# Zaheer v. State of U.P

- **Citation:** (2022) 8 ILRA 668
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-03
- **Case number:** Criminal Appeal No.1100 of 2010
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/zaheer-v-state-of-u-p-48931
- **Pages:** 14

## Headnote

Criminal Law- Indian Penal Code,1860-
Sections 376 & 354 - The medical
examination of the victim ''x' (Ext. Ka. 2)
shows redness and mild swelling present
at 6 O'clock position of the hymen; small
tear at 6 O'clock position; and vagina
admits tip of finger with extreme pain. At
the same time, it also transpires from the
medical report that victim ''x' was having
difficulty in walking, which also finds
corroboration with the evidence of victim
''x' (P.W.2) as well as P.W.1 as they had
stated in clear terms that after committing
rape against the victim ''x', she went to
home
limping.
Further,
P.W.3-Reeta
Raman
had
stated
in
her
crossexamination that hymen of the victim ''x'
was torn and hymen would also be torn in
the case of rape. It is apparent from the
testimonies of P.W.2-victim ''x' that the
victim ''x' has fully supported the case of
the prosecution. She has been consistent
right from the very beginning. Nothing has
been specifically pointed out why her
testimony should not be believed. Even
after thorough cross-examination, she has
stood by what she has stated and has fully
8 All. Zaheer Vs. State of U.P.
669
supported the case of the prosecution - No
reason to doubt the credibility and/or
trustworthiness of the victim ''x'-Both of
them i.e. P.W.1 and P.W.2 had no rancour
or ill-will against the convict/appellant
Zaheer and in this view of the matter
would not have falsely deposed against
him.

Where the testimony of the victim is consistent
and cogent and the same is corroborated by
other evidence as well as medical evidence and
where there is no reason for the victim to falsely
implicate the accused, then the said evidence
can be safely relied upon for convicting the
accused.

Indian Evidence Act, 1872- Section 134- No
other independent witnesses have been
examined and/or supported the case of the
prosecution and the conviction on the basis
of the testimonies of P.W.1-Surja Devi,
who happened to be maternal grandmother of the victim ''x' and interested and
partisan witness as well as testimony of
P.W.2-victim ''x' cannot be sustained, is
concerned, the same has no substance. In
cases
involving
sexual
harassment,
molestation, etc. the court is duty-bound to
deal
with
such
cases
with
utmost
sensitivity.
Minor
contradictions
or
insignificant discrepancies in the statement
of a prosecutrix should not be a ground for
throwing
out
an
otherwise
reliable
prosecution case. Evidence of the victim of
sexual assault is enough for conviction and
it does not require any corroboration
unless there are compelling reasons for
seeking corroboration. The court may look
for some assurances of her statement to
satisfy judicial conscience. The statement
of the prosecutrix is more reliable than that
of an injured witness as she is not an
accomplice. The Apex Court further held
that the delay in filing FIR for sexual
offence
may
not
be
even
properly
explained, but if found natural, the accused
cannot be given any benefit thereof.

Settled law that it is the quality of evidence and
not the quantity that is relevant. Where the
testimony of the victim is consistent and inspires
the confidence of the court, then the same is in
itself sufficient to secure the conviction of the
accused without seeking further corroboration.
(Para 32, 35)

Criminal Appeal Rejected. (E-3)

Judgements/ Case law relied upon:-

## Text

_Characters 0–39,931 of 47,079. This is a partial read: ask again with offset=39931 for what follows._

668 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased. Hence from the above analysis, it
is clear that the prosecution has proved that
the deceased was killed by Kali Prasad by
assaulting her in her stomach which was
supported by the post mortem examination
wherein severe injury in her small intestine
was
found
and
when
she
became
unconscious she was hanged, (as the doctor
has clearly written in the post mortem
examination report that, it was a 'PostMortem'
hanging).
As
far
as
the
involvement of Raj Patti and Parsu Ram are
concerned their involvement in the killing
of the deceased could not be proved beyond
reasonable doubt for the reason that only
one severe injury in the intestine of the
deceased was found. Hence they deserve to
be given the benefit of doubt.

20. Hence to sum up the conviction
and sentence awarded to Parsu Ram and
Raj Patti is hereby set aside. In the result,
the Criminal Appeal No.1024 of 2018 is
dismissed and Criminal Appeal No.525 of
2018 is hereby allowed.

21. The appellant Kali Prasad is
already in jail. He shall serve out the
sentence awarded by the trial court. The
convicts/appellants Parsu Ram and Raj
Patti are already on bail by the order of this
Court. Their bail bonds are cancelled and
sureties are discharged.

22. The convicts/appellants Parsu
Ram and Raj Patti are directed to file
personal bonds and two sureties each in the
like amount to the satisfaction of the court
concerned in compliance with Section 437A of Cr.P.C.

23. Office is directed to send a copy
of this order along with lower court record
to the trial court concerned for necessary
information and compliance forthwith.
----------
(2022) 8 ILRA 668
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 03.08.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Appeal No.1100 of 2010

Zaheer ....Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri
Mohammad
Naseerullah,
Sri
Ajai
Sharma, Sri Vimal Kumar Pandey

Counsel for the Opposite Party:
G.A.

