Madhya Pradesh High Court
Pankaj Kumar Singh vs The State Of Madhya Pradesh on 23 April, 2026
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 23rd OF APRIL, 2026
CRIMINAL APPEAL No. 8080 of 2025
PANKAJ KUMAR SINGH
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Samresh Katare, learned counsel for appellant.
Shri Anil Upadhyay, learned Panel Lawyer for respondent/State.
Heard on : 09.04.2026
Delivered on : 23.04.2026
JUDGMENT
This appeal has been filed by the present appellant/accused under
Section 415 of the Bharatiya Nagrik Suraksha Sanhita, 2023/374(2) of
the Cr.P.C. being aggrieved by the judgment of conviction and order of
sentence dated 13.08.2025 passed by the learned 10th Additional
Sessions Judge, Bhopal (M.P.) in S.T. No.68/2019, whereby the present
appellant/accused has been convicted under Sections 376(2)(N), 376(2)
(f) of the IPC and sentenced to undergo R.I. for 10 years each with fine
of Rs.5000/- each and Section 323 of IPC and sentenced to undergo R.I.
for 01 year with fine of Rs.1,000/- with default stipulation.
2. Briefly, the prosecution story is that on 06.08.2018 at Police Station
Kamla-Nehru-Nagar District Bhopal (M.P), the Prosecutrix PW/01
submitted a written complaint Ex.P/1 stating that while residing at
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Noida, the prosecutrix was working as Assistant Commissioner. In
2009, while prosecutrix was posted in Commercial Tax Department at
Noida, then in the Year 2010 appellant also got posted there as Assistant
Commissioner. The appellant/accused from the very day onwards was
trying to talk to the prosecutrix but as the appellant/accused mother used
to visit their office, in that way prosecutrix came in touch with them.
One day the appellant/accused took the prosecutrix to his residence on
the pretext, that the prosecutrix could meet her mother. But, in reality
her mother was not at home, hence appellant/accused forcefully made
physical relations with her, when the prosecutrix tried to object, the
appellant/accused threatened her about to get her videos viral by sending
it to her husband and hence by threatening that, the appellant/accused
used to make physical relations with her. On 02.08.2018 to attend
Carmel Convent Higher Secondary School Re-Union Function, at
Bhopal, the prosecutrix came and booked Room No.194 Hotel Jehnuma
Palace. On 02.08.2018 at about 11:30, the appellant/ accused Pankaj
Singh called her asking where she is, as he is standing outside the
Jehnuma Palace Hotel. The prosecutrix couldn’t understand that from
where the appellant/accused got the information about her visit and stay
at Bhopal. Thereafter, appellant/accused came inside her room and
started abusing her and committed rape upon her by threatening her to
disclose her videos to her husband. Then, the appellant/accused went to
the adjacent room he had booked. Next Day the prosecutrix went to
Hotel-Sayaji to attend the “School Re-Union Function”. On 05.08.2018
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prosecutrix was having Delhi flight but the appellant/accused forcefully
stopped her at airport, that too after she had a boarding pass. Then
Appellant/Accused took her to Hotel Jehnuma Retreat in Room No.14,
where the appellant/accused threatened her to have physical relations
with her daughter, and to abduct her. When prosecutrix retaliated to it,
the appellant/accused started beating & abusing her. Then at 03:30 am at
night the prosecutrix ran outside the room and dialed 100 so as to call
the police. She lodged FIR in the police station, Kamla Nagar, Bhopal.
3 . The charges were framed against the appellant/accused under Section
376(2)(N), 376(2)(f), 294 and 323 of the IPC which was read over and
explained to the appellant/accused. The appellant/accused pleaded not
guilty and claimed trial.
4. In order to bring home the charges, the prosecution examined as
many as 8 witnesses namely, prosecutrix (PW/1), Prosecutrix’s husband
‘A’ (PW/2), Vishwajeet Pal (PW/3), Swati Bhooshan Sharma (PW/4),
Virendra Singh Parihar (PW/5), Sandeep Kumar (PW/6), Afsar Khan
(PW/7), Mariya Akhtar (PW/8), Abdul Hameed (PW/9), Sub Inspector
S.P.S Chandel (PW/10), Bahart Bhushan Tiwari (PW/11), Ashish Giri
(PW/12), Dr. Shikha Gupta (PW/13) and Inspector Madan Mohan
Malviya (PW/14) and placed the documents on record as Ex.P-1 to P-
21. In defence, the appellant did not choose to examine any witness.
5. The learned trial Judge after appreciating and marshalling the
evidence vide impugned judgment has convicted and sentenced the
appellant as mentioned above under Sections 376(2)(N), 376(2)(f), 294
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and 323 of the IPC. However, the trial Court has acquitted the appellant
for the offences under Sections 376(2)(N), 376(2)(f) and 323 of the IPC.
