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State Of M.P. vs Pappu @ Shailendra on 10 August, 2018

1
Cr.A.659/2007
(State of MP Vs. Pappu @ Sahilendra)

HIGH COURT OF MADHYA PRADESH

BENCH AT GWALIOR

(DB : SANJAY YADAV ASHOK KUMAR JOSHI, JJ.
Cr.A. No. 659/2007
State of M.P. through Police Station, Subhashpura,
District Shivpuri
—Appellant
Vs.
Pappu @ Shailendra
—Respondent

Mrs. Sangeeta Pachori, learned Public Prosecutor for
the appellant-State.
None appeared for respondent, though represented.

JUDGMENT

(Pronounced on 10th August, 2018 )

Per Ashok Kumar Joshi, J.

Challenge in this appeal is to the judgment passed
by the Special Judge, Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act (in short, the SC and
ST Act), Shivpuri on 21.03.2007 in Special Sessions Trial
No.111/2006, whereby present respondent/accused was
acquitted from the charge of Sections 450 and 376 (1) of
the IPC and Section 3(2)(5) of the SC/ST Act.

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Cr.A.659/2007
(State of MP Vs. Pappu @ Sahilendra)

2. Undisputedly, the Prosecutrix/married complainant
(PW-1), resident of village Karsena, is a member of
Scheduled Caste and respondent belongs to Brahmin
caste.

3. The prosecution story in brief is that on 18.07.2006
at 10-00 AM, Prosecutrix (PW-1) a married lady aged
about 30 years, lodged FIR (ExP-2) to the effect that on
17.07.2006 in the night at about 10-30 PM, she was
sleeping on cot in the courtyard of her house, as her
husband has gone to see his cousin father-in-law’s son,
who was ill. At the same time, Pappu @ Shailendra, R/o
village Karsena came to her house and after lifting her,
thrown on the ground and by his one hand, he caught
hold Prosecutrix and by his another hand, he caught hold
the neck of Prosecutrix and threatened that she would be
killed, if she shouted. At that time, Prosecutrix had worn
petticoat and blouse. Thereafter, Pappu @ Shailendra
committed rape with her and being frightened, she
remained silent. At the same time, her husband Santosh
(PW-2) returned back to house and after seeing her
husband, Pappu stood up for running, but Prosecutrix’s
husband caught hold Pappu, then Pappu pushed her
husband and fled away. As incident occurred in the
night, being threatened, the matter could not be reported
in the night and at the time of incident due to throwing of
her on soil, a blunt injury occurred on her waist. The FIR
(ExP-2) was scribed by Station House Officer, R.D.Mishra
(PW-4), Police Station Subhashpura, District Shivpuri and
thereafter Prosecutrix (PW-1) was sent to District
Hospital, Shivpuri, where on 18.07.2006 she was
examined by Dr. Smt.Anjana (PW-3), who did not find any
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Cr.A.659/2007
(State of MP Vs. Pappu @ Sahilendra)

injury over her body including private parts and the lady
doctor prepared two slides of vaginal swab of the
Prosecutrix and she also sealed the worn petticoat and
the lady doctor remained unable to gave any opinion
regarding recent sexual activity with the Prosecutrix and
recorded her report (ExP-4).

4. As the crime was registered for an offence
punishable under SC/ST Act, further investigation was
conducted by Pranay Nagvanshi (PW-7), the then SDOP,
Shivpuri, who prepared the spot map (ExP-9) on
19.07.2006 and on the same day, he seized in total
twelve pieces of red coloured bangles of Prosecutrix vide
seizure memo (ExP-3). On 20.07.2006 the respondent
was arrested vide arrest memo (ExP-10) and he was sent
to District hospital, Shivpuri for examining his sexual
competency, where on 20.07.2006 he was examined by
Dr. P.D. Gupta, who recorded his report (ExP-1). The
sealed articles were sent to regional FSL, Gwalior with a
letter (ExP-13) dated 3.8.2006 drafted by S.P. Shivpuri.
Later-on the regional FSL, Gwalior’s report (ExP-14) was
received. After completing the formalities of the
investigation, charge sheet was filed in the court of
Judicial Magistrate First Class, Shivpuri, who committed
the arisen criminal case to Special Judge, Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities)
Act, Shivpuri.

