Silphili (Bhaiyathan), District Sarguja (C.G.) v. The State of Chhattisgarh, through, S.H.O., P.S. Pratappur, District Sarguja
Case Details
1 Digitally signed by RAVVA UTTEJ KUMAR RAJU 2025:CGHC:46518 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment Reserved on : 08.07.2025. Judgment Delivered on: 11.09.2025. CRA No. 1055 of 2007 Munna @ Parmeshwar, S/o Motilal Panika, aged about 23 years, R/o Village- Chendara, P.S. Silphili (Bhaiyathan), District Sarguja (C.G.) ... Appellant (In Jail) Versus The State of Chhattisgarh, through, S.H.O., P.S. Pratappur, District Sarguja (C.G.) ... Respondent For Appellant For Respondent : : Mr. Sushil Dubey, Advocate. Mr. Devesh G. Kela, P.L. Hon'ble Smt. Justice Rajani Dubey, J. C.A.V. Judgment 1. This appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment of conviction and order of sentence dated 16.10.2007 passed by the learned Special Judge (under S.C. & S.T., Prevention of Atrocities Act, 1989) Sarguja, Ambikapur District Sarguja (C.G.) in Special Sessions Trial No. 2 54/2005, wherein the said Court convicted the appellant and sentenced him as under:- Conviction Sentence U/S 376 (1) of the R.I. for 07 years, with a IPC fine amount of Rs. 100/-, in default of payment of fine amount to undergo additional R.I. for 01 month. U/S 450 of the IPC R.I. for 03 years, with a fine amount of Rs. 100/-, in default of payment of fine amount to undergo additional R.I. for 01 month. (Both the sentences shall run concurrently.) 2. The case of the prosecution, as unfolded from the impugned judgment and the records of the case, is that on 28.03.2005 at about 11:30 pm, the prosecutrix/victim was in her house, and at that time the accused/appellant entered the house of the prosecutrix from the back side and then by entering the room of the prosecutrix he closed the door and pressed the mouth of the prosecutrix by his hands and threatened her by saying that he will press her neck if she makes any noise. Thereafter, the accused/appellant removed trouser (salvar) and underwear of the prosecutrix and then he removed his full pant and underwear and forcibly committed sexual intercourse with her. As the prosecutrix shouted for help, her uncle and mother came there and the accused/appellant fled from the spot. The prosecutrix apprised regarding the fateful incident to her said family members as well as to 3 her father. Thereafter, the prosecutrix along with her father went to police station Bhatgaon and lodged the report regarding the incident. As per her version, the crime was registered against the appellant and the investigation started. 3. After completion of usual investigation, charge-sheet was led before the jurisdictional Magistrate who, in turn, committed the case for trial. On the basis of the material contained in the charge-sheet, learned trial Court framed charges against the appellant for alleged commission of offence under Sections 376(1) and 450 of IPC and Section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The appellant having abjured guilt was subjected to trial. 4. In order to substantiate its case, the prosecution has examined as many as 13 witnesses and exhibited several documents. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C in which he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. However, no witness has been adduced by him in his defence. 5. Learned trial Court after appreciating the oral and documentary on record, convicted the appellant under Sections 376 (1) and 450 of IPC and sentenced him as mentioned in the opening paragraph of this judgment. 6. Assailing the correctness and validity of the impugned judgment of
Facts
conviction and order of sentence passed by the learned trial Court is against the facts, law and circumstances of the case. The learned trial Court failed to consider the fact that there are hardly any reliable 4 evidence to warrant the conviction of the appellant beyond all reasonable doubts. The learned trial Court should have considered that the prosecution has been failed to prove the guilt of the appellant beyond all reasonable doubt. The learned trial Court ought to have considered that offence of rape and house trespass have not been proved in this case. The learned trial Court should have taken it into consideration that the prosecutrix (PW/01) neither raised any hue and cry when she was with the appellant, nor the incident has been informed to anyone in the village. The learned trial Court failed to consider this fact that the evidence of the prosecutrix (PW/01) is full of discrepancies and the whole prosecution story is doubtful. The learned trial Court failed to consider the statement of the doctor (PW/06) Sneh Lata Tirkey in which she stated in her medical evidence that there was no sign of forcible sexual intercourse on the body of the prosecutrix. The learned trial Court has utterly failed to consider this fact that the Doctor (PW/06) advised for expert opinion from gynecologist of District Hospital Ambikapur for confirmation regarding whether the hymen of the prosecutrix was ruptured or not. The learned trial Court should have considered this fact that, from the aforesaid evidence of the