In this manner, the present appeal has been filed by the appellant.
6. It is submitted by learned counsel for the appellant that the present
appellant is innocent and has been falsely implicated in this case. FIR is
delayed by 08 years. There is consensual relationship between the
parties. In this respect, paragraphs 44-50, 55 & 64 of the impugned
judgment is important. Both the prosecutrix and appellant are Class-I
Officers, therefore the question of exerting pressure on the prosecutrix
and to give her threat does not arise. The hotel staff PW/5 to PW/9 have
stated the consensual relationship between the parties while staying in
the hotel. Moreover, Ex.P/15 to Ex.P/18 are the queries posed by police
which also reflects the consensual relationship. Moreover the statements
of prosecutrix, particularly paragraphs 62, 55, 75, 80, 46, 47, 59 and
para 11 of PW/10, para 4 & 5 of PW/14 are also indicate the consensual
relationship between accused and prosecutrix. He relied the judgments
of Krishna Kumar Malik Vs. State of Haryana reported in (2011)7 SCC
130; Rai Sandeep @ Deepu Vs. State (NCT of Delhi) reported in (2012)
8 SCC 21; Pramod Suryabhan Pawar Vs. State of Maharashtra reported
in (2019)9 SCC 608; Dr. Dhruvaram Murlidhar Sonar Vs. State of
Maharashtra & Ors. reported (2019)18 SCC 191; Sharad Birdhichand
Sarda Vs. State of Maharashtra reported in (1984)4 SCC 116; Raja and
others Vs. State of Karnataka – (2016) 10 SCC 506 and Raju and others
Vs. State of Madhya Pradesh – (2008)15 SCC 133. He prays for setting
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aside the judgment of conviction and sentence and to acquit him for the
charges.
7 . Per contra, learned Government Advocate has vehemently opposed
the prayer on the ground that the paragraphs 77, 79, 28 and 39 of the
impugned judgment are important, which reflect that the present
appellant had given threat to the prosecutrix in order to commit rape on
her, as a result of which she suffered grievous injuries on her person as
found by the concerned doctor in medical examination. The prosecution
is succeeded in establishing the guilt on the anvil of the statement of
witnesses on record. There is no ground for interference with the
findings arrived at by the trial Court.
8 . Heard the learned counsel for the parties and perused the record.
9. The basic document in the present case is the First Information
Report (Exhibit P/1), which is a written complaint submitted by the
prosecutrix (P.W.1) before Police Station Kamla Nagar, District Bhopal.
The complaint refers to an alleged incident of rape said to have occurred
in the year 2010; however, no specific date, month, or year has been
mentioned in the FIR with regard to the said incident. It is further stated
in Exhibit P/1 that the accused threatened the prosecutrix by claiming
that he had prepared a video of her and would send it to her husband.
On the basis of such alleged threat, it is asserted that the appellant
continued to subject the prosecutrix to sexual harassment. The second
incident, as reflected in Exhibit P/1, is stated to have occurred on
02.02.2018 at Hotel Jahanuma Palace. Further, it is alleged that on
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05.08.2018, when the prosecutrix had gone to the airport to board a
flight to Delhi, the present appellant reached there, got her air ticket
cancelled, took her back to a hotel, and committed rape and assault. On
the basis of the written complaint (Exhibit P/1), Crime No. 526/2018
was registered on 06.08.2018, which is marked as Exhibit P/2. It is also
pertinent to note that Exhibit P/1 was lodged on 06.08.2018.
10. On the same date, i.e., 06.08.2018, the prosecutrix was examined
before the learned Magistrate under Section 164 of the Code of Criminal
Procedure. In her said statement, she materially improved her earlier
version, and in consonance therewith, she deposed before the learned
Trial Court as P.W.1. A careful comparison of Exhibit P/1 and Exhibit
P/2 reveals numerous material exaggerations and inconsistencies in the
testimony of P.W.1. Notably, Exhibit P/1 does not contain any
allegation pertaining to the alleged incident of the year 2012. During her
deposition, the prosecutrix introduced a new allegation that in February
2012, the present appellant had committed rape upon her. She further
amplified this version in paragraphs 2 and 3 of her examination-in-chief
by alleging forcible rape by the appellant. Furthermore, in paragraphs 4,
5, and 6 of her examination-in-chief, the prosecutrix elaborated at length
on the alleged consequences and impact of the purported incident of
February 2012. These assertions are conspicuously absent from the First
Information Report, thereby constituting material omissions amounting
to contradictions. It is also pertinent to note that no documentary
evidence has been adduced by the prosecutrix to substantiate the
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assertions made in paragraphs 4 to 6. Although the prosecutrix alleged
that the appellant had threatened to viral her video following the alleged
first incident whereas, no such video has been seized and produced
before the Court. On the contrary, during cross-examination, prosecutrix
P.W.1 admitted that she had never seen any such video. In these
circumstances, the very existence of the alleged video remains doubtful,
which, in turn, casts serious doubt on the veracity of the prosecutrix’s
testimony regarding the alleged threat extended by the appellant.
