Chattisgarh High Court
Nandu Ram vs The State Of Madhya Pradesh on 1 July, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 3069 of 1999
Judgment reserved on : 13.06.2022
Judgment delivered on : 01.07.2022
Nandu Ram, S/o Kondhal Ram Harijan, aged 32 years, Caste
Harijan, R/o Village Libra, PS Darima, Present address Takiya
Road, Ambikapur, District Sarguja (M.P.)
---- Appellant
Versus
The State of M.P. through PS Ambikapur, District Sarguja (C.G.)
---- Respondent
For Appellant Mr. Anand Gupta, Advocate
For Respondent Mr. Vinod Tekam, PL
Hon'ble Justice Smt. Rajani Dubey
C A V Order
1. Challenge in this appeal is to the judgment of conviction and order
of sentence dated 26.10.1999 passed by the learned 2 nd Additional
Session Judge, Ambikapur, District Sarguja in ST No.364/1998,
whereby the appellant has been convicted under Section 376 (1) of
IPC and sentenced to undergo RI for 5 years with fine of Rs.200/-. In
default of fine amount, additional RI for 1 year.
2. Brief facts of the case are that the prosecutrix is the mother-in-law of
the appellant. On 23.10.1998, when both of them were going to a
nearby locality through a forest from the house of the appellant, in
midway, the appellant caught hold of the prosecutrix and committed
sexual intercourse with her against her will. Thereafter, the
prosecutrix lodged FIR (Ex-P/1) against the appellant.
3. The prosecutrix was examined by the medical officer. Slide was
prepared and sent for FSL. The clothes were seized. Seizure memo
of prosecutrix and appellant was prepared vide Ex-P/2 and Ex-P/5.
After completion of investigation, charge sheet was filed and
charges were framed against the appellant under Section 376 of
IPC.
4. To prove its case, the prosecution examined as many as 10
witnesses. Statement of the accused/appellant was also recorded
under Section 313 of CrPC, in which he denied the circumstances
appearing against him in the prosecution case, pleaded innocence
and false implication. The accused/appellant did not examine any
witness in his defence.
5. The Trial Court after appreciating the oral and documentary
evidence available on record convicted and sentenced the accused/
appellant as mentioned in para 1 of this judgment. Hence, this
appeal has been preferred by the appellant.
6. Learned counsel for the appellant submits that the impugned
judgment is contrary to facts, law and circumstances of the case.
The learned court below ought to have considered that the
prosecution has failed to prove the guilt of the appellant beyond all
reasonable doubt. There is no legal evidence on record, which may
warrant conviction of the appellant. The prosecutrix is not the
reliable witness, as her statement suffers with many material
discrepancies. In the medical examination, no external injuries were
found on the body of the prosecutrix. The FSL report is not sufficient
piece of evidence to prove the prosecution case, because the
prosecutrix is a married lady. Therefore, the conviction of the
appellant is not sustainable.
7. On the other hand, learned State counsel supports the impugned
judgment of conviction and order of sentence and submits that the
prosecution has proved its case beyond reasonable doubt,
therefore, the appeal deserves to be dismissed.
8. Heard learned counsel for the parties and perused the material
available on record.
9. Before the learned Trial Court, it is an admitted fact that the
prosecutrix (PW-1) is mother-in-law of the appellant and she stated
in her evidence that the accused committed sexual intercourse with
her without her consent. In cross-examination, the prosecutrix (PW-
1) admitted in para 2 that " ;g lgh gS fd uanwjke ds ;gka cSBdj lHkh yksx
us FkksM+k FkksM+k 'kjkc fi;kA " In para 3, she admitted this fact that " ;g
lgh gS fd ekSds ij tc okrkoj.k [kjkc gksus yxk tc esajk nkekn esjs xnZu
dks idM+kA rFkk esjs dks tc >Vdk fn;k rks eS tehu ij fxj xbZA mlds
ckn eS ogka ls mBdj lh/ks uanwjke ds ?kj mlds nkekn ds ikl vkbZA fQj
eSus mlds nkekn dks crk;k fd uanwjke us esjs xnZu dks idM+dj tehu ij
iVd fn;k Fkk vkSj Hkkx dj eS ;gka vk jgh gawA mlds ckn uanw dk nkekn
eq>s esjs ifr ds ?kj igwapk fn;k mlds ckn esa vius ifr dks ysdj Fkkus tkdj
fjiksVZ fd;k fd esjs lkFk cqjk dke fd;k x;k gSA " PW-2 Manmati and
PW-4 Prabha Kerketta stated in their evidence that the prosecutrix
had told them that his son-in-law (Damad) committed rape with her.
