1 - Surendra Kumar Mahilang, S/o Late Sonuram, Aged about 31 years, Occupation- Service v. 1 – State of Chhattisgarh Through P.S.- Gandhi Nagar, District- Sarguja
Case Details
1 2025:CGHC:10946 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment reserved on: 11.12.2024 Judgment delivered on: 05.03.2025 CRA No. 959 of 2005 1 - Surendra Kumar Mahilang, S/o Late Sonuram, Aged about 31 years, Occupation- Service, R/o Gangapur Khurd, P.S. Gandhi Nagar, District- Sarguja (C.G.). ... Appellant versus 1 – State of Chhattisgarh Through P.S.- Gandhi Nagar, District- Sarguja (C.G.) ... Respondent For Appellant :
Legal Reasoning
Mr. Dheerendra Pandey, Advocate For Respondent/State : Ms. M. Asha, P.L. Hon’ble Smt. Justice Rajani Dubey CAV Judgment 1. The appeal under Section 374(2) of Code of Criminal Procedure, 1973 has been preferred against the judgment of conviction and order of sentence dated 21.12.2005 passed by the learned III Additional Sessions Judge (F.T.C.) Ambikapur in Sessions Trial No. 260/2005 2 whereby the appellant has been convicted for the offence punishable under Section 376 of IPC and sentenced to undergo RI for seven years and fine of Rs. 200/- in default of payment of fine, to undergo additional simple imprisonment for one month. 2. Briefly stated facts of the case, are that the complainant (P.W.-1) and accused/appellant are neighbours to each other. On 30.05.2005, at about 10:30 P.M., the accused/appellant got the door of the complainant’s house opened on the pretext of drinking water and told her that he had not cooked food today, and when he asked for food from the complainant/prosecutrix, the complainant gave him food. After having the food, the accused/appellant closed the door of the complainant’s house from inside. When the prosecutrix/complainant objected, the accused/appellant threatened her of dire consequences and forcibly took her inside the room and committed sexual intercourse with her. After having committed rape on her, the accused/appellant threatened to kill her entire family if she discloses the incident to anyone. As she lived alone and out of fear, she did not tell anyone about the incident. Even after this, the accused/appellant took advantage of her fear and loneliness and came to her house and committed rape on her for two days. The prosecutrix told her husband about the incident when he came from Narayanpur and thereafter a report was lodged against the appellant. Upon completion of entire investigation, as per Ex.P/10, the accused was arrested. Thereafter, the charge-sheet was filed against the appellant before the Judicial Magistrate from where the case was committed to the Sessions Judge, Ambikapur and thereafter from there, the case was received to this Court on transfer for trial. Thereafter, learned trial Court framed the 3 charge under Section 376 of IPC, to which the accused/appellant abjured his guilt and prayed for trial. 3. The prosecution in order to bring home the offence, examined as many as 8 witnesses. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C. wherein he denied all the incriminating circumstances appearing against him and pleaded innocence and false implication in the case. In his defence, he examined three witnesses namely Jyotimeena as D.W.-1, Chandrikadevi as D.W.-2 and Surajbali as D.W.-3. 4. Learned trial Court after completion of trial and upon appreciation of oral and documentary evidence, by its impugned judgment, convicted and sentenced the appellant as mentioned in the opening paragraph of this judgment. Hence, this appeal. 5. Learned counsel for the appellant submits that the impugned judgment is contrary to the law, facts and circumstances of the case. It is clear from the statement of the prosecutrix that the appellant has been falsely implicated in the case. In present case, prosecutrix (PW-1) and appellant are neighbours therefore both were known to each other very well and they always used to meet each other. Both are married having children. It is also clear that the incident took place on 30.05.2005 at about 10.30 p.m. and FIR was lodged on 15.06.2005 and no satisfactory explanation was offered by the prosecution for such delay. Medical report also does not support the case of the prosecution. He further submits that the prosecutrix (P.W.-1) in her statement stated that she used to go with the appellant on one motor cycle. After the incident she used motor cycle of the appellant. Prosecutrix (PW-1) was having a phone but she did not inform her husband about the 4 incident. Husband of the prosecutrix came to house from his duty on 07.06.2005 but FIR was lodged on 15.06.2005. Husband of the prosecutrix (P.W.-2) does not support the prosecution story. This witness admits that after the incident and before lodging the FIR, he used to sit with the appellant. It is clear from statements of all witnesses that prosecution has failed to prove its case beyond
Decision