11. In paragraph 4 of her deposition, the prosecutrix has alleged
another incident of rape said to have occurred in September 2012;
however, this allegation finds no mention in the First Information
Report and, therefore, constitutes a material omission. She has further
stated that she became nervous and was under psychiatric treatment, yet
no medical record or documentary evidence has been produced to
substantiate such a claim. In paragraph 6, the prosecutrix (P.W.1)
deposed that the present appellant threatened her by invoking his alleged
influence and connections with relatives holding high positions in the
Government of Uttar Pradesh, and by narrating instances of his
purported cruelty towards his wife and servant. These allegations are
also absent from the FIR and appear to be subsequent
embellishments. In paragraph 7 of her cross-examination, the
prosecutrix introduced a new incident allegedly occurring in the year
2015, wherein she claimed that while visiting a park with her children,
the appellant approached her and extended threats. She further stated that
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she had left her children with her friend Manisha, who resided near the
park, before interacting with the appellant. This incident, however, does
not find place in the prosecution case and appears to be an
afterthought. From paragraph 9 onwards, while referring to the alleged
incidents commencing on 02.08.2018, the prosecutrix has again made
substantial improvements to her earlier version. At one stage, she
alleged that the appellant threatened her with the prospect of making a
video viral, whereas in paragraph 6 she attributed the threat based on his
alleged political and bureaucratic influence. Further, in paragraph 13,
she stated that the appellant threatened her by citing his association with
a senior leader of a political party. Thus, the nature and basis of the
alleged threats have varied materially at different stages, thereby
affecting the consistency and credibility of her testimony.
12. In paragraph 16, prosecutrix (pw-1) deposed that while she was
taking breakfast, the appellant approached her table, abused her, and
gavethreats in the presence of a lady staff member. However, she failed
to identify the said staff member and no such independent witness has
been examined by the prosecution. In the same paragraph, the
prosecutrix further stated that she visited D.B. Mall and purchased a
mangalsutra from a Tanishq showroom, the appellant followed her
there. She also admitted that on 04.08.2018, she had dinner with the
appellant in her room. That apart, in paragraph 18, she admitted that at
the instance of the appellant, she got her air ticket cancelled through her
husband, returned to Hotel Jahanuma Palace, and stayed in a room with
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the appellant. The prosecutrix has failed to satisfactorily explain as to
why, despite alleging prior actus renus of rape and cruelty, she
voluntarily chose to stay with the appellant. She further deposed that
during the intervening night of 05.08.2018 and 06.08.2018, the appellant
committed rape upon her and inflicted injuries on her left ear, left eye,
and left cheek, along with other injuries. She claimed that she sustained
a grievous injury to her left ear and upon medical examination in Delhi,
a doctor opined that her eardrum had been ruptured. However, no
medical evidence has been placed on record to corroborate the existence
of such injuries, thereby rendering her assertions unsubstantiated.
13. In paragraph 21 of her deposition, the prosecutrix (P.W.1) has
stated that while she was coming out of the hotel room, the present
appellant attempted to apprehend her; however, she managed to reach
the reception area and requested the hotel staff to arrange a taxi. She
further deposed that three to four persons had gathered at the said
place. However, the prosecutrix has neither disclosed the identity of the
said persons nor specified the names or particulars of the hotel staff
present at the reception. No such independent witnesses have been
examined by the prosecution to corroborate this version. This omission
casts doubt on the veracity and reliability of her testimony in this regard.
14. The prosecutrix (P.W.1) has produced Exhibit P/7, purportedly
consisting of WhatsApp messages. However, the prosecution has failed
to establish, by cogent and reliable evidence to the effect that the mobile
device from which the said messages were allegedly transmitted was in
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the exclusive use and possession of the present appellant? or that the
SIM card in question was registered in his name? No documentary
evidence, such as subscriber details, call data records, or any other
material, has been adduced to establishh that the said mobile number
was being operated by the appellant. Furthermore, the certificate under
Section 65B of the Indian Evidence Act, which is a mandatory
requirement for the admissibility of electronic evidence, has been issued
by the prosecutrix herself. The said certificate does not inspire
confidence, as the prosecutrix, in her cross-examination, has
categorically admitted that the certificate has been prepared by her
advocate and that she was unaware of its contents.
