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Khelan Singh vs The State Of Chhattisgarh on 16 July, 2018

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No.1432 of 1999

Judgment Reserved on : 18.4.2018

Judgment Delivered on : 16.7.2018

Khelan Singh, aged 30 years, S/o Ubheram Sahu, R/o Bhawanipur, P.S.
Palari, District Raipur, M.P. (now Chhattisgarh)
—- Appellant
versus
The State of Madhya Pradesh (now Chhattisgarh)
— Respondent
——————————————————————————————————

For Appellant : Smt. 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 4.5.1999

passed by the Special Judge under the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Act, 1989 (henceforth

‘the Act of 1989’), Raipur in Special Sessions Trial No.136 of 1997

convicting and sentencing the Appellant as under:

Conviction Sentence
Under Section 376 of the Rigorous Imprisonment for 7
Indian Penal Code years and fine of Rs.150/- with
default stipulation

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

widow lady, who had 4 children, on 12.10.1997, lodged First

Information Report (Ex.P1) alleging that on 11.10.1997 at about

8:30 p.m., she, along with her 3 children, was sleeping in her room.

At that time, the Appellant came to her house, knocked the door of
2

the house and asked her to open the door. When she opened the

door and came out, the Appellant caught her hand. When she tried

to shout, he gagged her mouth. He dragged her towards the

verandah situated behind her house and committed forcible sexual

intercourse with her. Thereafter, he fled from the spot on his

bicycle. She told about the incident to her mother Ghasninbai

(PW2), sister Rukhambai (PW3) and other witness Mantram

(PW4). A Village meeting was also called by her. Thereafter, she

lodged the FIR (Ex.P1). She was medically examined by Dr.

(Smt.) N. Bajpai (PW8). Her report is Ex.P10A in which she found

slight swelling and redness on the private part of the prosecutrix,

which, according to her, could come only after commission of

sexual intercourse with her. She also found one abrasion below

the right shoulder of the prosecutrix. The Appellant was also

medically examined in which he was found to be capable of

committing sexual intercourse. Report in this regard is Ex.P17.

Statements of witnesses under Section 161 of the Code of Criminal

Procedure were recorded. Petticoat of the prosecutrix was seized

vide Ex.P3. Vaginal slide of the prosecutrix was prepared and

seized vide Ex.P14. The said petticoat and vaginal slide of the

prosecutrix were sent for chemical examination. On completion of

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

an offence punishable under Section 376 of the Indian Penal Code

and Sections 3(1)(xii) and 3(2)(v) of the Act of 1989. Charges were

framed against him under Section 376 of the Indian Penal Code

read with Section 3(2)(v) of the Act of 1989.

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

witnesses. Statement of the Appellant was also recorded under
3

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

the guilt and pleaded innocence. No witness has been examined

in his defence.

4. After trial, the Trial Court acquitted the Appellant of the charge

framed under Section 3(2)(v) of the Act of 1989, but convicted him

under Section 376 of the Indian Penal Code and sentenced as

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

appeal.

5. Learned Counsel appearing for the Appellant argued that the

incident took place at about 8:30 p.m. 3 children of the prosecutrix

were present at the house. Hence, probability of rape with the

prosecutrix in such a situation is rare and, therefore, her statement

is not reliable. From her statement, it is also clear that at the time

of incident, she did not physically resist the Appellant. Therefore,

even if the alleged act was done with her, she was a consenting

party. Thus, the offence under Section 376 of the Indian Penal

Code is not proved.

6. On the other hand, Learned Counsel appearing for the State

supported the impugned judgment of conviction and sentence and

submitted that the prosecutrix and other witnesses have duly

supported the case of the prosecution. The medical evidence also

suggests that the prosecutrix was raped by the Appellant.

Therefore, the Appellant has rightly been convicted and sentenced

by the Trial Court.

4

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

perused the record with utmost circumspection.

8. The prosecutrix (PW1), a widow lady, aged about 35 years, has

stated that on the date of incident at about 8:00 p.m., she was

sleeping along with her children. At that time, the Appellant came

there and asked her to open the door. When she opened the door

and asked him why had she come there, the Appellant caught her

hand. Thereafter, he took her towards the courtyard, caused her to

fall down and committed forcible sexual intercourse with her.

