD SERIES
Apex Court made the following weighty
observations in paras 8 & 21.

"8......The
court
overlooked
the
situation in which a poor helpless minor girl
had found herself in the company of three
desperate young men who were threatening
her and preventing her from raising any
alarm. Again, if the investigating officer did
not conduct the investigation properly or was
negligent in not being able to trace out the
driver or the car, how can that become a
ground to discredit the testimony of the
prosecutrix? The prosecutrix had no control
over the investigating agency and the
negligence of an investigating officer could
not affect the credibility of the statement of
the prosecutrix.... The courts must, while
evaluating evidence remain alive to the fact
that in a case of rape, no self- respecting
woman would come forward in a court just
to make a humiliating statement against her
honour such as is involved in the
commission of rape on her. In cases
involving sexual molestation, supposed
considerations which have no material effect
on the veracity of the prosecution case or
even discrepancies in the statement of the
prosecutrix
should
not,
unless
the
discrepancies are such which are of fatal
nature, be allowed to throw out an otherwise
reliable
prosecution
case....
Seeking
corroboration of her statement before
replying upon the same as a rule, in such
cases, amounts to adding insult to injury....
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......

21.....The courts should examine the
broader probabilities of a case and not get
swayed by minor contradictions or
insignificant
discrepancies
in
the
statement of the prosecutrix, which are
not of a fatal nature, to throw out an
otherwise reliable prosecution case. If
evidence of the prosecutrix inspires
confidence, it must be relied upon without
seeking corroboration of her statement in
material particulars. If for some reason
the court finds it difficult to place implicit
reliance on her testimony, it may look for
evidence which may lend assurance to her
testimony, short of corroboration required
in the case of an accomplice. The
testimony of the prosecutrix must be
appreciated in the background of the
entire case and the trial court must be
alive to its responsibility and be sensitive
while dealing with cases involving sexual
molestations.

14. In Vijay Vs. State of M.P. 2010
(3) SCC (Cri) 639decided recently,
Hon'ble Apex Court referred to the above
two
decisions
of
this
Court
in
Chandraprakash Kewalchand Jain and
Gurmit Singh and also few other
decisions and observed as follows :

"14. Thus, the law that emerges on
the issue is to the effect that the statement
of the prosecutrix, if found to be worthy
of credence and reliable, requires no
corroboration. The court may convict the
accused on the sole testimony of the
prosecutrix."

15. Thus, the important thing that the
Court has to bear in mind that what is lost
by a victim held is this, the victim loses
value as a person. Ours is a conservative
society and, therefore, a woman and more
so a young unmarried woman will not put
her reputation in peril by alleging falsely
about forcible sexual assault. In examining
the evidence of the prosecutrix the courts
must be alive to the conditions prevalent in
the Indian society and must not be swayed
by beliefs in other countries.
3 All] Sushil Sharma Vs. State of U.P.
1441

16. From the evidence of prosecutrix
P.W.2 it is quite clear that the accusedappellant committed sexual intercourse with
her. The age of the victim is very material.
She is a minor girl aged 12 years old. There
is no reason to falsely implicate any person
in such type of cases. The defence evidence
in this regard that accused-appellant was
falsely implicated due to enmity could not
inspire much confidence.

17. The Hon'ble Apex Court in
Bharwada Bhoginbhai Hirjibhai Vs. State
of Gujarat [1983(3) SCC 217] in
paragraph-10 held as under:

"10. Without the fear of making too
wide a statements or of overstating the
case, it can be said that rarely will a girl
or a woman in India make false
allegations of sexual assault on account of
any such factor as has been just enlisted.
The statement is generally true in the
context of the urban as also rural Society.
It is also by and large true in the context
of the sophisticated, not so sophisticated,
and unsophisticated society. Only very
rarely can one conceivably come across
an exception or two and that too possibly
from amongst the urban elites. Because-

(1) A girl or a woman in the tradition
bound non- permissive Society of India
would be extremely reluctant even to
admit that any incident which is likely to
reflect on her chastity had ever occurred.

(2) She would be conscious of the
danger of being ostracized by the Society
or being looked down by the Society
including by her own family members,
relatives, friends and neighbours.