15. In paragraph 27 of her deposition, the prosecutrix (P.W.1) has
admitted that she has not signed Exhibit P/8. She has further stated that
no tampering has been carried out with the alleged WhatsApp messages;
however, she has not produced any document to establish the ownership
or usage of the mobile device allegedly used by her. In view of the
aforesaid deficiencies, the authenticity and admissibility of Exhibit P/7
stands doubtful, and consequently, the alleged WhatsApp messages
cannot be accorded evidentiary value in support of the prosecution case.
16. The prosecutrix has also admitted that she did not inform the police
about the identity of Manisha Agrawal and connected incident.
Moreover, she conceded that several persons were present in the park at
the relevant time, yet she did not disclose the alleged incident to any of
them. It is further admitted by the prosecutrix that, at the time of the
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alleged occurrence, she was posted as an Assistant Commissioner. Thus,
she was a major, well-educated, and a senior officer in the Commercial
Tax Department. Considering her age, social and economic status, the
allegation that she was threatened by the appellant with the prospect of
making an alleged video viral appears inherently doubtful and does not
inspire confidence. In paragraph 33 of her deposition, when confronted
with a question regarding whether she had represented herself as the
wife of the present appellant, she stated that she had not “expressly”
introduced herself as such. This response, however, indicates that she
did not raise any objection or clarify her status at the relevant time,
thereby suggesting her acquiescence. In the ordinary course of conduct,
had there been no consent of her with the accused, it would be
improbable for her to stay in the same hotel room with the appellant at
Hotel Jahanuma Palace.
17. In paragraph 38 of her deposition, the prosecutrix (P.W.1) has
categorically admitted that even after February 2012, she remained in
continuous contact with the present appellant and used to engage in
telephonic conversations with him for extended durations, including
throughout the night. When questioned as to how the appellant was
aware of her movements and was allegedly able to follow her, she
initially stated that the appellant had access to her WhatsApp, email,
Facebook, and mobile phone. Subsequently, she sought to clarify that
the appellant had obtained her passwords by threatening her with dire
consequences, including the threat of an acid attack. However, this
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allegation does not find mention in the prosecution story and appears to
be a material improvement. In paragraph 44, the prosecutrix stated that
she had not signed the hotel register and had not represented herself as
the wife of the present appellant. However, she further stated that if the
appellant had described her as his wife, she was not in a position to deny
the same. She also asserted that she was acting under the pressure of the
appellant and was following his instructions. It is further evident from
the record that while answering questions during her deposition, the
prosecutrix often refrained from giving direct responses instead provided
explanatory answers. In this regard, as reflected in paragraphs 50 and
74, the learned Trial Court was constrained to advise the witness to
furnish clear and direct answers to the questions put to her.
18. The prosecutrix (P.W.1) has admitted in her cross-examination that
during her stay of approximately three days at Hotel Jahanuma Palace,
she had telephonic conversations with her husband on 8 to 10 occasions,
and that such conversations were normal in nature, wherein her husband
inquired about her well-being. However, she did not disclose to him any
alleged actus reus or misconduct on the part of the present appellant.
The prosecutrix has failed to furnish any satisfactory explanation as to
why such material facts were not communicated to her husband at the
relevant time. She has further admitted that she reached the airport,
where airport authorities, including CISF personnel, as well as several
members of the public were present. Despite the alleged acts of cruelty
attributed to the appellant, she did not inform any authority or individual
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present at the airport. She further stated that the appellant also reached
the airport and allegedly compelled her to get her air ticket cancelled on
the pretext that she had left her jewellery at the hotel. Moreover, the
prosecutrix admitted that during the period of her stay at Hotel
Jahanuma Palace and until reaching the airport, she had spoken to her
husband approximately 20 to 25 times; yet, she did not disclose any
incident of alleged cruelty or misconduct to him. This omission assumes
significance and raises doubt regarding the veracity of her
allegations. The prosecutrix has also admitted that the appellant
purchased a mangalsutra for her from a Tanishq showroom. She
attempted to explain that the appellant had taken cash from her for the
said purchase and that she possessed details in this regard; however, no
such documentary evidence or particulars have been produced by the
prosecutrix on record to substantiate this claim.
