^ CF0000058294 /^. ^o ^ rb^' .^^^^. "^P^.^..£»^^ •r .-..^H- INIHE_HI©HCGJOR2 ©FMADHTAPBADESH AT JflBALPT]R CRIMim.L APPEA.L Io» .5^^ '6 of 1995 APPSLLA.S3L(Afl.QI!Sai) BR. TH&.EUR KOM&B VISBMAS, aged 55 ^' years,soH ot Paresh CfeiaNd^a Vishwas, Private Medieal Praotitioner, resident of Saja, P .S. Saja, dtstriot Durg. Versus State of M.P.ttooygb tfae Diatrict Magiatrate, Durg, RESPOmSHE, ^^A ,5'^'"cl^ ^^^.—— r APPM L 1?©EBSBCTIOI 574 OF IHE CCDE OF GRIMIH&L PROGEDURE. €" 1 ^) Ut HI6H COURT OF CHHATTISSARH AT BILASPUft Single Bench : Hon'ble Mr. Justice Pritinker Diwoker Crjminal AoDeal No. 506 of 1995 APPELLANT RESPONDENT Dr. Thakur Kumar Vishwas Versus State of Madhya Pradesh Shri Vaibhav A. ©overdhan,counsel for the appellont. Shri Ashish 6upta, Panel Lawyer for the State. CRIMINAL APPEAL UNDER S6CTION 374 OP THE CODE OF CRIMINAL PROCEDURg JUD6MENT (14.03.»)ll) This appecxl is directed against the judgment of conviction and order of sentence doted 22.03.1995 passed by Additional Sessions Judge, Durg, comp at Bemetora in Sessions Trial No.292/1992 convicting the occused/appellant for the offence punishable under Section 376 of the Indian Penal Gode and sentencing him to undergo rigorous imprisonment for seven years and poy fine of Rs. 500, in defaujt of pcyment of fine to furt'herundepgo rigorous imprisonment for three months. 2. Cose of the prosecution, in brief, is that on 23.1.1992 at about 12.30 p.m. F.I.R. (Ex.P-2) was lodged by the prosecutrix (PW-4), a married lady aged about 18 years, allegingin it thot on thort- day at about 11 a.m. when she hod gone to the ciinic of the accused/appeljant she was subjected to rape by the accused/appellont on the pretext of providmg treatment to her. Based on this F.I.R., offence under Section 376 IPC was registered against the accused/appellant. After completion of investigation cAo//£»7was filed on 24.2.1992 under Section 376 of the Indian Penal Code. 3. So as to hold the accused/appetlant guilty, prosecution has examined as mony as 12 witnesses in supporl- of its co®e. Stflrt-ement of the accused/appellont was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charge levelied against him and pleoded his innocence and false implication in the case. This opart', witnesses namely Jhukuram (DW-1) and Kishomlat Verma (DW- 2) have also been examined by the defence in support' of its case. 4. After hearing the parl-ies the trial Courl" has convicted and sentenced the flK:cused/appellant for the offence os mentioned above. Hence this appeal. 5, Counsel for the accused/appellant submits that present is a case of false implicort'ion where the entire story has been cooked-up against the occused/appellant with the help of osnother doctor whose clinic was opposite to the clinic of the accused/appellont. He submits thot the prosecutrix is atteged to have been raped by the accused/appellont behind the curt'ain which was transparent and the other pdtients were also sitting nearby. He submits thot though the prosecutrix wos medically examined, but the doctor who had medically examined her hos not been examined in the Gourt. He further submits that as per own saying of the prosecutrix, her husband and 2-3 other persons were present near her but she did not raise any alarm. He further submits thot a very improbable story has been put fort-h by the prosecution thcri- the prosecutrix wos subjected to rape by the occused/appellont in presence of her husbomd and 2-3 other persons. ,^y<^^ /^•^ "^ 1 I J.i ;:%.:..........-^ -..rf 1 6. On the other hand, supprtjng the impuyied judgment it hos been argued by the State counsel thot the impugned judgment is in accordance with IGIW oaid there is no infirmJty in the same. He submits that the rejotion between the patients and the Doctor are supposed to be very good omd the doctor has no right to exploit the prosecutrix taking advantage of her helplessness. 7. I have heard counsel for the perties and perused the material available on record including judgment impugned. 