Criminal Law- Indian Penal Code,1860-
Sections 376 & 354 - The medical
examination of the victim ''x' (Ext. Ka. 2)
shows redness and mild swelling present
at 6 O'clock position of the hymen; small
tear at 6 O'clock position; and vagina
admits tip of finger with extreme pain. At
the same time, it also transpires from the
medical report that victim ''x' was having
difficulty in walking, which also finds
corroboration with the evidence of victim
''x' (P.W.2) as well as P.W.1 as they had
stated in clear terms that after committing
rape against the victim ''x', she went to
home
limping.
Further,
P.W.3-Reeta
Raman
had
stated
in
her
crossexamination that hymen of the victim ''x'
was torn and hymen would also be torn in
the case of rape. It is apparent from the
testimonies of P.W.2-victim ''x' that the
victim ''x' has fully supported the case of
the prosecution. She has been consistent
right from the very beginning. Nothing has
been specifically pointed out why her
testimony should not be believed. Even
after thorough cross-examination, she has
stood by what she has stated and has fully
8 All. Zaheer Vs. State of U.P.
669
supported the case of the prosecution - No
reason to doubt the credibility and/or
trustworthiness of the victim ''x'-Both of
them i.e. P.W.1 and P.W.2 had no rancour
or ill-will against the convict/appellant
Zaheer and in this view of the matter
would not have falsely deposed against
him.

Where the testimony of the victim is consistent
and cogent and the same is corroborated by
other evidence as well as medical evidence and
where there is no reason for the victim to falsely
implicate the accused, then the said evidence
can be safely relied upon for convicting the
accused.

Indian Evidence Act, 1872- Section 134- No
other independent witnesses have been
examined and/or supported the case of the
prosecution and the conviction on the basis
of the testimonies of P.W.1-Surja Devi,
who happened to be maternal grandmother of the victim ''x' and interested and
partisan witness as well as testimony of
P.W.2-victim ''x' cannot be sustained, is
concerned, the same has no substance. In
cases
involving
sexual
harassment,
molestation, etc. the court is duty-bound to
deal
with
such
cases
with
utmost
sensitivity.
Minor
contradictions
or
insignificant discrepancies in the statement
of a prosecutrix should not be a ground for
throwing
out
an
otherwise
reliable
prosecution case. Evidence of the victim of
sexual assault is enough for conviction and
it does not require any corroboration
unless there are compelling reasons for
seeking corroboration. The court may look
for some assurances of her statement to
satisfy judicial conscience. The statement
of the prosecutrix is more reliable than that
of an injured witness as she is not an
accomplice. The Apex Court further held
that the delay in filing FIR for sexual
offence
may
not
be
even
properly
explained, but if found natural, the accused
cannot be given any benefit thereof.

Settled law that it is the quality of evidence and
not the quantity that is relevant. Where the
testimony of the victim is consistent and inspires
the confidence of the court, then the same is in
itself sufficient to secure the conviction of the
accused without seeking further corroboration.
(Para 32, 35)

Criminal Appeal Rejected. (E-3)

Judgements/ Case law relied upon:-

1. Santosh Kumar Vs St. of M.P. : 2006 (8) JT
SC 171

2. St. of Punj. Vs Gurmit Singh : (1996) 2 SCC
384
(Delivered by Hon'ble Ramesh Sinha, J.)

(A) INTRODUCTION

(1) Accused, Zaheer, was tried by the
Additional District & Sessions Judge/Fast
Track, Court No.3, Raebareli, in Sessions
Trial No. 277 of 2001 : State Vs. Zaheer,
arising out of Case Crime No. 16 of 2001,
under Sections 376, 354 I.P.C. and Sections
3(1)(xii), 3(2)(v), 3(1)(xi) of the Scheduled
Castes
and
the
Scheduled
Tribes
(Prevention of Atrocities) Act, 1989, Police
Station Khero, District Raebareli.

(2) Vide judgment and order dated
05.03.2010, the Additional District &
Sessions Judge/Fast Track, Court No.3,
Raebareli, acquitted the accused, Zaheer,
for the offence punishable under Section 3
(1)(xii) of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities)
Act, 1989 (hereinafter referred to as
"S.C./S.T.
Act")
and
convicted
and
sentenced him in the manner as stated
hereinbelow :-

i. Under section 376 I.P.C. read
with Section 3 (2) (v) of the S.C./S.T. Act
to undergo life imprisonment and fine of
Rs.10,000/-. In default of fine to undergo
additional one year simple imprisonment;
670 INDIAN LAW REPORTS ALLAHABAD SERIES

ii. Under section 354 I.P.C. to
undergo two years' R.I. and fine of
Rs.2000/-. In default of fine to undergo
additional
two
months
simple
imprisonment.

iii. Under section 3(1) (XI) of the
S.C./S.T. Act to undergo six months' R.I.
and fine of Rs.2000/-. In default of fine to
undergo additional one month's simple
imprisonment.

All the sentences were directed to
run concurrently.

(3)

Feeling
aggrieved
by
his
conviction and sentence by means of the
aforesaid
impugned
order
dated
05.03.2010, the convict/ appellant, Zaheer,
has preferred the instant criminal appeal.