19. In paragraph 54 of her deposition, the prosecutrix (P.W.1) has
admitted that she had given her consent for the cancellation of her
boarding pass. She further admitted that upon returning to the hotel, no
room was available and, on the advice of the hotel staff, she, along with
the present appellant, visited Van Vihar. She conceded that several
persons were present there; however, she did not disclose any alleged
incident to anyone. The prosecutrix has also admitted that at the hotel
reception, she furnished her identification and obtained a single room
wherein she stayed with the present appellant. At no point did she
inform the hotel staff about any alleged pressure or coercion exerted
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upon her by the appellant. She further admitted that between 8:30 a.m.
and 12:00 noon, she remained present in the hotel premises in an open
and public environment, during which time she was in the company of
the appellant and engaged in normal conversation with him. In this
context, the testimony of the hotel staff assumes significance.
20. Virendra Singh Parihar (P.W.5), the Front Office Manager of
Hotel Jahanuma Palace, deposed that the present appellant checked into
the hotel on 02.08.2018, and a lady also checked in during the night.
Initially, she was allotted Room No. 309; however, due to a technical
issue, Room No. 104 was subsequently allotted. He stated that both
individuals stayed in the hotel for three days and checked out on
05.08.2018. In his cross-examination, he admitted that during their stay,
both the appellant and the prosecutrix exhibited normal conduct. He
further stated that after checking out, they returned to the hotel
together. Sandeep (P.W.6), a physiotherapist, deposed that when the
appellant sustained an injury during a visit to Van Vihar and returned to
the hotel, he applied antiseptic to the appellant’s leg. He further stated
that the lady accompanying the appellant informed him that she would
take care of the appellant, whereupon he left. In his cross-examination,
he also admitted that the conduct of both the appellant and the
prosecutrix appeared normal, and that they were sitting together and
conversing with each other in an ordinary manner.
21. Afsar Khan (P.W.7), who was posted as a Service Associate at
Hotel Jahanuma Palace, has deposed that the present appellant was
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staying in Room No. 114 and had ordered food therein. He further stated
that a lady was present with the appellant in the room, and both were
behaving in a normal manner and were residing as husband and wife.
He visited Room No. 114 on two occasions and observed that their
conduct was normal throughout. He has also stated that no complaint
whatsoever was made to him by the prosecutrix.
22. Mariya Akhtar (P.W.8), the Receptionist of the hotel, deposed that
on 05.08.2018, the present appellant and the prosecutrix arrived together
and requested allotment of a room. She informed them to wait for some
time, whereafter they remained seated in the waiting area. Subsequently,
they proceeded to visit Van Vihar on a bicycle and, upon their return,
she noticed that the appellant had sustained an injury on his leg. At
about 12:00 noon, she allotted Room No. 114 to them after obtaining
their identification documents. In her cross-examination, she stated that
the hotel registration form was filled up by the prosecutrix herself, who
also furnished her identification. She further deposed that only one room
was taken by them and both stayed together in the same room. She also
stated that the first aid to the appellant was administered by the
prosecutrix herself. According to her, both the appellant and the
prosecutrix were behaving normally, and she did not observe any
abnormality in their conduct.
23. Abdul Hameed (P.W.9) has made a similar statement,
corroborating the version of the aforesaid witnesses with regard to the
normal conduct and demeanor of the appellant and the prosecutrix
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during their stay at the hotel.
24. Ashish Giri (P.W.12), who was posted as Security In-charge at
Hotel Jahanuma Palace, has deposed that he had provided the CCTV
footage of the hotel to the police. However, as the said footage could not
be played or proved before the learned Trial Court, it has not been relied
upon by the prosecution. Notwithstanding the above, this witness has, in
his cross-examination, admitted that the prosecutrix and the present
appellant had stayed in the hotel for one or two days. During this period,
they were seen conversing with each other, visiting each other’s rooms,
and jointly ordering food to be served in the room. He has further stated
that no complaint of any nature was made by the prosecutrix against the
appellant during their stay, and that their conduct appeared to be normal
throughout. He has also deposed that although separate rooms were
initially allotted to the prosecutrix and the appellant on different floors,
they subsequently arranged to have rooms adjacent to each other. These
facts, as deposed by P.W.12, further cast doubt on the prosecution
version and lend support to the defence.
