1 Neutral Citation No. - 2025:AHC-LKO:24949 Reserved On:- 30.01.2025 Delivered On:- 30.04.2025 Case :- CRIMINAL APPEAL No. - 579 of 2001 Appellant :- Sri Pal Respondent :- The State Of U.P. Counsel for Appellant :- Kr. Shanti Prakash,Adarsh Srivastava,Atma Ram Verma,Bal Keshwar Srivastava,Izhar Husain Siddiqui,K.M.Rakesh,O.P.Rastogi Counsel for Respondent :- Govt.Advocate Hon'ble Subhash Chandra Sharma,J. 1. Heard learned counsel for the appellant as well as learned A.G.A. and perused the material on record. 2. This criminal appeal has been filed against the judgment and order dated 25.07.2001 passed by learned Special Judge, N.D.P.S. Act, Lucknow in Sessions Trial No. 159 of 1995 arising out of Crime No. 292 of 1992, under Section 376 I.P.C., Police Station Mahanagar, District Lucknow. 3. Facts in brief are that on 08.06.1992 at about 4:15 a.m. the victim herself lodged an F.I.R. by giving Tehreer stating that in the night of 7/8.06.1992 she was sleeping on the roof of the quarter with her mother and father. About 12:30 ‘o’ clock in the night the appellant who lived adjacent to the quarter of the victim came on the roof and after tearing the underwear of the victim committed rape with her. When she cried, he threatened with knife and said if she cried he would inflict injury with knife. She felt something piercing. In the mean time, her parents awoke and the appellant went away from the spot. The incident was seen by her mother also. On the basis of aforesaid Tehreer Crime No. 292 of 1992 under Section 376 I.P.C. was registered at the police station. The 2 investigation of the case was handed over to S.I. Lakshiram. 4. The underwear worn by the victim at the time of the alleged incident was taken into possession by the I.O. on 08.06.1992 and fard was prepared. 5. The victim was sent for medical examination on 08.06.1992 and she was examined at 12 ‘o’ clock in the noon. In medical examination no mark of injury was found present on any part of body. In internal examination hymen was found oldtorn and healed up. Vagina admitted two fingers easily. No mark of injury was found on private parts. Vaginal smear was taken and sent for examination. 6. In Pathological report no spermatozoa and gonococci was seen. 7. Her medical age was found about 16 to 17 years. She was found to be used to sexual intercourse and no opinion about rape could be given by the doctor. 8. The accused appellant was also medically examined on the same day i.e. 08.06.1992. In medical examination no staining of blood, seminal fluid, no loss of part of clothes was found. In examination of genital organ it was found fully developed public hairs not clotted. No smagma was present on glands. No abrasion or bruise found present near the genital organ. No abrasion, contusion or laceration was present on the body. No blood, seminal or mud stains present all over body. No smell of alcohol coming out from mouth, no intoxication. In the opinion of doctor the appellant was not under drug or alcohol intoxication. There was no sign suggestive of struggle, specimen of hairs from scalp, chest and pubic and finger nails and its scratchings were collected but no further opinion could be given about rape. 9. The Investigating Officer recorded the statement of the victim, other witnesses and also prepared site plan after spot inspection. He found prima facie case established against the appellant under Section 376 I.P.C. and filed charge sheet after taking prosecution sanction with the 3 competent authority. 10. From the material collected during the course of investigation prima facie case was found to be established, as a result cognizance of offence under Section 376 I.P.C. was taken by the court concerned. 11. After making compliance of Section 207 Cr.P.C., the case was committed for trial before the court of Sessions where the trial court framed charges against the appellant u/s 376 I.P.C. which was read over and explained to the appellant who denied the charges and claimed for trial. 12. The prosecution examined, PW1, Smt Bano, mother of the victim; P.W. 2, the victim; P.W. 3, Constable Ashok Kumar Singh; PW-4, Dr. Madhu Nigam; PW 5, S.I. Raghav Ram Yadav. 13. After conclusion of prosecution evidence, statement of appellant/ accused person was recorded under Section 313 Cr.P.C. in which he denied the allegations and the evidence as recorded during trial against him and contended about the incident to be false and implicated falsely since he objected the informant and the victim regarding her wrongful conduct. 14. In defence D.W. 1, Constable Shiv Ram was examined. 15. After hearing the arguments advanced by the prosecution as well as the defence and appreciating the evidence available on record the learned trial court passed the judgment and order dated 27.07.2001 convicting and sentencing the appellant under Section 376 I.P.C. with rigorous imprisonment for a period of seven years and fine Rs. 5,000/- against which this appeal has been preferred. 16. It is argued by learned counsel for the appellant that in this case appellant is innocent and has falsely been implicated. The victim and her family was living adjacent to the quarter of the appellant. He objected about the wrongful conduct of the victim that was the reason present case was lodged against him with false allegations for committing rape with 4 her. It is further argued that the incident is said to have taken place at about 12:30 A.M. in the night on the roof when she was lying asleep with her parents and two brothers whereas rape cannot be possible to be committed with the victim in presence of her parents and two brothers when they were lying beside her and they could not know about the incident and were sleeping on the same bed sheet with same cover sheet. On the other hand, the victim has not mentioned in the F.I.R. as to how the rape was committed by the appellant with her. Only one