(4) In view of the judgments of the
Apex Court in Bhupinder Sharma vs. State
of Himachal Pradesh : (2003) 8 SCC 551
and Nipun Saxena and anothers vs. Union
of India and others : 2018 SCC Online
2772, the name of the victim is not being
mentioned. She is transcribed as victim 'x'
in the judgment hereinafter.

(B) FACTUAL MATRIX

(5) Shortly stated, the prosecution
case runs as under :-

The informant P.W.1-Smt. Surja
Devi
was
the
resident
of
village
Vasinpurwa,
Jahripur
Mirdaha,
police
station Khero, district Raebareli. Her
grand-daughter, victim ''x', aged about 8
years was living with her. On 10.01.2001,
her grand-daughter, victim ''x', went to
graze the cow towards Khajuha pond
situated in eastern side of the village and at
about
05:00
p.m.,
Zaheer
(convict/appellant), on finding her granddaughter (victim ''x') alone, caught her;
denuded her; and put his finger on her
private part, however, she managed to
return to home. She stated cryingly, about
the incident to her (informant) and her
family
members
about
the
aforesaid
incident.

(6) Thereafter, informant P.W.1-Surja
Devi got the FIR scribed from some
person, who after scribing it read it over to
her. She thereafter affixed her thumb
impression on it. She then proceeded to
Police Station Khero, District Raebareli
and lodged it. On the basis of the aforesaid
written report (Ext. Ka.1), an F.I.R. (Ext.
Ka.8), bearing Case Crime No. 16 of 2001,
under Sections 354 I.P.C. and Section 3 (1)
(x) of the S.C./S.T. Act was registered on
10.01.2001, at 08:20 p.m. against the
convict/appellant Zaheer at police station
Khero, district Raebareli, which was
situated at a distance of two kilometers
from the place of the incident. A perusal of
the F.I.R. shows that the facts mentioned in
the preceding paragraph were stated
therein.

(7) The investigation of the case was
conducted by P.W.4-Awadhesh Saran, who,
in his examination-in-chief, had deposed
before the trial Court that on 10.01.2001,
he was posted as Circle Officer, Lalganj.
He conducted the investigation of the case.
On 11.01.2001, he recorded the statement
of Constable Abdul Kalam, informant
P.W.1-Smt. Surja Devi, P.W.2-victim ''x',
Smt. Hira Devi, Kalawati, Takhurdeen and
had also inspected the place of occurrence.
On 12.01.2001, he recorded the statement
of accused Zaheer. On 13.01.2001, he
copied the medical examination of victim
''x' in paper no. 3; recorded the statement of
8 All. Zaheer Vs. State of U.P.
671
witnesses
Raj
Kumar,
Kalludin
Mohammad; and sent the sealed clothes of
victim ''x' received from Dr. Rita Raman
(P.W.3) for chemical examination. On
24.01.2001, he copied the pathological
report in paper no.4. On 12.02.2001, as
incriminating evidence was found against
the accused Zaheer, he filed charge-sheet
against him under Sections 354, 376 I.P.C.
and Sections 3 (1) (xii) of the S.C./S.T. Act
before the Court. He proved the site plan
(Ext. Ka. 6) and charge-sheet (Ext. Ka.7).
He also proved the chik F.I.R. written by
Constable Moharrir Abdul Kalam as Ext.
Ka.8.

In
cross-examination,
P.W.4-
Awadhesh Saran had deposed before the
trial Court that he recorded the statement of
Surja Devi (P.W.1), Hira Devi and victim
''x' on 11.01.2001 at about 05:00 p.m. in
their village. On that date, the victim ''x'
was not admitted to any hospital. In the
statement of victim ''x', ''penetrating his
penis by the accused' was mentioned but it
was not mentioned that the accused had
penetrated. In the whole statement of
victim ''x', the fact of penetration of penis
even a little bit has not been mentioned. He
further deposed that when the victim ''x', in
her statement, stated that the accused
started penetrating his penis inside her
vagina, then, she shouted and after that
victim ''x' had trouble in walking and blood
was oozing out. In these circumstances, he
added Section 376 I.P.C. He further
deposed that in the statements of witnesses
recorded under Section 161 Cr.P.C., no
instance of rape has been made out. The
victim ''x' had not stated in her statement
that she was unconscious for half an hour.
He denied that victim ''x' was unconscious
for two days. He was not told by the victim
''x' that the accused had held her mouth by
hand. He deposed that the victim ''x' did not
come to the police station in the state of
unconsciousness. On the said date, Hira,
Surja Devi (informant) and victim ''x' came
at the police station and on seeing the
victim ''x', it transpired that there was no
mark of scratch or grievous injuries on her
person. He did not record the statement of
other children who were grazing their
animals on that day. He went to the place of
occurrence on the next date i.e. on
11.01.2011 and he met with victim ''x'. He
inspected the place of occurrence on the
pointing out of victim ''x' and Hira Devi.
He recorded the statement Surja Devi
(P.W.1) twice. In the second statement,
Surja Devi (P.W.1) declined the occurrence
of rape with the victim ''x'. Hira Devi had
also stated in her statement that victim ''x'
did not tell her about occurrence of rape
with her. He recorded the statement of
victim ''x' at her house on 11.01.2011. He
denied that he recorded the statement of the
victim ''x' during her admission in hospital.
He also denied that he developed a case of
rape on the pressure of Village Pradhan
even after no incident of rape occurred. He
further deposed that he saw the medical
report but he did not record the statement
of doctor who conducted the medical
examination of victim ''x'. In the report, no
opinion of rape was mentioned.