25. In view of the evidence on record, the allegations of cruelty and
other criminal acts, as deposed by the prosecutrix (P.W.1), do not find
corroboration from the testimony of the hotel staff. In paragraph 60 of
her cross-examination, the prosecutrix has admitted that from the year
2012 to 2018, she did not lodge any complaint with the police against
the present appellant. During this period, she had visited several places
with the appellant on multiple occasions. In paragraph 62, she made an
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improvement in her version by alleging that the appellant used to
blackmail her. However, in paragraph 64, she categorically admitted
that she had saved the appellant’s mobile number in her phone under the
name “Salina” with the intention of concealing his identity from her
husband. She further admitted that whenever the appellant called, she
would inform her husband that the call was from a friend named Salina
residing in the United States. In paragraph 65, she admitted that even
when she visited Darjeeling along with her husband and children, she
continued to receive phone calls from the appellant, yet she did not
disclose the same to her husband. She also admitted that while residing
at Indranagar and Aliganj, she received continuous phone calls from the
appellant but did not inform any of her relatives about the same. These
admissions reflect conduct inconsistent with the allegations made and
materially affect the credibility of the prosecutrix’s version.
26. In paragraph 73 of her cross-examination, the prosecutrix (P.W.1)
has admitted that while she was going by bicycle on the main road at
Van Vihar, several persons were present there however, she did not
disclose alleged incident to any of them. She further admitted that when
the present appellant sustained an injury, she declined the assistance of a
person who had come to provide medical dressing and instead told him
that she herself would attend to the appellant. In paragraph 76, the
prosecutrix has further admitted that from the year 2010 to 2018, she
had visited various places, including Hotel Jahanuma Palace, along with
the present appellant, and that they were moving together in close
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proximity. She has also admitted that during this entire period, she did
not inform her husband about any alleged criminal acts committed by
the appellant. These admissions, taken together, affects adversely the
overall credibility and consistency of the prosecutrix’s version.
27. P.W.2, the husband of the prosecutrix, is not an eyewitness to the
alleged incidents. In paragraph 8 of his deposition, he has stated that
upon inquiring from his wife, she briefly informed him about her alleged
relationship with the present appellant. He has otherwise expressed his
lack of knowledge regarding the material particulars of the alleged
occurrences. He has, however, admitted that his wife was serving as an
Assistant Commissioner in the Commercial Tax Department at Bhopal
and was fully aware that in the event of any wrongdoing, a complaint
ought to be lodged with the police authorities.
28. Vishwajeet Pal (P.W.3) is a material witness for the prosecution,
being the first person to have contacted the prosecutrix after the alleged
incident dated 05.08.2018, upon being informed by her brother,
Nikhilesh. In paragraphs 5 to 8 of his cross-examination, he has
categorically admitted that he during that period came to know about
the relationship between the prosecutrix and the present appellant had
subsisted for approximately 8 to 9 years, during which period the
prosecutrix used to meet and communicate with the appellant regularly.
He further admitted that he was informed at the police station that there
existed a love relationship between the prosecutrix and the appellant. He
has also deposed that the prosecutrix had been staying in the hotel with
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the appellant of her own volition. Additionally, he stated that when he
reached the hotel, the prosecutrix had concealed the fact of her long-
standing relationship with the appellant, which he subsequently came to
know during the course of his visit. It is significant to note that this
witness has not been declared hostile by the prosecution. Despite this,
his testimony does not support the prosecution case and, in fact, runs
contrary to it. Therefore, the statements made by this witness in his
cross-examination are binding on the prosecution and materially affect
the credibility of its case.
29. Swati Bhushan (P.W.4), a friend of the prosecutrix and an
Advocate by profession since 2005, has deposed that in the year 2013,
the prosecutrix had informed her about the alleged harassment caused by
the present appellant. This statement, however, is inconsistent with the
version of the prosecutrix, who has stated that she had not disclosed
such alleged incident to anyone. This witness has further deposed that
the prosecutrix informed her about the incidents commencing from
02.08.2018. Being an Advocate, she advised the prosecutrix to lodge a
complaint with the police; however, as per her own statement, no such
complaint was lodged prior to 06.08.2018. She has also referred to the
injuries allegedly sustained by the prosecutrix, as narrated to her.
However, as discussed hereinabove, the alleged grievous injuries are not
supported by any medical evidence or by the testimony of any
concerned medical practitioner. It is further evident that there are
material omissions and contradictions in the testimony of P.W.4 vis-Ã -
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vis her police statement (Exhibit D/1), as reflected in paragraphs 22, 23,
26, and 32 of her deposition. Significantly, she has admitted that on
05.08.2018, despite her advice to the prosecutrix to approach the police,
the prosecutrix continued to stay with the present appellant in a hotel
room, which circumstance further affects the credibility of the
prosecution version.
