HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 2545 of 1999
Order reserved on :29.06.2018
Order passed on : 29.08.2018
1. Shutul, S/o. Jewala Bargah, Aged about 25 years,
2. Ludgu @ Rajkumar, S/o. Samaru Bargah, Aged about 21
Both labourer and residents of Village Dhorpur, Police Station
Dhorpur, District Sarguja (M.P.) (now C.G.)
State of M.P. Through Police Station Dhorpur, District Sarguja
(M.P.) now Chhattisgarh —–Respondent
For Appellants : Mr. Aditya Chopra, Advocate with
Mr. D.N. Prajapati, Advocate
For Respondent : Mr. Adhiraj Surana, Dy. Govt.Advocate
Hon’ble Smt. Justice Vimla Singh Kapoor
1. Challenge in this appeal is to the judgment of conviction and
order of sentence dated 31.08.1999 passed by the Second
Additional Session Judge, Ambikapur Sarguja (C.G.) in Sessions
Trail No. 296 of 1998, whereby learned Second Additional
Sessions Judge convicted the appellants for the offence
punishable under Sections 376 (2) (g) and 341 of the Indian
Penal Code and sentenced them to undergo rigorous
imprisonment for 10 years, fine of Rs. 200/- in default of
payment of fine further undergo RI for 1 year and Simple
Imprisonment for 1 month.
2. Case of the prosecution, in brief, is that the on 15.09.1998 the
prosecutrix (PW-1) lodged a report in Police Station Dhaurpur
mentioning therein that on 10.09.1998. She was returning from
her brother’s house at Dhaurpur to Jatasemar, at about 12.00
noon, when she reached near Tilbadva hill, then the
accused/appellants came there behind her and caught hold her
hands, dragged her and pushed aside on the ground. Thereafter,
the appellants committed forcible sexual intercourse with her
one by one. On account of gange rape she become unconscious.
The appellants leaving her on the spot and fled from there. After
long time, when she became conscious she reached her village
Jatasemar and informed about the incident to her husband,
monther-in-law and her mother. After recording of FIR (Ex.P-1),
the prosecutrix (PW-1) was examined by Dr. Shipra Shrivastava
(PW-11). She gave her report (Ex.P9). The accused/Appellants
was also examined.
3. After completion of the investigation, charge-sheet was filed
before the trial Court wherein the trial Court framed charges as
mentioned above to which the appellants did not plead guilty.
The trial Court conducted the trial and after completion of
evidence of the prosecution side, statement of the appellants
under Section 313 of the Cr.P.C. were recorded and after
completion of trial, the trial Judge considering the material
available on record by the impugned judgement convicted and
sentenced the appellants as mentioned above.
4. To hold the appellants guilty, the prosecution examined the
prosecutrix (PW-1), Ramsundar (PW-2) father of the prosecutrix,
Mangri Bai (PW-3) grand mother of the prosecutrix, Sangani Bai
(PW-4) mother-in-law of the prosecutrix, Sanmet Bai (PW-5)
mother of the prosecutrix, Vijay (PW-6) is the seizure witness,
Jhagruram (PW-7) is the hearsay witness, Dr. K.P. Vishwakarma
(PW-8), Arvind Singh (PW-9) patwari, Constable Ramsundar Ram
(PW-10), Dr. Shipra Shrivastava (PW-11) and Sub Inspector P. S.
Mahlane (PW-12) who has examined the prosecutrix. The
appellants did not examine any witnesses in their support.
5. Mr. Aditya Chopra, learned counsel for the appellants has argued
that the trial Court has not properly appreciated the evidence
available on record. The independent witnesses have not
supported the case of the prosecution. The statements of the
witnesses recorded before the Court below are of the interested
witnesses. She further argued that the FIR had been lodged
belatedly by the prosecutrix and the medical evidence also does
not support the case of the prosecution. The conduct of the
prosecutrix (PW-1) discloses that she was a consenting party.
Therefore, it is not safe to rely upon the sole testimony of the
prosecutrix (PW-1) for convicting the appellant. Hence, she
prayed that the appellant be acquitted of the charge framed
6. On the other hand, Shri Adhiraj Surana Dy. Govt. Advocate
appearing for the State/ respondent supporting the impugned
judgment has submitted that the conviction and sentence
awarded by the learned Additional Sessions Judge does not call
for any interference by this Court.
7. I have heard Learned Counsel appearing for the parties and
perused the material available on record including the
8. Prosecutrix (PW-1) is the sole witness in this case. The
touchstone for recording a conviction in a rape case is that the
testimony of the prosecutrix must be reliable and inspires
confidence and should be worthy of credit. It should not render
it unworthy of credence. Prosecutrix (PW-1) stated that she
has informed the incident to her mother-in-law (PW-4) Sangni
Bai and grand mother (PW-3) Mangri Bai but they have not
supported the case of the prosecution.
9. Prosecutrix (PW-1) deposed in her deposition that she has
received injuries in her body. Dr. Shipra Shrivastava (PW-11)
who has examined the prosecutrix (PW-1) deposed that she
has not found any internal or external injury in the body of the
prosecutrix (PW-1). The doctor has further clarified in her cross-
examination that the prosecutrix (PW-1) was habitual to sexual
intercourse. Thus, the medical evidence has not supported the
case of the prosecution. The prosecution could not file any FSL
report in this regard. This witness has also not supported the
case of the prosecution.
10. The Investigating Officer Sub Inspector P. S. Mahlane (PW-12) has
admitted this fact that the prosecutrix (PW-1) has stated about
the injuries sustained by her. He further stated that no injuries
were found at the time of loading of the FIR.
11. The prosecutrix (PW-1) stated in paras 3 and 7 of her deposition
that there was some anemically relationship between her
parents and the appellants’ family on some old land dispute.
That the incident had happened on 10.09.1998 at about 12.00
noon and the FIR was lodged on 15.09.1998. No reasonable
explanation has been given by the prosecutrix (PW-1) for delay in
lodging the FIR. She has stated that she was sick and because of
pain she could not lodge the FIR in time. When the
prosecutrix(PW-1) could cover a distance of 12 KM from the place
of incident to her home without taking any assistance of anyone,
there is no reason as to why she did not go to Police Station to
lodge the FIR which is at a distance of 15 KM from her village.
12. After minute and careful examination of the evidence of the
prosecutrix (PW-1), Ramsundar (PW-2), Sangani Bai (PW-4) it
reveals that the prosecutrix (PW-1) was a consenting party to the
commission of sexual intercourse with her. Therefore, the
conviction of the appellants cannot be based on the evidence of
the prosecutrix (PW-1).
13. On the basis of the aforesaid discussion, I am of the considered
view that the learned trial Court has committed an error in
convicting the appellants for the offence punishable under
Sections 376 (2) (g) and 341 of the IPC. Hence, the impugned
judgment of conviction and sentence is not sustainable.
14. In the result, the appeal is allowed. The impugned judgment
convicting and sentencing the appellants for the offence under
section 376 (2) (g) and 341 of the IPC is set aside. The appellants
are acquitted of the charge framed against them.
15. It is reported that the appellants are on bail. Their bail bonds are
not discharged at this stage and the same shall remain operative
for a further period of six months from today in terms of Section
437-A of the Cr.P.C.
(Vimla Singh Kapoor)