Ravishankar v. State Of C.G.

husband who woke up at that time, asked where she had gone thereafter she narrated the entire incident.

Thereafter, an investigation was conducted and based on the investigation, the case was registered against appeilant and he was subjected trial before court below for the offence under Section 376(1) IPC. The prosecution, all, has examined as many as 9 witnesses and on behalf of defence, two witnesses were examined. After conclusion of trial, the court below unally found the appellant to be guilty of having committed an offence under Section 376

(1) IPC and sentenced him for the period as enumerated first paragraph this judgment leading to filing of this appeal. Learned counsel appearing for assailing the judgment submits that the entire judgment of court below is totally bad in law for the reason that the court below has not appreciated the evidence in its proper perspective.

lt is a case where the appellant has been falsely implicated the case and that the prosecution has not been able establish its case beyond all reasonable doubts.

lt also contended prosecution highly improbable.

If the entire records perused, what clearly reflects there are so many contradictions and omissions on the part of the witness who have been examined before the court below so far as firstly; who the accused was, r secondly; the incident itself having occurred or not; and thirdly the fact that material witnesses relevant for the proper adjudication of the case have been deliberately given up by prosecution.

Thus, impugned judgment of conviction cannot be sustained and the same / .

I I ( i

@ deserves to be set aside/quashed.

6.

Counsel for the appellant referring to statements of prosecutrix PW-1, PW-6, Ravi Prasad Kushwaha, Investigating Officer, also statement one Shiv Prasad recorded during course investigation under Section 161 submitted that it is a case where intact there is sufficient material on record to show that the alleged act could haveebeen committed by one Peelu Ram and not the present appellant. So far as involvement of Peelu Ram is concerned, there is no proper investigation reach to the conclusion that he could have been the offender in committing the offence.

lt was next submitted it a where husband prosecutrix has also created great element of doubt in his version and the benefit of which should go in favour of the appellant. The statement prosecutrix itself would reveal it was highly improbable story which has been made by the prosecution. The averment made in the said deposition are hard to believe and gives great element of doubt suspecting the case of the prosecution. There is also great element of doubt created on the version of PW-2, Agam Das, the Husband r prosecutrix, inasmuch as both, the prosecutrix and her husband have stated that after the prosecutrix had gone to relieve herself at around 2 AM, the Husband woke up after a while the prosecutrix came.

lt was the husband of the prosecutrix who had first enquired as to where she had gone and he scolded his wife also as to where she has gone. lt then prosecutr'ix had narrated entire incident her Husband.

This' according to the appellant is a very unnatural conduct .i / t i

on the part of a lady who has been subjected to rape at around 2 AM in the night at the hands of unknown person and yet she reached home in a normai condition without creating hue cry respect incident and it is only when the husband had scolded her and enquired where she had gone, she implicates present of having committed the offence.

8.

It was also contended that the prosecutrix as well as her husband, PW2, both have admitted the fact that immediately after the prosecutrix had disclosed the fact to the husband, he had rushed to the house of one Shiv Prasad and there he is said to have told Shiv Prasad of his wife (prosecutrix) informing him Peelu Ram had committed sexual intercourse with her.

Surprisingly, the said Shiv Prasasd has not been examined for reasons best known. Therefore, it all the more creates a great element doubt on story prosecution.

lt was further submitted even PW-6, Investigating Officer, also his deposition has accepted the fact that Peelu Ram had also been called to the police station for the purpose of investigation which also gives /'.

rise to doubt of the fact that the said act of rape could have been done by Peelu Ram.

lt also submitted it a where defence has also examined two witnesses and both the witnesses DW-1, Alman Singh and DW-2, Bhishma Singh have come up with a stand that the appellant was all along with them in the field protecting crops on the fateful night. DW-1 states that when the police has brought Peelu Ram to the place of incident, he was also present there and Peelu Ram is said to have /.

again confessed before police authorities this was piace u where he was standing in the night when the prosecutrix came out for relieving herseif and from where he had caught hoid of her hand and had taken the prosecutrix to the back side of the house of Tuman Singh and had ravished her.

