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NAFR
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

—- Appellant
Versus

 State of Chhattisgarh Through P.S. Kasdol, District Raipur (C.G.)
—- Respondent

For Appellant – Shri K.K. Singh, Advocate.
For Respondent – Shri Adil Minhaj, Panel Lawyer.

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 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,
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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.

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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

and trustworty.

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
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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

thereof.

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

there.

13. Nirmala (PW/6) has stated that the prosecutrix was subjected to

physical relation by the accused/appellant and after hearing their cries,
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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
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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

discharged.

19. Appeal is thus allowed.

Sd/-

(Pritinker Diwaker)
JUDGE
Vijay