(8) The medical examination of
victim ''x' was conducted on 11.01.2001 at
05:15 p.m. in Women's Hospital, Raebareli
by Dr. Reeta Raman (P.W.3), who found the
following injuries on her (victim ''x') person
:-

"Examination
:-
Height
47
inches, weight 20 kg. Teeth 12/12 space for
molass present in upper and lower jaws.
Child was having difficulty in walking.
Auxiliary and pubic hair absent. Breast not
yet started developing. No mark of injury
672 INDIAN LAW REPORTS ALLAHABAD SERIES
present over the external surface of the
body.

Internal
Examination
:-
Redness and mild swelling present at 6
O'clock position of the hymen. Small tear
at 6 O'clock position. No fresh bleeding,
vagina admits tip of finger with extreme
pain. Smear slid was made and sent to
Pathologist District Hospital Raebareli for
determination of any spermatozoa. There
was no bleeding or discharge over her
private parts. Her undergarments and a
cloth was sealed and sent for forensic
examination. For determination of her age,
she is being sent to Radiologist District
Hospital for X-ray of both elbow and wrist
joint."

(9) It is significant to mention here
that P.W.3-Dr. Reeta Raman had reiterated
the aforesaid medical examination in her
statement before the trial Court and had
also stated that on receipt of report of x-ray
and
vaginal
smear,
she
prepared
a
supplementary report on 18.01.2001. In the
report No. 1/12.01.2001 of the vaginal
smear, it has been mentioned that no sperm
was present. After perusing the x-ray
report, she opined that the victim ''x' was
aged about 8 years and her injuries were 24
hours old and it was caused with blunt
objects. She further deposed that injuries
could be caused by penis. She further stated
that if a person penetrates his penis in the
vagina of the victim, then, the injuries
could be attributable. She proved the
medical report (Ext. Ka.2), supplementary
report (Ext. Ka.3) and pathology report
(Ext. Ka.5). She deposed that injuries could
be attributable on 10.01.2001 at 05:00 p.m.

In cross-examination, P.W.3 had
deposed that there was no report with
regard to rape in her report. She deposed
that if any girl sat in the field for urinating
and if the thooth ( one of the hard grass) of
the field was blunt, then, these injuries
could be attributable. The injuries could be
attributable on 10.01.2001 in the afternoon
and it could not occur in the morning. She
further deposed that in this case, the
Hymen was found torn and in the case of
rape also, hymen is found torn.

(10) The evidence of P.W.5-Dr. D.K.
Mishra shows that on 12.01.2001, he was
posted as Radiologist in District Hospital,
Raebareli. On the said date, he conducted
the x-ray of victim ''x', who was brought by
C.P.55 Shyma Devi of Police Line,
Raebareli. He proved the x-ray report (Ext.
Ka.10).

In cross-examination, P.W.5-Dr.
D.K. Mishra had deposed that victim ''x'
was referred by Dr. Reeta Raman (P.W.3)
on 11.01.2001 for x-ray. On 12.01.2001,
victim ''x' was brought before him for x-ray
and he conducted the x-ray of the victim on
12.01.2001. The victim ''x' came before
him in a good condition and she had no
problem.

(11) The case was committed to the
Court of Sessions in the usual manner
where the convict/appellant was charged
for the offences mentioned in paragraph-1
hereinabove., to which he pleaded not
guilty and claimed to be tried.

(12) During trial, the prosecution in
order to substantiate its case, examined five
witnesses viz. informant P.W.1-Smt. Surja
Devi, who is the maternal grand-mother of
the victim ''x', P.W.2-victim ''x' herself,
P.W.3-Dr. Reeta Raman, who conducted the
medical examination of victim ''x', P.W.4Awadhesh Saran, who conducted the
investigation of the case and P.W.5-Dr.
8 All. Zaheer Vs. State of U.P.
673
D.K. Mishra, who conducted the x-ray of
the victim ''x'.

(13) P.W.1-Smt. Surja Devi, who is
the informant of the case and maternal
grand-mother of the victim ''x', had deposed
in her examination-in-chief before the trial
Court that she was an illiterate lady and she
belongs to pasi community. At the time of
the incident, her grand-daughter, victim ''x',
aged about 8 years was living with her. On
the date of the incident, at about 05:00
p.m., her grand-daughter, victim ''x', went
to graze her cow towards Khajuha village
situated in eastern side of her village,
wherein accused Zaheer on finding her
grand-daughter alone caught her; untied the
string of her paijama; and started fingering
her urethra which caused bleeding to her.
When her grand-daughter started shouting,
the convict/appellant fled away from there.
When the cow reached home, she started
looking for her grand-daughter from the
house and she noticed that her granddaughter
(victim
''x')
was
limping.
Thereafter, she picked up her grand
daughter in lap and carried home from a
distance of one furlong. Blood was oozing
out from her private part. Her granddaughter (victim ''x') told her about this
incident in the house. She proved the
written report (Ext. Ka. 1). She further
deposed that after the incident, the police
had interrogated her and also inspected the
place
of
occurrence.
The
medical
examination of her grand-daughter was
conducted at Raebareli Hospital.

