MALKHAN SINGH Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Malkhan Singh (hereinafter referred as the appellant) has challenged the judgement and order passed by Addl. Sessions Judge, Agra on 25-5-83 whereby he was convicted u/S. 354, IPC and sentenced to undergo R.I. for two years.

(2.) The entire case of the prosecution hinges upon the testimony of the prosecutrix Km. Guddi aged about 18 years. In the F.I.R. lodged by her on 29-12-81 she categorically stated that she was raped by Malkhan Singh in his house while his wife remained sitting outside the door of the house. In her statement u/S. 164, Cr. P.C. before the Magistrate, she also stated that Malkhan Singh called her inside the house, shut the door of his house and did sexual intercourse with her; without her consent and wishes and when she raised cries, her mouth was shut and when she opened the door and came out, the wife of Malkhan Singh allowed Malkhan Singh to run away. On her medical examination, the lady Doctor opined that her age was about 18 years, her vagina could admit two fingers hymen was torn and it was an old tear, which was healed, there was no bleeding, vaginal discharge was normal. On the basis of the F.I.R. and her statement before the Magistrate, this appellant Malkhan Singh was tried along with "co-accused Kanya Singh, co-accused Kanya Singh has been acquitted. During trial the prosecutrix Km. Guddi resiled her statement before the Magistrate and also the F.I.R. which was allegedly lodged by her, stated that actually sexual intercourse was not done by any one. Malkhan Singh only tried to commit rape on her but he did not do so, On the basis of her only statement, the learned Additional Sessions Judge found not guilty the accused Kanya Singh alias Karan Singh

(3.) From perusal of the record, it is apparent that the entire case is based upon the sole testimony of prosecutrix. Prosecutrix was found partly reliable and partly unreliable by the Addl. Sessions Judge himself. There is no corroboration of the testimony of this prosecutrix who has stated something at one time and something at the other time. In such type of cases where neither the witnesses are wholly reliable and unreliable the court should scrutinize the statement of that witnesses very minutely and also insist upon corroboration, one should not be allowed to blow hot and cold in the same breath. Hon'ble Supreme Court in a case Vadivelu Thevar v. State of Madras, AIR 1957 SC 614 : 1957 Cri LJ 1000 : 1957 All LJ 898, held that in such category of cases, the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony direct or circumstantial.