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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 131 of 1999
 Phagulal Satnami S/o Amar Singh Satnami, aged 26 years, R/o
village Khamaria (Lavan), Police Station Kasdol, District Raipur
(C.G.)

—- Appellant
Versus

 State of M.P. (Now Chhattisgarh) Through : Station House
Officer, Police Station Kasdol, District Raipur (C.G.)
—- Respondent

For Appellant – Shri C.R. Sahu, Advocate.
For Respondent – Shri Ravindra Agrawal, G.A.

Hon’ble Shri Justice Pritinker Diwaker

Judgment On Board

27/06/2018

This appeal arises out of the judgment of conviction and order of

sentence dated 21.12.1998 passed by II Additional Sessions Judge,

Baloda Bazar in Sessions Trial No.356/98 convicting the

accused/appellant under Sections 450, 376 IPC sentencing him to

undergo R.I. for 5 years with fine of Rs.500/- and R.I. for seven years

with fine of Rs.1000/- plus default stipulation respectively.

02. As per the prosecution case, on 31.08.1998 FIR (Ex.P/1) was

lodged by the prosecutrix (PW/1), married lady aged about 30 years,

alleging in it that her husband is deaf and dumb and that she has three

children. According to her, on 28.08.1998 at about 12.00 in the mid

night, accused/appellant entered her house, kept her minor child on the

floor who was sleeping beside her on cot and committed forcible
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sexual intercourse with her. She has also stated that while the

accused/appellant was committing offence, her husband was sleeping

on a cot adjacent to her. Based on this FIR (Ex.P/1), offence under

Sections 450 and 376 IPC was registered against the

accused/appellant. The prosecutrix was medically examined vide

Ex.P/10 on 01.09.1998 by Dr. (Mrs.) Rajashri Devdhar (PW/8),

however, no injury was found on her body and it has been opined by

the Doctor that no definite opinion can be given regarding commission

of rape. In the incident, one saree, petticoat of the prosecutrix and

underwear of the accused/appellant were seized, the same were

subjected to chemical examination and as per FSL report (Ex.P/15), no

spermatozoa was found on the same. The accused/appellant was also

medically examined by Dr. K.L. Banjare (PW/7) vide Ex.P/8 on

01.09.1998 and found him to be capable of performing sexual

intercourse.

03. After filing of the charge sheet, the trail Court has framed the

charge under Sections 450 and 376 IPC against the

accused/appellant.

04. So as to hold the accused/appellant guilty, the prosecution

examined as many as 11 witnesses. Statement of the

accused/appellant was also recorded under Section 313 of Cr.P.C. in

which he denied the circumstances appearing against him in the

prosecution case, pleaded innocence and false implication.

05. The trial Court after hearing counsel for the respective parties

and considering the material available on record has convicted and

sentenced the accused/appellant as mentioned in para-1 of this

judgment. Hence, this appeal.

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06. Learned counsel for the appellant submits as under:

 That the accused/appellant has been falsely implicated in

the crime in question.

 That very improbable story has been put forth by the

prosecution wherein the prosecutrix was subjected to rape and on a

cot adjacent to her, her husband was sleeping. It has been further

argued that it is a case of consent.

 That the statement of the prosecutrix (PW/1) is not reliable

and trustworthy.

 That the medical report of the prosecutrix also does not

support the prosecution case.

07. On the other hand, supporting the impugned judgment it has been

argued by the State counsel that the conviction of the accused/appellant

is strictly in accordance law and there is no infirmity in the same.

08. I have heard learned counsel for the parties and perused the

material available on record.

09. Prosecutrix (PW/1) has stated that on the fateful night she was

sleeping along with her three children and there was no light on that day.

At midnight, the accused/appellant entered her house, gaged her mouth

with his full pant and committed sexual intercourse with her. While the

act was being committed, all of a sudden, light came and then she

identified the accused/appellant. According to her, her husband was

sleeping on a cot adjacent to her but as he is deaf and dumb by birth, he

realises the things on being touched and gesture. She has further stated

that she lodged the report on second day, whereas the FIR is dated

31.08.1998. She has also stated that about one hour she was subjected

to physical relation by the accused/appellant. She admits that she
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neither offered any protest nor objected the accused/appellant for

committing offence. She further admits that her hands were free, her

breast were pressed but yet she did not raise any protest there-against.

10. Dr. (Smt.) Rajashree Devdhar (PW/8) medically examined the

prosecutrix on 01.09.1998 vide Ex.P/10. She did not notice any external

injury on her body and opined that no definite opinion can be given

regarding rape.

11. Dr. K.L. Banjare (PW/7) medically examined the accused/appellant

vide Ex.P/8 and found him to be capable of performing sexual

intercourse.

12. Ratnesh Mishra (PW/11) – Investigating Officer has duly supported

the prosecution case.

13. Close scrutiny of the evidence makes it clear that though the

prosecutrix has levelled allegation of rape against the accused/appellant

but she is not consistent while deposing. Even otherwise very

improbable story has been put forth by the prosecution where it is

alleged that the prosecutrix was subjected to rape by the

accused/appellant for one hour that too in presence of her husband who

was sleeping on a cot adjacent to her but yet she did not resist and

protest there-against. According to the prosecutrix, at midnight the

accused/appellant entered her house, kept her minor children on floor

who was sleeping just beside her and satiated his lust for one hour.

While the act was being committed, husband of the prosecutrix was

sleeping on a cot adjacent to her and as soon as the light came, she

identified the accused/appellant. Her none resistance to the act of the

appellant clearly shows that she was a consenting party. The evidence of

prosecutrix does not inspire full confidence of this Court. Further,
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medical report (Ex.P/10) does not support the prosecution according to

which no injury was found on any part of her body and no definite

opinion was given regarding commission of rape. That apart, in the FSL

report (Ex.P/15), no spermatozoa was found on the clothes of the

prosecutrix and the accused/appellant. Taking into consideration all the

aforesaid facts, it is crystal clear that the prosecutrix was a consenting

party to the act of the accused/appellant and the possibility of his being

falsely implicated in the crime in question cannot be ruled out.

14. The findings recorded by the Court below thus appear to be

beyond proper appreciation of the evidence adduced by the prosecution

which cannot have affirmation from this Court. Since, the prosecution

has failed on all fronts to prove its case beyond shadow of doubts, the

benefit, of course, has to go to the accused/appellant. The appeal is

thus allowed, judgment impugned is hereby set aside and the

accused/appellant stands acquitted of the charges levelled against him.

As the appellant is reported to be on bail, his bail bonds stand

discharged.

15. Appeal is thus allowed.

Sd/-

(Pritinker Diwaker)
JUDGE
Vijay