Shivendra Pratap Singh @ Bunty vs State Of Madhya Pradesh

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 Section 376 of IPC

Rigorous Imprisonment for 7 years and to pay fine of Rs. 1000/- (in default of payment of fine R.I. for 6 months)

2.

Under Section 450 of IPC

Rigorous Imprisonment for 3 years and to pay fine of Rs. 1000/- (in default of payment of fine R.I. for 6 months) (Both sentence to run concurrently)

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.

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.

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.

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.

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.

Heard learned counsel for the parties and perused the material available on record including the impugned judgment.

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.

Ramji Sahu (PW-1) has stated in his examination that,

Sewak Ram (PW-3) has stated in his examination that,

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.

Prosecutrix (PW-2) has stated in her examination that,

Sewakram (PW-3) has stated in his examination that, when he reached the spot, the accused fled away from there.

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.

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."

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?"

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.

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.

Thus, appeal is allowed.