Chattisgarh High Court
Shivendra Pratap Singh @ Banty vs State on 7 October, 2021
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 1372 of 2000
Order reserved on : 13/08/2021
Order delivered on : 07/10/2021
Shivendra Pratap Singh @ Bunty, S/o Shiv Nandan Singh, Aged
About 28 Years, R/o Dipra Para, Police Station- City Kotwali,
Bilaspur, District- Bilaspur, Now C.G.
---- Appellant
Versus
State of Madhya Pradesh, through Police Station Mahila Thana
Bilaspur, District- Bilaspur, M.P. (Now C.G.).
---- Respondent
For Appellant : Mr. Sumit Singh with
Mr. Manish Nigam, Advocates
Mr. Tarun Dansena, through
Legal Aid
For Respondent/State : Ms. Ishwari Ghritlahre, P.L.
Hon'ble Smt. Justice Rajani Dubey
CAV Order
07.10.2021
1. Present appeal is preferred against the impugned judgment of
conviction and order of sentence dated 16.05.2000 passed by Sixth
Additional Sessions Judge, Bilaspur in Sessions Trial No. 40/2000
whereby, the trial court has convicted and sentenced the appellant as
described below:-
S.No. Conviction Sentence
1. Under Rigorous Imprisonment for 7 years and to pay
Section 376 fine of Rs. 1000/- (in default of payment of fine
of IPC R.I. for 6 months)
2. Under Rigorous Imprisonment for 3 years and to pay
Section 450 fine of Rs. 1000/- (in default of payment of fine
of IPC R.I. for 6 months)
(Both sentence to run concurrently)
2. Brief facts of the case are that on the alleged date of incident at
about 1:00 A.M., appellant entered the house of prosecutrix, who was
having a pregnancy of 8 months and was sleeping with her husband
and threatened her husband. When the husband of prosecutrix had
gone to call the neighbours, present appellant committed rape on the
prosecutrix. FIR (Ex. P/10) was registered against the appellant under
Sections 376 & 450 of IPC. Spot-map was prepared vide Ex. P/11.
Other articles and clothes stained with sperm were seized vide Ex. P/1.
Dr. Smt. Madhulika Sen (PW-13) examined the prosecutrix (PW-2) and
gave her report (Ex. P/9). Thereafter, sonography of the prosecutrix
was conducted by Sonologist Dr. R. Jitpure (P.W.-11) and gave his
report (Ext. P/7). Dr. B.R. Hotchandani (PW-10) has medically
examined the appellant and gave his report vide Ex. P/6 according to
which the appellant is found capable to perform sexual intercourse.
The FSL report is prepared vide Ex. P/12. After investigation, charge-
sheet was filed against the appellant and charges were framed against
the appellant under Sections 376 & 450 of IPC.
3. So as to hold the accused/appellant guilty, the prosecution has
examined as many as 14 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 for the offence punishable under Sections 376
& 450 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 passed by the learned Sessions Judge is wholly illegal,
arbitrary and based on conjectures and surmises, hence the same
deserves to be set aside. Prosecutrix (PW-2) and her husband (PW-1)
have admitted that there was some land dispute and previous enmity
between the parties and looking to the prosecution story and contents
of FIR (Ex.P/10), it is apparently clear that appellant has been falsely
implicated in the offence. Prosecution story itself appears to be
concocted and unbelievable. The medical report of the prosecutrix did
not support the prosecution case. There are major contradictions in the
statements of the prosecutrix (PW-2) and her husband (PW-1)
recorded under Section 161 of Cr.P.C. Other witnesses Bhagwati Bai
(PW-8) & Gopiram (PW-9) did not support the case of the prosecution.
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. He has also placed reliance in the matters 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, Pannalal v.
State of Chhattisgarh passed in CRA No. 581/2001 vide order dated
06.10.2018 by High Court of C.G., Bisahat v. The State of Madhya
Pradesh Now C.G. passed in CRA No. 1687/1999 vide order dated
10.07.2019 by High Court of C.G.
