Allowed

Shiv Prasad Rajwar v. State

Chhattisgarh HC1 Oct 2021CRA/584/2001

Case brief

AI extract

What is this about?

High Court allowed appeal against conviction for rape, holding trial court erred in basing decision solely on prosecutrix's deposition. Court noted lack of reliable medical evidence, witness discrepancies, and admissions by prosecution witnesses regarding enmity and non-disclosure of incident.

What did the court decide?

Impugned judgment and order of conviction and sentence set aside; appellant acquitted of charges and reported to be on bail with bonds discharged.

Shiv Prasad Rajwar 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. 584 of 2001

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Order reserved on : 14/07/2021

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Order delivered on : /10/2021

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Shivprasad Rajwar, S/o Mohan, Aged About 27 Years, R/o VillageOdari, P.S. Sonhat, District- Koria, C.G.

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---- Appellant

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Versus

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The State of Chhattisgarh, through P.S.- Sonhat, District- Koria, C.G.

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---- Respondent

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For Appellant For Respondent/State

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: Mr. A.K. Prasad, Advocate : Ms. Ishwari Ghritlahare, P.L.

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Hon'ble Smt. Justice Rajani Dubey

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CAV Order

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….....10.2021

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Present appeal is preferred against the impugned judgment of conviction and order of sentence dated 08.06.2001 passed by First Additional Sessions Judge, Baikunthpur, District- Koria (C.G.) in Sessions Trial No. 175/2000 whereby, the trial court convicted the appellant as under:-

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S.No.	Conviction	Sentence
1.	Under Section 376 (1) of IPC	Rigorous Imprisonment for 7 years
2.	Under Section 457 of IPC	Rigorous Imprisonment for 3 years

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Brief facts of the case are that on 01.03.2000, in between 8-9.00 PM, when the prosecutrix (PW-1) was sleeping in her house, at the relevant time, appellant entered the house of prosecutrix by breaking the door and took her near the courtyard and committed sexual intercourse with her. When the prosecutrix raised alarm, the appellant gaged her mouth and threatened her of dire consequence and fled away from there.

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When her husband came from Village- Parcha, she narrated the incident to him as also to Babulal, Rajjansay, Kambalsay, Bundhu and Sukulramswaroop. Thereafter, FIR (Ex. P/1) was registered against the appellant under Sections 376 (1) & 457 of IPC. Seizure of wooden plate and soil were made vide EX.P/2. Spot-map was prepared vide Ex. P/7. Clothes stained with sperm were seized vide Ex. P/3. Dr. Nirmala Yadav (PW-8) examined the prosecutrix (PW-1) and gave her report (Ex. P/8). Vaginal slides were prepared and seized vide Ex.P/6. Dr. N.P. Bhargava (PW-9) examined the appellant (Shivprasad Rajwar) and gave his report vide Ex. P/10 according to which the appellant found capable to perform sexual intercourse. Caste Certificate of the prosecutrix was seized vide seizure memo (Ex. P/4). The seized articles were sent to FSL, Baikunthpur, for medical examination by Superintendent of Police vide memo (Ex. P/15). After investigation, charge-sheet was filed against the appellant and charges were framed against him under Sections 376 (1) & 457 of IPC.

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So as to hold the accused/appellant guilty, the prosecution has examined as many as 11 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- Shivprasad Rajwar under Sections 376 (1) & 457 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 is contrary to the facts, law and circumstances of the case. Learned court below failed to consider that the prosecution could not prove its case beyond all reasonable doubts and the appellant deserves to be acquitted. There was hardly any reliable evidence on record to warrant the conviction of the appellant. The learned court below failed to consider that the prosecutrix (PW-1) and her husband Bihari Lal (PW-2) are not reliable witnesses as there are material discrepancies in their statements. The learned court below failed to consider that no positive evidence of rape has been given by Dr. Smt. Nirmala Yadav (PW/8) who

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has medically examined the prosecutrix (PW-1). 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.

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Per contra, 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-1) has stated in her examination that appellant entered the house of prosecutrix by breaking the door and took her near the courtyard and committed sexual intercourse with her. She narrated the incident to her husband and on the next day, informed Babulal, Kamla, Rajan and Ramswaroop, and thereafter, she went with her husband to lodge the FIR against the appellant.

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Dr. Nirmala Yadav (PW-8) who medically examined the prosecutrix has stated in her examination that no injuries can be seen over genitalia and thighs and no definite opinion can be given about commission of rape as she is habitual to sexual intercourse.

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In rape cases, evidence of the prosecutrix is sufficient for rape, it has been held by Hon'ble the Apex Court in the matter of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat reported in (1983) 3 SCC 217 in para 11 which reads as under:-

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“If the evidence of the victim does not suffer from any basic infirmity, and the 'probabilities factor' does not render it unworthy of credence, as a general rule, corroboration cannot be insisted upon, except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. This rule is subject to the qualification that corroboration may be insisted upon when a woman having

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attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instant of self-preservation; or when the 'probabilities factor' is found to be out of tune.”

