SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Chandulal vs State on 29 June, 2018

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No.3020 of 1999

Judgment Reserved on : 3.4.2018

Judgment Delivered on : 29.6.2018

Chandulal, son of Muritram Suryawanshi, aged about 35 years, resident of
Village Khamtarai, Police Station Sarkanda, District Bilaspur, M.P. (now
Chhattisgarh)

—- Appellant
versus

State of M.P. (now Chhattisgarh), through Police Station Sarkanda, District
Bilaspur
— Respondent
——————————————————————————————————

For Appellant : Ms. Smriti Shrivastava , Advocate
For Respondent/State : Shri Sameer Behar, Panel Lawyer

——————————————————————————————————

Hon’ble Shri Justice Arvind Singh Chandel

C.A.V. JUDGMENT

1. This appeal is directed against the judgment dated 2.12.1998

passed by the Sessions Judge, Bilaspur in Sessions Trial No.161

of 1997 convicting and sentencing the Appellant as under:

Conviction Sentence

Under Section 450 of the Rigorous Imprisonment for 7
Indian Penal Code years and fine of Rs.2,000/-

with default stipulation
Under Section 376(1) of the Rigorous Imprisonment for 7
Indian Penal Code years and fine of Rs.5,000/-

with default stipulation

2. Facts of the case, in brief, are that on 6.2.1997, the prosecutrix

(PW1), a married lady was sleeping in her room. Her husband was

not present in the house and had gone out to Nagpur. Her mother-

in-law Urmilabai (PW3) and father-in-law Negiram (PW2) were also
2

not present in the house. Her brother-in-law Durga Prasad (not

examined by the prosecution) and two sisters-in-law Rukmani

(PW4) and Satyabhama (not examined by the prosecution) were

sleeping in the courtyard of the house. At about 2:30 a.m., the

Appellant entered the room of the prosecutrix, switched off the light

and caught her hand. She thought that he is her husband. She

tried to remove the cloth covered on his mouth, but he did not let

her do so. Thereafter, she knew that he is not her husband and is

some other person. She shouted for help and called names of her

brother-in-law and sisters-in-law. On this, the Appellant committed

forcible sexual intercourse with her. On being opposed, he gagged

her mouth. When he was going out of her room, she switched on

the light of her room and identified him. When her in-laws returned

home, she told them about the incident. Her husband was not

present at home. After his return, she lodged First Information

Report (Ex.P1) on 9.2.1997. Her petticoat was seized vide Ex.P2.

She was medically examined by Dr. Nimila Ghatge (PW6). Her

report is Ex.P3 in which she did not find any injury over the private

part of the prosecutrix. No definite opinion regarding rape with the

prosecutrix could be given by the doctor as the prosecutrix was a

married lady and was habitual to sexual intercourse. The Appellant

was medically examined by Dr. P.K. Tiwari (PW7). His report is

Ex.P6 in which he found the Appellant to be capable of performing

sexual intercourse. 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 Sections 450 and 376 of the Indian

Penal Code. Charges were framed against him under Sections

450 and 376 of the Indian Penal Code.

3

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. 2 witnesses have 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

statement of the prosecutrix is not reliable. As per the prosecution

story, the Appellant was a neighbour of the prosecutrix. The door

of the house was closed and only the door of the kitchen of the

house was open. Sisters-in-law and brother-in-law of the

prosecutrix were sleeping in the house. In these circumstances,

the Appellant, who was a neighbour of the prosecutrix, could not

know without telling him by anybody that in which room the

prosecutrix was sleeping and door of the kitchen was open. As per

the statement of the prosecutrix, she had shouted “Bachao

Bachao”, but in that house itself, her brother-in-law and sisters-in-

law were also sleeping, therefore, they did not hear the shouts of

the prosecutrix is not natural. The incident took place on 6.2.1997

and when the prosecutrix had told about the incident to her father-

in-law and mother-in-law in the night itself then why the FIR was

lodged belatedly on 9.2.1997 is not explained by her. Therefore,

the prosecution story is doubtful. The offence is not proved beyond

reasonable doubt.

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

supported the impugned judgment of conviction and sentence.
4

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

perused the record minutely.

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

was sleeping in her house. Her husband had gone out to other

village. Her father-in-law had gone out to attend a social meeting.

Her mother-in-law had gone out to the house of her Jethani. In the

house, her brother-in-law and sisters-in-law were sleeping in the

room situated adjacent to the kitchen of the house. She has

further stated that the door of the kitchen was open and remaining

doors of the house were closed. Light was reflecting to her room

from the room of the sisters-in-law. At that time, someone switched

off the light and caught her hand. She thought that her husband

had come. Then she called the name of her sister-in-law. That

person gagged her mouth with a piece of cloth. Thereafter, he

committed sexual intercourse with her. After committing sexual

intercourse with her, when he was about to go out, she switched on

the light of her room and saw that it was the Appellant. She has

further stated that she made her sister-in-law wake up and called

her mother-in-law. At that time, her father-in-law also reached

there. She told them about the incident. She has further stated

that next day, the Appellant asked not to report the matter and said

that he will sort out the same in a panchayat meeting. A panchayat

meeting took place in which the prosecutrix narrated about the

incident before all the persons present in the meeting. The

Appellant offered that he will give some money and requested not

to raise the matter any further. On the third day, when her husband

returned home, she lodged the FIR (Ex.P1). In paragraph 6,

during cross-examination, she has stated that when the Appellant
5

was committing sexual intercourse with her, she came to know that

he was not her husband. But, since he had gagged her mouth with

a piece of cloth, she could not shout. She has further stated that

after discharge, the Appellant had got up. Then she wiped out her

private part and thereafter switched on the light of her room and

saw that it was the Appellant. The Appellant went out covering his

body with a blanket.