6. On the other hand, 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-2) has stated in her examination-in-chief that at
about 1:00 A.M., appellant entered the house of prosecutrix, who was
having a pregnancy of 8 months and was sleeping with her husband,
he slapped her husband and threatened him, thereafter appellant
committed rape on her. Her husband had gone to call the neighbours
and after one hour, when he came along with Ramu, Gopi, Gugu
Mukherjee, Sewak and Ramsai, thereafter, she narrated to her
husband about the incident.
9. Ramji Sahu (PW-1) has stated in his examination that,
1. "?kVuk fnukad dks ?kj esa ?kqldj vfHk;qDr us esjh xnZu idM+ yh vkSj
eq>s 4&5 >kiM+ ekjsA mlds ckn mlus eq>s Hkkx tkus dks dgk vkSj pkdw fudky
fy;kA vfHk;qDr us eq>ls dgk fd eksgYys ds ftldks eSa pkgrk gwa cqyk ywaA
vfHk;qDr }kjk pkdw fudky fy;s tkus ds dkj.k eSa Mj dj Hkkx x;kA"
2. "eSa eksgYys okyksa dks mBkus x;kA vfHk;qDr dh "kjkjr ns[kdj eksgYys
okys Mjus yxs FksA eksgYys okyksa dks bdV~Bk djus esa eq>s 15&20 feuV dk le;
yxkA bl chp vfHk;qDr us esjh ifRu ds lkFk xyr dke fd;k gSA esjs lkFk dYyw]
jktdqekj] lsodjke oxSjg vk;s FksA ge yksx esjs ?kj vk;s vkSj eSa pksj&pksj dgdj
fpYyk;k rc vfHk;qDr esjs ?kj ls ckgj fudyk vkSj eka&cgu dh xanh xkfy;ka nsus
yxkA gYyk lqudj nwljs eksgYys okys Hkh tc bdV~Bs gksus yxs rc vfHk;qDr ogka
ls Hkkx x;kA esjs ?kj ls FkksM+h nwjh ij vfHk;qDr dk [ksr gSA vfHk;qDr vius [ksr
rjQ dks pyk x;k FkkA esjh ifRu us eq>s crk;k fd mldh ifRu ds lkFk vfHk;qDr
us cykRdkj fd;k gSA"
5. "pksj&pksj fpYykrs le; eSa vkjksih dk uke ugha fy;kA ?kVuk ds igys
ls eSa vkjksih dks tkurk FkkA eSaus eksgYys okyksa dks vkjksih ds vanj ?kj esa ?kqlus dh
ckr crkbZ Fkh fdarq fpYykrs le; mldk uke ugha fy;kA"
10. Sewak Ram (PW-3) has stated in his examination that,
"dYyw igys pyk x;k FkkA nwljs eksgYys okys igys pys x;s Fks eSa ckn esa iquhrk
ds ?kj igqapkA iquhrk ds ?kj dYyw] xksih] iquhrk dk ifr ekStwn FksA ogka igqapdj
tc vkokt nh rc rd pksj ogka ls Hkkx x;k FkkA iquhrk us crk;k Fkk fd vkjksih
us mlds lkFk cykRdkj fd;k gSA"
11. Dr. Smt. Madhulika Sen (PW-13) has medically examined the
prosecutrix and has stated that no internal or external injuries were
found on the body of the prosecutrix and no definite opinion can be
given about recent sexual intercourse as she is pregnant about 28
weeks. Thereafter, she referred the prosecutrix (PW-2) to
Gynecologist.
