Nandeo vs State Of Chhattisgarh on 13 November, 2017

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AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

CRA No. 716 of 2007

Judgment Reserved on : 04/11/2017

Judgment Delivered on : 13/11/2017

• Nandeo son of Khirdhoo, aged 60 years Labourer, resident of Village-
Navapara, P.S. Ramanujganj, Distt. Surguja (C.G.)

—- Appellant

Versus

State of Chhattisgarh Through: Police Station Ramanujganj District- Surguja
(C.G.)

—- Respondent

For Appellant : Mr. Suryakant Mishra, Advocate
For Respondent : Mr. Sameer Behar, Panel Lawyer

Hon’ble Shri Justice Arvind Singh Chandel

C.A.V. JUDGMENT

1. This appeal is directed against the judgment of conviction and order of

sentence dated 25/05/2007 passed in ST No. 348/2006 by the Second

Additional Sessions Judge (FTC), Ramanujgunj, District- Surguja

convicting the accused/Appellant under Sections 376 and 506 Part-II

IPC and sentencing him to undergo rigorous imprisonment for seven

years and to pay fine of Rs. 1,000/- and rigorous imprisonment for 6

months and to pay fine of Rs. 500, respectively with default

stipulations.

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2. Case of the prosecution, in brief, is that on 02/05/2006, First

Information Report (Ex.P-4) was lodged by the prosecutrix (PW1), a

married lady aged about 27 years, alleging that on 29/04/2006 at about

4:00 p.m., she had gone to her sister’s house at Village- Nawagarh,

where the accused/Appellant (In-laws uncle) invited her at his home.

She went there and after having dinner, she along with wife of the

accused/Appellant slept in Verandah. The accused/Appellant also

slept in the same Verandah. Late night, at about 1:00 a.m., the

accused/Appellant asked her to sleep with him and when she objected

he threatened her, forcibly took her inside the room of the house and

committed sexual intercourse with her. At about 3:00 a.m., he left her

at her sister’s house and threatened not to disclose the incident to

anybody. Later, she disclosed the incident to her brother-in-law, Vinod

and her sister- Zamuni. After recording of FIR (Ex.P-4), the

prosecutrix (PW1) was examined by Dr. Prathibha Rajul Jain (PW8)

who gave her report (Ex.P-6). The accused/Appellant was also

examined. After completion of investigation, a charge-sheet was filed

against the accused/Appellant for the offence punishable under

Sections 376 and 506 Part-II of IPC followed by framing of charges

under Sections 376 506 Part-II of IPC.

3. So as to hold the accused/Appellant guilty, the prosecution examined

as many as 11 witnesses in support of its case. Statement of the

accused/Appellant under Section 313 Cr.P.C. was also recorded in

which he denied the charges levelled against him, pleaded his

innocence and false implication in the case.

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4. After trial, the Trial Court convicted and sentenced the

accused/Appellant as mentioned in the first paragraph of this

judgment. Hence, this appeal.

5. Learned Counsel for the accused/Appellant has argued that according

to the prosecution case, the prosecutrix (PW1), after taking meals

along with others, had slept with the wife of the accused and if any

forcible attempt by catching her hand and taking inside the house was

made by the accused, the prosecutrix could have awakened the wife of

the accused to save herself, but the prosecutrix did not try to awake

the wife of the accused which was quite unnatural of human conduct. It

was further argued that even if it is admitted for the sake of argument

that the sexual intercourse was committed, the evidence adduced by

the prosecution itself reveals that the prosecutrix was a consenting

party.

6. Per contra, Learned Counsel appearing for the State submitted that

the impugned judgment is in accordance with law and there is no

infirmity in the same.

7. I have heard Learned Counsel appearing for the parties and perused

the material available on record including the impugned judgment.

8. The case of the prosecution is mainly based on the statement of

prosecutrix (PW1) and Suryadev (PW3), husband of the prosecutrix.

Prosecutrix (PW1), in her court statement, has deposed that on the

date of incident, she had gone to her sister’s house at village-

Nawagarh. At about 5:00 p.m., on an invitation of the
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accused/Appellant, she went to his house. She further deposed that

after taking meals, she along with the wife of the accused/Appellant

slept on the floor of the Verandah of the house. The accused/Appellant

also slept in the same Verandah. This statement of the prosecutix is

corroborated by Simari Bai (PW10), wife of the accused/Appellant.

Therefore, it is clear that on the date of incident, the prosecutrix (PW1)

had gone to the house of the accused/Appellant and after taking

meals, she slept there along with wife of the accused/Appellant.

9. Prosecutrix (PW1) further deposed that late night at about 1:00 a.m.,

the accused/Appellant caught her hand and asked her to sleep with

him. When she opposed, he forcibly took her inside the room and

committed sexual intercourse with her. At about 3:00 a.m, he left her at

her sister’s house. There, she narrated the whole incident to her

brother-in-law, Vinod and her sister- Zamuni. She further deposed that

the accused/Appellant had threatened her not to disclose the incident

to any body otherwise, he will kill her by an axe.

10. Suryadev (PW3), husband of the prosecutrix (PW1) supported the

above statement of prosecutrix and deposed that her wife had told him

about the incident and then they had gone to the police station to lodge

the FIR.

11. As per the statement of the prosecutrix (PW1), she, first,, informed

about the incident to her sister- Zamuni Bai and her sister’s husband-

Vinod, but both (Vinod and Zamuni Bai) have not been examined by

the prosecution in this case.

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12. Prosecutrix (PW1), in para 10 of her cross-examination, admitted that

they, including herself and wife of the accused/Appellant, had

consumed liquor in the house of the accused/Appellant. She further

admitted that she did not make any noise and did not wake up the wife

of the accused/Appellant at the time of incident and after the incident

also. She further admitted that in the morning also, she did not inform

the incident to his wife or any of the neighbour of the

accused/Appellant. In para 13 of her cross-examination, she

categorically admitted that she did not make any noise because the

wife of the accused/Appellant could wake up. She admitted that there

was previous enmity between the accused/Appellant and her sister’s

husband- Vinod, and she lodged the FIR on being asked by Vinod and

his father- Rampyari. Suryadev (PW3), husband of the prosecutrix

also admitted in his cross-examination that because of Vinod and his

father- Rampyari, they lodged the FIR.

13. Prosecutrix (PW1) also admitted that on the date on which her court

statement was recorded, Rampyari, father of Vinod had accompanied

her and asked her to make such statement.

14. As per prosecution story, the occurrence took place on 30/04/2006 at

about 1:00 a.m. and FIR (Ex.P-4) was lodged on 02/05/2006 at about

02:30 p.m. Admittedly, the incident was narrated to Vinod and Zamuni

by the prosecutrix, then why did she lodge the report after delay of two

days, is not properly explained.

15. It appears from the above that though the prosecutrix (PW1) has

deposed against the accused/Appellant yet from the perusal of the
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evidence adduced by the prosecution, it is apparent that on the fateful

night, the prosecutrix (PW1) had consumed liquor with the

accused/Appellant and his wife and slept in the verandah of their

house, and when the accused/Appellant forcibly took her inside the

room and committed sexual intercourse, she did not make any noise

nor did she make any effort to wake up the wife of the

accused/Appellant or anyone at that time. However, she admitted that

she did not raise any noise because the wife of the accused/Appellant

could wake up. Therefore, it is clear that the conduct of the prosecutrix

is not natural. Moreover, when she informed the incident to Vinod and

Zamuni why the FIR was lodged after a delay of two days, which is not

explained and, therefore, the same is fatal to the case of the

prosecution.

16. In the instant case, it appears that the alleged incident did not take

place or had it been happened, the evidence available on record

shows that the prosecutrix was a consenting party. In view of the

foregoing, the accused/Appellant deserves to be given benefit of

doubt.

17. Consequently, the appeal is allowed. The impugned judgment of

conviction and sentence is set-aside. The Appellant is acquitted of the

charges framed against him.

18. It is reported that the Appellant is on bail. His bail bonds shall continue

for a further period of six months from today in terms of Section 437 A

of the Code of Criminal Procedure.

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19. Record of the Court below be sent back along with a copy of this

judgment forthwith for information and necessary compliance.

Sd/-

Judge
Arvind Singh Chandel
Rahul

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