5. Above mentioned framed charges were denied by
the accused/respondent. At the time of framing of
charge, his MLC was admitted in evidence as (ExP-1) by
defence. Seven prosecution witnesses were examined
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Cr.A.659/2007
(State of MP Vs. Pappu @ Sahilendra)

before the trial Court. It was the defence of respondent
that he has been falsely implicated as he was having
prior enmity with complainant’s husband. Hariram (DW-

1) was examined in defence. The Special Judge, after
hearing, acquitted the present respondent from all the
charged offences, therefore, this criminal appeal by State
against his acquittal.

6. Appearing Public Prosecutor on behalf of appellant-
State contends that the evidence of Prosecutrix (PW-1)
was corroborated by the evidence of her husband
Santosh (PW-2) and their neighbour Vijay Singh (PW-5)
and according to Regional FSL, Gwalior’s report (ExP-14)
in chemical examination the spots of semen and human
sperms were found present on the petticoat of
Prosecutrix and the prepared slides of vaginal smear of
Prosecutrix by lady doctor, and on underwear of the
respondent, but learned Special Judge erred in acquitting
the present respondent. Therefore, it is prayed that the
appeal be allowed and respondent be convicted and
adequately punished.

7. Dr. Smt. Anjana (PW-3) examined the Prosecutrix on
18.07.2006 has testified that on examination of 30 years
old married Prosecutrix, she found that secondary sexual
characters were well developed and there was no sign of
any violence over her body including her private parts
and she prepared two slides of Prosecutrix’s vaginal
smear and also seized the worn blue coloured petticoat
and as the married Prosecutrix was habitual of sexual
intercourse, she was unable to gave any definite opinion
regarding recent sexual intercourse. In cross-

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Cr.A.659/2007
(State of MP Vs. Pappu @ Sahilendra)

examination, the lady doctor deposed that if the sealed
petticoat of Prosecutrix by her would have been torn,
then she would have definitely mention this fact in her
report (ExP-4).

8. Complainant/Prosecutrix (PW-1) deposed that about
six months ago, in the month of savan of Indian calender
at about 10-30 PM, when she was sleeping inside her
house on cot with her three years old son and at that
time her husband went to see his uncle’s son and at that
time accused Pappu came, where she was sleeping and
Pappu caught hold her, then she got awaken, then Pappu
by uttering the name of her caste threatened that if she
would cry, she would be killed. Thereafter, Pappu
forcefully got lifted her and committed rape with her.
She also testified that at that time she had worn
petticoat and blouse and respondent was wearing only
an underwear and during the incident her husband
returned back to their house, thereafter Pappu stood up
and fled away and her husband saw him running and
Pappu after pushing her husband fled away. At the same
time, her neighbour Vijay Singh (PW-5) who was sleeping
in his khalihan also came to her house.

9. Prosecutrix’s husband Santosh (PW-2) deposed that
on the date of incident, in the night at 10 p.m. when he
returned to his house then he saw that Shailendra was
lying on his wife and was committing rape, then he asked
who is there, then Shailendra stood up, then he ran for
catching respondent, then after pushing him the
respondent fled away and during his scuffle with
respondent, after hearing the noise their neighbour Vijay
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Cr.A.659/2007
(State of MP Vs. Pappu @ Sahilendra)

Singh (PW-5) came to their house.

10. Vijay Singh (PW-5) deposed that on the date of
incident he was sleeping in his khalihan, at about 10 p.m.
but after hearing the sound of shouting he got awaken
and enlightened the torch, then in the torch light he saw
Pappu coming from the house of Santosh and thereafter
Pappu fled away. Thereafter, he reached to the house of
complainant, who intimated him that Pappu had
committed rape with her. Vijay Singh also deposed that
when he saw Pappu running, then Pappu had worn only
underwear on his body.