In cross-examination, P.W.1 had
stated that she went to lodge the report at
07:00 p.m. as none of her family members
were there on the date of the incident. She
deposed that she knew Anwar Pradhan.
Before fifteen days of the incident, the
election of Pradhan was held, in which
Anwar won the election and Israr lost the
election. Accused Zahir was with Israr in
the said election, whereas she supported
Anwar. She further deposed that after the
incident, she went to the house of Anwar
Pradhan along with her grand-daughter
victim ''x' but he did not extend any help.

P.W.1 had further deposed that
the Inspector came for investigation. She
did not show the place of occurrence to the
Inspector. She was at home with her
granddaughter (victim ''x'). The Inspector
interrogated the people of her village in her
presence but none of them had supported
the incident. She did not ask from the
children who also were grazing their
animals along with her grand-daughter
because the children fled away from there.
Apart from these children, she did not
inquire about the incident from any person
of the village. She went to the place of the
incident after 4-6 days of the incident. She
further deposed that after lodging the
report, she received the compensation from
the Government.

(14)

P.W.2-victim
''x',
in
her
examination-in-chief, had deposed before
the trial Court that her father had died
earlier. She, while living in the house of her
maternal grand-mother Surja Devi (P.W.1),
was studying in Class-II at Khajuria Bodh
Private School. The incident occurred eight
years ago at 05:00 p.m. On that date, there
was holiday in her school. She went for
grazing cow towards pond situated in the
eastern direction of her village, wherein
Zaheer (convict/appellant) was also grazing
his cow. She knew Zaheer prior to the
incident as he used to visit her village
usually. It was the time for the sun to set.
Zaheer (convict/appellant), who sat on the
med (boundary of the field), called her,
upon which she went to him. Thereafter,
674 INDIAN LAW REPORTS ALLAHABAD SERIES
first of all, Zaheer (convict/appellant)
rubbed her cheeks; after that, untied her
paijama's string; touched her urethra; and
started fingering her urethra. Thereafter,
Zaheer (convict/accused) removed her
salwar and laid her inside the ditch adjacent
to med (boundary of the field) and started
penetrating his penis inside her urethera.
She further deposed that when Zaheer
started to penetrate his penis into her
urethra, she felt lot of pain and blood was
also oozing out, on which she started
screaming. Her cow had also gone along
with the cow of Zaheer (convict/appellant).
She identified the convict/appellant Zaheer
in Court and had stated that he was the
person who committed rape on her. She
went towards her house limping and when
she reached near the village, she met her
maternal
grand-mother
(P.W.1)
and
narrated the whole incident to her (grandmother P.W.1) while crying, whereafter, her
maternal grand-mother (P.W.1) carried her
in lap. She identified the salwar (Ext. .2)
which she wore on the date of the
occurrence, in the trial Court. Zaheer
(convict/appellant) had penetrated his penis
to her urethra a little bit but when bleeding
started, he fled away from there. Zaheer
(convict/appellant) had committed bad
things on finding her alone.

In
cross-examination,
P.W.2victim ''x' had deposed before the trial
Court that when she was aged about three
years, her father died. Her grandmother had
four daughters, namely, Ram Dulari, Ram
Piyari, Hira and Kalawati. Her mother's
name is Ram Piyari. After death of her
father, her mother got married again but she
did not know the person to whom she was
married. She got unconscious after the
incident for about one hour or half an hour.
After
an
hour,
when
she
gained
consciousness, she went towards her house.
When she walked a little bit, her mausi
(aunt) came and carried her in lap. The
place of the incident was at a distance of 34 bighas from her house. The place of the
incident was in the eastern direction from
her house. Her house was situated after 1020 houses from the place of the incident.
When she walked 2-3 steps, her mausi
(aunt) came and when her mausi (aunt) met
her, she was conscious. After the incident,
she was brought to Raebareli Hospital for
medical examination, wherein she was
admitted for 2-3 days and her maternal
grand-mother was along with her. Her
treatment was going on.

(15)

The
statement
of
convict/appellant Zaheer was recorded
under Section 313 Cr.P.C. In his statement,
convict/appellant Zaheer had denied the
allegations levelled against him and had
stated that when victim ''x' went to collect
cow dung, the cow kicked her, as a
consequence of which, she fell down. He
did not know where she sustained injuries.
He further stated that Pradhan Anwar
demanded Rs.5000/- from him but when he
refused to do so, Anwar had falsely
implicated him in the instant case. From the
side of the convict/appellant, Furkan Khan
and Kallu were examined as D.W.1 and
D.W.2, respectively, by the trial Court.