doctor, the offence of rape is unsupported by the medical evidence. The learned trial Court ought to have considered that, as per evidence of Dr. Maheshwar Singh (PW/03) who has examined the appellant, no signs of forcible sexual intercourse was found on the penis of the appellant. The learned trial Court should have considered this fact, that the Investigating Officer S.S. Paikara (PW/13), the S.D.P.O. has deposed that, as per Ex. P/11, rupture of hymen was not stated anywhere and it was advised to take expert opinion from the Gynecologist but the same 5 has not been obtained. The learned trial Court ought to have considered that, the offence of house trespass has not been proved as it has not come in the evidence that how the appellant entered into the house of the prosecutrix. The version of the prosecutrix is unsupported by any medical evidence and the whole circumstances are highly improbable and the case is unlikely to happen. The learned trial Court ought to have considered the fact that there is outrageous allegation against the accused/appellant regarding the sexual intercourse being allegedly committed by him upon the prosecutrix, as thus the appellant is entitled to the benefit of the doubt. Therefore, the judgment of conviction and sentence imposed upon on the accused/appellant by the learned trial Court is liable to be set aside. 7. Reliance has been placed on this Court’s judgment dated 25.08.2023 in the matter of Guddu Poyam v. State of Chhattisgarh passed in CRA No. 101/2023 and on this Court’s judgment dated 12.11.2024 in the matter of Ravi Sahu v. State of Chhattisgarh passed in CRA No.212/2020. 8. Ex adverso, learned counsel for the State supported the impugned judgment and submits that the learned trial Court minutely appreciated the oral and documentary evidence and rightly convicted the present accused/appellant, so this appeal is devoid of any merit and is liable to be dismissed. 9. Heard both the counsel for the parties and perused the material available on record including the impugned judgment with utmost circumspection. 10. It is clear from the record of the learned trial Court that the learned trial 6 Court has framed charges under Sections 376 (1) and 450 of IPC read with Section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against the appellant and after appreciation of oral and documentary evidence, the learned trial Court acquitted the appellant of charges under Section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, but convicted him under Sections 376 (1) and 450 of IPC and sentenced as described in the opening para of this judgment. 11. Prosecutrix (PW/01) stated that she was studying in Class VIIIth and at about 11 pm when she was studying in her house, at that time the accused/appellant entered her house and by closing the door he removed his clothes and the prosecutrix’s clothes and threatened her by saying that he will press her neck if she makes any noise and then he committed forcible sexual intercourse with her and then he fled from the spot. Thereafter, she shouted and her mother and uncle came to her room and she apprised them of the said fateful incident and on the next day, the report was lodged by her father and uncle against the appellant vide Ex. P/01 on which the prosecutrix admitted her signature on A to A part. After lodging of the report, the police asked her consent to get her medical examination done and accordingly, she gave her consent vide Ex. P/02 on which the prosecutrix admitted her signature on B to B part. The police seized her caste certificate and mark sheet vide Ex. P/03, seized her underwear vide Ex. P/06. In her cross- examination, she admitted this suggestion of defence that when the accused/appellant was removing her clothes she did not shout at that 7 time, due to fear and also she did not shout when he was removing his clothes. She also admitted that she did not shout when the accused/appellant came into her house. However, she denied this suggestion that the accused/appellant was noticed by her uncle and just only on the basis of suspicion, a false report was being lodged against the appellant. 12. (PW/02) father of the prosecutrix has stated that his elder brother and sister-in-law saw the accused/appellant fleeing away from the spot and when asked to the prosecutrix, she apprised the fact that rape was committed upon her and then the father of the prosecutrix lodged complaint against the accused/appellant in the police station. 13. (PW/06) Dr. Sneh Lata Tirkey, examined the prosecutrix and opined that she did not find any external or internal injures on the body of the prosecutrix and she stated that the prosecutrix was complaining pain in her vagina and she prepared vaginal slide and referred her to a Gynecologist. However, the prosecution did not examine any Gynecologist before the learned trial Court. 14. (PW/04) Dr. M.K. Jain conducted the ossification test of the prosecutrix and opined that age of the prosecutrix is near about 14 years and gave his report vide Ex. P/10. However, he denied this suggestion that as per Modi’s medical jurisprudence there may be difference of 03 years of age on either side. 15.
