Shiv Kumar Patel Vs State of Chhattisgarh

This appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment dated 19.04.2007 passed by learned Sessions Judge, Mahasamund in Sessions Trial No.41/2006 , wherein the said Court convicted the appellant and sentenced him as

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under :-

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Conviction	Sentence
Under Section 376 of IPC	R.I. for 10 years and fine of Rs.
	5,000/-, in default of payment of fine,
	to undergo additional R.I. for oneyear.
Under Section 457 of IPC	R.I. for 02 years and fine of Rs.

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1,000/-, in default of payment of fine,
to undergo additional R.I. for 06 months.

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(Both the substantive sentences are directed to run concurrently)

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The case of the prosecution, as unfolded from the impugned judgment and the records of the case is that date of incident is 14.10.2006 at about 10.00 o'clock, which was reported by the complainant/ prosecutrix (PW-1) on 15.10.2006 at Police Station- Bagbahara vide Ex. P/1 alleging that she was residing along with her husband in Village-Sonpuri and on 14.10.2006 in the night while she was sleeping along with her three children, the appellant entered in the house and committed forcible sexual intercourse upon her, since the husband of the prosecutrix was out of his home to attend a village meeting, the accused took the advantage of the situation. When the prosecutrix raised an alarm, the appellant gagged her mouth and assaulted her. After completion of the said act, he fled from the spot. The husband of the prosecutrix came back in the night at around 10:30, she narrated the whole incident to her husband, who then went to appellant’s house, where the appellant had abused and beaten him, which was seen by eye witnesses i.e., Kallu and Uttu @ uttam. Thereafter, due to night on the date of incident, the prosecutrix lodged the report on the next date i.e., 15.10.2006 at Police Station- Bagbahara for offence under Sections 376 and 456 of IPC against the appellant. The matter was taken up for investigating. During the investigation, medical examinations were conducted of the prosecutrix and appellant, spot map was prepared vide Ex. P/3 and seized clothes of the appellant and the prosecutrix and they sent for its chemical examinations. Spot map was prepared by Patwari. Statements of the witnesses were recorded

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and the appellant was arrested. The prosecution after completing the due and necessary investigation, led the charge-sheet before the concerned Jurisdictional Magistrate , who, in turn, committed the case for trial. On the basis of the material contained in the charge-sheet, learned trial Court framed charges against the appellant for alleged commission of offence under Sections 457 and 376 of IPC. The appellant/accused having abjured guilt was subjected to trial.

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In order to establish the charges against the accused person, the prosecution has examined as many as 08 witnesses. The statement under Section 313 of Cr.P.C. of the appellant has been recorded, in which he denied the incriminating charges leveled against him and pleaded his innocence that he has been falsely implicated in this case.

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The learned trial Court after hearing the counsel for the respective parties and considered the material available on record thereby convicted and sentenced the accused/appellant as mentioned in inaugural para of this judgment. Hence, this present appeal.

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Assailing correctness and validity of the impugned judgment of conviction and order of sentence, l earned counsel for the appellant submits that the impugned judgment is contrary to the law, facts and circumstances of the case, the story of the prosecutrix cannot rule out the doubt of implicit consent of the parties, even if the story is believed to be true as it is. Learned Trial Court has failed to appreciate the fact that the statement of the husband of the prosecutrix proved the fact that the appellant was present in the meeting and therefore, the absence of the appellant from the meeting, since not narrated could not have been inferred. Further, the injuries as explained by the doctor on the body of the prosecutrix does not disclose the fact that they were caused due to forcible sexual intercourse. If, it is presumed to be true that such

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injuries were caused at the time of forcible sexual intercourse, nonraising any voice of alarm or pain by the prosecutrix makes her statement further unbelievable. It is, therefore, contended by the counsel that in such circumstances, the conviction was not sustainable. So, the impugned judgment is liable to be set aside.

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Reliance has been placed on the judgments passed by Hon’ble Apex Court in the matters of Sadashiv Ramarao Hadbe vs. State of Maharashtra and anothe r¹ , Narayan @ Naran vs. State of Rajasthan² Pratap Misra and others vs. State of Orissa³ and in the matter of Bablu @ Imrat vs. The State of Madhya Pradesh,4 passed by Hon’ble Madhya Pradesh High Court.

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Ex adverso, learned counsel for the respondent/State supporting the impugned judgment submits that learned Trial Court after minutely appreciating the oral and documentary evidence has rightly convicted and sentenced the appellant. So, there is no scope for interference by this Court. This appeal being without any merit is liable to be dismissed.

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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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It is evident from record of learned learned trial Court that it framed charges for offence punishable under Sections 457 and 376 of IPC against the present appellant and after appreciation of oral and documentary evidence, learned trial Court convicted the appellant for the aforesaid offences.

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Prosecutrix (PW-1) has stated in her deposition that on the date of incident while she was sleeping in her house, her husband was not at home, at that time, someone climbed on top of her and groped her and

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1 (2006) 10 SCC 92

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2 (2007) 6 SCC 465

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3 (1997) 3 SCC 41

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4 CRA No. 1021 of 199

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he was under the influence of liquor, she started talking to stranger as she was under the impression that he was her husband. On this the appellant only murmured, then she tried to wake up her son, but the appellant throttled her throat and committed forcible sexual intercourse upon her and then he laid on the bed of her husband. As the lights were off, she got up and switched on the lights and saw that the accused was lying on the bed of her husband and then she cussed him by stating that he did forcible sexual intercourse upon her and did wrong things too with her. Further, she stated that when she again tried to raise an alarm, the appellant again throttled her throat and the appellant fled from the spot. Thereafter, her husband came back from the village meeting and she narrated the whole incident to him, and when her husband shouted, then the appellant came to his house as he belongs to same vicinity and then the appellant assaulted and abused them. Later, on the next date of incident, they lodged the report at Police Station- Bagbahara vide Ex. P/1. However, she denied the suggestion in cross-examination that on the date of incident her husband and the accused had eaten food and consumed liquor in her house. Furthermore, stated that at the time of incident she was sleeping in the verandah ( parchi ) of the house along with her child and child was weeping. In para 15 of her cross-examination, she denied the suggestion of prosecution that she falsely lodged the report against the accused/appellant as dispute arose between her husband and the accused/appellant while they were going to the village meeting. She has also stated that she did not know that with regard to the land of her aunt-in-law ( bua ), dispute arose between the accused and her husband.