(16) D.W.1 Furkan Khan, in his
examination-in-chief, had stated that the
alleged incident was about nine years old
i.e. in the year 2001. Before fifteen days of
the incident, the election of Gram Pradhan
was held. Israr and Anwar were the
candidates in the said election. In the said
election, convict/appellant Zaheer was with
Israr and was on the polling booth, Anwar
had assaulted Zaheer and threatened him
that after winning of election, he would be
falsely implicated in a case. Surja Devi
8 All. Zaheer Vs. State of U.P.
675
(P.W.1) was in support of Anwar. The said
election of Pradhan was won by Anwar.
Thereafter, Anwar, on account of enmity
and with the connivance of police, had
falsely implicated Zahir (convict/appellant)
in the instant case. He and all the villagers
knew that the injury caused to the victim ''x'
was on account of either falling down
getting hit by cow or because of sitting up
straight in the field for easing herself.
Zaheer (convict/appellant) was not on spot
and the victim ''x' had also not stated in her
statement at her house, village and police
station that accused had tried to rape her.

In cross-examination, D.W.1 had
stated that he knew that Surja Devi (P.W.1)
had lodged report against Zaheer. The said
report was scribed by Anwar, who was
present there. He (D.W.1) was also present
there and was standing outside. He denied
that he had falsely deposed at the instance
of convict/appellant Zaheer.

(17) D.W.2 Kallu, in his examinationin-chief, had deposed that the alleged
incident was 9 years old. Before fifteen
days of the incident, the election of
Pradhan was held. Israr and Anwar were
the candidates in the said election. Zaheer
(convict/appellant) was in the support of
Israr. On the date of the election, Anwar
had assaulted Zaheer in his presence at
polling station and threatened him that after
winning of election, he would falsely
implicate him in a case. Anwar won the
election of Pradhan. Thereafter, on account
of enmity and with the connivance of
police, a false case had been lodged against
the convict/appellant Zaheer at the instance
of Anwar. The injury caused to victim ''x'
was on account of falling down after being
kicked by cow or sitting in the field for
urinating. On the date of the incident,
Zaheer was not present there.

(18) The learned trial Court believed
the evidence of prosecution i.e. P.W.1-Smt.
Surja Devi, P.W.2-victim ''x' as well as
medical
evidence
and
came
to
the
conclusion
that
there
was
sufficient
evidence warranting the conviction of the
appellant for the offence punishable under
sections 376 I.P.C. read with Section 3 (2)
(v) of S.C/S.T. Act, Section 354 I.P.C. and
Section 3 (1) (xi) of the S.C./S.T. Act and
accordingly convicted and sentenced him
thereunder by means of the impugned
judgment and order dated 05.03.2010.

(19) Hence the instant appeal.

(C) ARGUMENTS

(20) Heard Shri Vimal Kumar Pandey,
learned Counsel for the convict/appellant,
Shri Prabhat Adhaulia, learned Additional
Government
Advocate
for
the
respondent/State and perused the lower
Court record as well as impugned judgment
and order dated 05.03.2010.

C.1.
ARGUMENTS
ON
BEHALF
OF
THE
CONVICT/
APPELLANT

(21) While challenging the impugned
judgment and order dated 05.03.2010,
learned Counsel for the convict/appellant
has argued :-

I. that Dr. Reeta Raman, who
medically examined victim ''x' on the next
day of the incident, did not give any
opinion of rape committed against victim
''x' and further no semen was reported to be
present in the seriologist report. He argued
that in the F.I.R., which was lodged by the
maternal grand-mother of the victim ''x'
(P.W.1),
it
has
been
alleged
that
convict/appellant Zaheer had entered his
676 INDIAN LAW REPORTS ALLAHABAD SERIES
finger into the private part of the victim ''x'.
At that time, there was no allegation of rape
upon the convict/appellant and as such, the
F.I.R. against the appellant was lodged
under Section 354 I.P.C. and Section 3 (1)
(x) of S.C./S.T. Act. The victim ''x', for the
first time, had stated before the trial Court
that rape against her was committed by the
appellant. He argued that in the F.I.R.,
P.W.1-Surja Devi had stated that victim ''x'
had stated the whole factum of the incident
to her while reaching home. Therefore, his
submission is that if that being so, as to
why P.W.1-Surja Devi had only mentioned
in the F.I.R. that convict/appellant Zaheer
had entered his finger in the private parts of
the victim ''x', which itself shows that the
prosecution had intentionally cooked up the
story of rape committed against victim ''x'.
Thus, the entire story of the prosecution is
doubtful.

II. that no independent witnesses
have been examined by the prosecution.

III. that the informant of the
F.I.R. was maternal grand-mother of the
victim ''x', namely, Surja Devi (P.W.1). She
is not the eye-witness of the alleged
incident. The F.I.R. of the incident lodged
by P.W.1 is hearsay, therefore, allegations
made against the convict/appellant by
P.W.1 in the F.I.R. are frivolous one.

IV. that the trial Court materially
erred in not believing the testimonies of
D.W.1 and D.W.2, who categorically stated
that on the date of the alleged incident, the
convict/appellant was not present at the
place of occurrence and further the injuries
caused to the victim ''x' was on account of
kicks of cow or may be due to squatting on
the field for urinating. According to him,
the convict/appellant has been falsely
implicated in the instant case.