10. As per the prosecution, the spot of incident is forest land. The
prosecutrix stated that the appellant caught hold of her and he made
her fell on the ground, but medical report do not support the
prosecution version. Dr. Snehlata Kujur (PW-10) stated that she did
not find any injury on private part and thies of the prosecutrix and no
definite opinion can be given regarding sexual intercourse with her
and gave her report vide Ex-P/13.
11. The Honble Apex Court in the matter of Santosh Prasad alias
Santosh Kumar vs State of Bihar 1 held in paras 5.2, 5.4.2 & 5.4.3
as under:-
"5.2 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 (PW5). Neither any
independent witness nor even the medical evidence
supports the case of the prosecution. From the
deposition of PW1, it has come on record that there
was a land dispute going on between both the
parties. Even in the cross-examination even the PW5
- prosecutrix had admitted that she had an enmity
with Santosh (accused). The prosecutrix was called
for medical examination by Dr. Renu Singh - Medical
Officer and PW7 - Dr. Renu Singh submitted injury
report. In the injury report, no sperm as well as RBC
and WBC were found. Dr. Renu Singh, PW7 -
Medical Officer in her deposition has specifically
opined and stated that she did not find any violence
marks on the body of the victim. She has also
categorically stated that there is no physical or
pathological evidence of rape. It is true that thereafter
she has stated that possibility of rape cannot be ruled
out (so stated in the examination- in-chief). However,
in the cross-examination, she has stated that there
was no physical or pathological evidence of rape.
5.4.2 In the case of Rai Sandeep alias Deepu
(supra), this Court had an occasion to consider who
can be said to be a "sterling witness". In paragraph
22, it is observed and held 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
(2020) 3 SCC 443
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."
5.4.3 In the case of Krishan Kumar Malik v. State of
Haryana (2011) 7 SCC 130, 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."
12. In the case in hand, the statement of the prosecutrix is full of
contradictions and she also admitted in para 3 that " tc esajk nkekn esjs
xnZu dks idM+kA rFkk esjs dks tc >Vdk fn;k rks eS tehu ij fxj xb A
mlds ckn eS ogka ls mBdj lh/ks uanwjke ds ?kj mlds nkekn ds ikl vkbZA
fQj eSus mlds nkekn dks crk;k fd uanwjke us esjs xnZu dks idM+dj tehu
ij iVd fn;k Fkk vkSj Hkkx dj eS ;gka vk jgh gawA mlds ckn uanw dk nkekn
eq>s esjs ifr ds ?kj igwapk fn;k mlds ckn esa vius ifr dks ysdj Fkkus tkdj
fjiksVZ fd;k fd esjs lkFk cqjk dke fd;k x;k gSA " , but the medical report
does not support the prosecutrix version. The prosecutrix also
admitted that at the time of incident, she was in drunken condition,
so in all circumstances, the statement of the prosecutrix is not
reliable.
13. In view of the foregoing discussion and for the reason stated herein-
above, the appeal is allowed. The conviction of the
accused/appellant under Section 376(1) of the IPC and sentenced
imposed thereunder are hereby set aside. He is acquitted of the
said charges by extending him benefit of doubt. The
accused/appellant is on bail. His bail bonds shall stand discharged.
Sd/-
Rajani Dubey
Judge
Nirala