11. R.D.Mishra (PW-4), who was posted as Station
House Officer at Police Station Subhashpura, on
18.07.2006 deposed that on that date, he recorded the
FIR (ExP-2) lodged by Prosecutrix and thereafter sent the
Prosecutrix for medical examination to Shivpuri hospital
vide application (ExP-5).

12. There appears material contradictions between the
evidence given by Prosecutrix (PW-1) and her FIR (ExP-

2). Prosecutrix deposed before the trial Court that when
she was sleeping on a cot with her son, then after
catching her respondent committed rape, whereas in the
FIR (ExP-2), she disclosed the fact that she was sleeping
on a cot, but respondent lifted her from the cot and
thrown her on the ground and thereafter committed rape
with her. In FIR (ExP-2) she has clearly mentioned that at
the time of incident she was sleeping in the courtyard of
her house on a cot and at the same place, i.e., in the
courtyard, her rape was committed and in the spot map
7
Cr.A.659/2007
(State of MP Vs. Pappu @ Sahilendra)

(ExP-9) prepared by investigating officer Pranay
Nagvanshi (PW-7) on 19.07.2006, the place of incident is
shown as courtyard of the complainant’s house, outside
from her room, whereas Prosecutrix deposed in her
examination-in-chief that she was sleeping inside her
house and rape was committed in her room. Therefore, it
is clear that there are material contradictions and
inconsistencies appearing in complainant’s evidence
regarding place of incident and her acquaintance with
the present respondent prior to the incident.

13. The complainant’s husband Santosh (PW-2) and
their neighbour Vijay Singh (PW-5) have deposed in their
cross-examination that present respondent Pappu @
Shailendra was Deputy Sarpanch of their village’s
Panchayat prior to the incident. Vijay Singh (PW-5)
deposed in cross-examination that after the incident he
reached to Prosecutrix’s house and he had identified the
respondent under his torch light. Vijay Singh deposed in
para 7 that when he reached to complainant’s house,
then complainant was wearing a red coloured saree and
her blouse was torn from the front side and Prosecutrix
intimated her that in the incident, her blouse has torn,
but Prosecutrix clearly deposed in para 13 that during
the incident her blouse was not torn, but her petticoat
got torn. This fact is falsified by the evidence of Dr.
Anjana (PW-3), who had not recorded the fact that the
sealed petticoat of the Prosecutrix was torn, therefore, it
is clear that Prosecutrix’s neighbour Vijay Singh (PW-5)
has introduced much improvements and exaggerations in
his evidence given before the Court. Vijay Singh (PW-5)
also deposed that at the time of incident, complainant’s
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Cr.A.659/2007
(State of MP Vs. Pappu @ Sahilendra)

house was not having electricity connection and when he
reached to complainant’s house, then the chimney was
not lighting.

14. Santosh (PW-2) also deposed in para 7 that the
incident had occurred in the room, where his three sons
were also sleeping and in that room his two children were
sleeping on one cot and on another cot her wife was
sleeping with their youngest son, but in para 10, Santosh
deposed that his wife was sleeping in the open courtyard
of their house and in para 11, he deposed that where his
wife was sleeping, there was total dark and as the
respondent stood up, then he caught hold of
respondent’s hand and identified him even in the
darkness by his face and voice. Santosh deposed in para
13 that when he saw respondent lying on his wife then
respondent had lowered down his underwear and when
respondent stood up then he was wearing only
underwear.

15. Prosecutrix in paras 15 and 17 of her deposition
clearly deposed that in her village police officials
remained on duty for twenty four hours, but after the
incident she and her husband did not intimate the police
officials present in their village and they reached Police
Station Subahshpura on the next day at 9 AM.
Prosecutrix (PW-1) deposed in para 20 that prior to the
incident, she was acquainted with the fact that
respondent Pappu’s another name is Shailendra, but prior
to the incident she never saw him. Therefore, it is clear
that Prosecutrix’s evidence is full of mutually
contradictory and unnatural facts, which indicates the
9
Cr.A.659/2007
(State of MP Vs. Pappu @ Sahilendra)

