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.)
State of Chhattisgarh Through: Police Station Ramanujganj District- Surguja
For Appellant : Mr. Suryakant Mishra, Advocate
For Respondent : Mr. Sameer Behar, Panel Lawyer
Hon’ble Shri Justice Arvind Singh Chandel
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
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.
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
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
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
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.
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
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
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
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.
19. Record of the Court below be sent back along with a copy of this
judgment forthwith for information and necessary compliance.
Arvind Singh Chandel