Sharief @ Gathiya vs State of U.P.

HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
CRIMINAL APPEAL No. - 753 of 2012
Sharief @ Gathiya
.....Appellant(s)
Versus
State of U.P.
.....Respondent(s)
Counsel for Appellant(s) : Santosh Kumar Srivastava
Counsel for Respondent(s) : Govt. Advocate
[A.F.R.]

Court No. - 14
HON'BLE SUBHASH VIDYARTHI, J.
1. Heard Shri Santosh Kumar Srivastava, the learned counsel for the
appellant and Shri G.D. Bhatt, the learned AGA-I for the State of U.P.
2. By means of the instant appeal, the appellant has challenged the validity
of a judgment and order dated 15.03.2012 passed by the learned Additional
Session Judge, Ambedkar Nagar in Session Trial No.80 of 2006 arising out
of Case Crime No.252 of 2005 under Sections 457, 323, 376 IPC, Police
Station Kotwali Akbarpur, District Ambedkar Nagar, whereby although the
trial Court has acquitted the appellants for the offence under Section 457 and
323 IPC, the appellant has been convicted for the offence under Section 376
IPC and he has been sentenced to undergo rigorous imprisonment for 7 years
and to pay Rs.2,000/- as fine.
3. Briefly stated, the facts of the case are that the victim herself had lodged
an FIR at 12:30 p.m. on 01.12.2005 stating that her husband works as a
labourer at Ludhiana and had not visited the home for the past nine months.
The complainant lives with her children. At about 01:00 a.m. on the previous
night while she was sleeping in her room along with her children, the
appellant entered her house by scaling the boundary wall and, thereafter, he
entered her room after breaking the window. The electric light was switched
on. The appellant shut her mouth, disrobed her and bit on her breast. The
complainant's daughter woke up. The appellant threatened her daughter and
raped the complainant. The complainant stated that she had suffered injuries
on her breast and thighs due to biting and beating. She further stated that she
did not come in the morning to lodge the FIR because of fear and she had
come in the afternoon with the help of some villagers. The complainant
stated that her age was 35 years.

CRLA No. 753 of 2012
2
4. The husband of village Pradhan was examined as PW-2. He stated that the
complainant had told him that the appellant had raped her. PW-3- Aadya
Prasad stated that the complainant was living in the village along with her
children and her husband was working at Ludhiana. PW-3 stated that on the
date of the incident, he was not in the village. PW-3 was declared hostile.
During cross-examination PW-3 stated that the complainant had four
children. The eldest was aged about 12-13 years at the time of the incident.
After the incident, the complainant went to Ludhiana along with her children
and did not return to the village.
5. The victim/complainant was examined as PW-4. She stated that the
appellant had forcibly disrobed and raped her and he had threatened her.
6. The Doctor, who had conducted the medico-legal examination of the
victim/complainant was examined as PW-5. She stated that no mark of
injury was found on the private parts of the complainant's body. She had
prepared two slides of vaginal swab and had sent the same for being
examined in the District Hospital, Faizabad. She stated that the complainant
is mother of five children and she could not say about commission of rape
with certainty.
7. The Investigating Officer was not examined because of his ailment and a
constable- Pairokar was examined as PW-6 who proved the site plan and the
other documents.
8. In the statement recorded under Section 313 Cr.P.C., the appellant denied
the allegations and stated that he has been falsely implicated as a part of a
conspiracy.
9. It was contended on behalf of the defence that the victim had stated during
her examination-in-chief that her daughter Pushpa had woke-up. The
daughter had been summoned to appear as a witness but on the prosecution's
application, examination of the daughter was discharged as she was merely 7
years of age. The trial Court held that non-examination of 7 years old
daughter of the complainant would not have adverse consequence on the
prosecution case.
10. The trial Court found that the statement of the victim (PW-4) that the
appellant had made physical relations against her wish and the confession
made by the defence that the appellant had made physical relations with her,
prove that the appellant had raped the victim.
11. The trial Court found that the charge of committing offence under
Section 457 Cr.P.C. was not proved. Further, as the medical examination

CRLA No. 753 of 2012
3
report does not mention any injury suffered by the victim charge for
commission of offence under Section 323 is also not proved.
12. Although it is correct that conviction for commission of rape can be
based on the sole testimony of a victim, but it can be done only where the
victim's testimony is of sterling quality and it inspires confidence. Where the
facts and circumstances of the case raise a doubt against the prosecution
case, conviction cannot be based on the solitary testimony of the victim.
13. In the present case, the victim stated that the appellant had bit on her
breast and thighs but this statement is not corroborated by the findings of the
medico-legal examination report, which revealed no injury on any part of the
victim's body.
14. The vaginal swab slides were sent for pathological examination, but the
pathological examination report has not been placed on record, from which it
appears that the report was not favourable to the prosecution and the
allegation of commission of rape is not corroborated by the medico-legal
examination report.
15. PW-5 has stated that the victim is a mother of five children. PW-3 has
stated that the victim had told her that she has four children, the eldest of
them was aged 12-13 years. The victim has stated that she was sleeping in a
room along with all the children in the night of the incident. As per the
victim, only one of her 4-5 children aged 7 years had woke up and the victim
had threatened her, rest of her four children, including the eldest child aged
12-13 years, continued to sleep peacefully in the same room where the
victim was allegedly being raped. It appears to be highly improbable that a
person would enter the room of a house, rape a woman aged 35 years by use
of force in presence of 4-5 children and all the children will continue to sleep
peacefully and the one child who woke up would not raise any hue and cry
or offer any resistance and no mark of injury or sign of use of force will
appear on her body. Absence of pathological examination report confirming
commission of rape is also a factor which raises a serious doubt against the
prosecution case.
16. Section 114 of the Evidence Act provides that the court may presume the
existence of any fact which it thinks likely to have happen, regarded being
had to the common course of natural events, human conduct, public and
private business in relation to the facts of the peculiar case. Illustration (g)
appended to Section 114 provides that the court may presume that evidence
which could be and is not produced would, if produced, be unfavourable to a
person who withholds it.