weakness of her total evidence. In para 9 of cross-
examination, prosecutrx deposed that prior to rape, she
shouted once and when respondent came to her house
he was wearing only underwear and at the time of
incident, she saw accused for the first time in her life. In
para 10, she deposed that accused did not remove her
clothes from her body but he only lifted her clothes
upward. Contrary to her evidence given in para 9, she
deposed in para 11 that respondent by his one hand
caught hold her and by his another hand lifted her
petticoat, but at that time she could not cry as
respondent had pressed her mouth, though respondent
had pressed her mouth towards the soil but even then no
abrasion or injury caused to her cheek. Contrary to her
FIR (ExP-1), she deposed in para 11 that during incident
no abrasion occurred to her loin/waist, then immediately
corrected herself by testifying that she received blunt
injury over her waist, but her evidence is falsified on this
point by medical evidence of Dr. Anjana (PW-3).

16. The Prosecutrix (PW-1) deposed in para 20 that
respondent’s house is about 300 feet away from her
house, but she clearly deposed in para 9 that when
respondent reached to her house, at that time he was
wearing only underwear. It appears totally impossible
and unnatural that a totally unknown person to the
Prosecutrix would reach to her house in the night at bout
10 p.m. only wearing an underwear. Prosecutrix was a
married lady of about 30 years old at the time of
incident. She deposed before the trial Court that during
incident the bangles worn by her on one hand got
broken, but surprisingly even then she did not receive
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Cr.A.659/2007
(State of MP Vs. Pappu @ Sahilendra)

any injury on her wrists.

17. According to prosecution’s case, she was thrown on
ground after lifting her from the cot and her mouth was
pressed towards soil and she clearly deposed that during
and after the incident her three sons were sleeping and
they did not get awaken. All these facts clearly indicate
that the total evidence given by the Prosecutrix is
unnatural and unbelievable and if any physical relation
established between respondent and Prosecutrix, then
she appears to be a consenting party, otherwise the
happening of such surprising events or facts would not
have been possible.

18. After considering all the facts and circumstances,
the possibility could not be ruled out that when suddenly
her husband came back to his own house and saw his
wife/Prosecutrix in a compromising position with the
respondent, then naturally allegation of rape was levelled
by the Prosecutrix on respondent to save her prestige.

19. Much emphasis has been given by the learned
Public Prosecutor appearing on behalf of the appellant on
the fact that presence of semen and human sperms was
found on the petticoat, slides of her vaginal smear
prepared by lady doctor and sealed underwear of the
accused, but as both the Prosecutrix and respondent
were married persons, mere presence of semen and
human sperms on clothes of Prosecutrix and respondent
could not connect the respondent only with the incident.
It is clear that Prosecutrix has materially changed her
evidence given before the trial Court and introduced new
facts and exaggerated version before the trial Court and
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Cr.A.659/2007
(State of MP Vs. Pappu @ Sahilendra)

the absence of any injury clearly establishes that she had
not offered any resistance or protest at the time of
incident.

20. Defence witness Hariram (DW-1) deposed that
Prosecutrix’s husband Santosh is his nephew and his
house is adjacent to the house of complainant and
respondent’s house is about seven to eight houses away
from his house and respondent has been implicated in a
false case of rape.

21. As discussed earlier, the Prosecutrix’s evidence has
not inspired confidence and her total evidence was
materially contradicted by her delayed FIR (ExP-2) and it
could not be held that her evidence is appearing totally
reliable.

22. We are of the considered opinion that learned
Special Judge has properly and legally analyzed the
entire evidence available on record and did not commit
any error in acquitting the respondent from the charged
offences. The findings recorded by the trial Court
appears to be just and plausible. The appeal filed by the
State against acquittal is devoid of any substance.

23. Consequently, appeal filed by the State under
Section 378 of the Cr.P.C. against the judgment of
acquittal passed by the Special Judge is hereby
dismissed. With a copy of this judgment, record of the
trial Court be returned immediately.

(Sanjay Yadav) (Ashok Kumar Joshi)
Judge Judge

10/08/2018 10/08/2018

vv

VALSALA VASUDEVAN
2018.08.13 10:44:40
-07’00’

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