V. that P.W.3-Reeta Raman, who
conducted medical examination, did not
support the case of the prosecution that any
rape was committed with victim ''x'. There
was no allegation of rape against the
appellant in the F.I.R.

VI. Thus, it is prayed to allow the
present appeal.

C.2.
ARGUMENTS
ON
BEHALF OF THE RESPONDENT/
STATE

(22) Mr. Prabhat Adhaulia, learned
Counsel for the respondent/State has
vehemently
opposed
the
aforesaid
submissions of the learned Counsel for the
convict/appellant and argued :-

I. that in the present case, the trial
Court
has
rightly
convicted
the
convict/appellant for the offence under
Section 376 IPC read with Section 3 (2) (v)
of the S.C./S.T. Act, Section 354 I.P.C. and
Section 3 (1) (xi) of the S.C./S.T. Act by
means of the impugned order on relying
upon
the
testimony
of
prosecution
witnesses.

II. that there is no reason to doubt
the credibility and trustworthiness of the
victim ''x'. He argued that victim ''x' was
medically examined on next day of the
incident. The victim ''x' is consistent in her
evidence right from the very beginning and
even in the cross-examination also she has
stood by what she has stated and she has
fully supported the case of the prosecution.
Therefore, in the light of facts and
circumstances of the case, the conviction of
the appellant deserves to be confirmed.

III. that cogent reasons have been
given by the learned trial Court for not
8 All. Zaheer Vs. State of U.P.
677
believing the testimonies of D.W.1, D.W.2
as well as statement of the accused
recorded under Section 313 Cr.P.C. It is
specifically observed by the learned trial
Court that depositions of D.W.1, D.W.2 and
statement of the appellant recorded under
Section 313 Cr.P.C. does not inspire any
confidence.

IV. Thus, the present appeal is
liable to be dismissed.

D. ANALYSIS

(23)

We
have
examined
the
submissions of the learned counsel for the
respective parties at length and gone
through the impugned judgment and order
of conviction passed by the learned trial
Court as well as lower Court record.

(24) The F.I.R. of the incident was
promptly lodged. The incident occurred on
10.01.2001 at 05:00 p.m. and the F.I.R. was
lodged by P.W.1-Smt. Surja Devi, maternal
grand-mother
of
the victim
''x',
on
10.01.2001 at 08.20 p.m. The distance
between the police station Khero, district
Raebareli and place of occurrence was two
kilometers.

(25) The evidence of the informant
Smt. Surja Devi (P.W.1) shows that on
10.01.2001, her grand-daughter, victim ''x',
aged about 8 years, went to graze cow at
Khajuha village situated in eastern side of
her village, wherein her grand-daughter
(victim
''x')
met
with
Zaheer
(convict/appellant).
Thereafter,
Zaheer
caught her; untied string of her pajama; and
started fingering on her private part, upon
which blood was oozing out from her
private part. After that on her shouting,
convict/appellant ran away. She further
stated that when her grand-daughter was
coming home, she saw her grand-daughter
limping, thereupon she carried her in lap
and went to the house and at that time,
blood was oozing out from her private part.
After that, her grand-daughter narrated the
whole incident to her.

(26) The aforesaid testimonies of
P.W.1-Smt. Surja Devi were supported by
P.W.2-victim ''x' and in her statement
before the trial Court, P.W.2-victim ''x' had
deposed
that
she
knew
Zaheer
(convict/appellant) before the incident as he
came to his village usually. On the date of
the incident, she went to graze the cow near
the pond situated in the eastern side of the
village, where Zaheer (convict/appellant)
was also grazing his cow. It was the time
for the sun to set. Zahir (convict/appellant),
who sat on med (boundary of the field),
called her, upon which she went there.
After
that,
Zaheer
(convict/appellant)
rubbed her cheeks; untied string of her
paijama; touched her urethra; and started
fingering in her urethra. Thereafter, Zaheer
(convict/appellant) removed her salwar and
laid her inside the ditch adjacent to med
(boundary of the field) and started
penetrating his penis inside her urethera,
upon which she felt lot of pain and blood
was also oozing out. She, thereafter,
shouted, whereupon Zahir fled away. After
that she went to the house limping and
when she about to reach near the house, her
maternal grand-mother (P.W.1) met her,
then, she narrated the whole incident to her
maternal grand-mother while crying, then,
her maternal grand-mother carried her in
lap and went to her house.

(27) In our opinion, the evidence of
PW-1 Smt. Surja Devi and P.W.2-victim ''x'
inspire confidence and reliance can be
placed
on
it. There
are
no
major
discrepancies in their evidence. They have
678 INDIAN LAW REPORTS ALLAHABAD SERIES
stood the test of cross-examination very
well.