CRLA No. 753 of 2012
4
17. In Ritesh Chakarvarti v. State of M.P. : (2006) 12 SCC 321, the
Hon'ble Supreme Court held that An adverse inference can be drawn for
non-examination of material witnesses.
18. In : (2023) 19 SCC 229, the Hon'ble
Davinder Singh v. State of Punjab
Supreme Court referred to an earlier precedent on this point in the following
passage: -
" 9. On the issue of non-examination of material witness, we wish to
place reliance on the decision of this Court in Takhaji Hiraji v.
Thakore Kubersing Chamansing [(2001) 6 SCC 145]:
" 19. So is the case with the criticism levelled by the High Court on
the prosecution case finding fault therewith for non-examination
of independent witnesses. It is true that if a material witness, who
would unfold the genesis of the incident or an essential part of the
prosecution case, not convincingly brought to fore otherwise, or
where there is a gap or infirmity in the prosecution case which
could have been supplied or made good by examining a witness
who though available is not examined, the prosecution case can
be termed as suffering from a deficiency and withholding of such
a material witness would oblige the court to draw an adverse
inference against the prosecution by holding that if the witness
would have been examined it would not have supported the
prosecution case. On the other hand if already overwhelming
evidence is available and examination of other witnesses would
only be a repetition or duplication of the evidence already
adduced, non-examination of such other witnesses may not be
material. In such a case the court ought to scrutinise the worth of
the evidence adduced. The court of facts must ask itself. whether
in the facts and circumstances of the case, it was necessary to
examine such other witness, and if so, whether such witness was
available to be examined and yet was being withheld from the
court. If the answer be positive then only a question of drawing an
adverse inference may arise. If the witnesses already examined
are reliable and the testimony coming from their mouth is
unimpeachable the court can safely act upon it, uninfluenced by
the factum of non-examination of other witnesses."
19. Non-production of pathological examination report of the vaginal swab
and non-production of the victim's daughter who is said to have witnesses
the commission of rape, gives rise to a presumption that had the aforesaid
report and the witness been produced, the report and the testimony of the
witness would have been detrimental to the prosecution case.
20.The trial Court held that the suggestion given by the learned Counsel for
the accused-appellant during cross-examination of the victim, that she had
made physical relations with the appellant with her consent and after some
villagers saw the appellant coming out of her house, she falsely implicated
her, amounts to a confession that the appellant had made physical relations

CRLA No. 753 of 2012
5
with the victim and since the appellant failed to prove the victim's consent, it
is proved that he had raped her.
21. The trial Court noted that the victim had supported the FIR version.
During cross-examination, a suggestion was given to her that she had
developed an acquaintance with the appellant about 3-4 years ago and that
the appellant had repetitively been making physical relations with her
consent. At the night of the incident also, the appellant had entered her house
through the door and had spent 3-4 hours with the complainant. Three
villagers, namely, Sadru, Momin and Sharif had seen the appellant coming
out of the complainant's house and they had seen the complainant had come
to the door to see the appellant off. It was suggested that on the night of the
incident, the appellant had made physical relations with consent of the
complainant. However, all the aforesaid suggestions were denied by the
victim. The trial Court held that this suggestion amounts to a confession that
the appellant had made physical relations with the complainant and when the
complainant has alleged that the appellant had made physical relations
against her wishes and by use of force, the burden lies on the defence to
prove that the physical relation was made with consent of the victim.
22. The aforesaid reasoning given by the trial Court is perverse as a
suggestion given by a learned Counsel during cross-examination of a victim
cannot be taken as a confession made by the accused and no conviction can
be based treating the suggestion of the Counsel as the confession of the
accused.
23. In view of the foregoing discussion, I am of the considered view that the
prosecution has failed to established that the appellant has committed the
offence under Section 376 IPC. The trial Court has passed the order without
adverting to the aforesaid facts of the case which vitiates the trial Courts
order.
24. In view of the foregoing discussion, the appeal is allowed . The order
dated 15.03.2012 passed by the learned Additional Sessions Judge,
Ambedkar Nagar in Session Trial No.80 of 2006 arising out of Case Crime
No.252 of 2005 under Section 457, 323, 376 IPC relating to Police Station-
Kotwali Akbarpur, District- Ambedkar Nagar is and the appellant
set aside
is acquitted of all the charges.
25. The appellant is directed to furnish a personal bond before the Chief
Judicial Magistrate Ambedkar Nagar as per the requirement of Section 437-
A Cr.P.C. for ensuring his presence before the Hon'ble Supreme Court in
case any appeal is filed against this order and the Hon'ble Supreme Court

CRLA No. 753 of 2012
6
issues notice of the appeal.
May 12, 2026
-Amit K-
(Subhash Vidyarthi,J.)
Digitally signed by :-
AMIT KUMAR
High Court of Judicature at Allahabad,
Lucknow Bench