9. Negiram (PW2), father-in-law of the prosecutrix has stated that in

the night, he had gone out to attend a village meeting. At about

3:00 a.m, he returned home. In the morning, his wife told him that

their daughter-in-law (the prosecutrix) had been raped by the

Appellant. He has further stated that a village meeting took place

in this regard in which the Appellant admitted his guilt. The

Appellant also admitted that whatever fine would be imposed upon

him by the panchayat, he will pay the same.

10. Urmilabai (PW3), mother-in-law of the prosecutrix has stated that

she was sleeping in the house of her elder son Ramsharan. In the

night, at about 3:00 a.m., her daughter Rukmani (PW4) came to

her and made her wake up. Then her daughter-in-law (the

prosecutrix) told her that the Appellant had committed rape with

her. Next day, she told about the incident to her husband Negiram

(PW2).

11. Rukmani (PW4), sister-in-law of the prosecutrix has stated that at

about 2:30 – 3:00 a.m., the Appellant had come and gone after

committing rape. Then she called her mother Urmilabai (PW3).

12. Ratiram (PW5) has stated that in the village meeting, on being

asked, the Appellant had admitted his guilt. In paragraph 3 of his
6

cross-examination, he has stated that the Appellant had admitted

in the panchayat meeting that he was responsible for the act done

by him with the prosecutrix, but the panchayat did not decide the

matter.

13. Dr. Nirmila Ghatge (PW6) is the witness who examined the

prosecutrix. She has stated that her report is Ex.P3. She has

further stated that she did not find any injury over the private part of

the prosecutrix. She has further stated that no definite opinion

regarding rape with the prosecutrix could be given by her as the

prosecutrix was a married lady and was habitual to sexual

intercourse.

14. Dr. P.K. Tiwari (PW7) examined the Appellant. He has stated that

he gave his report (Ex.P6) in which he found the Appellant to be

capable of performing sexual intercourse.

15. Inspector Hemant Khare (PW9) was the Investigating Officer of the

case. He has stated that he recorded the First Information Report

(Ex.P1). He seized the petticoat of the prosecutrix vide Ex.P2. He

sent the seized articles for chemical examination vide Ex.P10. He

also recorded statements of witnesses under Section 161 of the

Cr.P.C.

16. On minute examination of the above witnesses of the prosecution,

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

her two sisters-in-law and one brother-in-law were present in the

house. As per the statement of the prosecutrix, at about 2:30 a.m.,

the Appellant entered her room and after gagging her mouth with a

piece of cloth, committed forcible sexual intercourse with her. As

per her statement, after the incident, when the Appellant was about
7

to go out, she switched on the light of her room and identified him

that it was the Appellant. As per the prosecution story, other doors

of the house were closed and the Appellant had entered the room

of the prosecutrix through the door of the kitchen which was open.

Three more persons, i.e., two sisters-in-law and one brother-in-law

were present in the house. In this situation, knowing this fact, the

Appellant would have entered the room of the prosecutrix does not

appear to be natural. As per the statement of the prosecutrix,

when the Appellant was committing sexual intercourse with the

prosecutrix, she had come to know that he was not her husband.

But, even after coming to know this fact, she did not raise any

alarm nor did she shout for any help at that point of time. She has

also stated that prior to this, while her sleeping, when her hand

was caught by someone, at that time, she, thinking that the said

person would be her husband, had called her sister-in-law. But,

her sister-in-law Rukmani (PW4) has not stated anything in this

regard. As per the statement of the prosecutrix, after switching on

the light of her room, she had identified the said person to be the

Appellant. From her statement, it is clear that after commission of

the sexual intercourse with her, she first wiped out her private part

with her petticoat and thereafter she switched on the light of her

room. When she came to know while commission of sexual

intercourse with her that the person committing sexual intercourse

was not her husband and forcible sexual intercourse was being

committed with her by the said stranger then she would have first

switched on the light of her room and shouted for help, but she did

not do so.

17. Though Negiram (PW2) and Ratiram (PW5) have stated that in the
8

village meeting, the Appellant had admitted his guilt, but as per

paragraph 3 of the statement of Ratiram (PW5), the Appellant had

admitted that whatever wrong act was done by him, he was

responsible for the same. From the above, it is also clear that any

rape was committed by the Appellant with the prosecutrix has not

been admitted by him.

18. In the light of above discussion, it is clear that though the

prosecutrix has made statement against the Appellant, but her

statement and her conduct at the relevant point of time of the

alleged incident and the time of the alleged incident are not natural.

In these circumstances, it appears that no rape was committed by

the Appellant with the prosecutrix and if any incident of commission

of sexual intercourse with the prosecutrix had taken place, she was

a consenting party to the same.

19. In the result, the appeal is allowed. The impugned judgment of

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

the charges framed against him. He is reported to be in jail. He be

set at liberty forthwith.

20. 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

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation