AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No.2265 of 1999

Judgment Reserved on : 13.7.2018

Judgment Delivered on : 9.10.2018

Chandrahas Verma, aged 38 years, son of Mahranram Verma, resident of
Chherkapur, P.S. Palari, District Raipur, M.P. (now Chhattisgarh)
—- Appellant
versus

The State of Madhya Pradesh (now Chhattisgarh)

— Respondent
——————————————————————————————————
For Appellant : Shri Parag Kotecha, Advocate
For Respondent/State : Shri Ramakant Pandey, Panel Lawyer

——————————————————————————————————

Hon’ble Shri Justice Arvind Singh Chandel

C.A.V. JUDGMENT

1. This appeal is directed against the judgment dated 11.8.1999

passed by the 2nd Additional Sessions Judge, Balodabazar, District

Raipur in Sessions Trial No.67 of 1999 convicting and sentencing

the Appellant as under:

Conviction Sentence

Under Section 376 of the Rigorous Imprisonment for
Indian Penal Code 10 years and fine of
Rs.1,000/- with default
stipulation

2. Facts of the case, in brief, are that on 21.12.1998 at about 9:00

a.m., the prosecutrix (PW1), a married woman aged about 32

years, was sitting in a field for attending the call of nature.

Allegedly, the Appellant came there, caused her to fall down and

started committing rape with her. When she pushed him away and
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refused, the Appellant did not stop and continued to commit rape

with her. Having heard her voice, her husband Ramnath (PW3)

reached there. Having seen Ramnath there, the Appellant ran

away. The prosecutrix and her husband told about the incident to

other family members in their house and also to other villagers.

Next day, the prosecutrix made a written report (Ex.P1). On the

basis of the report, First Information Report (Ex.P2) was registered.

The prosecutrix was medically examined by Dr. Rama Tiwari

(PW7). Her report is Ex.P14 in which she did not find any injury on

the body of the prosecutrix. She found the prosecutrix to be

habitual to sexual intercourse. No definite opinion could be given

regarding recent sexual intercourse with her. Underwear of the

Appellant was seized vide Ex.P6. Petticoat of the prosecutrix was

seized vide Ex.P4. Statements of witnesses were recorded under

Section 161 of the Code of Criminal Procedure. On completion of

the investigation, a charge-sheet was filed against the Appellant for

offence punishable under Section 376 of the Indian Penal Code.

Charge was framed against him under Section 376 of the Indian

Penal Code.

3. To rope in the Appellant, the prosecution examined as many as 9

witnesses. Statement of the Appellant was also recorded under

Section 313 Cr.P.C. in which he denied the guilt and pleaded

innocence. No witness has been examined in his defence.

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 the
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Appellant has been falsely implicated in the case due to a previous

enmity. First Information Report was lodged after 1 day of the

alleged incident, but the delay has not been explained properly.

The FIR is an after-thought report. From the evidence on record,

no offence is made out. Even if any such offence had taken place,

the prosecutrix was a consenting party. The report was made

because the husband of the prosecutrix had witnessed the

prosecutrix in compromising position with the Appellant.

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

supported the impugned judgment of conviction and sentence.

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

perused the record minutely.

8. The prosecutrix (PW1) has stated in her Court statement that at

the time of incident, i.e., at about 8 a.m., she was beginning to sit

for attending the call of nature. At that time, the Appellant came

there. He removed her clothes, mounted over her and committed

sexual intercourse with her against her will. On her shouting, her

husband reached there. Having seen her husband there, the

Appellant ran away. Thereafter, her husband took her home. He

called some persons at home and informed them about the

incident. Thereafter, she went to the police station and submitted a

written report. In her cross-examination, in paragraph 5, she has

stated that the Appellant caught her both hands and made her lie

down and after removing her clothes mounted over her. She has

further stated that at that time she had a gundi (a utensil) with her.

She did not assault the Appellant with that gundi nor did she

scratch the Appellant with her nails. She also did not pull his hair
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nor did she bite him with her teeth. She has further stated that she

was continuously refusing the Appellant, but he did not stop and

continued to commit sexual intercourse with her. At that time, her

husband reached there. In paragraphs 2 and 3 of her cross-

examination, she has also admitted that she does not know what

was written in the written complaint (Ex.P1). A police official had

written her complaint in his handwriting to which her husband had

got typed.