word has been mentioned that she felt something piercing her and she cried on which her mother and father awoke and the appellant fled away. She has also mentioned in the F.I.R. that her underwear was torn by the appellant and rape was committed by the appellant by force but during her examination before court she told that she did not see the appellant tearing her underwear. When she cried her mouth was shut by the appellant at the point of knife. In medical examination no any external or internal injury was found on the person of the victim to suggest that rape was committed with her. On her clothes no any blood or semen specimens were found during pathological examination. Her underwear was also not found to be torn. The doctor conducting medico-legal examination has also not opined about commission of rape with her. She clearly stated that hymen was old, torn and healed. There was no any injury on her private part and she was used to sexual intercourse. It also shows that no rape was committed with her instantly by the appellant. In medical examination of the appellant which was conducted on the same day nothing was found to be suggestive of commission of rape with the victim. In this way, the whole prosecution version proves to be false and the incident of rape cannot be said to be established beyond reasonable doubt. The judgment and sentence as recorded by the learned trial court cannot be said to be based on proper appreciation of evidence, therefore, it being perverse is liable to be set aside and appeal to be allowed. 17. Learned A.G.A. vehemently opposed the arguments raised by 5 learned counsel for the appellant and contended that in this case the appellant was living in a quarter adjacent to the victim and the informant. When she was lying asleep on the roof of quarter with her parents appellant went there and at the point of knife committed rape with the victim regarding which F.I.R. was lodged promptly and medical examination of the victim was done. The victim herself stated before the learned trial court about the commission of rape by the appellant with her and her statement was supported by her mother who was examined as P.W. 1. Further contended that though no any injury was found on the person of the victim but it is not necessary in such cases that injury be present on her person. The underwear of the victim was taken into custody by the police which was found to be torn as stated by the victim. There was no any cause to implicate the appellant falsely in such a case but the victim narrated the prosecution version as happened with her before the learned court. There is nothing on record to prove the statement of the victim to be false and unreliable but the prosecution proved its case beyond reasonable doubt and the learned trial court also convicted and sentenced him which cannot be said to be illegal and beyond material on record but this appeal being devoid of merit is liable to be dismissed. 18. The Tehreer was written by the victim herself and proved as Exhibit Ka 1. The F.I.R. was lodged on the basis of Tehreer Exhibit Ka 1 on 7/8.06.1992 at 4:15 A.M. whereas incident is said to have taken place at about 12:30 A.M. in the night. During her cross-examination she stated that she lodged the F.I.R. in the morning at about 9 to 10 ‘o’ clock at the police station. In case it was lodged by her at 9 to 10 ‘o’ clock in the morning and the F.I.R. shows the time as 4:15 A.M., it may be ante-time. 19. As per version in F.I.R. rape was committed by the appellant with the victim and it is stated that the underwear of the victim was torn with knife by the appellant and rape was committed by him with her. She was taken for medical examination on 08.06.1992 and it was done at Women’s Hospital, Lucknow in which no any external or internal injury was found 6 on her person. Hymen was old torn and healed up. Vagina admitted two fingers easily. No mark of injury on her private part was found. Vaginal smear was also taken and sent for examination in which no any spermatozoa or gonococci was found to be present and in the opinion of the Medical Officer she was used to sexual intercourse and no opinion regarding rape could be given by the doctor. The medical report was also proved by the doctor, Smt. Madhu Nigam as P.W. 4, who conducted the medico-legal examination as Exhibit Ka 7 and 8. In this way, the medical report cannot be said to support the prosecution version regarding commission of rape with the victim. 20 Now, it is to be decided only on the basis of statement of the victim, P.W. 2 and her mother, P.W. 1 as to whether appellant committed rape with her on 7/8.06.1992 at about 12:30 A.M. in the night when she was lying asleep on the roof with her father and mother. 21. It is settled principle of law that in rape cases conviction can be held on the sole testimony of the victim herself if it inspires confidence and unless there exist compelling reasons for seeking corroboration. The Court is to see whether the evidence adduced by the prosecution particularly the testimony of the victim is trustworthy, credible and can be relied upon. 22. In the case of Raju Vs. State of M.P (2008) 15 SCC 133 it was ruled that the evidence of the prosecutrix in cases of rape, molestation and other physical outrages is to be construed to be that of an injured witness so much so that no corroboration is necessary, ruled that an accused must also be protected against the possibility of false implication. It was underlined that the testimony of the victim in such cases, though commands great weight but the same, cannot necessarily be universally and mechanically accepted to be free in all circumstances from embellishment and exaggeration. 23. The victim was examined before the learned trial court as P.W. 2 7 who stated that at 12:30 A.M. in the night she was lying asleep on the roof. In her right side brother Afroj was lying thereafter her mother and then her father were also lying. She was wearing white shirt and blue skirt. She was sleeping. All of sudden she felt someone lying on her. She awoke and saw that the accused/appellant was committing rape with her who was holding knife in his right hand and threatened to stab if she cried. Further she stated that she felt something was piercing at her urinal place which she could not bear and she cried. Her mother woke up and struck on the hip of the accused who ran away. She saw her underwear torn. After the commission of incident she went with her mother, father to M.T.O. and narrated the story to him, he referred her to S.S.P. and then to Mahanagar Police Station where she lodged F.I.R. 24. In her cross examination she stated that accused entered his genital into her genital and this continued till five minutes. The accused took knife in one hand and pressed her mouth with other hand. There are other quarters annexed to her quarter. Other persons were also lying on their roofs. The quarter of Shivram is adjacent to her. He was also lying on his roof but on her cry he did not come and no other person from the quarters came there. She also stated that her father, mother and two brothers were also lying beside her. 25. P.W. 1, mother of the victim stated that on 07/08.06.1992 at about 12:30 A.M. she, her husband, daughter (victim), son Afroj were lying together. Younger son Soab was lying underneath. When her daughter cried they woke up and saw that accused was committing rape with her and he had knife in his right hand and by pressing her mouth, he was committing rape. He also tore the underwear. When they cried, the accused went away. 26. In her cross examination she stated that on the date of occurrence she was lying with her husband, daughter and son on a single bed sheet and there was single bed sheet for covering. All the four persons were lying on that bed sheet. Right side her husband and left side her daughter 8 (the victim), all of them were lying compact, side by side. Before the daughter cried, she was sleeping. As soon as she awoke, the accused went away. When she saw him, he was bent. She did not see the accused while tearing the underwear. It was already torn. Again she said, when she awoke, daughter was lying and she lifted her and took her in the quarter. 27. D.W.1 Shivram, said to be lying on the roof of his quarter adjacent to the roof where victim was lying, was also examined as D.W. 1. He stated that the conduct of father, mother and the victim herself was not good. Outsider young boys used to come in their quarter and atmosphere was becoming worse, that was the reason complaints were made to authorities as a result the quarter of the victim was changed. He stated that he was also lying on the roof of his quarter with his family but he did not hear any cry. In the morning police came and called the accused to police station. This witness is not related to the accused appellant but an independent person and also working as constable in the same police department with the father of the victim and the appellant. 28. From the testimony of the victim, P.W.2, her mother P.W. 1 and Shivram D.W. 1, it transpires that: (i) The victim was lying asleep on the roof with her mother, father and two brothers together on the same bed sheet and also the same cover sheet. (ii) The D.W. 1 Shivram was also sleeping on his roof adjacent to the roof where victim and others were sleeping. (iii) The appellant committed rape with the victim, entered his genital into the genital of the victim and remained still for five minutes and he had a knife in one hand and with the other he kept mouth of the victim pressed. (iv) In the mean time the three members of the family of the victim were lying asleep and did not awake. (v) Thereafter she cried and her mother awoke and the appellant 9 went away. (vi) D.W.1 Shivram, who was also lying on the adjacent roof with his family, did not hear any cry, likewise other persons lying on the roofs of adjacent quarters also did not approach the place of occurrence in the night. (vii) Shivram, the neighbour’s statement that the victim’s character being not good, young boys used to come in her house and complaints were made by the appellant in this regard to authorities. (viii) In medical examination no any external or internal injury was found on the person of the victim including her private part. There was no any sign indicating rape with her. Even pathology report was also negative. In the opinion of doctor she was used to sexual intercourse. (ix) The victim as well as her mother did not see the appellant while tearing the underwear, which she was wearing at that time but P.W. 1, the mother stated it to be already torn which also falsifies the version that the appellant tore the underwear with knife. 29. All these factors, when taken together, do not inspire confidence about the statement of the victim in relation to the incident said to be committed by the appellant and there is no any other evidence on record to support the allegations. Even medical report does also not corroborate the commission of incident. As a result, this Court is of the view that the prosecution could not prove its case beyond reasonable doubt and the conviction of sentence as recorded by the learned trial court is not proper but it failed to appreciate the evidence on record, therefore, it cannot sustain in the eye of law and is liable to set aside. 30. Thus, this appeal is allowed. The appellant is acquitted of the charges under Section 376 I.P.C. 31. He is on bail. He need not to surrender. His bail bonds are cancelled and sureties are discharged. 10 32. Record be sent back to the learned trial court for compliance. Order Date :- 30.04.2025 Suraj Srivastav (Subhash Chandra Sharma, J.) Digitally signed by :- SURAJ SRIVASTAVA High Court of Judicature at Allahabad