Allahabad High Court
Surendra Singh vs State Of U.P. on 1 April, 2026
Author: Pramod Kumar Srivastava
Bench: Pramod Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2026:AHC-LKO:23270 HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW CRIMINAL APPEAL No. - 869 of 2004 Surendra Singh ..Appellant(s) Versus State of U.P. ..Respondent(s) Counsel for Appellant(s) : S.p.tiwari, Counsel for Respondent(s) : Govt.advocate, Reserved on 17.03.2026 Delivered on 01.04.2026 Court No. - 23 HON'BLE PRAMOD KUMAR SRIVASTAVA, J.
1. Heard Sri S.P.Tiwari, learned counsel for the appellant and Sri Sishwas Saraswat, learned A.G.A. for the State.
2. The instant appeal has been preferred against the judgment and order dated 26.03.2004 passed by the court of Additional Session Judge (Fast Track Court II) Faizabad in Sessions Trial No. 268/2002 :State Vs. Surendra Singh, arising out of Case Crime No. 326/2002, under Sections 376, 323 and 506 Indian Penal Code (hereinafter referred to as I.P.C.), Police Station Rudauli, District Faizabad, convicting and sentencing the appellant for seven years rigorous imprisonment and fine of Rs. 5000/- for the offence under Section 376 of I.P.C. with default stipulations; six months rigorous imprisonment for the offence under Section 323 of I.P.C. and under Section 506 I.P.C. one year rigorous imprisonment.
3. The complainant, Chandrika Prasad, submitted a written report (Exhibit Ka-1) at Police Station Rudauli, stating the he was away on watchman duty. His wife and children were sleeping at home under a thatched roof. Finding his wife alone at approximately 1:00 AM, his neighbor, Surendra Singh, son of Hansraj Singh, approached her, caught her, and committed rape by force. When she resisted, he beat her and kept her mouth covered. Upon being released, his wife raised an alarm. Hearing the screams, the applicant’s brother Gangaram, Gaya Prasad, and those on watch duty arrived at the scene. Surendra Singh was found at the spot and threatened them, stating, “that if they told anyone about the incident he will kill them.” He then left for his home while issuing these threats. Based on the said written report, a Chik FIR (Exhibit Ka-3) was registered against the accused on August 19, 2002, at 6:25 at Police Station Rudauli under Sections 323, 506, and 376 IPC, as Crime No. 326/02.
4. During the course of investigation, the Investigating Officer (herein after referred to as I.O.) was handed over to Ram Charan Giyar (PW-5). The entry of the case was made by Constable Narendra Bahadur Singh (PW-4) in the copy report (Exhibit Ka-4). The medical examination of the victim (PW-1) was conducted by Dr. Sushma Gupta (PW-3), which is Exhibit Ka-2. The Investigating Officer (I.O.) prepared the site map (Naksha Nazri), Exhibit Ka-5. After recording the statements of witnesses under Section 161 of the Code of Criminal Procedure (CrPC) and completing the entire investigation, submitted the Charge Sheet (Exhibit Ka-6) in the court for trial under Sections 323, 506, and 376 of the Indian Penal Code (IPC).
5. Upon the submission of the charge-sheet before Court of learned Magistrate the said case was committed to the Court of Session wherein it was registered as S.T. No. 268/02, thereafter it was made over to Additional Session Judge (Fast Track Court II) Faizabad for disposal according to law.
6. The trial Court framed charges against the accused Surendra Singh under Sections 376, 323, and 506 I.P.C., from which he denied the charges levelled against him and claimed to be tried.
7. In order to prove its case, prosecution has adduced ocular evidence of the victim PW-1 and Chandrika Prasad (PW-2), Dr. Sushma Gupta (PW-3), Narendra Bahadur Singh (PW-4), Sub-Inspector Ram Charan Giyar (PW-5) and also proved documentary evidence Tehrir (written report) Exhibit Ka-1, Medical report Exhibit Ka-2, F.I.R. Exhibit Ka-3, G.D. Exhibit Ka-4, Site Plan Exhibit Ka-5 and Charge-sheet Exhibit Ka-6.
8. After completing the evidence by the prosecution, statement of the accused under Section 313 of the Code of Criminal Procedure ( herein after referred to as Cr.P.C.) has been recorded by the trial court explaining the entire evidence and attending incriminating circumstances, whereby the accused-appellant denied the prosecution story and evidence against him. He specifically stated that he has been falsely implicated in this case due to local rivalry. He further stated that the complainant was attempting to grab his ancestral property. When he resisted, a village lawyer named Ram Prasad went to the police station and filed a fictitious (fake) report against him.
9. At the stage of defence accused has produced ocular evidence of two witnesses, namely, Ramesh Kumar (DW-1) and Ram Prasad (DW-2).
