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Bihari vs The State Of M.P. on 28 August, 2018



Criminal Appeal No.922/1997

Bihari, s/o Jagannath Kol
The State of Madhya Pradesh

Shri G.S.Baghel, Senior Advocate with Shri L.A.S.Baghel,
Advocate for the appellant.
Shri B.P.Pandey, G.A. for the respondent / State.

Whether approved for reporting : (Yes / No).


(Delivered on 28th day of August, 2018)

The appellant has preferred the present appeal being aggrieved
with the judgment dated 17.4.1997 passed by the Sessions Judge,
Satna, in S.T.No.140/1996 whereby the appellant has been convicted
for the offence under Sections 376 of the IPC and sentenced to un-
dergo RI for 7 years, with default stipulation.

2. The prosecution case, in brief, is that on 8.5.1996 at about 6
AM prosecutrix, (PW-2), had gone to answer the call of nature out of
the village at Jajhuja hill, and while she was returning the appellant
came from backside and caught hold her and dragged her to few
steps from the way and committed rape with her. On hearing the cry
of the prosecutrix, her mother-in-law Fuliya (PW3), Kadi Basor and
one Tailor towards the spot and saw the appellant clinging over the
prosecutrix. After seeing them, the appellant left the prosecutrix
and fled away. The entire story has been narrated by the pros-
ecutrix to them.



3. On the same day, information of the incident was given at Po-
lice Station Jaso, on the basis of which First Information Report,
Ex.P/3, was lodged and crime no.46/1996 was registered against the
appellant for the offence punishable under sections 376 of the I.P.C.
and the matter was investigated. The prosecutrix was sent for her
medico legal examination. Dr.Maya Pandey (PW-8) examined her at
the Community Health Centre, Nagod and gave her report Ex.P-7.
Spot map was prepared. Bangles of the prosecutrix were recovered.
Appellant was arrested on 24.7.1996 and his medical examination
was conducted. After due investigation, a charge sheet was filed be-
fore the concerned JMFC, who committed the case to the Court of
Sessions. The court of Sessions Judge, Satna, framed the charge
against the appellant for the offence under section 376 of the I.P.C.
The appellant abjured the guilt and claimed to be tried. His defence
was that he has been falsely implicated on account of dispute with
regard to taking Tendu leaves of the appellant by the prosecutrix.

4. The learned court below after adducing the oral as well as doc-
umentary evidence convicted the appellant under section 376 of the
I.P.C. and sentenced him, as mentioned above.

5. Learned counsel for the appellant submitted that the finding of
the learned court below is contrary to law. The allegation of com-
mission of rape with the prosecutrix has not been established be-
yond reasonable doubt by the prosecution as the medical evidence
and other circumstances also do not establish the fact of commission
of rape. The appellant has been falsely implicated, as there was dis-
pute between the prosecutrix and the appellant with regard to steal-
ing of Tendu leaves, with the assistance of Bhangwandeen with
whom the appellant have strained relations. The statements of the
prosecutrix and other witnesses are contradictory and medical evi-
dence also does not support the facts of the incidence. FSL report is
also not on record. Hence, it cannot be said that the prosecution has
established the charge beyond reasonable doubt. Hence, no offence


under section 376 of the I.P.C. is made out. Hence, the appeal be al-
lowed and the conviction and sentence be set aside.

6. On the other hand, learned Govt. Advocate has contended that
the finding of the learned court below is based on legal and proper
appreciation of the evidence, which does not require any interfer-
ence, therefore, the appeal be dismissed.

7. Having considered the contention advanced by learned coun-
sel for the parties and on perusal of record first of all it is to be seen
whether the prosecution has established beyond reasonable doubt
that the rape was committed by the appellant.

8. The prosecutrix, PW2, has stated that on the date of incident
nearabout 6 AM while she was returning after answering the call of
nature, from Jajhuja hill, the appellant came from backside, pressed
her mouth, threw down her by his leg and committed sexual inter-
course with her. The prosecutrix started crying and on hearing her
hue and cry, her mother-in-law Fuliya, Bihari and Chhote Tiwari
came to the spot. They also saw the applicant running away after
leaving her. The prosecutrix narrated the entire incident to them
then they went to lodge FIR, which is Ex.P/1. Thereafter, police sent
her for medical examination where she was examined by Dr.Maya
Pandey. However, Dr.Maya Pandey has stated that the prosecutrix
is a married woman. No definite opinion can be given about rape.
Vaginal swab was prepared and handed over to the police and re-
port, Ex.P/10 was prepared. Mother-in-law of the prosecutrix,
Fuliya, PW3 and Chhote Tiwari, PW4 have corroborated the testi-
mony of the prosecutrix.

9. The aforesaid testimony of the witnesses have been challenged
on the ground that Chhote Tiwari, PW4, is an implanted witness as
his name has not been disclosed in the FIR, Ex.P/1 and the persons
who are named in the FIR have not been examined. Statement of
the prosecutrix is also not corroborated by the medical evidence.