30. Dr. Shikha Gupta (P.W.13), who conducted the medical
examination of the prosecutrix on 06.08.2018, has deposed regarding
certain injuries found on her person. She has stated that there were
minor injuries on the lips and hands of the prosecutrix; however, she has
not noted any injury on the left eye or left ear, as alleged by the
prosecutrix. She has further opined that the injuries were simple in
nature and were of a duration of approximately 24 to 48 hours. In this
context, it is pertinent to note that such injuries, if at all, would relate to
a period subsequent to 04.08.2018, whereas the charge of causing
injuries has been attributed to the present appellant in relation to the
alleged incident dated 02.08.2018. Moreover, no specific charge framed
pertains to the alleged incidents dated 05.08.2018 and 06.08.2018.
Consequently, the medical evidence as adduced by P.W.13 does not
materially support the prosecution case.
31. S.P.S. Chouhan (P.W.10), the Investigating Officer, has, in his
cross-examination, categorically admitted that the prosecutrix and the
present appellant were in a relationship for a period of approximately 8
to 10 years. He has further admitted that they used to communicate
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frequently, travel together, visit various places, and stay in hotels of
their own volition. He also stated that they regularly communicated via
mobile phone and exchanged messages. Importantly, the Investigating
Officer has admitted that during the course of investigation, no
abnormality was observed in their conduct during their stay at the hotel
which would indicate any forceful act having been committed against
the prosecutrix. He has further acknowledged that, upon investigation, it
transpired that the prosecutrix and the present appellant were in a
consensual love relationship. In view of the aforesaid admissions, the
prosecution case stands materially weakened.
32. The admissions made by the Investigating Officer (P.W.10) during
his cross-examination are of considerable evidentiary value and cannot
be lightly disregarded, particularly in view of the fact that he is the
officer who conducted the investigation and is an independent and
responsible officer holding a senior position in the police
department. Madan Mohan Malviya (P.W.14), who also conducted part
of the investigation, has made admissions on similar lines, thereby
corroborating the version emerging from the testimony of other
prosecution witnesses.
33. Upon a cumulative appreciation of the entire evidence adduced on
behalf of the prosecution, it becomes evident that the material on record
points towards the existence of a consensual relationship between the
prosecutrix and the present appellant. The evidence further suggests that
any dispute between them appears to have arisen during the intervening
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night of 05.08.2018 and 06.08.2018 at Hotel Jahanuma Palace,
following which the prosecutrix contacted the police and subsequently
lodged the First Information Report, allegedly embellishing and
exaggerating the narrative. Even if the injuries noted by Dr. Shikha
Gupta (P.W.13) on the person of the prosecutrix are taken into
consideration, in light of the admitted consensual relationship and the
normal conduct of the parties, the circumstances under which such
injuries were allegedly caused remain doubtful. Furthermore, even
assuming for the sake of argument that such injuries were inflicted by
the appellant, the same are stated to have occurred during the
intervening night of 05.08.2018 and 06.08.2018, for which no specific
charge has been framed against the appellant. The testimony of the
prosecutrix is replete with material improvements, contradictions, and
omissions, rendering her version unreliable and unworthy of credence.
The learned Trial Court appears to have overlooked these significant
aspects and has erroneously proceeded to convict the appellant under
Sections 376(2)(f) and 323 of the Indian Penal Code. In the absence of
cogent, reliable, and corroborative evidence, no offence under Section
376(2) IPC or Section 323 IPC can be said to have been proved beyond
reasonable doubt. It is also pertinent to note that no forensic evidence,
such as FSL or DNA reports, has been brought on record to substantiate
the allegations made by the prosecutrix.
34. As regard the sterling quality of witnes, in the case of Krishna
Kumar Malik Vs. State of Haryana – reported in (2011)7 SCC 130 , the
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Hon’ble Apex Court in para 25 and 31 has held as under :
“25.Needless to say the solitary evidence of the
prosecutrix to bring home the charge of abduction and
commission of rape by the Appellant does not inspire
confidence and is not of sterling quality. In our opinion, it is
neither prudent nor safe to hold the Appellant guilty of
commission of the said offence. We hold so, on account of
many other circumstances, which are against the prosecution,
narrated hereinbelow:
… … … ….
31. No doubt, it is true that to hold an accused guilty
for commission of an offence of rape, the solitary evidence of
prosecutrix is sufficient provided the same inspires confidence
and appears to be absolutely trustworthy, unblemished and
should be of sterling quality. But, in the case in hand, the
evidence of the prosecutrix, showing several lacunae, have
already been projected hereinabove, would go to show that
her evidence does not fall in that category and cannot be
relied upon to hold the Appellant guilty of the said offences.”
