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Bhupendra Singh vs The State Of Madhya Pradesh Thr on 26 April, 2018

1
Criminal Appeal No.381/2017

HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
(SB : VIVEK AGARWAL, J.)

Criminal Appeal No.381/2017
Bhupendra Singh
Vs.
State of MP.

Shri A.R. Shivhare, learned counsel for appellant.
Shri G.S.Chauhan, learned Public Prosecutor for the
respondent-State.
JUDGMENT

(Delivered on 26th April, 2018)
This Criminal Appeal under Section 374 (2) of the Code
of Criminal Procedure, 1973 has been filed against the
judgment of conviction and sentence dated 28.02.2017
delivered by the learned additional Sessions Judge, Pichhore,
District Shivpuri in Sessions Trial No.10/2016, whereby the
appellant has been convicted and sentenced under Section 323
of the Indian Penal Code (for short ‘IPC’) for one year’s
rigorous imprisonment and under Section 377 of IPC for 05
years’ rigorous imprisonment with fine of Rs.1,000/- and in
default of payment of fine, two months’ additional rigorous
imprisonment.

2. It is appellant’s contention that complainant is his wife,
who complained that on the date of the incident, i.e.,
28.10.2015 at about 11.00 PM, the appellant under the
influence of alcohol forced her to undergo carnal intercourse
by firstly placing his penis in her mouth and thereafter in the
anus and when she resisted, he had bitten her tongue. FIR
was lodged on 29.10.2015 at about 13.30 hours.

3. As per the prosecutrix, she had informed her brother-in-

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Criminal Appeal No.381/2017

law and mother-in-law about the incident at the night itself but
because of it being late in night, the FIR was lodged on the
next date.

4. It is appellant’s submission that as far as the offence
under Section 323 of IPC is concerned, it is an admitted fact,
but the offence under Section 377 of IPC was never committed
by him and there is no medical evidence to this effect. It is
further submitted that due to illicit relations of the
complainant, she has falsely implicated the appellant. It is
submitted that the conviction has been recorded under Section
377 of IPC against the evidence of PW4 Dr. Deepa Dubey, who
has admitted that there was no sign of injury on the private
part of the prosecutrix. Only one scratch mark was observed
measuring 2.1/2 cm x 2.00 cm on the tip of the tongue caused
by some hard and rough object and the injuries were found to
have been inflicted within 24 hours of the examination. Two
swabs were taken from the mouth and anus of the prosecutrix
and were forwarded for FSL report after sealing them and
were handed over to the Police. Though PW4 Dr. Deepa Dubey
has given an opinion that the injury to the tongue was caused
because of forceful oral sex, but in the cross-examination she
has admitted that the injury to the tongue could have been
self-inflicted. She also admitted that she had not found any
injury marks in the anus region and further admitted that she
has given narration of anal sex on the ground of narration of
the prosecutrix.

5. Learned counsel for the appellant submits that in her
statement (Ex.D/1), prosecutrix has categorically stated that
her tongue was bitten by the accused. Thus, she has given
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Criminal Appeal No.381/2017

similar statements before the Court, in which she categorically
stated that when she was at her home, her husband had come
to her and had bitten her tongue with his teeth, which resulted
in bleeding. When she resisted, he had done carnal act. Thus,
the medical evidence and the opinion of the doctor when
taken into consideration alongwith the statements of the
prosecutrix, who had undergone the trauma and torture, it is
apparent that the evidence of PW4 Dr. Deepa Dubey in regard
to oral sex resulting injury to the tongue is not corroborated
with the ocular evidence of the prosecutrix. Except for this,
there is no other ground for such finding.

6. Similarly, as regards to anal sex, there is no medical
corroboration to the evidence of the prosecutrix, therefore, the
only thing, which stands proved, is injury to the tongue, which
the appellant admits to have caused under the influence of
alcohol and submits that for this he has already suffered
incarceration for a period of over 2-1/2 years inasmuch as he
is in custody since 30.10.2015.