reasonable doubt. Therefore, the impugned judgment is liable to be set aside. 6. Per contra, learned State counsel supports the impugned judgment and submits that the learned trial Court minutely appreciated the oral and documentary evidence and rightly convicted the appellant accordingly. Hence, the impugned judgment is well merited and does not call for any interference by this Court. 7. Heard counsel for the parties and perused the material placed on record. 8. It is clear from the record of learned trial Court that the learned trial Court framed the charge under Section 376 of IPC against the appellant and after appreciating oral and documentary evidence, the learned trial Court convicted and sentenced the appellant as mentioned above. 9. Prosecutrix (P.W.-1) stated that on 03.06.2005, appellant knocked her door for drinking water and thereafter he asked for food. When she was going to take out the food for him, he closed the door from inside the room and when the prosecutrix objected, the accused threatened her of dire consequences and forcibly took her inside the room and committed sexual intercourse with her. After having committed rape on her, the accused/appellant threatened to kill her entire family if she 5 discloses the incident to anyone. After 14-15 days, when her husband came to house, then she narrated the whole story to him and thereafter, they went to police station to lodge the report (Ex.P/1) against the appellant. In her cross-examination, she admitted that she knew the appellant for about one and a half to two years before the incident. In para 4, she admitted that the appellant’s brother and sister-in-law are teachers and she went to their house with the appellant on motorcycle. In para 8, it is further admitted that the accused/appellant committed rape on her by laying her down on the floor where her children were sleeping. In para 9, she also admitted that from the date of incident till lodging the report, she did not tell anyone about the incident. In para 12 she further admitted that when she told her husband about the incident, then he committed marpeet with her. She voluntarily stated that he committed marpeet with her after filing a report. 10. Husband of the prosecutrix (P.W.-2) stated that when prosecutrix told him about the incident, thereafter they went to police station to lodge the report against the appellant. In cross-examination, he admitted that he continued to meet the accused/appellant for 4-5 days after returning from leave. 11.Dr. Snehlata Kujur (P.W.-4) conducted the medical examination of the prosecutrix on 17.06.2005 and found no internal or external injury over her body. She opined that no definite opinion can be given about the recent sexual intercourse as she is habitual to sexual intercourse. 12. As per FIR (Ex.P/1), the date of incident was 30.05.2005 and date of lodging the FIR was 15.06.2005 and due to absence of her husband, the delay in lodging the FIR was caused. It is clear from the statement 6 of the prosecutrix (P.W.-1) that even after her husband's arrival, the report was filed after a long time. It is also admitted by prosecutrix (P.W.-1) that her husband (P.W.-2) pressurized her for lodging the report against the appellant and she further admitted that her husband (P.W.-2) committed marpeet with her after getting to know about the incident. 13. Defence witnesses namely Jyoti Meena (D.W.-1), Chandrika Devi (D.W.-2) and Surajbali (D.W.-3) stated that after a quarrel arose between the husband of the prosecutrix and appellant, the FIR was lodged against the appellant. Appellant was forced to write a letter by husband of the prosecutrix. 14. During cross-examination of the prosecutrix (P.W.-1), querry was made from the prosecutrix which reads as under:- ्ቚश्न :- आपके(cid:7) पति(cid:9) न(cid:7) सु(cid:11)ेሲ(cid:13)्ቖ सु(cid:7) क्ोሱ(cid:17) के(cid:18)ई के(cid:20)गज लि(cid:24)खवा(cid:20)ोሱ(cid:20) था(cid:20) ? अगेሲ लि(cid:24)खवा(cid:20)ोሱ(cid:20) था(cid:20) (cid:9)(cid:18) वाह केह(cid:20)(cid:30) ह(cid:31)? उ्ቈेሲ :- मे(cid:7)ेሲ(cid:7) पति(cid:9) न(cid:7) आेሲ(cid:18)प# सु(cid:7) प्ቔ लि(cid:24)खवा(cid:20)ोሱ(cid:20) था(cid:20) वाह घेሲ मे(cid:13) ह(cid:31)। 15. It has been held by Hon'ble the Apex Court in the matter of Santosh Prasad Alias Santosh Kumar v. State of Bihar reported in (2020) 3 SCC 443: (2020) 2 SCC (Cri) 77 : 2020 SCC Online SC 194 in para 5.4.3 and 5.5 which read as under:- “5.4.3. In Krishan Kumar Malik V. State of Haryana, it is observed and held by this Court that no doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. 5.5. With the aforesaid decisions in mind, it is required to 7 be considered, whether is it safe to convict the accused solely on the solitary evidence of the prosecutrix? Whether the evidence of the prosecutrix inspires confidence and appears to be absolutely trustworthy, unblemished and is of sterling quality?” 16. In this case, close scrutiny of statements of the prosecutrix, her husband and the defence witnesses makes it clear that the statements of the prosecutrix are not reliable. It is also clear that delay of lodging the FIR was not properly explained by the prosecution. Medical report also does not support the prosecution case. Thus, it is proved that the prosecution has utterly failed to prove its case beyond reasonable doubt. 17. For the foregoing reasons, the conviction and sentence of the appellant under Section 376 of IPC cannot be legally sustained. The appeal is accordingly allowed. The impugned judgment dated 21.12.2005 is set aside. Consequently, the appellant is acquitted of the charges levelled against him. 18. The accused/appellant is reported to be on bail, therefore, his bail bond shall remain in operation for a period of six months from today in view of provisions of Section 437-A of CrPC. 19. The record of the trial Court along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- (Rajani Dubey) JUDGE Ruchi RUCHI YADAV Digitally signed by RUCHI YADAV