10.

it was also contended that medical evidence which have been adduced by the prosecution also does not support the case prosecution inasmuch as the prosecution has not brought any material by which it can be suggested that the appellant is said to have committed rape with the prosecutrix. Further, the medical evidence is also not reliable for the reason that the articles seized during the course of investigation have been sent for chemical examination, but report of the same has not been received.

In the absence of any chemical report, it cannot be established as to whether the appellant did commit the offence or not. 11.

lt was lastly contended that the appellant has been falsely implicated in the case on account of political chemistry which was there in the village inasmuch as, PW-3, Hari Shankar Singh, the brother of the prosecutrix had an inimical terms with present as present appellant was not supporting sister law (Bhabhi) of PW-3 who was contesting the election of Sarpanch and also stood elected. Thus, with an intention to falsely implicate, the appellant has been made an accused instead of Peelu Ram who is the real culprit. 12.

All these facts depict a lot contradiction omissions prosecution story and benefit of which should have been given the appellant. Therefore, the impugned judgment of conviction deserves t.

/

@ to be set aside and the appellant be acquitted of the charges. 13.

On the other hand, learned couhsel appearing for the State opposes the appeal on ground there no reason disbelieve prosecutrix.

it settled'position of Iaw that in case of rape, it is the statement of prosecutrix which has paramount importance and in the instant case the prosecution witnesses have supported the case of the prosecution so far as commission offence by appeliant concerned. The defence also has not been able to extract much from cross examination prosecution witnesses creating doubt on the prosecution story.

14.

It was also submitted by the State that it is a case where there is prompt lodging of FIR which all the more inspires confidence on the prosecution storyfor the reason that the incident is alleged to have been taken place at about 2 AM night and FIR was lodged immediately at around 5 AM in the morning i.e. just after a couple of hours, which all the more is a reason not to doubt the case of prosecution.

Thus, the case of the prosecution has been proved beyond all reasonable doubts the judgment of conviction appellant does not call for any interference and prayed for rejection ofthe appeal. 15.

Having considered the rival contentions put forth on either side and on perusal of record, at the outset what would be relevant to take note of is '

the statement of PW-1, the prosecutrix, before the court wherein she admits the fact that Peelu Ram was also called to the police station along with the present appellant'where the Peelu Ram is said to have accepted the fact-that it was he (Peelu Ram) who had committed rape K \ \

with prosecutrix.

Likewise, statement prosecutrix further stands corroborated from statement PW-6, Investigating Officer, who accepts the fact that Peelu Ram was also called upon by the police during the course of investigation. Another surprising factor in the present case is that though the FIR was lodged in the name of present Peelu Ram both having been summoned by the same police to the police station on the same day, yet no arrest was made in respect of Peelu Ram which itself gives rise great element doubt.

The instant was arrested only after 13 days i.e. on 30.03.2000. 16.

PW-2, Agam Das, husband of prosecutrix, his deposition has stated that immediately after his wife narrated the incident, he had gone to the house Shiv Prasad have informed him about incident.

Statement Shiv Prasad has been recorded during course investigation and in his statement under Section 161 CrPC, Shiv Prasad has accepted the version of the Husband informing him that Peelu Ram has committed sexual intercourse with prosecutrix.

However, said Shiv Prasad has not been examined.

17.

ln addition, another factor which needs appreciation is the contentions raised by Shiv Prasad which cannot be brushed aside for the reason that in case if the prosecutrix who had gone for relieving herself at 2 AM in the night and in that odd hours in case she has been subjected rape, her reaction would have been entirely different. As per statement of PW-2, Agam Das, Husband prosecutrix, he had woke up by that time and When she came back, he scolded her as to where she had / ( l

i gone and inquired about her whereabouts at the odd hours and it is only thereafter she is said to have informed her husband about the incident, which in the opinion of this court is suspicious. The prosecutrix being subjected to rape at odd hours would have rushed to her house and she ought to have made hue and cry of the incident which having not done, the conduct of the prosecutrix becomes slightly doubtful and the benefit of doubt in any manner has to go in favour of the appellant. 18.

At this juncture, it would also be relevant to take note of the judicial pronouncements in this regard. The Supreme Court in case of Narender Kumar Vs, State (NCT of Dehil), reported in 2012

(7) SCC 171, while dealing with the case of rape has held in paragraphs 22,29 and 30 as under:

"22. Were evidence prosecutrix is found suffering from h serious infirmities and inconsistencies with other material, the prosecutrix making deliberate improvement on material point with a view of rule out consent on her part and there being no inquiry on her person even though her version may be otherwise, no reliance can be placed upon her evidence.

(Vide Suresh N. Bhusare Vs. State of Maharashtra). 29.

However, even in a case of rape, the onus is always on the prosecution prove, affirmatively each ingredient offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why a rape victim other witnesses have falsely implicated the accused.

The prosecution case has to stand on its own legs cannot take support from weakness defence.

However great suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused established beyond reasonable doubt on basis of legal evidence and material on record, he cannot be convicted for an offence.

There is an initial presumption of innocence of the accused and the prosecution has bring home the offence against the accused by reliable evidence. The accused entitled be benefit of every reasonable doubt.

(Vide Tukaram Vs.

State of Maharashtra Uda Vs. State of Karnataka).

30.

The prosecution has prove its beyond doubt cannot take support from weakness defence. There must be proper Iegal evidence and material on record record conviction accused.

The conviction can be based on soie testimony of the prosecutrix provided it lends assurance f her testimony.

However, case the court has reason notto accept the version of the prosecutrix on its face value, it may look for corroboration.

In evidence read its totality story projected by the prosecutrix is found to be improbable, the prosecutrix's case becomes liable to be rejected." 19.

Relteratlng same principle, Supreme Court again Manohar Lal Vs. State of Madhya Pradesh, reported in 2014 (15) SCC 5 87, has held in para-9 as under:

"9. Having found it difficult to accept her testimony on its face value; we searched for support from other material but nnd complete lack of corroboration on material particulars.

Firstly medical examination victim did not result in any definite opinion that she was subjected rape.

Secondly;

Riyaz who was like a brother to the victim and thus a close confidant, has not supported the case of the prosecution and has completely denied having met her when she allegedly narrated incident him.

Thirdly, person who was suffering from fever and to whose house she was first taken by was not examined at all.

Fourthly, policeman who the victim met during the night was also not examined.

Fifthly, neither the brother nor any of the parents of the victim were examined to corroborate the version that she had come from village of her brother and alighted around 10.00 pm at Bajna Bus Stand. Lastly, the sequence of events as narrated would show she had allegedly accompanied various places.

ln circumstances, we find extreme difficulty relying upon the version of the victim alone to bring home the charge against the appellant. We are inclined to give benefit of doubt to the appellant."

20.

In view of aforesaid authoritative decision of Supreme Court and also taking into consideration peculiar facts circumstances case, this court is of the opinion that a lot of doubt is created in the mind of the court so far as the conduct of the prosecutrix as also the fact that x_k I

t'"':-.

a @ there are more than one witheéses who have referred the act to have been committed by Peelu Ram not by present appellant.

In addition, the defence witness have also tried to establish the fact that firstly the appellant was all along present in the held for protecting the crop. The other defence witness have stated of having witnessing police authorities taking Peelu Ram to the place of occurrence where he is said to have admitted of having committed rape. Both these defence witnesses have not been effectively cross examined to the extent by which it can be said that their statements become doubtful or unreliable. 21.

Under the aforesaid facts and circumstances of the case, this court is of the opinion that benefit of doubt created in the mind of the court would go favour appellant.

Hence impugned judgment conviction so far as concerned, same not sustainable.

Accordingly, appeal allowed.

The judgment impugned dated 19.06.2001 is set aside. The appellant is acquitted of the charges.

His bail bond shall remain in operation for a further period of six months View of provisions contained in Section 437-A CrPC. .

SE":

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(P. Sam Koshy) inder Judge