35. Further in the case of Rai Sandeep Alias Deepu Vs. State (NCT of
Delhi) reported in (2012)8 SCC 21 in para 22 & 23 the Hon’ble Apex
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Court held as under :-
22. In our considered opinion, the ‘sterling witness’
should be of a very high quality and caliber whose version
should, therefore, be unassailable. The Court considering the
version of such witness should be in a position to accept it for
its face value without any hesitation. To test the quality of
such a witness, the status of the witness would be immaterial
and what would be relevant is the truthfulness of the
statement made by such a witness. What would be more
relevant would be the consistency of the statement right from
the starting point till the end, namely, at the time when the
witness makes the initial statement and ultimately before the
Court. It should be natural and consistent with the case of the
prosecution qua the accused. There should not be any
prevarication in the version of such a witness. The witness
should be in a position to withstand the cross- examination of
any length and howsoever strenuous it may be and under no
circumstance should give room for any doubt as to the factum
of the occurrence, the persons involved, as well as, the
sequence of it. Such a version should have co-relation with
each and everyone of other supporting material such as the
recoveries made, the weapons used, the manner of offence
committed, the scientific evidence and the expert opinion. The
said version should consistently match with the version of
every other witness. It can even be stated that it should be
akin to the test applied in the case of circumstantial evidence
where there should not be any missing link in the chain of
circumstances to hold the accused guilty of the offence
alleged against him. Only if the version of such a witness
qualifies the above test as well as all other similar such tests
to be applied, it can be held that such a witness can be called
as a ‘sterling witness’ whose version can be accepted by the
Court without any corroboration and based on which the
guilty can be punished. To be more precise, the version of the
said witness on the core spectrum of the crime should remain
intact while all other attendant materials, namely, oral,
documentary and material objects should match the said
version in material particulars in order to enable the Court
trying the offence to rely on the core version to sieve theSignature Not Verified
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other supporting materials for holding the offender guilty of
the charge alleged.
23. In the anvil of the above principles, when we test the
version of PW- 4, the prosecutrix, it is unfortunate that the
said witness has failed to pass any of the tests mentioned
above. There is total variation in her version from what was
stated in the complaint and what was deposed before the
Court at the time of trial. There are material variations as
regards the identification of the accused persons, as well as,
the manner in which the occurrence took place. The so-called
eye witnesses did not support the story of the prosecution.
The recoveries failed to tally with the statements made. The
FSL report did not co-relate the version alleged and thus the
prosecutrix failed to instill the required confidence of the
Court in order to confirm the conviction imposed on the
appellants.
36. Regarding delay in FIR, the Hon’ble Apex Court in the case
of Ramdas and others Vs. State of Maharashtra reported in (2007)2 SCC
170 in paras 23 and 25 has held as under : –
“23. It is no doubt true that the conviction in a case of
rape can be based solely on the testimony of the prosecutrix,
but that can be done in a case where the court is convinced
about the truthfulness of the prosecutrix and there exist no
circumstances which cast a shadow of doubt over her
veracity. If the evidence of the prosecutrix is of such quality
that may be sufficient to sustain an order of conviction solely
on the basis of her testimony. In the instant case we do not
find her evidence to be of such quality.
25.In the instant case there are two eye witnesses who
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have rejected outright the evidence of PW-5. We have also
critically scrutinized the evidence of the prosecutrix, PW-2.
She does not appear to us to be a witness of sterling quality
on whose sole testimony a conviction can be sustained. She
has tried to conceal facts from the court which were relevant
by not deposing about the earlier first information report
lodged by her, which is proved to have been recorded at the
police station. She has deviated from the case narrated in the
first information report solely with a view to avoid the burden
of explaining for the earlier report made by her relating to a
non cognizable offence. Her evidence on the question of
delay in lodging the report is unsatisfactory and if her
deposition is taken as it is, the inordinate delay in lodging the
report remains unexplained. Considered in the light of an
earlier report made by her in relation to a non cognizable
offence, the second report lodged by her after a few days
raises suspicion as to its truthfulness. ”
(emphasis supplied)
37. Having regard to the law laid down in the aforesaid cases and
tested the evidence on record on the touch stone of it and having
considered the discussion as above, this Court finds that the conviction
and sentence of present appellant is not based on the sound principles of
law. It is faulty and liable to be set aside.
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38. Ex consequenti, in view of the law laid down by the Hon’ble Apex
Court in the aforementioned cases, this appeal succeeds and is hereby
allowed. The impugned judgment of conviction and order of sentence is
hereby set aside and the appellant – Pankaj Kumar Singh is acquitted
from the charge punishable under Sections 376(2)(N), 376(2)(f) and 323
of the IPC. The appellant is on bail, his bail bond shall stand discharge.
The fine amount, if deposited by appellant, be refunded to him.
39. Record of the trial Court be sent back along with copy of the
judgment.
(RAJENDRA KUMAR VANI)
JUDGE
RS/mrs.mishra
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