8. Prosecutrix (PW-4) has stoted m her evrdence thort' she knew the Qccused/appeilant who wos a practisin^ doctor in the village. She has stated that when she was taking treatment from the accused/QppeiIcnt, she was given an injectjon by him and then she was osked to come on the next day for better treatment. According to her, on the date of incktent when she had gone to the ctinic of the accused/Qppetlont Gt oboui 10.30 a.m., one compounder and one poitient were there in his clinic. She hflts stated thort' the occused/oppellant had asked her to jay down on the table and then he examined her with his stethoscope. Accordjng to her, thereafter, accused/appelloBit gave a prescription to her husband for getl'ing rnedicine from the market and then he hoid asked hcr to undo the buttons of her biouse and pressed her breoist. She hds stoted thot thereafter the accused/appellant after uptumjng her sart took out his private part ond inserl'ed the soane into her prh/ote parl'. As soon oss this act was done by the accused/appellant, she stood up and thereafter, the accused/appellant pushed her dnd come out of his clinic. She hos stated thot she also came out from the clinic of the accusecl/appellont and by that time -Mit^ 1 y. :^"1"' ^-,..,a..- her husband was aiso there» Then the accused/appeltant had again osked her to take injectjon, which was refused by her saying thot 'you are not a doctor but a rapist' and then she narrdted the entire incident to her husbond Abhay Rom (PW- 5)/compounder Vidya Bhushan ond the other persons. She has furt'her stated that thereafter the accused/appellant asked her not to cry otherwise he would be defamed but she told him very cotegoricajly that she was going to lodge the report. She hos stoted that thereofter as the accused/appejlant had asked her to take treotment from some other doctor, and then went to one Dr. Tamrakar for her treatmerrt' and narroted the entire incident to him or»which Dr. TamrckQp had asked her to tod9e the report- ond accordin9ly, the F.I.R. (Ex.P-2) was lodged by her. This witness has furt'her stated that es $he was having some ©ynecologicalproblem, she had gone to the clinic of the acaised/appellant. Abhay Ram (PW-5) - husboind of the prosecutrix has stated in his evidence thot on the date of incident when he and hjs wife had gone to the clinic of the Grccused/appellant, he goive a prescription for getting the medicine. After half ar» hour when this witness came back, he saw that the accused/oppellant making prepGirGtion to give injection to his wife but his wife was refusing to toke the same saying that 'You ore not a doctor but a rapist'; then she narrated the entire incident to him. He has admitted the foct that on the date of incident, before 90^9 t@ the clinic of the accused/appellont, they had gone to the clinjc of one Dr. 6uptQ cmd it is he who advJsed him to take one injection from ony doctor. He admits that after purchasing the medlcine when he came back to the clinic of the accused/appellant, h»s compounder wos sitl'ing there who had osked him to w®itos hrs wife was being examined by the acGused/appeJlant and <rfter some time he saw the accused/appeltant and the prosecutrix coming out from the clinic. Vidya Bhushan (PW-t) is a compounder ®fthe Glinte has stated in his evidence that on the date of incident the accused/appeljant took the prosecutrix behind the curt'aln which was transparent and, thereafter, the prosecutrix oame out of the said poirl'ition and made altegatior®c^ainst the accused/appellant for commissjon of rope. He has stoted thot the accused/appellant wos tetling everyone that he has not done any such act ond the prosecutrix was teltin9 tie. He admits thot the c!inic of the accused/QppeliflBTl' is on the main road in a public place and the place is os such where nobody con commit rope. He has further stated that the part'ition of curtain has been put in such a monner where one can see from the other side as to what is happening jr^ide the partition. Accopding to him, the accused/oppellant had fomented the prosecutrix with the help of machine. He has furt-her stoted thot the prosecutrix had made fajse aHegetion against the accused/appellant whereas the accused/appeljant had not done any such act. In paragraph six of his cross-exoiminatfon he has stoted that one Dr. 6upta is also practicing crt" Soja where the accused/appellant is procticing and <ss the practice of the accused/appellant is very good, other doctor are jeatous of him. Berendra KumQr (PW-2) is d person who was present in the clinic at the time of incident. He has st-oted in his evidence that when he was stonding outside the clinic of the accused/appejlant, he saw the prosecutrix makin9 allegation of ,^:;s%3%. /p^\^ •^.^ ^..-S.s^ ^'^^* rape agdnst the accused/appellont and the accused/appettont wos saying that he has not done ciny such thing. He has further stort'ed that crfter about prior to 10 -15 minutes of the incident prosecutrix was sitting in the clmic of the cccused/appellant along with her husband and the accused/appeUant was sitting on his chair and then all of a sudden prosecutrix stood up and made allegation of rape ogainst the accused/appellant and ot thot tlme the accused/appeltant was making preparort'ion to provide treatment to the prosecutrix. Mukesh Kumar Sahu (PW-3) is also o person who wos present in the clinic at the time of incident. He has also statect thot the partition of curt-ain was visible from outside. He has further stcxted thot no bad work had taken ptace in the clinic of the accused/appejlont. He has further stated that os there was hust-le ond bustle near the clinic of the accused/appellant, no such incident is possible at the place of incident. ©opal Sharma (PW-6) is the witness whose shop is adjacent to the shop of the accused/appeltant has stoted thal" upon hearing the noise when he reached the spot, the peopte were talkin9 thot someone had committed rape. He has further stated thot one Dr. ©uptawhose cjinic is neor his shop once had told him that the accused/appellant is having very good busine^ and, therefore, he should make some efforts to ensure the vacation of the cljnic of the accused/appeilant. Scntram (PW-7)) is a witness to seizure of petticoort' of the prosecutrix and underwear of the accused/appellont made under Exs. P-3 ond P-4 respectively. Deendayal (PW-8) has stort-ed in is evidence that he is a Cobbler and regulorly goes to the houses of reputed lawyers, doctors, etc. . He has stated thot on the date of incident he h^^ffiSS^. i ;1^:;?;^^-1 1 ^ ^^' '^:^v' ^ y. had gone to the house of Dr. Supta where Dr. Konnoje and one doctor from Chorbhatti were atso preserrt- and they were talking that o"® tedy hos already come ond now the accused/appellant is to be shunted out from the viltage. H®has furl'her stoted thcEt the prosecutrix emd her husbcnd were present in the clinic of Dr. ©uptacmd then a(l the doctors had asked them to go ond lodge the peporl' against the accused/appellont and then the prosecutrix and her husbond had assured them for lodging the report-. He hos furt'her stoted that some money was given to the prosecutrix onct her husband and, thereafter, the prosecutrix ond her husband had gone to the house of the accused/appellant. He has further stoted thot from the clinic of Dr. ©upta,the clinic of the accused/appellont is visible and after coming out from the clinic of the accused/appellcnt, the prosecutrix ond her husbond lodged the report-. Dr. R.K. Tamrokor (PW-9) who hcd medicdly exoimined the accused/appeKont ond given his report Ex.P-7 has stated thot the he is capabte of performing sexual intercourse. Bhagwoti Prosoid (PW-10) -Patwari had ppepared the spot map (Ex.P-12). ASI Jai Singh Dhurve (PW-11) is the witness who has done part- of investigotion. ASI R.P. Tripothi (PW-12) is the Investigoting Officer who has support-ed the cflise of the prosecution. 9. Minute examination of the evidence of the witnesses mokes it clear thot a very improbable story ho®been put forth by the prosecution. According to the prosecution case, prosecutrix wois subjected to rape by the accused/appellant in a room which was duly parl-itioned by a curtain and one con see from other side of the parl'ition. Evidence makes it clear thot the incident is said to have taken place m presence of 2 -3 persons and as there was hustle ond busl'le near the clinic of the oiccused/appetlant, no such incident is possible at the place of incident. Evidence also makes it clear that ceTt'ain local members were unhappy with the progress of the accused/appejjant as he was having very good practice and, therefore, they made a plan against the crccused/appellant to rope him in some case and for which prosecutrix ond her husband were monctged by them and as a result of which, the reporl- was lodged. Thus, on the basis of the evidence adduced by the prosecution jt woujd not be safe for this Court- to convict the accused/appellant under Sectton 376 of the Indian Penal Code. 10. In conGlusJon, the appeal is atlowed. Impugned judgment dated 22.3.1995 is hereby set aside. Appeljcnt is ocquitted of the charge levelled against him. Since appellont isalready on bail, his bail bonds stand dischdrge Sd/- Pritinker Diwaker Judge