(3) She would have to brave the
whole world.

(4) She would face the risk of losing
the love and respect of her own husband
and near relatives, and of her matrimonial
home and happiness being shattered.

(5) If she is unmarried, she would
apprehend that it would be difficult to secure
an alliance with a suitable match from a
respectable or an acceptable family.

(6) It would almost inevitably and
almost invariably result in mental torture
and suffering to herself.

(7) The fear of being taunted by
others will always haunt her.

(8)
She
would
feel
extremely
embarrassed in relating the incident to
others being over powered by a feeling of
shame on account of the upbringing in a
tradition bound society where by and
large sex is taboo.

(9) The natural inclination would be
to avoid giving publicity to the incident
lest the family name and family honour is
brought into controversy.

(10) The parents of an unmarried girl
as also the husband and members of the
husband's family of a married woman
would also more often than not, want to
avoid publicity on account of the fear of
social stigma on the family name and
family honour.

(11) The fear of the victim herself
being considered to be promiscuous or in
some way responsible for the incident
regardless of her innocence.

(12)
The
reluctance
to
face
interrogation by the investigating agency, to
face the court, to face the cross examination
1442 INDIAN LAW REPORTS ALLAHABAD SERIES
by Counsel for the culprit, and the risk of
being disbelieved, acts as a deterrent."

18. The next contention of learned
counsel for appellant is that the victim was
in the school at the time of alleged incident
as she was studying in class-7th in Tikari
Babaganj Purva Madhyamik Vidyalaya.
The principal of the said school, D.W.1
proved the attendance register and as per
attendance register victim was present in the
school on the date and time of the alleged
occurrence and as such the said incident is
not possible.

19. D.W.1, who proved the attendance
register is the principal of the school and not
the class teacher of the said school. From his
evidence it is not clear that class teacher at
the relevant time of the class Sri Sheetla Bux,
who is alive and still working in the school
and why he was not produced as witness to
prove the attendance of the victim. As per
evidence of D.W.1 he has given evidence
only on the basis of entry in the attendance
register and he has no personal knowledge of
the presence of the victim on the said date
and time. From the perusal of the photostat
copy of the said attendance register it is clear
that all entries were filled up simultaneously
and the evidence of defence not clearly
proves that the victim was not present at the
place of incident and in fact she was in her
school. The defence totally failed to prove
that the victim was present in the school. The
entries in the attendance register is not
reliable and best witness who has personal
knowledge of the presence of the victim in
the school was not produced, thus, from the
above discussion, I do not find any force in
the said argument of the appellant counsel.

20. From the above discussion it is
quite clear that the appeal lacks merit and is
liable to be dismissed. It is accordingly
dismissed.

21. Let lower courts record along
with a copy of this judgment be send for
compliance and necessary action.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.10.2013

BEFORE
THE HON'BLE RITU RAJ AWASTHI, J.

First Appeal From Order No. 1376 of 2010

Union of India
 ...Appellant
Versus
Shiv Nath Singh & Ors. ...Respondents

Counsel for the Petitioner:
Sri Brijesh Kumar Shukla

Counsel for the Respondents:
Sri R.B. Verma
Motor Vehicle Act 1988-Section 163-A-Claim
petition-accident took place on collusion
between train and motor vehicle-accident
Tribunal fastened liability of 40% upon
railway-argument that railway is not motor
vehicle-accident
claim
tribunal-no
jurisdiction-held-misconceived-various
reason
disclosed-claim
petition
-held
maintainable appeal dismissed.
Held: Para-19
In the present case, it was the specific case
of the respondents-claimants, which has also
not been disputed by the present appellant,
that there were sufficient pleadings before
the Tribunal that there was negligence on
the part of driver of the motor vehicle as well
as railway administration and the learned
Tribunal has come to conclusion that there
was negligence on the part of Railway
Administration as well as driver of the motor
vehicle and the train, as such, I am of the
view that in view of the law laid down by the
Apex Court in the case of Union of India Vs.
Bhagwari Prasad and Others (supra) the
claim petition filed by the claimants was fully
maintainable.

Case
Law
discussed: