Rajesh Singh Rathore vs State Of U.P

HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
CRIMINAL APPEAL No. - 958 of 2018
Rajesh Singh Rathore
.....Appellant(s)
Versus
State Of U.P
.....Respondent(s)
Counsel for Appellant(s) : Kapil Dev Srivastava, Anita, Ashish
Kumar Singh, Pal Singh Yadav,
Prathama Singh, Rajeev Prakash Anand,
Sandeep Kumar Srivastava, Sharad Dixit,
Shivam Gupta
Counsel for Respondent(s) : G.A.
[A.F.R.]
Court No. - 14
HON'BLE SUBHASH VIDYARTHI, J.
1. Heard Shri Pal Singh Yadav, the learned counsel for the appellant and
Shri Mohd. Asif Khan, the learned AGA-I for the State.
2. By means of the instant appeal filed under Section 374 Cr.P.C., the
appellant has challenged the validity of a judgment and order dated
05.04.2018 passed by the Special Judge, POCSO Act/Additional District and
Sessions Judge, Court No.8, Lucknow in Session Trial No.869 of 2015 titled
State v. Rajesh Singh Rathore arising out of Case Crime No.259 of 2015
under Section 376 IPC and 5/6 of POCSO Act registered at Police Station-
Krishna Nagar, District- Lucknow.
3. The aforesaid case was instituted on the basis of an FIR lodged on the
basis of a written complaint given by the appellant's wife on 20.07.2015
stating that the appellant had repetitively committed the misdeed against her
daughter aged 9 years. The daughter had informed her that the appellant
commits penetrative intercourse and bites on her private parts.
4. In the statement of the victim recorded under Section 164 Cr.P.C., she
stated that her father (the appellant) used to insert his finger in her vagina.
She stated that blood was coming out of her vagina while urinating.
5. The medico-legal examination of the victim was conducted on 20.07.2015
itself at 05:00 PM. Swabs were collected for pathological examination and
clothes of the victim were sent to the Forensic Science Laboratory for

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examination. The medico-legal examination report mentions that there was
swelling and redness on vagina and on inner sides of thighs, hymen was torn
with old, healed tags of membrane were present and that the victim was
bleeding during urination. The pathological examination report did not
reveal presence of spermatozoa (dead or alive). The Forensic Science
Laboratory report mentions presence of blood on underwear of the victim.
6. The trial Court took cognizance of the offence and on 07.11.2015, the
charges were framed against the appellant for commission of the offence
under Section 376 IPC and 5/6 of Prevention of Children from Sexual
Offence, 2012 (hereinafter referred to as POCSO Act).
7. The informant was examined as PW-1. She stated that she got married to
the appellant in the year 2005. She lived for nine years in the house of her
parents with her husband and her children. In the year 2018, her mother got a
new house constructed in Sangam Vihar Colony, Krishna Nagar and gave
the same to her and thereafter she shifted in that house along with her
husband (the appellant), daughter and son. On 19.07.2015, her daughter was
crying and was frightened. Upon being asked, she informed that the
appellant commits the misdeed with her. He puts his penis in her mouth as
well as in her vagina. He did so on 19.07.2015 in a room situated on the
upper floor of the house. She further told that the appellant had bitten on her
vagina. PW-1 stated that there were bite marks on the vagina and there was
redness on that area.
8. During cross-examination, PW-1 stated that she got married in the year
2005. The daughter (the victim) was born in the year 2006. She stayed in her
sasural till chouthi ceremony, i.e., only for four days after the marriage.
Thereafter she lived in the house of her parents for about nine years. She
stated that she was physically handicapped whereas her husband (the
appellant) is an able-bodied person. She did not live in her sasural and she
lived in the house of her parents because she is physically handicapped. She
further stated that although the victim had not told her about the incident
prior to 19.07.2015, but she had told on several occasions that she
experienced pain in her private parts. She further stated that her husband was
working as a Bus driver on contractual basis. The relations between herself
and her husband were normal. Her husband used to bear the house-hold
expenses as per his capacity and her father also used to provide financial
assistance.
9. The victim was examined as PW-2. She stated that the appellant used to
put his penis in her vagina. She used to suffer pain and her father used to ask
her to hold him tightly to lessen the pain. Her father used to bite on her

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vagina. Some white discharge used to come out when her father did so. He
also used to put his penis in her mouth. This was done in a room situated on
the upper floor of the house. She also stated that when her father did so,
blood had come out from her vagina. When she used to suffer pain, her
father used to shut her mouth and threaten her.
10. During cross-examination, the victim stated that earlier she used to
reside in the house of her maternal grand-parents but thereafter they gave
them a new house and since then she was residing in the new house given by
her maternal grand-parents.
11. The informant's mother was examined as PW-3. She stated that the
appellant is her son-in-law. She has given a house in Krishna Nagar, Kanausi
to her daughter and her daughter had shifted to that house with her husband
and children in March 2013. She stated that her daughter had gone her to her
sasural after her wedding. She returned in chouthi (ceremonial visit to the
bride's paternal home on the fourth day after the marriage) and thereafter she
never went to her sasural. Her son-in-law (the appellant) started living with
her. PW-3 stated that she used to bear the expenses of the appellant. In the
year 2005, the appellant started working in the transport department on
contractual basis.
12. The Doctor who had medically examined the victim, was examined as
PW-4. She stated that the victim had told that the appellant had been making
sexual assault on her for the past about six months. The Doctor stated that
there were biting marks on the vulva of the child victim. She was bleeding
while urinating. The incident had taken place about 20-22 hours ago. The
vulva was swollen and there was redness in that area. The skin between the
thigh and the vagina was also red and this was possible by commission of
rape by use of force. Upon internal examination, swelling and redness was
found in urethra. Hymen was old torn and healed. She stated that as per the
radio-logical examination report, the age of the victim is about eight years.
The hymen of an eight years old child being old, torn and healed indicates
that forcible rape has been attempted on her several times.
13. The FIR writer was examined as PW-5 and the Investigating Officer has
been examined as PW-6.
14. In the statement recorded under Section 313 Cr.P.C., the appellant
denied the charges against him. He stated that his wife has falsely implicated
him because of disputes between them. He stated that he does not have to
lead any defence evidence.
15. After examining the entire material, the trial Court found that the

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prosecution has proved beyond reasonable doubt that the appellant has
committed aggravated sexual assault and rape against his own daughter aged
eight years. There was no substantial discrepancy in the evidence led by the
prosecution. Thus, the offences described in Section 5(k), 5(l), 5(m), 5(n) of
POCSO Act are made out.
16. Assailing validity of the aforesaid order, the learned Counsel for the
appellant has submitted that during examination under Section 313 Cr.P.C.,
questions were put to the appellant regarding commission of offence under
Section of 3/4 of the POCSO Act and no question was put regarding the
offence under Section 5/6 of the POCSO Act. Therefore, the appellant could
not be punished for the offence under Section 5/6 of POCSO Act.
17. Although question No.2 and question No.9 put to the appellant during
his examination under Section 313 Cr.P.C. mentioned Section 3/4 of
POCSO Act but the question No.1 specifically asks the appellant to place his
version regarding the prosecution evidence to the effect that the appellant
had repetitively committed rape against his nine years' old daughter. This
fact clearly makes out commission of offence under Section 5/6 of the
POCSO Act. During examination, the facts making out an offence are
required to be put to the accused. Mere non-mention of a particular Section
in the questions put during examination of the accused under Section 313
Cr.P.C. would not be of any material consequence. Similarly, question Nos.
4, 5, 6, 7 and 8 specifically required the appellant-accused to put his version
regarding the allegations which make out commission of offences under
Section 5 of the POCSO Act. Therefore, I find no force in the submission of
the learned counsel for the appellant that since the questions put to the
appellant under Section 313 Cr.P.C. did not make a mention of Section 5/6
of POCSO Act, the appellant could not be convicted and sentenced for the
aforesaid offence.
18. The learned counsel for the appellant has next submitted that although
the FSL report mentions presence of blood on the underwear of the victim,
the blood sample was not examined to ascertain as to whether the blood was
of the victim herself or not.
19. In this regard it is relevant to have a look at the law as explained by the
Hon'ble Supreme Court in Veerendra v. State of M.P. : (2022) 8 SCC 668,
wherein it was held that: -
"
46. There can be no doubt with respect to the position that a fair
investigation is necessary for a fair trial. Hence, it is the duty of
the investigating agency to protect the rights of both the accused
and the victim by adhering to the prescribed procedures in the
matter of investigation and thereby to ensure a fair, competent and

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effective investigation. Even while holding so, we cannot be
oblivious of the well-nigh settled position that solely on account of
defects or shortcomings in investigation an accused is not entitled
to get acquitted. In other words, it also cannot be the sole reason
for interference with a judgment of conviction if rest of the
evidence is cogent enough to sustain the same.
47. In the decision in Mir Mohammad Omar case [State of
W.B. v. Mir Mohammad Omar, (2000) 8 SCC 382], this Court
held:
" 41. … In our perception it is almost impossible to come across
a single case wherein the investigation was conducted
completely flawless or absolutely foolproof. The function of the
criminal courts should not be wasted in picking out the lapses in
investigation and by expressing unsavoury criticism against
investigating officers. If offenders are acquitted only on
account of flaws or defects in investigation, the cause of
criminal justice becomes the victim. Effort should be made by
courts to see that criminal justice is salvaged despite such
defects in investigation ."
(emphasis supplied by the Hon'ble Supreme Court)
48. In the context of the contentions it is more appropriate to refer
to the decision of this Court in Sunil v. State of M.P. [(2017) 4
SCC 393] It was a case of rape and murder of a four (4) year old
child. A three-Judge Bench held herein thus:
" 3. At the very outset, we deal with the arguments advanced on
behalf of the appellant that in the present case the report of DNA
testing of the samples of blood and spermatozoa under Section
53-A of the Criminal Procedure Code, 1973 has not been proved
by the prosecution. The prosecution has, therefore, failed to
prove its case beyond reasonable doubt. Reliance in this regard
has been placed on the decision of this Court in Krishan Kumar
Malik v. State of Haryana [(2011) 7 SCC 130].
4. From the provisions of Section 53-A of the Code and the
decision of this Court in Krishan Kumar [Krishan Kumar
Malik v. State of Haryana, (2011) 7 SCC 130 : (2011) 3 SCC
(Cri) 61] it does not follow that failure to conduct the DNA test
of the samples taken from the accused or prove the report of
DNA profiling as in the present case would necessarily result in
the failure of the prosecution case. As held in Krishan
Kumar (para 44), Section 53-A really "facilitates the prosecution
to prove its case". A positive result of the DNA test would
constitute clinching evidence against the accused if, however, the
result of the test is in the negative i.e. favouring the accused or if
DNA profiling had not been done in a given case, the weight of
the other materials and evidence on record will still have to be
considered. It is to the other materials brought on record by the
prosecution that we may now turn to."
*
53. In view of the nature of the provision under Section 53-ACrPC

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and the decisions referred to, we are also of the considered view
that the lapse or omission (purposeful or otherwise) to carry out
DNA profiling, by itself, cannot be permitted to decide the fate of a
trial for the offence of rape especially, when it is combined with
the commission of the offence of murder as in case of acquittal
only on account of such a flaw or defect in the investigation the
cause of criminal justice would become the victim. The upshot of
this discussion is that even if such a flaw had occurred in the
investigation in a given case, the court has still a duty to consider
whether the materials and evidence available on record before it,
are enough and cogent to prove the case of the prosecution. In a
case which rests on circumstantial evidence, the Court has to
consider whether, despite such a lapse, the various links in the
chain of circumstances form a complete chain pointing to the guilt
of the accused alone in exclusion of all hypothesis of innocence in
his favour."
(Emphasis added)
20. Non examination of blood sample present on the clothes of the victim for
the purpose of ascertaining to whom it belonged is not fatal to an otherwise
reliable, trustworthy and credible prosecution story which clearly establishes
the guilt of the accused beyond reasonable doubt. When the testimony of the
victim and her mother are read along with the medical report which show
injuries on her private parts and the testimony of the doctor who had
examined her, commission of rape by the appellant is clearly established. In
such a case, non-examination of the blood sample for corroboration does not
vitiate the prosecution's case.
21. In : (2025) 4 SCC 470, the Hon'ble Supreme
Lok Mal v. State of U.P.
Court held that: -
16. It is a settled principle of criminal jurisprudence that the
evidence of a prosecutrix in a case of rape is of the same value as
that of an injured witness and conviction can be made on the basis
of the sole testimony of the prosecutrix. In State of
Punjab v. Gurmit Singh [(1996) 2 SCC 384], the Supreme Court
observed as under:
" 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

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involving sexual molestations."
(emphasis supplied bu Hon'ble Supreme Court)
A profitable reference can also be made to Bharwada
17.
Bhoginbhai Hirjibhai v. State of Gujarat [(1983) 3 SCC 217]
where the Supreme Court observed as under: -
" 9. In the Indian setting, refusal to act on the testimony of a victim
of sexual assault in the absence of corroboration as a rule, is
adding insult to injury. Why should the evidence of the girl or the
woman who complains of rape or sexual molestation be viewed
with the aid of spectacles fitted with lenses tinged with doubt,
disbelief or suspicion?"
22. It is significant to note that the prosecution story in the present case does
not solely rest upon the victim's testimony. It is already supported by the
medical evidence including the doctor's statement regarding the happening
the alleged incident. In such a case, the non examination of the blood sample
does not weaken the prosecution's case.
23. The learned counsel for the appellant has lastly submitted that the
pathological examination report as well as the FSL report are negative for
presence of spermatozoa on the body of the victim as well as her clothes.
24. The victim had stated that her father used to wipe away the sperm by a
cloth. It is recorded in the medico-legal examination report that the medico-
legal examination was conducted after about 20-22 hours since the incident.
The victim had taken bath and had washed away her private parts. In these
circumstances, absence of sperms in the vaginal smear slides and clothes of
the victim would not be decisive.
25. The learned Counsel for the appellant has relied upon a judgment in the
case of Dilip v. State of M.P. : (2001) 9 SCC 452, wherein the prosecution
case was based solely on the testimony of the prosecutrix but the medical
evidence does not lend any positive corroboration to her testimony. The
Hon'ble Supreme Court held that: -
" 12. The law is well settled that the prosecutrix in a sexual offence
is not an accomplice and there is no rule of law that her testimony
cannot be acted upon and made the basis of conviction unless
corroborated in material particulars. However, the rule about the
admissibility of corroboration should be present to the mind of the
Judge. In State of H.P. v. Gian Chand [(2001) 6 SCC 71] on a
review of decisions of this Court, it was held that conviction for an
offence of rape can be based on the sole testimony of the
prosecutrix corroborated by medical evidence and other
circumstances such as the report of chemical examination etc., if
the same is found to be natural, trustworthy and worth being
relied on. This Court relied upon the following statement of law
from State of Punjab v. Gurmit Singh [(1996) 2 SCC 384] SCC

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(para 21):
" 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…."
In Madan Gopal Kakkad v. Naval Dubey [(1992) 3 SCC 204]
13.
this Court has held (vide para 23) that lack of oral corroboration
to that of a prosecutrix does not come in the way of a safe
conviction being recorded provided the evidence of the victim does
not suffer from any basic infirmity, and the "probabilities factor"
does not render it unworthy of credence, and that as a general
rule, corroboration cannot be insisted upon, except from the
medical evidence, where, having regard to the circumstances of
the case, medical evidence can be expected to be forthcoming."
26. The learned Counsel for the appellant has relied upon a judgment of the
Hon'ble Supreme Court in the case of Debraj Dutta v. State of W.B. : 2026
SCC OnLine SC 664, wherein it was held that " Unless the testimony of a
victim child is found to be fully credible and trustworthy, the question of
applying the presumption on the strength of such statement alone would not
However, in the present case, I have come to a conclusion that the
arise."
testimony of the child is fully credible and trustworthy and it is corroborated
by the medical evidence.
27. Therefore, the judgments in the cases of Dilip v. State of M.P. and
(supra) will not apply to the present case.
Debraj Dutta v. State of W.B.
28. The learned counsel for the appellant has relied upon a decision of this
Court in the case of Nirmal Kumar v. State of U.P .; 2026:AHC-
LKO:23345-DB. The prosecution case in that case was that father of the
victim had gone out in connection with work for about a week. His mentally
challenged daughter, aged about 14 years, was alone in the house. The
neighbour (appellant) enticed the victim to his house and raped her and
extended death threats to her. When the father returned to his house a day
before lodging of the FIR, his daughter informed him about the rape. On the
date of lodging of FIR the father had gone to Tehsil Rudauli. He returned to
his house at 4 p.m., by then, his daughter had died. The incident of rape was
of 20.09.2010. The FIR was lodged against the appellant for the offence
under Sections 376, 302, 506 IPC, on 23.09.2010. There was no direct
evidence to implicate the appellant for the offence punishable under Section

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376 IPC. The statement of the victim was not recorded either before the
police or the Magistrate prior to her death. As per the viscera report also,
cause of death could not be ascertained. After examining the facts of the
case, this Court held that in absence of any external injury to the body of the
victim or internal injury to the private part of the victim, rape per say may
not be proved. This judgment was given in light of the peculiar facts, where
the victim had not been examined and there was no other evidence to prove
the charge.
29. In the present case, there was injury on the private parts of the victim.
The Doctor had stated that hymen of an eight year old child can only be old,
torn and healed in case of repetitive penetration. There was swelling and
redness in urethra, vulva and the nearby region. Therefore, in the present
case it cannot be said that there was no other evidence of rape like in Nirmal
Kumar (Supra). In view of the factual differences in the case of Nirmal
Kumar (Supra) and the present case, the aforesaid observation made in
Kumar (Supra) will not apply to the present case.
Nirmal
30. The learned counsel for the appellant has further relied upon a decision
of the Hon'ble Supreme Court in the case of Gyanendra Singh @ Raja
Singh v. State of U.P. ; 2025 SCC OnLine SC 517 and has submitted that in
that case the Hon'ble Supreme Court has reduced the sentence and, therefore,
this Court should also reduce the sentence of the appellant.
31. In Gyanendra Singh (Supra), the Hon'ble Supreme Court had sentenced
the appellant to undergo imprisonment for life as awarded by the trial Court.
The Hon'ble Supreme Court had only done away with the stipulation that the
life term will be enured till the natural life of the appellant.
32. The learned counsel for the appellant lastly submitted that from the
prosecution evidence, merely an offence under Section 9(a)(n) of POCSO
Act is made out and, therefore, the punishment should be made under
Section 10 of the POCSO Act which extends to 7 years only.
33. Section 9(a)(n) of POCSO Act contains provision about sexual assault
being committed by a person who is related to the child through blood or
adoption or marriage or guardianship or in foster care, or having domestic
relationship with a parent of the child or who is living in the same or shared
household with the child. The term sexual assault is defined in Section 7 of
the POCSO Act, which is as follows: -
"
7. Sexual assault —Whoever, with sexual intent touches the
vagina, penis, anus or breast of the child or makes the child touch
the vagina, penis, anus or breast of such person or any other
person, or does any other act with sexual intent which involves

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physical contact without penetration is said to commit sexual
assault."
34. The allegation against the appellant is of committing aggravated
penetrative sexual assault as defined in Section 5(l),(m),(n),(p) of POCSO
Act. Therefore, the conviction cannot be altered to Section 9 of POCSO Act
and punishment cannot be reduced to Section 10 of POCSO Act.
35. In view of the foregoing discussion, I find no force in any submission of
the learned counsel for the appellant.
36. Having myself examined the entire record, I also could not find any error
or illegality in the impugned order dated 05.04.2018 passed by the Special
Judge, POCSO Act/Additional District and Sessions Judge, Court No.8,
Lucknow in Session Trial No.869 of 2015 arising out of Case Crime No.259
of 2015 under Section 376 IPC and 5/6 of POCSO Act registered at Police
Station- Krishna Nagar, District- Lucknow.
37. So far as the question of quantum of sentence is considered, Section 6 of
the POCSO Act provides a minimum sentence of imprisonment of 20 years
and the trial Court has awarded the minimum sentence to the appellant.
Therefore, there is no ground to reduce the sentence of the appellant.
38. In view of the foregoing discussion, the instant criminal appeal is
. The impugned order dated 05.04.2018 passed by the Special
dismissed
Judge, POCSO Act/Additional District and Sessions Judge, Court No.8,
Lucknow in Session Trial No.869 of 2015 arising out of Case Crime No.259
of 2015 under Section 376 IPC and 5/6 of POCSO Act registered at Police
Station- Krishna Nagar, District- Lucknow is affirmed.
April 22, 2026
-Amit K-
(Subhash Vidyarthi,J.)
Digitally signed by :-
AMIT KUMAR
High Court of Judicature at Allahabad,
Lucknow Bench