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Bhoju Satnami @ Bhoj Raj vs State Of Chhattisgarh 2 … on 28 February, 2018

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No.1151 of 2001

Judgment Reserved on : 8.12.2017

Judgment Delivered on : 28.2.2018

Bhoju Satnami alias Bhojraj, S/o Peela Dau Sonwani, aged 19 years,
resident of Village Kopara, Thana Rajim, District Raipur, Chhattisgarh
—- Appellant
versus

The State of Chhattisgarh through the District Magistrate Raipur
— Respondent
——————————————————————————————————
For Appellant : Shri Awadh Tripathi, Advocate
For Respondent/State : Smt. Madhunisha Singh, Panel Lawyer

——————————————————————————————————

Hon’ble Shri Justice Arvind Singh Chandel

C.A.V. JUDGMENT

1. This appeal is directed against the judgment dated 7.11.2001

passed by the 3rd Additional Sessions Judge, Raipur in Sessions

Trial No.179 of 2001 convicting and sentencing the Appellant as

under:

Conviction Sentence

Under Section 376(1) of the Rigorous Imprisonment for 7
Indian Penal Code years and fine of Rs.1,000/- with
default stipulation

2. The prosecution case, in brief, is that the prosecutrix (PW1), a

married woman, aged about 20 years, on 11.1.2001 at about 9:00

p.m., was going to her old house to watch programme on TV. It is

alleged that on the way, the Appellant forcibly lifted her up, took her

to the dilapidated premises of Tilak Satnami, caused her there to

fall down and thereafter he committed forcible sexual intercourse
2

with her. He threatened her of life on being disclosed the incident

to anyone and thereafter fled from there. The prosecutrix went to

her house and told about the incident to her husband and other

members of her family. On 12.1.2001, First Information Report

(Ex.P1) was lodged by the prosecutrix. She was medically

examined by Dr. D. Kudesiya (PW5). Her report is Ex.P5 in which

she did not find any internal or external injury on the body of the

prosecutrix. She found that the prosecutrix was habitual to sexual

intercourse and no definite opinion could be given regarding recent

intercourse with her. The Appellant was also examined by Dr.

Gopal Kela (PW11). His report is Ex.P12A in which he has stated

that the Appellant was capable of committing sexual intercourse.

Vide Ex.P3, underwear of the Appellant and Vide Ex.P2 petticoat of

the prosecutrix were seized. Both the clothes were sent to the

Forensic Science Laboratory for chemical examination. FSL

Report is Ex.P14. Ex.P14 reports positive regarding presence of

human spermatozoa on the underwear and the petticoat. On

completion of the investigation, a charge-sheet was filed against

the Appellant for offence punishable under Sections 376 and 506

of the Indian Penal Code. Charges were framed against him under

Sections 376(1) and 506B of the Indian Penal Code.

3. To rope in the Appellant, the prosecution examined as many as 11

witnesses. Statement of the Appellant was also recorded under

Section 313 of the Code of Criminal Procedure in which he denied

the circumstances appearing against him, pleaded innocence and

false implication. Two witnesses have been examined in his

defence.

3

4. The Trial Court convicted and sentenced the Appellant as

mentioned in the first paragraph of this judgment. Hence, this

appeal.

5. Learned Counsel appearing for the Appellant argued that there are

material contradictions in the statements of the prosecution

witnesses. It was further argued that as per the statement of

Maltibai (PW8), Jethani of the prosecutrix, as soon as the

prosecutrix had returned home, her husband had beaten her and

had asked her why had she returned home late. On being asked

by her husband, she had narrated him about the incident. From

this, it is clear that the prosecutrix herself had not told anything

about the incident to anybody. As per the statement of the

prosecutrix, her bangles were broken, there were injuries on her

back, head and hand, but no injury was found in her medical

examination. Thus, it is clear that she was a consenting party.

6. On the contrary, Learned Counsel appearing for the State

supported the impugned judgment.

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

perused the material available on record minutely.

8. The prosecutrix (PW1) has stated that on the date of incident at

about 8:00 p.m., she was going to her old house to watch

programme on TV. On the way, the Appellant met her near a

dilapidated premises. He gagged her mouth and dragged her

inside the premises and committed rape with her there. Therefore,

she lodged the FIR (Ex.P1). In her cross-examination, she has

stated that she recognised the Appellant, but did not know his
4

name. She has further stated in paragraph 6 of her deposition that

after the incident, she told about the incident to her Jethani. She

came to know about the name of the Appellant from her Jethani.

