Madhya Pradesh High Court

Deepak Patidar vs The State Of Madhya Pradesh on 13 May, 2022

Author: Satyendra Kumar Singh

                       1
                                            Cr.Appeal No.1647/2019

            HIGH COURT OF MADHYA PRADESH
                   BENCH AT INDORE

                          BEFORE
       HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
                     ON THE 13th OF MAY, 2022



              CRIMINAL APPEAL No. 1647 of 2019

Between:-
DEEPAK PATIDAR S/O SHRI MOTILAL PATIDAR , AGED ABOUT 31
YEARS,   VILLAGE    SEMLI,  TEHSIL   MALHARGAR,     P.S.
PIPLIYAMANDI, (MADHYA PRADESH)
                                                      .....APPELLANT
(BY SHRI NILESH DAVE)

AND

THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER
THROUGH P.S. PIPLIYAMANDI, MANDSAUR (MADHYA PRADESH)
                                                 .....RESPONDENTS
(BY SHRI MUKESH KUMAWAT)

Reserved on: 07.05.2022
       This application coming on for judgment this day, Hon'ble Shri
Justice Satyendra Kumar Singh passed the following:

                           JUDGMENT

Satyendra Kumar Singh, J.,

Appellant has preferred this appeal under Section 374(2) of the

Code of Criminal Procedure, 1973(2 of 1974) [in short Cr.P.C.] being

aggrieved by the judgment dated 26.12.2018 passed by the Court of II

Additional Sessions Judge, Mandsaur in S.T.No.225/2017, whereby the

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appellant has been convicted and sentenced as under:-

        CONVICTION                          SENTENCE
       Section    Act      Imprisonment         Fine     Imprisonment in
                                                           lieu of fine
        376       IPC           10 years       5000/-       6 months RI
        342       IPC              -           1000/-       2 months RI
        323       IPC              -           500/-        1 months RI

2.        The prosecution case in brief is as follows:

(i)       Prosecutrix and appellant both are resident of Village Semli,

Police Station- Piplyamandi, Mandsaur. On 13.10.2013 at about 15:30

hours, when prosecutrix was grazing her cattle in the field of Gangaram

Patidar, appellant having seen prosecutrix alone, came there and took

her forcibly in near by room situated in the field. Prosecutrix tried to

resisted him and raised alarm, then he hit her head against the wall of

the room and assaulted her. Thereafter, he forcibly committed sexual

intercourse with her and threatened her, if she discloses the incident to

anyone, he will kill her. Prosecutrix returned to home and narrated the

incident to her elder sister-in-law Ramkunwarbai as well as her

husband, and thereafter, on the same day at about 22:00 hours lodge the

FIR (Ex..P-1) against the appellant at Police Station Piplyamandi,

Mandsaur.

(ii) On the same day, in the intervening night at about 12:15 AM, she

was sent to Civil Hospital, Mandsaur for medical examination where

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Dr. Meena Verma examined her and prepared MLC report (Ex.P-2).

She also prepared prosecutrix's vaginal swab slides, collected her pubic

hair and clothes as well as sealed and handed over the same to Police

Constable Mamta Sharma who brought the prosecutrix to the hospital.

She referred prosecutrix to surgical specialist for the injuries caused in

her head.

(iii) I/O SI B.R. Ninama went to the place of occurrence and prepared

spot map (Ex.P-3), seized broken bangles of the prosecutrix from the

place of occurrence as per seizure memo (Ex.P-8). On 17.10.2013, he

arrested the appellant as per arrest memo (Ex.P-9) and vide application

(Ex.P-5) sent him to Primary Health Center, Pipliyamandi, Mandsaur

for medical examination, where Dr. Kailash Garg examined him and

prepared MLC report (Ex.P-5). As per MLC report (Ex.P-5) he opined

that appellant is capable for doing sexual activities. He prepared his

semen slides and preserved as well as sealed the same alongwith his

clothes and handed over the same to police constable who brought the

appellant to the hospital. SI B.R. Ninama seized all the above articles

received from the hospital as per seizure memo (Ex.P-68) and vide

letter (Ex.P-11) sent the same to FSL, Rau for chemical examination

and obtained the FSL report (Ex.P-15). After completion of

investigation, filed the charge sheet before the Court of Judicial

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Magistrate First Class, Narayangarh, Mandsaur, who committed the

case to the Court of Additional Sessions Juge, Mandsaur.

