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Yashwant Kumar vs The State Of M.P. (Now C.G.) on 24 November, 2017

NAFR

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

—- Appellant

Versus

1. State of Madhya Pradesh (Now Chhattisgarh) through Police
Station Deori, District Durg.

—- Respondent

For Appellant – Shri Gautam Khetrapal and Shri Avinash
Sahu, Advocates.

For Respondent – Shri Rahul Tamaskar, PL

Hon’ble Shri Justice Pritinker Diwaker

Judgment on Board

24/11/2017

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

accordingly.

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

case.

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

record.

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.

Sd/-

(Pritinker Diwaker)
Judge
Jyotishi

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