Madhya Pradesh High Court
Nitinkant Sonwane vs The State Of Madhya Pradesh on 4 December, 2023
Author: Anuradha Shukla
Bench: Anuradha Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 4 th OF DECEMBER, 2023
CRIMINAL APPEAL No. 7407 of 2023
BETWEEN:-
NITINKANT SONWANE S/O SHRI FATHERDAS
SONWANE, AGED ABOUT 38 YEARS, OCCUPATION:
LABORER R/O VILLAGE SAREKHA P.S. BAIHAR
DISTRICT BALAGHAT (MADHYA PRADESH)
.....APPELLANT
(BY SHRI PRADEEP NAVERIYA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH POLICE
STATION BAIHAR DISTRICT BALAGHAT (MADHYA
PRADESH)
.....RESPONDENT
(BY SMT. VINITA SHARMA - PANEL LAWYER)
Heard on : 24.11.2023
Pronounced on: 04.12.2023
This appeal having been heard and reserved for judgment, coming on
for pronouncement this day, the court passed the following:
JUDGMENT
This criminal appeal has been preferred against the judgment passed on
7.6.2023 by Additional Sessions Judge, Baihar, district Balaghat, in Sessions
Trial No.112/2021 holding the appellant guilty of the offence of Sections 341
and 376 of IPC and sentencing him to rigorous imprisonment of one month and
fine of Rs.500/- and ten years and fine of Rs.50,000/- respectively with a
direction to undergo rigorous imprisonment of six months in default of payment
of Rs.50,000/-.
2. The brief facts of the prosecution case are that the victim-prosecutrix
had gone to her field on 9.5.2021 with her husband; her husband is hard of
hearing and he left for the house after picking up the beans and collecting them
in a bag; the husband of prosecutrix asked her to stay there and told that he
would return along with umbrella because it appeared that it would rain;
prosecutrix was coming back to her house all alone when appellant grabbed her
from behind, he lifted and took her to his agriculture field; he committed rape
with the prosecutrix and ran away; prosecutrix started off for her house and met
Pappu alias Devendra Khare on the way; she told him the entire incident and
also to her husband and mother-in-law on reaching home; it was late in night,
therefore prosecutrix reported the matter next day upon which FIR was
registered at Crime No.125/2021; the prosecutrix was medically examined and
the articles were sent for DNA examination. After completion of investigation,
the charge-sheet was filed and the trial was held. By impugned judgment,
appellant was held convicted and sentenced under both the charges.
3 . The grounds raised in this criminal appeal are that the impugned
judgment is bad in law as well as on facts because findings are not based on
correct appreciation of facts, evidence and law; there were serious
contradictions and omissions in the evidence of prosecution witnesses; they
failed to prove the case beyond reasonable doubts; the trial court committed
error in not appreciating the defence version. It is, therefore, prayed that the
appellant be acquitted and the appeal be allowed.
4 . State has opposed the present appeal on the ground that there is
sufficient evidence to hold the appellant guilty and the sentence passed against
him is proportionate to the gravity of crime. It is, therefore, prayed that this
appeal should be dismissed.
5. Both the parties have been heard and the record of the trial court has
been perused.
6 . This criminal appeal has been argued on the ground that the
prosecution evidence in this case was not of reliable nature and still the trial
court incorrectly held the appellant guilty. In context of this argument, the
prosecution evidence is examined meticulously. P.W.1 is the prosecutrix, who
is a married and major lady. She has claimed in FIR that she had gone to her
agriculture field with her husband, who left for home early, and when the
prosecutrix was coming home all alone, appellant caught hold of her from
behind, lifted her and took her to his agriculture field. Against this narrative
given in FIR, marked as Ex.P-1, the prosecutrix has stated before the court that
appellant caught hold of her hand and took her to the agriculture field where he
raped her. In court statement, she does not state a word about lifting her by the
appellant during her examination-in-chief but in cross-examination she claims
that appellant took her to the field after lifting up. Obviously, during this period
it was not possible for appellant to close the mouth of prosecutrix as both his
hands would have been engaged in lifting her up. Strangely, no alarm was raised
by prosecutrix despite the fact that it was physically possible for her to shout
and scream. She has assigned the reason for not raising the alarm that there was
no one around. This explanation is not comprehendible. Had there been
someone around, the offence would not have been committed and people
normally raise alarm finding themselves in peril and finding no one around to
help them. Thus, explanation given by prosecutrix raises serious doubts about
the story of prosecution.
7. The spot-map prepared by I.O. is marked as Ex.P-3. It has shown the
place where the alleged incident of rape happened and also the place from
where the appellant caught hold of and lifted the prosecutrix. According to
spot-map, the distance between the two places was at least 20 meters. It can be
assumed that for having been lifted by appellant, the hands of prosecutrix were
open to offer resistance and use force against the appellant but no external
injury is mentioned in the MLC report of appellant, marked as Ex.P-9.
Strangely, the MLC report of prosecutrix, marked as Ex.P-6, also does not
reflect any sign of external injury. 20 meter distance was long enough and if any
resistance was offered by the prosecutrix and it would definitely have caused
injuries to both prosecutrix and the appellant in the exercises of overpowering
each other. Despite this, absence of injuries on the bodies of both these persons
raise suspicion about the narrative given by prosecutrix.
8. The statements of P.W.2, who is the mother-in-law of prosecutrix, and
Devendra Kumar (P.W.5), who met the prosecutrix on her way back home, are
only hearsay in nature, hence cannot be believed to prove the commission of
crime. Similar is the nature of statements of Gendlal Bisen (P.W.3).
9. The appellant has also relied upon the DNA report submitted in this
case, which is marked as Ex.-P19. This DNA report reveals that the Y-
Chromosome DNA profile, obtained from the vaginal slide of prosecutrix, was
low and uninterpretable, while the Y-Chromosome DNA profile, obtained from
the underwear and pubic hair of prosecutrix, did not match with the DNA
profile obtained from the blood sample of appellant. Strangely, the trial court
discussed and explained the DNA report in para 18 of the judgment by
observing that it is not necessary that the sperm of accused be found in the
vagina of prosecutrix but the entire judgment is silent about dissimilarity in DNA
profile found from the source of prosecutrix and from the source of appellant.
Unavailability of Y-Chromosome DNA profile cannot be compared with
dissimilarity in Y-Chromosome DNA profile and the court below failed to
acknowledge this significant evidence of dissimilarity.
10. Having considered these serious infirmities in the prosecution case, it
is concluded that the conviction of appellant for the offence of Sections 376
and 341 of IPC is not sustainable in law and, therefore, cannot be upheld.
Accordingly, this criminal appeal is allowed and the appellant is acquitted.
11. The appellant is in custody. He be set on liberty forthwith. The fine
amount, if deposited by appellant, be refunded to him.
12. The finding of trial court regarding the disposal of seized articles is
confirmed.
12. Let the copy of this judgment along with its record be sent to the trial
court for information and necessary compliance.
(ANURADHA SHUKLA)
JUDGE
ps
Date: 2023.12.04 19:43:37 +05'30'