She had shown the Appellant from a distant place then her Jethani

had told her about the name of the Appellant. But, in the FIR

(Ex.P1) and in her case diary statement (Ex.D1), this fact is not

mentioned. In paragraphs 8 and 9 of cross-examination, she has

stated that the Appellant had caused her to fall down, her bangles

were broken and, therefore, injuries had occurred on her hands.

Due to causing her to fall down, she had also sustained injury on

her back and head. In paragraph 13 of her cross-examination, she

has further stated that after the incident, the Appellant went to his

home and she also returned her home.

9. Village Kotwar Uttam (PW2) is the witness before home petticoat

of the prosecutrix and underwear of the Appellant were seized vide

Ex.P2 and P3, respectively. He has supported the above seizures.

10. Bhulinbai (PW3) is mother-in-law of the prosecutrix. She has

stated that at about 9:00 p.m., the prosecutrix, weeping, came to

her and told the name of the Appellant saying that the Appellant

had committed rape with her. In paragraph 3 of her cross-

examination, she has categorically stated that the prosecutrix had

told her about the incident that the rape was committed with her

and she specifically told the name of the Appellant. Sahodrabai

(PW4), Jethani of the prosecutrix has also stated that the

prosecutrix came to her and specifically telling the name of the

Appellant told her that the Appellant committed rape with her.

11. Dr. D. Kudesiya (PW5) examined the prosecutrix. Her report is
5

Ex.P5 in which she did not find any internal or external injury on

the body of the prosecutrix. She found that the prosecutrix was

habitual to sexual intercourse and no definite opinion could be

given regarding recent intercourse with her. Patwari Mohd. Ali

(PW6) prepared the spot-map (Ex.P7). Inspector K.K. Mudliar

(PW7) is the witness who assisted in the investigation of the

alleged offence. Maltibai (PW8), Jethani of the prosecutrix has

stated that she had come out to return her home. After 15 minutes,

the prosecutrix, weeping, came to her and specifically telling the

name of the Appellant told her that the Appellant had committed

rape with her. In her cross-examination, she has stated that when

the prosecutrix came to her, her husband (husband of the

prosecutrix) asked the prosecutrix about delay in her return and

beat her. At that time, the prosecutrix told her about the incident.

12. Assistant Sub-Inspector Awadhesh (PW9) registered the FIR

(Ex.P1) and did the investigation. Radheshyam (PW10) is the

witness of seizure (Ex.P3) of underwear of the Appellant. He has

supported the said seizure. Dr. Gopal Kela (PW11) medically

examined the Appellant. His report is Ex.P12A in which he has

opined that the Appellant was capable of committing sexual

intercourse. Puniyabai (DW1) and Foolchand (DW2), neighbours

of the prosecutrix have stated that they were residing nearby the

place of incident. The prosecutrix did not tell them anything about

the incident nor did they hear any shout from the place of incident.

13. On minute examination of the above evidence, it is found that

though the prosecutrix (PW1) has stated that he Appellant had

committed forcible sexual intercourse with her yet her statement
6

does not inspire confidence of this Court. As per her Court

statement, at the time of occurrence, she had sustained injuries on

her hand, head and back. Bangles were also broken, but no piece

of broken bangles was seized from the spot. No bodily injury was

also found in her medical examination (Ex.P5). As per the Court

statement of the prosecutrix, she did not know the name of the

Appellant. After the incident, she had shown the Appellant to her

Jethani from a distant place, then her Jethani had told her the

name of the Appellant. At that time itself, she came to know about

the name of the Appellant. But, Maltibai (PW8), Jethani of the

prosecutrix and Sahodrabai (PW4) have not stated anything about

this. They as well as Bhulinbai (PW3), mother-in-law of the

prosecutrix have categorically stated that the prosecutrix had

returned home and told about the incident specifically telling the

name of the Appellant. The prosecutrix has also stated that after

the incident, she had returned her home and the Appellant had

also gone to his home. From the statement of Maltibai (PW8), it is

also clear that after returning home, the prosecutrix herself did not

tell about the incident to anybody at home. When husband of the

prosecutrix asked her about delay in her return to home, then she

disclosed about the incident and on this her husband had beaten

her.

14. From the foregoing, the whole prosecution story appears to be

doubtful. It seems that if the alleged act was done with the

prosecutrix, she was a consenting party to the same. Therefore,

no offence under Section 376(1) of the Indian Penal Code is

proved beyond reasonable doubt.

7

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

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

the charge framed against him.

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

judgment forthwith for information and necessary compliance.

Sd/-

(Arvind Singh Chandel)
JUDGE
Gopal

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