Chattisgarh High Court
Shiv Prasad Rajwar vs State on 1 October, 2021
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 584 of 2001
Order reserved on : 14/07/2021
Order delivered on : /10/2021
Shivprasad Rajwar, S/o Mohan, Aged About 27 Years, R/o Village-
Odari, P.S. Sonhat, District- Koria, C.G.
---- Appellant
Versus
The State of Chhattisgarh, through P.S.- Sonhat, District- Koria,
C.G.
---- Respondent
For Appellant : Mr. A.K. Prasad, Advocate
For Respondent/State : Ms. Ishwari Ghritlahare, P.L.
Hon'ble Smt. Justice Rajani Dubey
CAV Order
........10.2021
1. Present appeal is preferred against the impugned judgment of
conviction and order of sentence dated 08.06.2001 passed by First
Additional Sessions Judge, Baikunthpur, District- Koria (C.G.) in Sessions
Trial No. 175/2000 whereby, the trial court convicted the appellant as
under:-
S.No. Conviction Sentence
1. Under Section Rigorous Imprisonment for 7 years
376 (1) of IPC
2. Under Section Rigorous Imprisonment for 3 years
457 of IPC
2. Brief facts of the case are that on 01.03.2000, in between 8-9.00
PM, when the prosecutrix (PW-1) was sleeping in her house, at the
relevant time, appellant entered the house of prosecutrix by breaking the
door and took her near the courtyard and committed sexual intercourse
with her. When the prosecutrix raised alarm, the appellant gaged her
mouth and threatened her of dire consequence and fled away from there.
When her husband came from Village- Parcha, she narrated the incident
to him as also to Babulal, Rajjansay, Kambalsay, Bundhu and
Sukulramswaroop. Thereafter, FIR (Ex. P/1) was registered against the
appellant under Sections 376 (1) & 457 of IPC. Seizure of wooden plate
and soil were made vide EX.P/2. Spot-map was prepared vide Ex. P/7.
Clothes stained with sperm were seized vide Ex. P/3. Dr. Nirmala Yadav
(PW-8) examined the prosecutrix (PW-1) and gave her report (Ex. P/8).
Vaginal slides were prepared and seized vide Ex.P/6. Dr. N.P. Bhargava
(PW-9) examined the appellant (Shivprasad Rajwar) and gave his report
vide Ex. P/10 according to which the appellant found capable to perform
sexual intercourse. Caste Certificate of the prosecutrix was seized vide
seizure memo (Ex. P/4). The seized articles were sent to FSL,
Baikunthpur, for medical examination by Superintendent of Police vide
memo (Ex. P/15). After investigation, charge-sheet was filed against the
appellant and charges were framed against him under Sections 376 (1) &
457 of IPC.
3. So as to hold the accused/appellant guilty, the prosecution has
examined as many as 11 witnesses. Statement of the accused/appellant
was also recorded under Section 313 of the Cr.P.C. in which he denied
the charges leveled against him and pleaded innocence and false
implication in the case.
4. On the basis of oral and documentary evidence, trial court
convicted the appellant- Shivprasad Rajwar under Sections 376 (1) & 457
of IPC and sentenced him as mentioned in para 1. Hence, this appeal
filed by the appellant.
5. Learned counsel for the appellant submits that the impugned
judgment is contrary to the facts, law and circumstances of the case.
Learned court below failed to consider that the prosecution could not
prove its case beyond all reasonable doubts and the appellant deserves
to be acquitted. There was hardly any reliable evidence on record to
warrant the conviction of the appellant. The learned court below failed to
consider that the prosecutrix (PW-1) and her husband Bihari Lal (PW-2)
are not reliable witnesses as there are material discrepancies in their
statements. The learned court below failed to consider that no positive
evidence of rape has been given by Dr. Smt. Nirmala Yadav (PW/8) who
has medically examined the prosecutrix (PW-1). In the facts and
circumstances of the matter, the case of the prosecution seems to be
false and fabricated, therefore, the appellant deserves to be acquitted and
the impugned judgment is liable to be set aside.
6. Per contra, learned Counsel appearing for the State supported the
impugned judgment and submits that the sentence awarded by the trial
Court is just and proper and requires no interference.
7. Heard learned counsel for the parties and perused the material
available on record including the impugned judgment.
8. Prosecutrix (PW-1) has stated in her examination that appellant
entered the house of prosecutrix by breaking the door and took her near
the courtyard and committed sexual intercourse with her. She narrated the
incident to her husband and on the next day, informed Babulal, Kamla,
Rajan and Ramswaroop, and thereafter, she went with her husband to
lodge the FIR against the appellant.
9. Dr. Nirmala Yadav (PW-8) who medically examined the prosecutrix
has stated in her examination that no injuries can be seen over genitalia
and thighs and no definite opinion can be given about commission of rape
as she is habitual to sexual intercourse.
10. In rape cases, evidence of the prosecutrix is sufficient for rape, it
has been held by Hon'ble the Apex Court in the matter of Bharwada
Bhoginbhai Hirjibhai v. State of Gujarat reported in (1983) 3 SCC 217
in para 11 which reads as under:-
"If the evidence of the victim does not suffer
from any basic infirmity, and the
'probabilities factor' does not render it
unworthy of credence, 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. This rule is subject to the
qualification that corroboration may be
insisted upon when a woman having
attained majority is found in a compromising
position and there is a likelihood of her
having levelled such an accusation on
account of the instant of self-preservation;
or when the 'probabilities factor' is found to
be out of tune."
