The State Of Madhya Pradesh vs Santosh Shrivas on 23 June, 2017

MCRC-2616-2017
(THE STATE OF MADHYA PRADESH Vs SANTOSH SHRIVAS)

23-06-2017

Smt. Sonali Shrivastava, learned panel lawyer for the
petitioner/State.
None appears for the respondent though represented.

1. Learned panel lawyer for the State/petitioner heard.

2. This application is filed by the petitioner/State under
Section 378 of the Cr.P.C. for grant of leave to appeal against
the impugned judgment of acquittal dated 27.6.2016 passed
by the Special Judge [Scheduled Castes and
Scheduled Tribes
(Prevention of Atrocities) Act], Burhanpur in Sessions Trial
No.11/2015, whereby the learned trial Court has acquitted the
accused/present respondent Santosh Shrivas from the charge
of offences punishable under
Section 458, 376(1) of the I.P.C.
and
Section 3(2)(five) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act.

3. Briefly stated, the prosecution’s case is that on 14.6.2015
at about 8:00 a.m., prosecutrix (P.W.1) was brooming in her
house in village Paretha and at that time she was alone in her
house, then respondent Santosh, who was cleaning his
motorcyle in front of house of the prosecutrix suddenly
entered into prosecutrix’s house and the accused threw the
prosecutrix on the earth and threatened her that on shouting
she would be killed. Though despite threatening, she cried but
no one paid heed to her cry and the accused after catching
prosecutrix’s neck committed rape with her. Just after the
incident, the prosecutrix intimated about incident on mobile
phone to her husband Jagdish (P.W.2), who had gone to
village Amulla. Her husband returned to their house within 20
minutes. Thereafter, prosecutrix along with her husband went
to police station Khaknar and lodged F.I.R. (Ex.P.1) against the
respondent. Prosecutrix was sent to Nehru hospital,
Burhanpur, where on the same day, she was examined by
Dr.Nazhat Daud (P.W.11). The lady doctor sealed prosecutrix’s
pubic hairs after cutting them in a packet and she also
prepared sealed slides of vaginal smears of the prosecutrix
and prosecutrix’s worn petticoat was also sealed and sent
through a lady constable to relating police station for forensic
analysis. During investigation prosecutrix’s caste certificate
(Ex.P.7) and respondent’s caste certificate (Ex.P.8) were
obtained by the investigator from S.D.O., Nepanagar,
Shankarlal Singhade. According to above mentioned castes
certificates (Ex.P.7 and Ex.P.8), prosecutrix was a member of
Bhilala caste, which falls under the category of Scheduled
Tribes whereas respondent was not a member of Scheduled
Caste or Scheduled Tribe. After completing the formalities of
the investigation, a charge-sheet was filed before the Special
Court, Burhanpur.

4. Respondent abjured the guilt and pleaded that he has been
falsely implicated. No any defence witness was examined. The
learned Special Judge by his impugned judgment acquitted
the respondent from all the charged offences.

5. Learned panel lawyer for the State vehemently contended
that in relation to offence of rape, conviction could be based
only on the evidence of victim/prosecutrix and absence of
external injuries on prosecutrix’s body and internal injuries on
private parts could not be a basis of acquittal of the accused.

READ  Prem Singh, Smt. Shanti vs State Of Haryana on 6 August, 1998

6. Learned trial Court has acquitted the accused, who is
respondent herein, of the aforesaid offences mainly on
following grounds:-

(i) Prosecutrix’s (P.W.1) deposition before the Court that she was
not knowing the respondent before the incident and the
respondent entered into her house suddenly was contradicted by
her signed F.I.R. (Ex.P.1), wherein it was mentioned by her that she
was acquainted with the accused prior to the incident and accused
was invited into her house by herself.

(ii) Prosecutrix (P.W.1) clearly deposed before the Special Court
that firstly she was thrown on earth, thereafter she was thrown by
the respondent on the cot and thereafter she was again thrown on
the earth and due to her three times throwing, she had received
injuries on her legs and neck and there was swelling also on her
neck and she indicated her injuries to the lady doctor and she was
given medicines by the doctor, but her evidence was totally
falsified by the deposition and medical report (Ex.P.13) of lady
doctor Smt.Nazhat Daud (P.W.11), who categorically deposed that
she found no any injury over prosecutrix’s body and the prosecutrix
had not complained about any pain. Thus, it was clear that the
prosecutrix had made material and unbelievable exaggerations in
her deposition.

(iii) These material facts relating to repeatedly throwing of
prosecutrix by accused and her injuries are totally lacking in her
signed FIR.

(iv) Prosecutrix (P.W.1), her husband Jagdish (P.W.2) and his
younger brother Rupesh alias Rajesh (P.W.3) deposed that on the
date of incident at about 8.30 a.m., incident was intimated by the
prosecutrix to her husband on mobile phone and within twenty
minutes, her husband with his above mentioned younger brother
had reached to their house at village Paretha by motorcycle, but
the F.I.R. (Ex.P/1) was lodged at police station Khaknar at 15:00
hours (3:00 p.m.) and there was no explanation of this delay,
though prosecutrix’s husband was driving motorcycle from another
village to village Paretha.

