HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 3077 of 1999
1. Yashwant Kumar son of Devilal, aged about 21 years, resident
of village Ranitari PS Deori District Durg, MP
1. State of Madhya Pradesh (Now Chhattisgarh) through Police
Station Deori, District Durg.
For Appellant – Shri Gautam Khetrapal and Shri Avinash
For Respondent – Shri Rahul Tamaskar, PL
Hon’ble Shri Justice Pritinker Diwaker
Judgment on Board
This appeal is directed against the judgment and order dated
29.10.1999 passed by Additional Sessions Judge Balod, District
Durg in Sessions Trial No. 124/1998 convicting the
accused/appellant under Section 376 (1) IPC and sentencing him to
undergo rigorous imprisonment for seven years.
2. Case of the prosecution in brief is that on 11.2.1997 a written
report Ex. P-5 was made by the prosecutrix aged about 23 years at
the relevant time to the effect that about 7 months prior thereto
she was subjected to forcible sexual intercourse by the
accused/appellant. Based on the said written report FIR Ex. P-6 was
registered against the accused/appellant for the offence under
Section 376 IPC. Prosecutrix was medically examined on 11.2.1997
itself by Dr. (Smt.) Shashi Cladiyus (PW-1) who gave her report Ex.
P-1. Accused/appellant was also medically examined by Dr. S.K.
Meshram (PW-2) who gave his report Ex. P-3. After completion of
investigation, charge sheet was filed by the police for the offence
punishable under Section 376 (1) IPC followed by framing of charge
3. So as to hold the accused/appellant guilty, prosecution has
examined 08 witnesses in support of its case. Statement of the
accused/appellant was also recorded under Section 313 of the
Code of Criminal Procedure in which he denied the charges levelled
against him and pleaded his innocence and false implication in the
4. It is relevant to note here that the prosecutrix could not be
examined in the Court as she died on 21.09.1998 when the trial
was in progress.
5. After hearing the parties, the trial Court has convicted and
sentenced the accused/appellant as mentioned above in paragraph
No.1 of this judgment.
6. Counsel for the accused/appellant submits as under:
(i) That present is a case of no evidence but even then the
accused/appellant has been convicted under Section 376 (1) IPC on
the basis of written report Ex. P-5, which is erroneous and illegal.
(ii) That in the absence of examination of the prosecutrix, the
accused/appellant could not have been convicted.
7. On the other hand, counsel for the respondent/State supports
the judgment impugned and submits that the findings recorded by
the Court below convicting the accused/appellants under Section
376 (1) IPC are strictly in accordance with law and there is no
infirmity in the same.
8. Heard counsel for the parties and perused the evidence on
9. Dr. (Smt.) Shashi Cladiyus (PW-1) is the witness who
medically examined the prosecutrix and gave report Ex. P-01
stating that there was no injury on her body; her breasts were fully
developed and she was carrying pregnancy of 28 weeks. Vagina of
the prosecutrix, according to this witness, was admitting two
fingers easily and that she was habitual to sexual intercourse. Age
of the prosecutrix as per the evidence of this witness was in
between 20 and 25 years at the relevant time. Dr. S.K. Meshram
(PW-2) is the witness who medically examined the
accused/appellant and gave report Ex. P-3 stating that he was
capable of performing sexual intercourse. N.R. Nishad (PW-3) is the
head constable who recorded FIR on the basis of written report.
Dukhuram Sahu (PW-4) – the brother-in-law of the prosecutrix is a
hearsay witness. Nirmal Das (PW-5) and Jankilal Sahu (PW-7) are
the witnesses to Panchayat who have stated that the prosecutrix
had disclosed before them that she was pregnant through the
accused/appellant. Parnia Bai (PW-6) – the mother of the
prosecutrix is a hearsay witness according to whom the prosecutrix
had informed her about being pregnant through the
accused/appellant. Bachau Pandey (PW-8) is the head constable
who did the investigation.
10. This Court has gone through the entire material collected by
the prosecution including the evidence of the witnesses examined
by it. As already noted, the prosecutrix could not be examined in
the Court because of her unfortunate death during trial itself.
Conviction under Section 376 (1) IPC has been slapped on the
accused/appellant just on the basis of written report Ex. P-5 which
was made about seven months after the prosecutrix had sexual
intercourse. While recording such finding the trial Court appears to
have been oblivious of the fact that merely the written report is not
sufficient for convicting or acquitting the accused and it can have
only the corroborative value in the eye of law while doing so. Even
otherwise, the prosecutrix at the relevant time, was in her twenties
and thus was a woman of prudence to take a decision as to what
was to be done after being victimized sexually against her will and
without her consent but here instead of promptly and firmly
holding the arm of law she kept quiet for a considerable period of
about seven months when her pregnancy reached at the peak.
Apparently, all that has happened to her was consensual. Had
there been anything to the contrary, it could have been explained
by her in case she had faced the examination before the Court.
However, she left the worldly existence without doing all that. Even
the medical evidence does not indicate any injury, internal or
external, on the body of the prosecutrix which is further
corroborative of the fact that the sexual intercourse was
consensual. Speaking otherwise, it is, in fact, a case of no evidence
against the accused.
11. Findings recorded by the Court below holding the
accused/appellant guilty under Section 376 (1) IPC being not based
on the correct appreciation of the evidence are not sustainable in
the eye of law. Accordingly, the appeal is allowed. Judgment
impugned is hereby set aside. Accused gets acquittal. Being
already on bail, he needs no order to be set free etc.