11. Bihari Lal (PW-2) has admitted in his examination-in-chief that he
did not inform anybody about the incident at night. He admitted that when
they went to the police station to lodge the FIR against the appellant,
Guruji also went with them and he did not know about the enmity between
guruji and the appellant.
12. Babulal (PW-3) has stated in his examination that Bihari Lal (PW-2)
did not tell about the incident in detail.
13. Kamal Sai (PW-4) has stated in his examination that,
"ogka ij fcgkjh us ;g crk;k Fkk fd] og esgekuh djus ijpk xkao x;k
gqvk Fkk vkSj vkjksih f'ko izlkn us mlds ?kj dk gVdk rksM+ fn;k FkkA eq>s
fcgkjh us og gVdk Hkh fn[kk;k Fkk ijUrq dqN vkSj ugha crk;k FkkA ml
le; fcgkjh dh ?kjokyh Hkh ogka ekStwn FkhA fcgkjh dh ?kjokyh us Hkh dqN
ugha crk;k FkkA"
14. Ram Swaroop (PW-5) has stated in his examination that,
";g ckr lgh gS fd iwoZ esa esjk vkjksih ls tehu dks ysdj fookn gqvk Fkk
ftldk eqdnek dysDVj ds ;gka pyk FkkA ;g ckr Hkh lgh gS fd] esjs
firkth vkSj vkjksih ds chp mlh tehu dk nhokuh eqdnek cSdq.Biqj
flfoy dksVZ esa py jgk gSA esjs t; dqaoj ds ifr fcgkjh yky ls u vPNs
laca/k gSa vkSj u [kjkc laca/k gSaA tehu ds eqdnes esa fcgkjh yky esjk i{k
ugha ysrk gSA ,slk dguk xyr gS fd] tehu ds eqdnes dks ysdj esjh f'ko
izlkn ls nq'euh py jgh gSA vkidk ,slk dguk xyr gS fd mlh nq'euh
ds dkj.k ge vkSj fcgkjh yky us vkjksih ds fo:) >wBh fjiksVZ djkdj
>wBk eqdnek cuok;k gSA tc fjiksVZ djokus fcgkjh yky vkSj mldh iRuh
x;h Fkh rc eSa vkSj dksVokj Hkh Fkkuk lksugr x, FksA"
15. Jansay (PW-6) has stated in his cross-examination that he is
resident of Janpad Panchayat but Bihari Lal (PW-2) and his
wife/prosecutrix (PW-1) did not inform anything about the incident.
16. Prosecutrix (PW-1) has stated in para 5 of her cross-examination
that there were stones in the courtyard and he made her lay on the
ground and, thereafter, committed rape on her.
17. Prosecutrix (PW-1) and her husband Bihari Lal (PW-2) did not tell
anyone about the incident. According to FIR (Ext. P/1), date and time of
incident was 01.03.2000 at about 8-9.00 P.M. and the report was lodged
on the next day i.e. 02.03.2000, at about 15:30 P.M. It is clear from the
statement of all the witnesses that prosecutrix and her husband kept
silence for the whole night and informed about the incident in the morning.
Ram Swaroop (PW-5) has admitted his enmity with appellant and stated
that he went to Police Station along with the prosecutrix (PW-1) and her
husband (PW-2). The place of incident was full of cob stones but the
doctor did not find any external or internal injuries on the body of the
prosecutrix.
18. Jansai (PW-6) is the president of Janpad Panchayat, Sonhat and
he was living in the same village but the prosecutrix and her husband did
not tell anything about the incident to their Panchayat President. Other
witnesse Kamal Sai (PW-4) has stated that he was only told about the
appellant entering the house. Investigating Officer P.R.K. Singh (PW-11)
has seized the stopper of door according to seizure memo Bihari Lal
(PW-2) but the whole incident is not supported by reliable witnesses.
Statement of the prosecutrix is not reliable and has not been supported by
medical evidence. Ram Swaroop (PW-5) has admitted that there was the
enmity between appellant and him. These are the facts and
circumstances which support the defence of the appellant.
19. It is basic a principle of criminal justice that the prosecution has to
prove its case beyond all reasonable doubt and accused has to show his
defence probable but the learned trial court finds him guilty.
20. It has been held by Hon'ble the Apex Court in the matter of
Santosh Prasad alias Santosh Kumar v. State of Bihar reported in
(2020) 3 SCC 443: (2020) 2 SCC (Cri) 77: 2020 SCC Online SC 194 in
para 5.2 which reads as under:-
"From the impugned judgments and orders
passed by both the courts below, it
appears that the appellant has been
convicted solely relying upon the
deposition of the prosecutrix (PW-1).
Neither any independent witness nor even
the medical evidence supports the case of
the prosecution. From the deposition of
PW-5, it has come on record that there
was a land dispute going on between both
the parties."
21. In the prosecution case, the medical evidence also does not
support the prosecution case.
22. In view of the above, the appeal is allowed and the impugned
judgment and order of conviction and sentenced passed by the learned
court below is hereby set aside and the appellant is acquitted of the
charges levelled against him. The accused/appellant is reported to be on
bail. His bail bonds shall stand discharged.
23. Appeal is thus allowed.
Sd/-
(Rajani Dubey)
JUDGE
Ruchi/-
