HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 615 of 2001
Santosh Kumar Chouhan S/o Sonaram Chouhan, R/o Arjuni
(Baldakachar) P.S. Kasdol District Raipur
State of Chhattisgarh Through P.S. Kasdol, District Raipur (C.G.)
For Appellant – Shri K.K. Singh, Advocate.
For Respondent – Shri Adil Minhaj, Panel Lawyer.
Hon’ble Shri Justice Pritinker Diwaker
Judgment On Board
This appeal arises out of the judgment of conviction and order of
sentence dated 27.06.2001 passed by II Additional Sessions Judge,
Baloda Bazar in Sessions Trial No.52/2000 convicting the
accused/appellant under Section 376(1) IPC sentencing him to
undergo R.I. for 7 years with fine of Rs.500/-, plus default stipulation.
02. As per the prosecution case, on 24.10.1999 FIR (Ex.P/12) was
lodged by the prosecutrix (PW/1), aged between 17-19 year, alleging in
it that on 21.10.1999 she and her friend Nirmala had gone to attend the
nature’s call and while doing so, the accused/appellant and his friend
Om Prakash reached there, the accused/appellant committed forcible
sexual intercourse with her, whereas his friend Om Prakash had done
the same act with Nirmala. Based on this FIR (Ex.P/12), offence under
Section 376 IPC was registered against the accused/appellant,
however, as informed, no case has been registered against Om
Prakash. The prosecutrix was medically examined vide Ex.P/5 on
25.10.1999 by Dr. (Mrs.) Nihar Bajpai (PW/8) and it has been opined
by the Doctor that for the first time prosecutrix was subjected to sexual
intercourse about three weeks prior to the incident and the last
intercourse appears to have been committed about 5 – 7 days back.
For determination of age of the prosecutrix, she was referred to
radiologist and as per X-ray report, the age of the prosecutrix was
found to be in between 17-19 year. In the incident, panty, skirt 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/19), spermatozoa was found on the same. The
accused/appellant was also medically examined vide Ex.P/14 on
26.10.1999 and found to be capable of performing sexual intercourse.
03. After filing of the charge sheet, the trail Court has framed the
charge under Section 376 IPC against the accused/appellant.
04. So as to hold the accused/appellant guilty, the prosecution
examined as many as 14 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. That apart,
three defence witnesses have also been examined by the defence to
substantiate its case.
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.
06. Learned counsel for the appellant submits as under:
That there is delay of about 3 days in lodging the FIR and
the said delay has not been explained by the prosecutrix.
That a very improbable story has been put forth by the
prosecution where it is alleged that simultaneously two girls have
been subjected to rape by two persons. It has been further argued
that either it is a case of consent or of false implication.
That the statement of the prosecutrix (PW/11) is not reliable
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. We have heard learned counsel for the parties and perused the
material available on record.
09. Prosecutrix (PW/11) has stated that on the date of incident about
10.00 AM, she and her friend Nirmala had gone to take bath and while
they were attending the nature’s call, the accused/appellant and his
friend Om Prakash reached there, she was subjected to rape by the
accused/appellant whereas her friend Nirmala was subjected to same
act by Om Prakash. She has further stated that upon hearing her cries,
Ramesh and Arun, brother of her friend Nirmala, reached there and upon
seeing them the accused/appellant fled away from the spot. Thereafter,
she went to her house, narrated the entire incident to her mother and on
24.10.1999 she lodged the report (Ex.P/12) against the
accused/appellant. She has also stated that about a month after the
incident the accused/appellant again took her along with him and kept
her for three days but she was not subjected to physical relation during
this period. She admits that Ex.D-1 to D-5 are the letters written by her
and that she was having affair with the accused/appellant. It is relevant
to note here that in Ex.D-1 she has accepted the appellant as her
husband, whereas other letters are her love letters. She has further
stated that after the incident she and her friend Nirmal had washed their
respective clothes and then returned to their house. She has further
admitted the fact that she was kept by the parents of the
accused/appellant for three days but she had not lodged the report
10. Dr. (Mrs.) Nihar Bajpai (PW/8) medically examined the prosecutrix
on 25.10.1999 vide Ex.P/5. According to her, hymen of the prosecutrix
appears to be torn about three weeks back and x-ray was advised for
determination of her age. As per X-ray report, the prosecutrix could have
been between 17-19 year of age. She has further stated that for the first
time the prosecutrix was subjected to physical relation about three
weeks prior and for the last time she was subjected to physical relation
about 5-7 days back.
11. Ramesh (PW/1) has stated that when he reached the place of
occurrence after hearing cries of the girls, he found Om Prakash and
Nirmala in objectionable condition, whereas the accused/appellant was
fleeing from the spot.
12. Arun Kumar Kannoje (PW/3) has stated that he saw Om Prakash
and Nirmala in objectionable condition, whereas the prosecutrix was
standing beneath the tree but the accused/appellant was not standing
13. Nirmala (PW/6) has stated that the prosecutrix was subjected to
physical relation by the accused/appellant and after hearing their cries,
Arun and Ramesh reached there.
14. Shri Yogesh Kumar Sharma (PW/13) medically examined the
accused/appellant vide Ex.P/14 and found him to be capable of
performing sexual intercourse.
15. Ratnesh Mishra (PW/14) – Investigating Officer has duly supported
the prosecution case.
16. As per the evidence of defence witnesses, the prosecutrix was
having affair with the accused/appellant.
17. Close scrutiny of the evidence makes it clear that there is delay of
about three days in lodging the FIR and the said delay has not been
explained by the prosecutrix. Though the prosecutrix has levelled
allegation of rape against the accused/appellant but she is not consistent
while deposing in the Court and even after one month of the incident,
she remained with the accused/appellant. The evidence of prosecutrix
does not inspire full confidence of this Court. Even otherwise, the story
put forth by the prosecution appears to be some what improbable where
it is alleged that while the prosecutrix and her friend Nirmala were
attending the nature’s call, they were subjected to physical relation by
two persons but surprisingly Nirmala, friend of the prosecutrix, has not
lodged FIR though she has deposed in the Court against the
accused/appellant. Further, medical report (Ex.P/5) does not support the
prosecution and as per X-ray report of the prosecutrix, she appears to be
a major girl. That apart, defence has proved the love letters (Ex.D-1 to
D-5) written by the prosecutrix to the accused/appellant. Taking into
consideration all the aforesaid facts, it is crystal clear that the prosecutrix
was having affairs with the accused/appellant and the possibility of
accused/appellant being falsely implicated in the crime in question
cannot be ruled out.
18. The findings recorded by the Court below thus appears 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 charge levelled against him.
As the appellant is reported to be on bail, his bail bonds stand
19. Appeal is thus allowed.