(v) Prosecutrix (P.W.1), her husband Jagdish (P.W.2) and his
younger brother Rupesh alias Rajesh (P.W.3) deposed that when
prosecutrix’s husband returned to his house at village Paretha by
motorcycle, then respondent was present on the spot and the
respondent’s hands and legs were tied up by a rope by Jagdish
(P.W.2) and Rupesh alias Rajesh (P.W.3), but Jagdish (P.W.2) and
Rupesh alias Rajesh (P.W.3) deposed that they had left the
respondent in tied up state in front of their house and proceeded to
police station for reporting, but all these material facts are totally
missing in delayed FIR (Ex.P.1). Thus, it was clear that all these
three interested and relative prosecution witnesses including
prosecutrix have materially exaggerated the prosecution version,
which is indicative of their falsehood.

READ  Bharatbhai Keshvalal Ajmeria vs State Of Gujarat on 5 June, 2017

(vi) Prosecutrix’s husband Jagdish (P.W.2) deposed in para 6 that
his neighbourers of village Paretha are not having any knowledge
about the incident because they had not intimated about incident
to anyone. It is surprising that according to evidence of prosecutrix,
her husband and his brother, the respondent was tied up by a rope
by them and was left in village Paretha in front of their house. This
fact was not noticed by any neighbourer of village Paretha. During
investigation, respondent Santosh was arrested by I.O. on
15.6.2015 by arrest memo (Ex.P.9).

(vii) Prosecutrix (P.W.1) deposed in para 9 that beside and in front
of her hut, there are so many other huts, where so many persons
live.

(viii) Thus, prosecutrix’s evidence that before rape, she had
shouted but no one came to rescue her prima facie appears to be
unbelievable.

(ix) Prosecutrix (P.W.1) deposed in para 9 that at the time of
incident when her neck was caught by the respondent and when
she was repeatedly thrown at three times, then she was
continously struggling for about half an hour and at that time, she
had cried loudly and in this struggle, she had received injuries on
her body, but it is clearly mentioned in her delayed FIR that no one
heard her shouting. It clearly indicates that the prosecutrix’s
deposition is situated at a maximum possible distance from truth.

(x) Prosecutrix (P.W.1) reported and deposed that after the
incident, her husband had returned from village Amulla to village
Paretha within twenty minutes to their house, but her husband
Jagdish (P.W.2) and his younger brother Rupesh alias Rajesh
(P.W.3) have deposed that on the date of incident when they
returned in the morning from village Amulla to village Paretha, then
prosecutrix was standing out of the village Paretha waiting for
them.

(xi) Prosecutrix (P.W.1), her husband Jagdish (P.W.2) and his
younger brother Rupesh alias Rajesh (P.W.3) have deposed in one
voice that on the date of incident firstly prosecutrix had gone to
police outpost Dedhtalai for reporting the matter, but it has not
been explained by them or by the investigator or any other witness
that why report was not lodged at police outpost Dedhtalai.

(xii) Though F.S.L. report (Ex.P.16) reveals presence of human
semen and sperms on slides of vaginal smear of prosecutrix, her
petticoat and respondent’s underwear and respondent’s semen
slide, but as the prosecutrix (P.W.1) was a 23 years old married
lady having a daughter according to her deposition, presence of
human semen and sperms on prosecutrix’s petticoat and slides of
vaginal smears could not indicate only towards the respondent as
D.N.A. testing was not performed.

READ  (Hemanta Naskar & Ors vs State & Anr.) on 4 August, 2017

(xiii) It was the defence of the accused suggested in cross-
examination of above mentioned prosecution witnesses and
accused’s examination under Section 313 of the Cr.P.C. that
husband of the prosecutrix had purchased an autorickshaw after
taking a loan from a bank branch and remained unsuccessful in
returning the loan amount and thus, the respondent had given
money to the prosecutrix’s husband to get the autorickshaw
released from the bank branch and as he was demanding his
money back, he was falsely implicated in the rape case.

(xiv) In the light of above mentioned abnormalities and unnatural
facts and circumstances deposed by the prosecutrix, her near
relatives and the clear facts mentioned in the F.I.R. that the
prosecutrix herself had invited the respondent into her house, the
possibility of false implication of respondent could not be ruled out
and such unnatural and unbelievable facts and circumstances
deposed by the prosecutrix and her near relatives clearly establish
their falsehood.

7. It is true that even in absence of injury on the body of the
prosecutrix, the accused could be convicted only if the
evidence of the prosecutrix appears to be totally trustworthy.
In this case due to above mentioned reasons and considering
the material inconsistencies, discrepancies and contradictions
among the evidence of the prosecutrix (P.W.1), her husband
Jagdish (P.W.1) and his younger brother Rupesh alias Rajesh
(P.W.3) and unnaturalities and unbelievable account given by
them, their testimonies do not inspire confidence. The learned
trial Court has referred so many citations in its impugned
judgment, which reveal that learned trial Court has properly
and legally appreciated the evidence of prosecutrix and other
prosecution witnesses and it is clear that on material points
due to rebuttal of prosecutrix’s deposition by her own F.I.R.
(Ex.P.1), medical evidence and looking to the improbability
factor, the evidence of prosecutrix does not fall under the
category of totally reliable witness and no different logical
view is deductible in the given set of prosecution evidence.
Upon the aforesaid findings, acquittal of the accused/present
respondent is entirely justifiable. Therefore, we are not
inclined to interfere with the impugned judgment of acquittal
in view of the law laid down in the matters of Haripad Vs.
State of Bihar (2014 Cr.L.J. 2006), State of M.P. Vs.
Shankar [1998 (2) M.P.W.N. 169] and Surendra Rai Vs.
State of Bihar (2013 Cr.L.J. 1847).

8. In view of above discussion, we dismiss this application
summarily. Copy of this order be sent to the trial Court along
with its record for information.

(S.K. GANGELE) (ASHOK KUMAR JOSHI)
JUDGE JUDGE

C

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