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Bihari Lal (PW-2) has admitted in his examination-in-chief that he did not inform anybody about the incident at night. He admitted that when they went to the police station to lodge the FIR against the appellant, Guruji also went with them and he did not know about the enmity between guruji and the appellant.

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Babulal (PW-3) has stated in his examination that Bihari Lal (PW-2) did not tell about the incident in detail.

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Kamal Sai (PW-4) has stated in his examination that,

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“ogka ij fcgkjh us ;g crk;k Fkk fd] og esgekuh djus ijpk xkao x;k gqvk Fkk vkSj vkjksih f'ko izlkn us mlds ?kj dk gVdk rksM+ fn;k FkkA eq>s fcgkjh us og gVdk Hkh fn[kk;k Fkk ijUrq dqN vkSj ugha crk;k FkkA ml le; fcgkjh dh ?kjokyh Hkh ogka ekStwn FkhA fcgkjh dh ?kjokyh us Hkh dqN ugha crk;k FkkA”

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14. Ram Swaroop (PW-5) has stated in his examination that,

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“;g ckr lgh gS fd iwoZ esa esjk vkjksih ls tehu dks ysdj fookn gqvk Fkk ftldk eqdnek dysDVj ds ;gka pyk FkkA ;g ckr Hkh lgh gS fd] esjs firkth vkSj vkjksih ds chp mlh tehu dk nhokuh eqdnek cSdq.Biqj flfoy dksVZ esa py jgk gSA esjs t; dqaoj ds ifr fcgkjh yky ls u vPNs laca/k gSa vkSj u [kjkc laca/k gSaA tehu ds eqdnes esa fcgkjh yky esjk i{k ugha ysrk gSA ,slk dguk xyr gS fd] tehu ds eqdnes dks ysdj esjh f'ko izlkn ls nq'euh py jgh gSA vkidk ,slk dguk xyr gS fd mlh nq'euh ds dkj.k ge vkSj fcgkjh yky us vkjksih ds fo:) >wBh fjiksVZ djkdj >wBk eqdnek cuok;k gSA tc fjiksVZ djokus fcgkjh yky vkSj mldh iRuh x;h Fkh rc eSa vkSj dksVokj Hkh Fkkuk lksugr x, FksA”

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Jansay (PW-6) has stated in his cross-examination that he is resident of Janpad Panchayat but Bihari Lal (PW-2) and his wife/prosecutrix (PW-1) did not inform anything about the incident.

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Prosecutrix (PW-1) has stated in para 5 of her cross-examination that there were stones in the courtyard and he made her lay on the ground and, thereafter, committed rape on her.

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Prosecutrix (PW-1) and her husband Bihari Lal (PW-2) did not tell anyone about the incident. According to FIR (Ext. P/1), date and time of incident was 01.03.2000 at about 8-9.00 P.M. and the report was lodged on the next day i.e. 02.03.2000, at about 15:30 P.M. It is clear from the statement of all the witnesses that prosecutrix and her husband kept silence for the whole night and informed about the incident in the morning. Ram Swaroop (PW-5) has admitted his enmity with appellant and stated that he went to Police Station along with the prosecutrix (PW-1) and her husband (PW-2). The place of incident was full of cob stones but the doctor did not find any external or internal injuries on the body of the prosecutrix.

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Jansai (PW-6) is the president of Janpad Panchayat, Sonhat and he was living in the same village but the prosecutrix and her husband did not tell anything about the incident to their Panchayat President. Other witnesse Kamal Sai (PW-4) has stated that he was only told about the appellant entering the house. Investigating Officer P.R.K. Singh (PW-11) has seized the stopper of door according to seizure memo Bihari Lal (PW-2) but the whole incident is not supported by reliable witnesses. Statement of the prosecutrix is not reliable and has not been supported by medical evidence. Ram Swaroop (PW-5) has admitted that there was the enmity between appellant and him. These are the facts and circumstances which support the defence of the appellant.

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It is basic a principle of criminal justice that the prosecution has to prove its case beyond all reasonable doubt and accused has to show his defence probable but the learned trial court finds him guilty.

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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 5.2 which reads as under:-

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“From the impugned judgments and orders

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passed by both the courts below, it

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appears that the appellant has been convicted solely relying upon the deposition of the prosecutrix (PW-1). Neither any independent witness nor even the medical evidence supports the case of the prosecution. From the deposition of PW-5, it has come on record that there was a land dispute going on between both the parties.”

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In the prosecution case, the medical evidence also does not support the prosecution case.

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In view of the above, the appeal is allowed and the impugned judgment and order of conviction and sentenced passed by the learned court below is hereby set aside and the appellant is acquitted of the charges levelled against him. The accused/appellant is reported to be on bail. His bail bonds shall stand discharged.

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23. Appeal is thus allowed.

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Sd/-

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(Rajani Dubey) JUDGE

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Ruchi/-

Shiv Prasad Rajwar v. State

Case brief

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Shiv Prasad Rajwar v. State

Case brief

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