Prosecutrix in her statement has stated that at the time of incident,
she received injuries on her waist, there were scratches on the waist
as the appellant dragged her forcefully. However, Dr.Maya Pandey,
PW10, has stated that there was no injury on any part of her body.
Mother-in-law Fuliya, PW3 has also stated that when she reached
the spot, she saw that the appellant left the prosecutrix and fled
away by climbing over the hill. Prosecutrix, PW2, Fuliya, PW3 and
Chhote Tiwari, PW4, have admitted that at the time of incident peo-
ples were collecting Tendu leaves on the hill. In such situation, it is
not possible to commit forceful rape in such a common place where
large number of people were present. The prosecutrix has categori-
cally stated that when she was returning, the appellant came from
the backside, pressed her mouth, threw her down by his leg, dragged
her 2-3 steps and committed rape on her in open place, which seems
to be unnatural. Report with regard to vaginal swab has not been
produced and there is no explanation of it. In such circumstances,
adverse inference should be drawn against the prosecution as the
same will go against the prosecution.

10. On behalf of the appellant accused defence witness Gaya
Prasad, DW1, who is an independent witness, has been examined.
He has stated that on the date of incident in the morning quarrel
had taken place between the prosecutrix and the appellant because
the prosecutrix had stolen Tendu leaves of the appellant and the
prosecutrix after abusing the appellant left the place. He further de-
posed that he did not see the mother-in-law of the prosecutrix at the

11. Fuliya, PW3, mother-in-law of the prosecutrix, in her cross ex-
amination has admitted that the appellant had enmity with one
Bhagwandeen. The statements of prosecutrix, PW2 and her mother-
in-law Fuliya, PW3 and Chhote Tiwari, PW4 also show that on the
date of recording of their statements, Bhagwandeen was present in
the court. Fuliya, PW3 has also stated that the date with regard to


her evidence was also told by Bhagwandeen. These circumstances
show that Bhagwandeen was having interest in the case.

12. In the aforesaid circumstances, it cannot be ruled out that on
account of quarrel with regard to stealing Tendu leaves of the appel-
lant at the instance of Bhagwandeen, false case could have been
cooked up by the prosecutrix.

13. It is settled principle of criminal jurisprudence that the prose-
cution is bound to prove its case beyond reasonable doubt and for
proving any fact, one witness is sufficient if his testimony is cred-
itable or reliable. However, when the testimony is not completely
reliable or having a doubt or suspicion about the truthfulness then
independent, reliable and creditable corroboration is must. In a
case of rape, if statement of the prosecutrix is reliable, conviction
can be maintained; but, when the statement of the prosecutrix and
other surrounding circumstances point out doubt or suspicion on
the creditability of the prosecutrix, then without independent cor-
roboratory evidence, conviction cannot be maintained or upheld as
such evidence is not safe to convict a person for such a heinous of-

14. Apex Court in the case of Tameezuddin @ Tammu Vs.
State (NCT of Delhi), (2009) 15 SCC 566, has held that testimony
of the prosecutrix must be given predominant consideration; but, to
hold that this evidence has to be accepted even if the story is im-
probable and belies logic, would be doing violence to the very princi-
ples which govern the appreciation of evidence in a criminal matter
and looking to the facts of the case some supporting evidence was
essential for prosecution’s case in view of fallacies in prosecution

15. In the case of Suresh N.Bhusare and others Vs. State of
Maharashtra, (1999)1 SCCC 220, the Apex Court has observed
that absence of injury on prosecutrix’s body even though her version


was that she was dragged and had received some scratches is one of
the serious infirmity.

16. In the case of Rajoo and others Vs. State of M.P., re-
ported in AIR 2009 SC 858, Apex court has held that the evidence of
prosecutrix must be examined as that of an injured witness whose
presence at the spot is probable but it can never be presumed that
her statement should, without exception, be taken as the gospel
truth. Additionally her statement can, at best, be adjudged on the
principle that ordinarily no injured witness would tell a lie or impli-
cate a person falsely. It cannot be lost sight of that rape causes the
greatest distress and humiliation to the victim but at the same time a
false allegation of rape can cause equal distress, humiliation and
damage to the accused as well. The accused must also be protected
against the possibility of false implication.

17. In view of the aforesaid enunciation of law and looking to the
facts and evidence available on record, it can conveniently be held
that the prosecution has failed to establish beyond reasonable doubt
that the appellant committed rape with the prosecutrix. Therefore,
conviction and sentence of the appellant for the offence under sec-
tion 376 of the I.P.C. is not sustainable and is hereby set aside.

18. In view of the aforesaid discussion, this appeal is allowed and
the conviction and sentence of the appellant for the offence under
section 376 of the I.P.C. is set aside. The appellant is on bail. The
bail bonds of the appellant stands discharged.

19. A copy of this judgment be sent to the court concerned for in-
formation and compliance.


Digitally signed by HEMANT
Date: 2018.08.29 18:03:36


Criminal Appeal No.922/1997

Bihari, s/o Jagannath Kol

The State of Madhya Pradesh


Post for : /08/2018


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