9. Ramnath (PW3), husband of the prosecutrix has deposed that at

the time of incident, he was breaking a branch of a tree for the

purpose of using the same as tooth-brush. He heard some noise

from the nearby place. He saw here and there and moved ahead

towards that place. Having reached that place, he saw that the

Appellant had mounted over his wife (the prosecutrix). Having

seen him, the Appellant ran away from there. During his cross-

examination also, this witness has admitted that he saw that the

Appellant had mounted over the prosecutrix, both the hands of the

prosecutrix were spread down and having seen him, the Appellant

fled from there. He has also admitted the fact that he did not

chase the Appellant. In paragraph 4 of his cross-examination, he

has admitted that Police Station Palari was 5-6 Kms. away from his

village. He has further stated that when they went to the police

station, the police officials had interrogated him and that

interrogation was recorded in writing by one witness Moti and he

(this witness) had got that written matter typed on which his wife

(the prosecutrix) had only put her signature.

10. Sunder (PW4), father-in-law of the prosecutrix and Motilal (PW2)

are residents of same village Chherkapur in which the prosecutrix
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and her husband were residing. Both have stated that the

husband of the prosecutrix had told them that rape was committed

with the prosecutrix. Ramkrishna (PW5) has not supported the

case of the prosecution and has been declared hostile.

11. Dr. Rama Tiwari (PW7) examined the prosecutrix on 24.12.1998.

Her report is Ex.P14 in which she did not find any injury on the

body of the prosecutrix. She found the prosecutrix to be habitual to

sexual intercourse. No definite opinion could be given regarding

recent sexual intercourse with her.

12. R.K. Lalwani (PW8) was the Investigating Officer of the offence in

question. He has stated that he recorded the FIR (Ex.P2) on the

basis of the written report (Ex.P1). He recorded the statements of

witnesses and during investigation he seized a petticoat of the

prosecutrix vide Ex.P4 and underwear of the Appellant vide Ex.P6.

13. Dr. F.R. Nirala (PW9) is the witness who examined the Appellant.

His report is Ex.P13A in which he found the Appellant to be

capable to perform sexual intercourse.

14. A minute examination of the above evidence led by the prosecution

makes it clear that the alleged incident took place on 21.12.1998.

The written report (Ex.P1) was made on 23.12.1998 while the

police station was only 5-6 Kms. away from the village of the

prosecutrix. In Ex.P1, the reason for delay in making the report is

mentioned that main family members were not available at home.

But, the evidence of the prosecution itself shows that husband of

the prosecutrix was present at the time of incident and he

witnessed the alleged incident and immediately thereafter he and

the prosecutrix returned home and informed about the incident to
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Sunder (PW4), father-in-law of the prosecutrix. Thus, the

explanation that main family members were not available at home

and, therefore, the report was made belatedly is not acceptable.

From the statements of the prosecutrix (PW1) and her husband

Ramnath (PW3), it is also clear that the alleged incident took place

in a field at about 9:00 a.m. and at that time the prosecutrix had

gone to the field to attend the call of nature. Normally, at about

9:00 a.m., other villagers also found in the field. In the

circumstances, it appears to be suspicious that the Appellant would

have attempted to commit rape with the prosecutrix in presence of

villagers. From the evidence, it is also clear that the alleged

incident took place in a field, but no injury was found on the body of

the prosecutrix in her medical examination. It is also established

that she did not assault the Appellant with the utensil (gundi)

available with her at the time of the alleged incident. She also did

not scratch the body of the Appellant with her nails nor did she pull

his hair and bite him with her teeth. From the statement of her

husband, it is also clear that when he reached the spot, he saw

that her both hands were spread down and the Appellant was

committing sexual intercourse with her and having seen him there,

the Appellant ran away. From the above, it seems that the

prosecutrix was a consenting party and since her husband saw her

in a compromising position with the Appellant, she raised alarm. In

the premises of aforestated, no offence under Section 376 of the

Indian Penal Code is proved against the Appellant beyond

reasonable doubt.

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

conviction and sentence is set aside. The Appellant is acquitted of
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the charge framed against him under Section 376 of the Indian

Penal Code. He is reported to be in jail. He be set at liberty

forthwith.

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