Allowed

Shivendra Pratap Singh @ Banty v. State

Chhattisgarh HC7 Oct 2021CRA/1372/2000

Case brief

AI extract

What is this about?

This criminal appeal challenged a conviction for rape. The High Court of Chhattisgarh examined contradictions between the prosecutrix, her husband, and medical reports, ultimately setting aside the conviction and acquitting the appellant due to lack of reliable evidence.

What did the court decide?

Impugned judgment set aside; accused acquitted; bail bonds discharged.

Shivendra Pratap Singh @ Banty Vs State — Criminal Trial and Appeal | Chhattisgarh HC (2021)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 1372 of 2000

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Order reserved on : 13/08/2021

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Order delivered on : 07/10/2021

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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.

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---- Appellant

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Versus

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State of Madhya Pradesh, through Police Station Mahila Thana Bilaspur, District- Bilaspur, M.P. (Now C.G.).

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---- Respondent

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For Appellant : Mr. Sumit Singh with Mr. Manish Nigam, Advocates Mr. Tarun Dansena, through Legal Aid For Respondent/State : Ms. Ishwari Ghritlahre, P.L.

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Hon'ble Smt. Justice Rajani Dubey

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CAV Order

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07.10.2021

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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:-

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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)

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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, chargesheet was filed against the appellant and charges were framed against the appellant under Sections 376 & 450 of IPC.

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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.

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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.

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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

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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.

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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.

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

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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.

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

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“?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

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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”

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“eSa eksgYys okyksa dks mBkus x;kA vfHk;qDr dh “kjkjr ns[kdj eksgYys okys Mjus yxs FksA eksgYys okyksa dks bdVBk 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 bdVBs 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”

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“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”

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

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“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”

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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.

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

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“;g lgh gS fd vkjksih 1&2 cts jkr ds chp esjs ?kj esa ekStwn FkkA 2 cts og Hkkx x;k FkkA”

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“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-&Mh@2 esa eSaus

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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”

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“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”

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

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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.

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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:-

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“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

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the present case completely belies the testimony of the prosecutrix and renders entire prosecution case doubtful.”

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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:-

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“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.

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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?”

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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.

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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

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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.

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Thus, appeal is allowed.

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Sd/(Rajani Dubey) JUDGE

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R/-

Shivendra Pratap Singh @ Banty v. State

Case brief

What is this about?

What did the court decide?

Shivendra Pratap Singh @ Banty v. State

Case brief

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