Thereafter, he fled from there on his bicycle. She has further

stated that she, weeping, went to the house of her mother and told

her about the incident. Thereafter, she went to Mantram (PW4)

along with her mother and informed him about the incident.

Thereafter, a village meeting was called in which the Appellant was

also present. The Appellant denied the guilt. Thereafter, she

lodged the report. In paragraph 7, she has admitted that she had

shouted “Bachao Bachao”, but nobody had come to rescue her.

She has explained about this that at that time a loudspeaker was

blowing in her village, therefore, her shout remained unheard. She

has also admitted that while the Appellant was committing rape

with her, he did not inflict her any abrasive injury nor did he give

her any push.

9. Ghasninbai (PW2), mother of the prosecutrix has stated that the

prosecutrix, weeping, came to her and told her about the incident.

Thereafter, they went to Mantram (PW4) and informed him about

the incident. A village meeting was called in which the Appellant
5

was present, but he denied the guilt.

10. Rukhambai (PW3), sister of the prosecutrix has also stated that at

about 8:00 p.m., the prosecutrix, weeping, had come to her and

told her that the Appellant had forcibly done a wrong act with her.

11. Mantram (PW4), Motiram (PW5) and Thannu Sahu (PW7) are the

witnesses who were present in the said village meeting. All the

above witnesses have stated that during the meeting, the

prosecutrix had told that the Appellant had committed wrong act

with her, but the Appellant had denied the guilt.

12. Dr. (Smt.) N. Bajpai (PW8), who examined the prosecutrix on

12.10.1997 and gave her report (Ex.P10A), has stated that she

found one abrasion over right lateral chest wall region of 6 cms.x½

cm. directing from position above to down forwards and anteriorly.

She has opined that the abrasion could be caused by a hard and

sharp object like finger nail. She also found that there was slight

swelling in the vagina and redness was also present over the

whole vagina, which, according to her, could take place after

sexual intercourse. In paragraph 2, this witness has stated that 3½

years prior to the date of medical examination, the prosecutrix had

become widow. In paragraph 8 also, she has categorically stated

that the swelling and redness over the vagina could take place only

after sexual intercourse.

13. S.D.O. (P.) P.K. Singh (PW9) investigated the matter. He has

stated that during investigation, he recorded the statements of
6

witnesses under Section 161 of the Code of Criminal Procedure.

He prepared spot-map (Ex.P5). He seized vaginal slide of the

prosecutrix vide Ex.P14. He also seized underwear and one old

bicycle from the Appellant vide Ex.P4. He has further stated that

the seized articles were sent to the Forensic Science Laboratory

for chemical examination vide Ex.P16, but no FSL report is

available on record.

14. On a minute examination of the above evidence, I find that the

prosecutrix (PW1) has categorically stated that when she was

present at her house, the Appellant came there, knocked the door

of her house and when she opened the door, he caught her hand.

When she tried to come out of his clutches, he dragged her to the

courtyard of her house situated behind her house and there he

committed rape with her. She has admitted that he did not inflict

her any abrasive injury, therefore, on the basis of this admission, it

was argued on behalf of the Appellant that she was a consenting

party. This contention is not acceptable because if she was a

consenting party, why did she, immediately after the incident, go to

her mother, sister and other villagers and informed them about the

incident and called a village meeting. From the medical evidence

also, it is clear that a sexual intercourse was done with her.

Swelling and redness were found over her vagina. Though present

is not a case in which any person witnessed the incident, had she

been a consenting party, she would not have raised any complaint

nor did the matter reach to the police. From the evidence on

record, it is clear that forcible sexual intercourse was done with the

prosecutrix by the Appellant. Thus, the Trial Court has rightly

convicted the Appellant. The sentence imposed upon him is also
7

just and proper.

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

conviction and sentence is affirmed.

16. It is reported that the Appellant is on bail. He shall immediately

surrender before the concerned Trial Court or he shall be taken

into custody forthwith by the police for his undergoing the

remaining sentence, if any.

17. 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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