10. After having heard the learned counsel for both the parties and perusal of material available on records it reveals that, learned trial court found that prosecution has succedded to prove the charges against the accused-appellant under Sections 376, 323 and 506 of I.P.C. and thereby convicted the appellant for seven years rigorous imprisonment and fine of Rs. 5000/- for the offence under Section 376 of I.P.C.; six months rigorous imprisonment for the offence under Section 376 of I.P.C. and under Section 506 I.P.C. one year rigorous imprisonment.
11. Being aggrieved and dissatisfied by the impugned judgment and order, instant Criminal Appeal has been preferred by submitting that learned trial court passed the impugned judgement and order without considering the facts, evidences and circumstances in correct manner. He next submits that prosecution story is highly improbable. The victim was 25 years of age at the time of incident having four children and one child was sleeping along with her on the same cot, therefore, allegation regarding sexual assault by appellant-convict is not believable. He next submits that as per statement of victim on her cry many persons gathered there, but none of them is examined. The husband of the victim is not an eye-witness. He also submitted that in fact informant had encroached a piece of land of the appellant-accused and constructed provisional structure for residential purpose, when accused-appellant resisted then due to local enmity, this false F.I.R. has been lodged against the accused-appellant.
12. Learned counsel for the appellant further submitted that at the time of alleged incident the appellant-accused was in the village guarding duty and this fact is corroborated by the defence evidence, but the learned trial court did not consider the defence taken by the appellant. He further submits that no external/internal injury was found on the person of the victim and allegation of rape is not substantiated by medical evidence. The testimony of the victim is not clinching and convincing and witness is not of a sterling quality. Learned trial court failed to appreciate and consider the above point and passed the impugned judgment in a mechanical and arbitrary manner, which is not sustainable in the eye of law and is liable to be quashed and the appeal is liable to be allowed.
13. Per Contra learned A.G.A. vehemently contended that the prosecution has adduced sufficient evidence to prove the charge levelled against the accused-appellant and no material contradictions has occurred in the statement of the witnesses. He also submitted that this is a case of sexual assault and no woman would bring this accusation falsely which cast stigma on her chastity. He further submitted that in the case of sexual violence, testimony of sole victim is sufficient to convict the culprit and requires no need for its corroboration as minor inconsistencies have no consequence. He further submitted that the prosecution case cannot be thrown out on the basis that independent witnesses were not examined. He also submitted that the evidence adduced on behalf of the accused-appellant in defence is not found reliable, as they are interested and partisoned witnesses. He further submitted that after marshaling the entire facts and evidences, trial court has passed the impugned judgment and order and there is no illegality or perversity in the impugned judgment, thus appeal is devoid of merit and is liable to be dismissed.
14. On the basis of the facts and the submissions advanced by learned counsel for the parties, the following point is formulated for determination in the case;
whether the findings recorded by the trial court are erroneous and not in consonance with the law and consequently conviction and sentence of appellant is not sustainable.
15. Before adverting to the facts of the case, verdict of Honble Apex Court in the following cases is laid down hereunder:
In the Case of Sadashiv Ramrao Hadbe Vs. State of Maharashtra and another (2006) 10 SCC 92 Honble Apex Court held that it is true that in a rape case the accused could be conviced on the sole testimony of the prosecutrix, it it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix.The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen.
In another case Santosh Prasad Alias Santosh Kumar Vs. State of Bihar (2020) 3 SCC 443 Honble Apex Court held that in rape case it is true that conviction can be solely based on evidence of prosecution as solitary evidence of prosecutrix is sufficient provided that same inspire confidence and appears to be absolutely trustworthy, unblemished and it is of sterling quality.
In another case Raju Vs. State of M.P. (2009) 3 SCC (Cri) 751, Honble Apex Court has observed and held in Para 11 and 12 as under:
11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.
12. Reference has been made in Gurmit Singh case [(1996) 2 SCC 384 : 1996 SCC (Cri) 316] to the amendments in 1983 to Sections 375 and 376 of the Penal Code making the penal provisions relating to rape more stringent, and also to Section 114-A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that Sections 113-A and 113-B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualised as the presumption under Section 114-A is extremely restricted in its applicability. This clearly shows that insofar as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally, her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined.
In another case Rai Sandeep Alias Deepu Vs. State of (NCT of Delhi) (2012) 8 SCC 21, Honble Apex Court observed and held in paragraph 22 as under:
22. In our considered opinion, the sterling witness should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a sterling witness whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.
From the above settled principles of law, it is apparent that in the case of rape, conviction can be based solely on the testimony of prosecutrix only when she comes in the category of sterling witness. Thus, in view of the above, it is to be considered that whether prosecution has adduced its evidence in such a category as desired to prove the said charge. On the perusal of the material it reveals that the informant Chandrika Prasad, who is the husband of the prosecutrix is not an eye witness.
16. As it is evident from the testimony of the prosecutrix made in her cross-examination at page 9, she has stated that her husband had not witnessed the incident, he had only seen the accused fleeing away from the scene.
17. On this point husband of the prosecutrix Chandrika Prasad PW-2 has admitted on his cross-examination at page 2 that after hearing the hue and cry firstly Ganga Ram and Gaya Prasad reached on the spot thereafter he reached there. He further stated that when he reached then accused Surendra was threatening the prosecutrix. In whole of his examination on many occasions he has admitted that after hearing hue and cry when he reached, the accused was threatening the prosecutrix. At page 6 he categorically admitted that whatever his wife i.e prosecutrix had told him on that basis he had got scribed the Tehrir, thus it is apparent that informant who is the husband of the prosecutrix is not an eye-witness of the alleged incident of sexual violence and averment made in F.I.R. was dictated by him on the basis of information of his wife, therefore, his evidence in this regard is heresay which has no significance. Here it is notable that as per testimony of the prosecutrix, two witnesses Gaya Prasad and Ganga Ram arrived there after hearing her alarm, but none of them has been examined by the prosecution.
18. Now testimony of another witness of the facts i.e. prosecutrix, remains and she is a star witness of the prosecution, whose testimony is more significant since her testimony is placed on higher pedestrain and equated with the testimony of injured, therefore her testimony would be scrutinized very carefully and cautiously. Here it is expedient to mention that evidence of the witnesses are of three categories:
1- Wholly reliable- for such evidence, no corroboration is required, whether he may be solitary witness;
2- Wholly unreliable- for sush type of evidence reliance cannot be placed at all;
3- Party reliable- for this category corroboration is needed, which may be oral, documentary, medico legal or circumstantial.
Therefore, in the context of above settled position of law, it has to be seen that under which category evidence of prosecutrix falls.
19. The prosecutrix PW-1 deposed that incident had taken place at night at that time, incidents involving the moonh nochwa were occurring in the village consequently, the villagers used to keep watch through out the night by performing guard duty. She also deposed that on that day her husband was on duty to keep watch on the moonh nochwas and she was sleeping on the bed inside the thatched hut with mosquito net draped out it, then in the mid night about 12.00 to 1.00 oclock accused Surendra Singh entered into the mosquito net and pressed his hand over her mouth and he also caught her hands. After removing her undergarment, he uplifted the petticot (undergarment) of the prosecutrix and committed rape on her. She also deposed that she made resistance, but accused continued committed rape on her and when she got released from his custody, then she screamed. Consequently many villagers Gaya Prasad, Ganga Ram and her husband Suresh arrived there. She also stated that when accused went outside from the mosquito net, then she identified him.
Her cross-examination is very significant, because veracity of her statement can be judged only through her cross-examination.
20. On her cross-examination she has admitted that she had four children out of them three are daughters and one is son. Her husband had four brothers, namely Gaya Prasad, Janki, Ganga and Baijnath. She also deposed that on the date of alleged incident, her husband was on guarding duty along with other ten peoples, but accused Surendra Singh was not on guarding duty at that time. She further deposed that at the time of alleged incident it was rainy season and she was sleeping and her younger son and other children were sleeping just right to each other. She also admitted that witnesses Ganga Ram and Baijnath were sleeping 100 paces away from her, and that Baijnath was sleeping 10 paces away from her. She also admitted that when accused Surendra Singh entered inside the mosquito net, then she woke up but she understood that her husband had entered inside the mosquito net, on the other hand she also stated that accused was having Alcohol at that time and when he asked the name of her daughter then she understood that the person, who had entered inside the net was not her husband. She also stated that when she screamed, the accused clamped her mouth with one hand and held the rest of her body with the other; consequently, she was unable to bite him.
21. From the above deposition of the prosecutrix, her statement appears highly improbable on account of her own conduct. Firstly, when accused entered inside the mosquito net and as soon as she woke up and understood that he is not her husband then she did not cry while her one younger child was lying along with her in the same cot and other children were sleeping just adjacent to her cot and other witnesses were also sleeping at some distance and in the night it was quite enough to hear such noise, if she demands any help from any one.
22. Another improbability which emerged out that she has admitted that incident of the alleged sexual assault had taken place for about ten minutes and as per her statement, firstly accused removed his undergarments and thereafter he lifted her petticot (undergarment) and then he clamped her mouth and started committing sex with her but during this interval of time she did not make any alarm to seek help from anyone while her relatives were sleeping nearby her and her children were closely sleeping with her.
23. The prosecutrix had given statement under Section 164 Cr.P.C. before the Magistrate that accused clamped her mouth and inflicted blows on her chest and elbow and when she resisted then inflicted blow on her back, but at the time of medico legal examination none of such injury was found on the person of the prosecutrix.
24. In this regard Dr. Shushma Gupta PW-3 had deposed that at the time of medico legal examination, none of the external or internal injury was found on the person of the prosecutrix. Hymen was old and torn. She further stated that there was no sign of rape at that time, therefore, no definite opinion regarding rape was given. On her cross-examination, she has deposed that no injury was found on the private part of the prosecutrix, thus from the testimony of Dr. Shushma Gupta PW-3 it also reveales that the statement of the prosecutrix that before committing rape accused had inflicted blows on many of the parts of her body, is not substantiated by medico legal report, though PW-3 Dr. Shushma Gupta had admitted that if prosecutrix was habitual, then such type of injury on her private part is unlikely to happen, but if she had resisted and accused had made assault on her then, it was quite probable that physical injury on the other part of the body may occur.
25. It is also notable that accused person has also adduced the ocular evidence in his defence and as per DW-1 Ramesh Kumar, he has stated that at the time of the alleged incident accused appellant Surendra Singh was in their company for keeping watch on moonh nochwa and he further stated that prosecutrixs husband forcibly encroached in the land of accused Surendra Singh by constructing thatched hut and prior to one day of the alleged incident the thatched hut was installed by informant with the help of others. At that time accused Surendra Singh was alone. He also deposed that one Ramtej Yadav has lodged a false F.I.R. under Section 307 of I.P.C. against the brother of the accused Surendra Singh and the same person Ram Tej Yadav had also instigated informant and got this false case lodged and mislead them that if he lodged F.I.R. against the accused appellant then only he can encroach the accuseds land. Another defence witness DW-2 Ram Prasad have also reiterated the same fact that the prosecutrix had encroached in the land of accused and installed thatched hut therein. This defence was also taken in the statement made by the accused-appellant under Section 313 of the I.P.C. and also suggested in the cross-examination of the PW-1 and PW-2. Learned trial court although has discussed the testimony of the witnesses in detail, but it transpires that learned trial court relied on the victims statement only on the basis that the sexual violence was committed on the prosecutrix who is a lady and she cannot expose her chastity and dignity in such a manner before the society. Though it is true that even if any woman who is of easy virtue then also it does not provide licence to anyone to outrage her modesty and commit rape on her but at the same time it should also be kept in the mind that such allegation which are very heinous in nature must be proved by adducing clinching and convincing evidence as where allegations are very heinous in nature and punishment is harsh then in such type of cases, evidence is also required as such category, which apparently inspires confidence on its face value. However, in the present case, although there is an allegation of rape against the accused, the circumstances in which the offence is alleged to have been committed render the incident highly improbable, as the prosecutrix could neither raise any alarm nor attempt to get out of the mosquito net. The child who was sleeping along with her was not disturbed nor she made any alarm. No independent witnesses, present nearby the place of occurrence, were examined. No external or internal injury were found on the body of the private parts of the prosecutrix. The Doctor PW-3 Shushma Gupta has also deposed that she is unable to give any opinion about the alleged offence of rape as there were no symptoms while as per statement of the prosecutrix, she was allegedly physically assaulted before the commission of the rape, but no injuries were found on her body, which also renders the prosecution version improbable. The clothes of the prosecutrix, which were taken into possession by the Investigating Officer did not disclose any sign of sexual assault as no report of the F.S.L. has been produced. Thus, the evidence of the prosecutrix does not inspire confidence, as her conduct and behavior cast doubt on the prosecutions version. The prosecutrix failed to pass the test of sterling witness, there was deep village rivalry and unauthorized encroachment in the land of accused.
26. Thus, on the consideration of the entire facts, evidences and circumstances in its entirety, I am therefore, of the view that there is serious doubt regarding the sexual intercourse allegedly committed by appellant on the prosecutrix, therefore appellant is entitled to benefit of doubt. Learned trial court erred in finding the appellant guilty, therefore, observation is erroneous and the impugned judgment and order is liable to be set aside.
27. The present criminal appeal is allowed and consequently, the judgment and order dated 26.03.2004 passed by the court of Additional Session Judge (Fast Track Court II) Faizabad in Sessions Trial No. 268/2002 :State Vs. Surendra Singh, arising out of Case Crime No. 326/2002, under Sections 376, 323 and 506 I.P.C., Police Station Rudauli, District Faizabad convicting and sentencing the appellant-convict under Sections 376, 323 and 506 I.P.C. is hereby set aside.
28. The appellant-convict is acquitted of the charge under Sections 376, 323 and 506 of I.P.C.. He is reported to be on bail. He need not surrender, his bail bonds are cancelled and sureties are discharged. Further, he is directed to comply with the provision of Section 437-A of the Cr.P.C. to the satisfaction of the trial court.
29. Let record of trial court be sent back to Court concerned along with copy of judgment and order for information.
(Pramod Kumar Srivastava,J.)
April 01, 2026
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