3. Learned trial Court considering the material prima-facie

available on record framed charges u/S 376, 342 323 and 506 of IPC

against the appellant who abjured guilt and prayed for trial. In the

statements recorded udner Section 313 of Cr.P.C., he took a defence

that prosecutrix's cattle used to damage his crops about which a quarrel

took place between him and prosecutrix's family, due to which he has

been falsely implicated in this case.

4. Learned trial Court after appreciating the oral as well as

documentary evidence available on record, acquitted the appellant from

the charges u/S 506 of IPC but convicted him for the offences

punishable under Sections 376, 342 and 323 of IPC and sentenced them

as stated in para 1 of the judgment. Being aggrieved by the said

judgment of conviction and order of sentence, appellant has preferred

this appeal for setting aside the impugned judgment and discharging

them from the aforesaid charges framed against him.

5. Learned counsel for the appellant submits that the learned trial

Court has committed legal error while appreciating the evidence

available on record. Prosecutrix is a major married lady and her

statements are not consistent with the medical evidence as during her

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medical examination, no external or internal injury was found on all

over her body which makes her statements doubtful as held by the

Apex Court in the case of Pratap Mishra & ors. Vs. State of orissa

(AIR1977 SC 1307). Her statements recorded during trial are not

consistent with her earlier statements recorded under Section 164 of

Cr.P.C. as well as with the statements recorded under section 161 of

Cr.P.C. (Ex.D-1) and also FIR (Ex.P-1) lodged by her on various

material issues. She in her statements recorded under Section 164

Cr.P.C. as well as statement recorded during trial has specifically stated

that her elder sister-in-law Ramkunwarbai was grazing her cattle near

the place of occurrence, but there is nothing on record to show the

reason as to why she did not disclose or narrate the incident to her elder

sister-in-law there immediately after the incident. The whole

prosecution story is doubtful and inference of consent of prosecutrix

can be drawn in the matter. Thus, impugned judgment of conviction

and order of sentence deserves to be set aside and appellant may be

acquitted from the charges framed against him.

6. Per contra, learned counsel for the respondent/State while

supporting the impugned judgment of conviction and order of sentence

submits that judgment so passed by the trial Court is based on proper

appreciation of evidence available on record. Therefore, confirming the

Cr.Appeal No.1647/2019

judgment of conviction and order of sentence, the appeal filed by the

appellants deserves to be dismissed.

7. We have heard the parties at length and perused the record.

8. From the record, it is found that on 13.10.2013 at about 22:00

hours prosecutrix (PW-2) who is a major married lady, lodged FIR

(Ex.P-1) at police Station Pipliyamandi, Mandsaur that on the same day

at about 15:30 hours when she was grazing cattle in the field of

Gangaram in village Semli, appellant came there caught hold her waist

from behind, took her forcibly in nearby room, assaulted her and

committed rape upon her. In the same intervening night of 13 &

14.10.2013 at about 12:15 AM, Dr. Meena Verma (PW-4) medically

examined her at District Hospital, Mandsaur and as per MLC report

(Ex.P-2), she found no external and internal injury on all over her body.