(28)

The
report
of
medical
examination (Ext. Ka.2) shows that the
medical examination of the victim ''x' was
conducted on the next date of the incident
i.e. on 11.01.2001 at 05:15 p.m. at Women's
Hospital, Raebareli by Dr. Reeta Raman
(P.W.3), who, after examination of victim
''x', has opined that victim ''x' was having
difficulty in walking; redness and mild
swelling present at 6 O'clock position of
hymen; small tear at 6 O'clock position; no
fresh bleeding; and vagina admits tip of
finger with extreme pain. The evidence of
P.W.3-Dr. Reeta Raman shows that the
injuries sustained by the victim ''x' was 24
hours old and it could be caused by blunt
object. She had further deposed that
injuries could be caused by penis and if
anyone penetrating his penis to the vagina
of the victim, these injuries could be
attributable. However, P.W.3 had deposed
in cross-examination that there is no report
of rape in her report. She further deposed
that if any girl sits for urinating in the field
and grass of the field is blunt, then, these
injuries could be caused. She further stated
in cross-examination that injuries could be
attributable on 10.01.2001 in the afternoon
and it was not in the morning. The hymen
was torn and hymen may be torned in the
case of rape. However, the report of the
Forensic Laboratory (Paper No.25 Ka)
shows that no semen was found in the
vaginal swab. However, human blood was
found on the salwar of the victim ''x'.

(29) Learned Counsel for the
convict/appellant, therefore, has contended
that Dr. Reeta Raman, who medically
examined victim ''x' on the next date of the
incident, did not find any rape committed
against victim ''x' and further as per
forensic report, no semen was present,
hence the prosecution case of rape
committed against the victim ''x' is
doubtful.

(30) At this juncture, it would be apt
to mention that in Santosh Kumar vs.
State of M.P. : 2006 (8) JT SC 171, the
Apex Court has held that :

"10. The question, which arises
for consideration, is whether the proved
facts establish the offence of rape. It is not
necessary for us to refer to various
authorities as the said question has been
examined in considerable detail in Madan
Gopal Kakkad v. Naval Dubey (1992) 3
SCC 204 and paras 37 to 39 of the said
judgment are being reproduced below:

37. We feel that it would be quite
appropriate, in this context, to reproduce
the opinion expressed by Modi in Medical
Jurisprudence and Toxicology (Twenty
First Edition) at page 369 which reads thus:

"Thus to constitute the offence of
rape it is not necessary that there should be
complete
penetration
of
penis
with
emission of semen and rupture of hymen.
Partial penetration of the penis within the
labia majora or the vulva or pudenda with
or without emission of semen or even an
attempt at penetration is quite sufficient for
the purpose of the law. It is therefore quite
possible to commit legally the offence of
rape without producing any injury to the
genitals or leaving any seminal stains. In
such a case the medical officer should
mention the negative facts in his report, but
should not give his opinion that no rape had
been committed. Rape is crime and not a
medical condition. Rape is a legal term and
not a diagnosis to be made by the medical
officer treating the victim. The only
8 All. Zaheer Vs. State of U.P.
679
statement that can be made by the medical
officer is that there is evidence of recent
sexual activity. Whether the rape has
occurred or not is a legal conclusion, not a
medical one."

38. In Parikhs Textbook of
Medical Jurisprudence and Toxicology, the
following passage is found:

"Sexual intercourse: In law, this
term is held to mean the slightest degree of
penetration of the vulva by the penis with
or without emission of semen. It is
therefore quite possible to commit legally
the offence of rape without producing any
injury to the genitals or leaving any seminal
stains."

39. In Encyclopedia of Crime and
Justice (Vol. 4) at page 1356, it is stated:

".......even slight penetration is
sufficient and emission is unnecessary. "

11. The medical examination
report of the victim shows that she received
injuries on front portion of the body and
also on her hands.

12. The mere fact that no
injuries were found on private parts of
her body cannot be a ground to hold that
no rape was committed upon her or that
the entire prosecution story is false. It
may be noted that Halki Bai is a married
grown up lady and in such circumstances
the absence of injuries on her private
parts is not of much significance."

 (Emphasis supplied)

(31) In the instant case, the medical
examination of the victim ''x' (Ext. Ka. 2)
shows redness and mild swelling present at
6 O'clock position of the hymen; small tear
at 6 O'clock position; and vagina admits tip
of finger with extreme pain. At the same
time, it also transpires from the medical
report that victim ''x' was having difficulty
in walking, which also finds corroboration
with the evidence of victim ''x' (P.W.2) as
well as P.W.1 as they had stated in clear
terms that after committing rape against the
victim ''x', she went to home limping.
Further, P.W.3-Reeta Raman had stated in
her cross-examination that hymen of the
victim ''x' was torn and hymen would also
be torn in the case of rape.

(32) Keeping in mind the aforesaid
medical evidence on record, this Court now
proceed to consider the evidence of the
victim ''x'. The victim ''x' is very clear in
her statement recorded before the trial
Court regarding her rape committed by the
convict/appellant. It is apparent from the
testimonies of P.W.2-victim ''x' that the
victim ''x' has fully supported the case of
the prosecution. She has been consistent
right from the very beginning. Nothing has
been specifically pointed out why her
testimony should not be believed. Even
after thorough cross-examination, she has
stood by what she has stated and has fully
supported the case of the prosecution. This
Court finds no reason to doubt the
credibility and/or trustworthiness of the
victim ''x'. We may also mention that both
of them i.e.