12. Prosecutrix (PW-2) has stated in her examination that,
3. ";g lgh gS fd vkjksih 1&2 cts jkr ds chp esjs ?kj esa ekStwn FkkA 2
cts og Hkkx x;k FkkA"
6. "esjs ifr dks vkjksih us Loa; ekjdj Hkxk;k FkkA vkjksih tSls gh esjs ?kj
esa ?kqlk Fkk eSa [kfV;k ls mB xbZ FkhA esjs ?kj ds lkeus nwljs vkneh dk IykWV gS
vkSj ihNs vkjksih dk IykWV gSA Ms<+ cts ds djhc vkjksih us esjs eqag esa diM+k Bwalk
Fkk eSa enn ds fy;s fpYykbZ Fkh ijarq dksbZ vk;k ugha FkkA iz-n-&[email protected] esa eSaus
fpYykus okyh ckr fy[kkbZ Fkh vxj ugha fy[kh gS rks eSa dksbZ dkj.k ugha crk
ldrhA diM+k Bwalus ds dkj.k esjk eqag iwjh rjg ls [kqy x;k FkkA ianzg&chl
feuV rd esjs eqag esa diM+k Bwalk gqvk FkkA"
7. "esjh 'kknh dks rhu lky gks x;s gSa vkSj 'kknh ds ckn ls gh vfHk;qDr ds
lkFk tehu dk >xM+k py jgk FkkA"
13. Sewakram (PW-3) has stated in his examination that, when he
reached the spot, the accused fled away from there.
14. Close scrutiny of the case and considering the deposition of the
prosecutrix, this court finds that there are material contradictions in the
statement of the prosecutrix and not only that but the manner in which
the alleged incident has taken place as per the version of the
prosecutrix is not believable. Prosecutrix (PW-2) has stated that
accused/appellant entered her house and threatened his husband
Ramji Sahu (PW-1) and, thereafter, committed rape on prosecutrix.
Ramji Sahu (PW-1) knew the name of appellant, but he called the
neighbours by saying that a thief had entered his house.
15. On minute examination of evidence on record and the conduct of
the prosecutrix and her husband, it is clear that at the time of incident,
prosecutrix was alone in her house and her husband left her with
appellant. Prosecutrix and her husband admitted the enmity between
the appellant and their family. Prosecutrix was carrying pregnancy of
about 28 weeks. In this situation, the prosecutrix might have sustained
injuries on her body parts but the doctor who examined the prosecutrix
did not find any external or internal injuries. This court has held in the
matter of Parmeshwar v. State of Chhattisgarh reported in (2015) 1
High Court Cases (Chh) 592 : 2015 SCC Online Chh 188 in para 15
which reads as under:-
"In a rape case the testimony of the prosecutrix
must be reliable and inspired confidence, it should
be worthy of credit and it should not suffer from
basis infirmity and the probability factors should
also not render it untrustworthy of credence. The
medical evidence and FSL report as have come in
the present case completely belies the testimony
of the prosecutrix and renders entire prosecution
case doubtful."
16. 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 5.4.3 and 5.5 which read as under:-
"5.4.3. In Krishan Kumar Malik V. State of
Haryana, it is observed and held by this Court that
no doubt, it is true that to hold an accused guilty
for commission of an offence of rape, the solitary
evidence of the prosecutrix is sufficient provided
the same inspires confidence and appears to be
absolutely trustworthy, unblemished and should be
of sterling quality.
5.5. With the aforesaid decisions in mind, it is
required to be considered, whether is it safe to
convict the accused solely on the solitary
evidence of the prosecutrix? Whether the
evidence of the prosecutrix inspires confidence
and appears to be absolutely trustworthy,
unblemished and is of sterling quality?"
17. But in this case, after going through the entire material available
on record including the evidence of witnesses in particular that of the
prosecutrix and her husband and doctor who medically examined the
prosecutrix, it appears that prosecution has thus not been able to prove
the guilt of the accused/appellant beyond all reasonable doubt by
adducing cogent and reliable evidence in support of its case. Evidence
of the prosecutrix does not corroborate from the other material
available on record including the medical evidence. In the present
case, the circumstances taken as a whole, create doubt about the
correctness of the prosecutrix version.
18. The findings recorded by the court below are thus not based on
proper appreciated of the evidence of the witnesses and being so, the
same is hereby set aside and the accused stands acquitted of the
charge levelled against him. As he is already on bail, no order to set
him free etc. is required to be passed. His bail bonds shall stand
discharged.
19. Thus, appeal is allowed.
Sd/-
(Rajani Dubey)
JUDGE
R/-