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PW-2, husband of the prosecutrix has stated that when he went to attend the village meeting. After ending of the meeting, while returning

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his house, he heard weeping of his wife, on being asked, she narrated that the accused had committed forcible sexual intercourse upon her and fled from the spot. Thereafter, he scolded to the accused as he has committed rape with her wife, on which the accused assaulted him by club ( lathi ) and her wife, at that time neighbours namely Kallu and Uttu came to rescue by intervening.

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PW-4 Kallu, has stated in his deposition that while he was sleeping in his house where the prosecutrix husband’s house situated, he heard some noise of altercation and someone raising alarm, then he went to the house of the husband of the prosecutrix, where already altercation took place between the accused and husband, to which he intervened to stop it . Later on, he came to know that cause of the altercation took place between them as the appellant committed forcible sexual intercourse upon the prosecutrix. He denied the suggestion of the prosecution that the altercation took place inside the house, he himself stated that altercation took place outside the house and the appellant and husband of the prosecutrix were holding each other.

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Dr. L. L. Dhangar (PW-5), who examined the accused on 16.10.2006 , found some abrasion on his left back upper side and as per his report Ex. P/4, he is capable to perform sexual intercourse.

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Dr. Shakuntala Bariha (PW-7), who examined the prosecutrix stated that she found injury on one little finger of the prosecutrix and opined that the sexual intercourse was done with her within 36 hours and thereby gave her report vide Ex. P/7. Thereafter, the vaginal slide of the prosecutrix was prepared and sent for its chemical examination, however, the FSL report was not produced by the prosecution.

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Close scrutiny of evidence of prosecutrix (PW-1) and her husband (PW-2), makes it clear that some altercation took place between the

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accused and husband of the prosecutrix. The story narrated by the prosecutrix is highly improbable as she was under impression as her husband came and had sexual intercourse, but later on she realized that the person who came and was having sexual intercourse, was not her husband.

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Prosecutrix (PW-1) has stated in her examination-in-chief that she was sleeping in her room of house along with children, on the other hand in her cross-examination, she admitted this fact that she was sleeping in the verandah ( parchi ) of the house and at that time her child was weeping.

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Kallu (PW-4) has supported the defence of accused that some altercation took place between husband of the prosecutrix (PW-2) and the accused and on the same night they have assaulted each other.

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However, in this case, no independent witnesses were examined by the prosecution.

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It has been held by Hon’ble Madhya Pradesh High Court in the matter of Bablu @ Imrat (supra) in para 12 as under:-

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12. None of the allegations levelled by the prosecutrix was supported by the medical evidence. The medical evidence did not indicate commission of any offence of rape, which is evident from the testimony of Dr. Smt. Hema Sharma (PW-7). The prosecutrix was undisputedly, married lady. Offence of rape, according to prosecution was committed on her bed in her bedroom.

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Thus, it is evident from statement of prosecutrix that as the lights were off, she was under impression that her husband came and had sexual intercourse, but as she turned on the lights, she realized that the person who came and was having sexual intercourse, was not her husband, he was accused. This statement is highly doubtful and her

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testimony is not reliable and on the basis of such unreliable testimony the appellant is entitled for benefit of doubt.

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It has been held by Hon’ble Apex Court in the matter of Ganesan vs.

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State Represented By Its Inspector of Police5 in para 10.3 as

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under:-

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10.3 Who can be said to be a “sterling witness”, has been dealt with and considered by this Court in Rai Sandeep alias Deepu v. State (NCT of Delhi), (2012) 8 SCC 21 . In paragraph 22, it is observed and held as under:

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“22. In our considered opinion, the “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross−examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such

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5 (2020) 10 SCC 573

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a version should have co−relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all 12 other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.”

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In the light of above judgment, in the present case also, it is clear that there are material contradictions in the statement of complainant /prosecutrix (PW-1). It is clear from evidence of complainant/prosecutrix (PW-1) that she is not sterling witness and applying the guidelines of

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the Hon’ble Apex Court, the solitary version in the examination in chief of the complainant/prosecutrix (PW-1)cannot be taken gospel truth on its face value, but the learned trial Court did not appreciate this fact while recording the finding of conviction. It is clear that prosecution has utterly failed to prove its case beyond all reasonable doubt. Thus, findings recorded by learned Trial Court being perverse are not sustainable in the eye of law.

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In the result, the appeal is allowed. The impugned judgment of conviction and order of sentence dated 19.04.2007 is hereby set aside. The appellant is acquitted of the charges leveled against him.

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The appellant is reported to be in jail. He shall be set at free forthwith, if not required in any other case. However, keeping in view the provisions of Section 481 of BNSS, 2023 the appellant is also directed to furnish a personal bond for a sum of Rs. 25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereon shall appear before the Hon'ble Supreme Court.

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The Trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.

Sd/-

(Rajani Dubey)

JUDGE

AMIT PATEL

Shiv Kumar Patel v. State of Chhattisgarh

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Shiv Kumar Patel v. State of Chhattisgarh

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