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)
The State of Madhya Pradesh (now Chhattisgarh)
For Appellant : Smt. Smriti Shrivastava, Advocate
For Respondent/State : Shri Sameer Behar, Panel Lawyer
Hon’ble Shri Justice Arvind Singh Chandel
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:
Under Section 376 of the Rigorous Imprisonment for 7
Indian Penal Code years and fine of Rs.150/- with
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
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
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
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.
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
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
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
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.
(Arvind Singh Chandel)