7. Learned counsel for the appellant has placed reliance on
the judgment of the Hon’ble Supreme Court in the case of
Gowrishankara Swamigalu v. State of Karnataka
Another as reported in 2008 (14) SCC 411, wherein it
was found that when the prosecution case is not corroborated
by the medical evidence, then there is no occasion to sustain
conviction.

8. Similarly, reliance has been placed on the judgment of
this Court in the case of Birkha v. State of MP as reported
in 1980 JLJ 569, wherein it has been noted that when there
was no positive evidence of unnatural sexual offence at the
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Criminal Appeal No.381/2017

time of examination and there is no other corroborative
evidence produced in the file, then conviction has to be set
aside.

9. Learned counsel for the appellant has also placed
reliance on the judgment of this Court in the case of Chunna
alias Sheoprasad Dubey v. State of MP as reported in
2012 (3) JLJ 338, wherein the medical report corroborated
the sexual assault and conviction was upheld, but after
increasing the fine amount, the sentence was reduced to one
already undergone though the appellant in that case had
remained in custody only for 412 days.

10. Similarly, the Chhattisgarh High Court in the case of
Sudesh Verma v. State of MP as reported in 2010 Legal
Eagle 177 has converted the conviction and sentence of 02
years 06 months and fine of Rs.1,000/- under Section 377 of
IPC into rigorous imprisonment of one year and fine of
Rs.1,000/-.

11. Learned Public Prosecutor, on the other hand, has drawn
attention of this Court to para 14 of the judgment, in which
the learned Sessions Judge has recorded a finding that PW4
Dr.Deepa Dubey has categorically opined that signs of forceful
oral sex were available in the form of injury to the tongue. It is
also submitted that there is no suggestion to the prosecutrix
that it was a self-inflicted injury as was given to the doctor and
placing reliance on such evidence of PW4 Dr.Deepa Dubey, the
judgment of conviction has been delivered.

12. After hearing the parties and going through the record in
this case, the evidence of the prosecutrix and PW4 Dr. Deepa
Dubey needs to be appreciated inasmuch as their
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Criminal Appeal No.381/2017

corroboration alone can be a ground to sustain the conviction
under Section 377 of IPC.

13. As far as the injury to the tongue is concerned, the
prosecutrix herself has mentioned in Ex.D/1 so also in her
Court statements that the injury was caused because of biting
by her husband and the injury to the tongue as has been
narrated by the doctor has not corroborated the ocular
evidence of the victim herself and, therefore, to this extent
such evidence cannot be relied.

14. As far as another piece of evidence, which could have
thrown light, would have been injury marks in the anal region.
PW4 Dr. Deepa Dubey has categorically mentioned that there
were no injury marks on the anal region. If there are no injury
marks in the anal region, then the only natural conclusion to
be drawn is that either the prosecutrix was used to anal sex or
the story of anal sex has been cooked up to frame the
accused. There is no such averment on behalf of the
prosecutrix that on any earlier point of time, the accused had
committed unnatural sex and, therefore, the theory of
“used to” gets discarded. Thus, the only thing which survives is
corroboration through medical evidence and that is absent.

15. After this Court has discarded the evidence of PW4 Dr.
Deepa Dubey in regard to oral sex, there is no positive
evidence of unnatural sexual offence in regard to anal sex.
Since there is no medical evidence to corroborate the ocular
evidence, in the light of the law laid down by this Court in the
case of Birkha (supra), I am not in a position to hold that
the offence under Section 377 of IPC has been proved beyond
reasonable doubt.

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Criminal Appeal No.381/2017

16. Thus, the prosecution has failed to correlate the
ingredients of Section 377 of IPC by corroborating the
evidence of the victim and the medical evidence and,
therefore, the conviction and sentence of the appellant under
Section 377 of IPC is not sustainable and is set aside.
17 As far as the conviction under Section 323 of IPC is
concerned, it is maintained. Since the appellant is in jail with
effect from 30.10.2015 and he has already undergone the
sentence of two and half years, he be released forthwith from
the jail if he is not required in any other case.

18. Let the record be sent back to the Sessions Court.

(Vivek Agarwal)
Judge
26.04.2018

Mehfooz/-

Digitally signed by MEHFOOZ AHMED
Date: 2018.04.28 13:37:35 +05’30’

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