9. Prosecutrix (PW-2) in her FIR dated 13.10.2013 (Ex.P-1) as well

as in her statement (Ex.D-1) recorded on 13.10.2013 under Section 161

of Cr.P.C. stated that at the time of incident, when she screamed loudly

for help and requested appellant to leave her, he asked her whether she

is menstruating and when she did not answer, he hit her head against

the wall of the room and committed rape upon her. She further stated

that after the incident, she returned to her house and narrated the

incident to her elder sister-in-law Ramkunwarbai (PW-3). It is pertinent

Cr.Appeal No.1647/2019

to mention here that on next day i.e. on 14.10.2013, statement of

Ramkunwarbai (PW-3) under Section 161 of Cr.P.C. were recorded

Wherein she stated that on the date of incident, when she returned

home with her cattle, then prosecutrix told her about the incident

meaning thereby she was not at home when prosecutrix returned there

after the incident. After recording of the statements of Ramkunwarbai

(PW-3), prosecutrix (PW-2) in her statement recorded on 24.10.2013

under Section 164 of Cr.P.C. first time disclosed that her elder sister-in-

law Ramkunwarbai also went for grazing cattle and at the time of

incident, she screamed loudly but her sister-in-law could not hear her

voice because she was far from the place of occurrence. Prosecutrix

(PW-2) in her statement recorded during trial reiterated aforesaid facts

that her elder sister-in-law Ramkunwarbai was also grazing her cattle

near the place of occurrence but nowhere stated any reason as to why

she did not inform her elder sister-in-law about the incident who was

present at that time near the place of occurrence.

10. Prosecutrix (PW-2) deposed that appellant after taking her to

nearby room, assaulted her and hit her head against the wall of the

room but Dr. Meena Verma (PW-4) deposed that during medical

examination, no external or internal injury was found on all over her

body. None of the prosecution witnesses has deposed about the

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distance between the place where prosecutrix was standing while

grazing the cattle and the nearby room, where appellant took her

forcibly. I/O SI B.R.Ninama in his spot map (Ex.P-3) has also not

shown the place from where the appellant forcefully took the

prosecutrix in room situated near the well of Gangaram. Prosecutrix is

a major married lady and as held by the Hon'ble Apex Court in the case

of Pratap Mishra Vs. State of Orissa (Supra) that it is very difficult

for any person to rape single handed, a grown up and an experienced

women without meeting stiffest possible resistance from her, it is not

safe to rely upon the testimony of the prosecutrix without any

corroboration as it appears unnatural that even after forcibly taken her,

assaulted and subjected to sexual intercourse, she did not sustain any

external or internal injury on all over her body. Inconsistency in the

statement of prosecutrix about the presence of her elder sister-in-law

near the place of incident and also about the time when she informed

her about the incident, made her statements more doubtful. Prosecutrix

is a married lady, therefore, only on the basis of positive FSL report, it

cannot be said that the same supports the prosecution case as it has not

been mentioned therein that the semen found on her vaginal slide is

same as that of the appellant. In such circumstances, prosecutrix's

statements cannot be said to be wholly reliable, therefore, the same

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cannot be relied upon without any corroborative evidence and only on

the basis of her statement, it is not safe to held the appellant guilty for

the offences alleged against him.

12. In this regard, observations made by Hon'ble Apex Court in the

case of State of Rajasthan Vs. Babu Meena [(2013) 4 SCC 206] can

be relied upon. Relevant extracts of the said judgment is reproduced

below for convenience and ready reference:

"8. We do not have the slightest hesitation in accepting the broad

submission of Mr. Jain that the conviction can be based on the sole

testimony of the prosecutrix, if found to be worthy of credence and

reliable and for that no corroboration is required. It has often been said

that oral testimony can be classified into three categories, namely (i)

wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable

nor wholly unreliable. In case of wholly reliable testimony of a single

witness, the conviction can be founded without corroboration. This

principle applies with greater vigour in case the nature of offence is

such that it is committed in seclusion. In case prosecution is based on

wholly unreliable testimony of a single witness, the court has no option

than to acquit the accused. "

13. In the light of the aforesaid discussion, the defence taken by the

appellant that prosecutrix may be consenting party cannot be ruled out

and this Court has no hesitation to hold that prosecution has failed to

prove the guilt against appellant beyond reasonable doubt. Hence,

Cr.Appeal No.1647/2019

conviction of the appellant cannot be upheld and the appeal filed by the

appellant deserves to be allowed. Accordingly, this Court passes the

following order:

(i) Criminal Appeal No.1647/2019 filed by the appellant -

Deepak Patidar is allowed.

(ii) The judgment of conviction and order of sentence dated

26.12.2018 passed in S.T.No.225/2017 by which appellant

has been convicted under 376, 342 and 323 of IPC and

sentenced him as stated in para 1 of the judgment is

hereby set aside.