Legal Reasoning
20. This Court in the matter of Guddu Poyam (supra) held in paras 14 and 16 which reads as thus:- “14. Though, other witness i.e., mother of the prosecutrix (PW/04), examined by the prosecution, turned hostile. Moreover, the doctor who conducted medical examination of the prosecutrix has concluded in Ex. P/22 that there is complete 10 absence of injuries on the body of the prosecutrix. She has further concluded that no tenderness, redness, swelling or injury was found on the genitals of the prosecutrix. FSL report (Ex. P/20) proves that human sperm was not found on the pubic hair, vaginal swab, vaginal slide and underwear of the prosecutrix. The prosecutrix, her mother and her brother who are the important witnesses to establish the case of the prosecution have not supported the case of the prosecution and have turned hostile. As such, there is no corroborative evidence placed by the prosecution to prove the guilt of the accused for the offence punishable under Section 366A of the IPC. By perusal of the evidence of the victim girl, it appears that victim girl was simply accompanied the accused without being enticed or influenced. Mere accompanying a person without being induced does not constitute an offence under Section 366A of the IPC. Though, the learned Panel Lawyer vehemently contended that age of the victim girl has proved by the prosecution that she is minor as on the date of incident, nevertheless, in order to convict the accused for the offence under Section 366A of the IPC, other two essential ingredients i.e., the victim girl must be induced by the accused and she must be induced by the accused person to go from a place or to do any act with an intent that such girl may be knowing that it is likely that she will be forced or seduced to illicit intercourse by another person. As such, the prosecution has failed to prove the ingredients of offence under Section 366A of the IPC. 16. Sikandar Tigga (PW/03) is the teacher who was called to produce dakhil kharij register of the school where the prosecutrix used to be enrolled in. He has admitted in his cross-examination that he was not posted in the school at the time when the prosecutrix was admitted in the school. He has further admitted that since he was not posted in the school when the prosecutrix took admission, he cannot tell if any document related to the date of birth of the prosecutrix was presented or not at the time of admission.” 21. In the light of above cited judgment, and in the present case also the principal entered the name of prosecutrix on the basis of transfer certificate and as per ossification test of the prosecutrix, her age was 11 defined as 14 years, however, (PW/04) Dr. M.K. Jain denied this suggestion of defence that in ossification test, margin of three years on either side is possible, but it is well settled law that in ossification test, margin of three years on both side is possible as per modi’s medical jurisprudence. So, it is clear that the prosecution has failed to prove any clinching and legally admissible evidence regarding the age of the prosecutrix and looking to the statement of prosecutrix, her mother(PW/08) and uncle(PW/10) of prosecutrix, it is clear that when they saw the accused was fleeing from their house, then they scolded the prosecutrix and the prosecution has failed to examine the Gynecologist before the learned trial Court. Dr. Sneh Lata Tirkey (PW/06) did not find any injuries and she referred the prosecutrix for Gynecologist, Ambikapur, but no report of Gynecologist was filed by the prosecution before the learned trial Court and no Gynecologist was examined by the prosecution before the learned trial Court. As such, the prosecution has failed to prove its case beyond reasonable doubt against the accused/appellant. The learned trial Court did not appreciate all these facts, especially conduct of the prosecutrix and without any clinching evidence convicted the appellant under Sections 450 and 376 of IPC. 22. Therefore, in the facts and circumstances of the case, as also the evidence on record. It would not be safe for this Court to hold that the appellant has committed rape upon her, rather it reflects from the evidence that the victim herself had made consented sexual intercourse with the appellant. 12 23. For the foregoing discussions, this Court is of the opinion that the prosecution has failed to prove its case beyond reasonable doubt against the appellant and the appellant is entitled for benefit of doubt. 24. Ex consequenti, the appeal is allowed. The impugned judgment of conviction and sentence dated 16.10.2007 is set aside. The appellant is acquitted of all the charges leveled against him. 25. Keeping in view the provisions of section 481 of BNSS 2023, the appellant is directed to furnish a personal bond for a sum of Rs. 25,000/- in the like amount before the court concerned forthwith, which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 26. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- (Rajani Dubey) Judge U. K. Raju
Arguments
(PW/09) Smt. Johani Kerketta, Prinicpal of the Middle School has stated that the police has seized admission register and as per this register, 8 the prosecutrix name was entered at serial no. 783 and as per this register, her date of birth is 10.06.1992 and register is Ex. P/13. In her cross-examination, she admitted that she did not bring any certificate of parents regarding the date of birth of the prosecutrix. She further stated that at the time of admission of student in secondary school, only on the basis of transfer certificate admission is done and no declaration form related to age of the student has to be submitted by the prosecutrix, her parents. The prosecutrix was admitted in Class VIth in her school and on the basis of transfer certificate, admission was taken. 16. (PW/08) the mother of the prosecutrix has not supported the prosecution case and she has stated that her daughter told her about the incident. The prosecution declared her hostile and cross-examined her, but she denied all suggestions of prosecutrix and also denied her police statement Ex. P/12. In para 07 of her cross-examination she admitted that at night Amrut (sasur) and his wife Maheshiya had brought her daughter/prosecutrix and they were scolding her. 17. (PW/10) Amrut has stated that on the date of incident he saw the accused/appellant Parmeshwar running away after opening the door of his house. Though he shouted to know as to who was running away, the accused/appellant did not reply and then he asked the prosecutrix/victim to which she told him that the accused was pushing her room from outside. The prosecution declared him hostile and cross- examined him, then he admitted the suggestion of defence that the prosecutrix was being raped by the accused/appellant. He also admitted the suggestion of defence that he got suspicion upon the 9 accused/appellant as he fled from his house without even talking to him and he scolded his niece/prosecutrix. He also admitted the suggestion of defence that he told to the father of the prosecutrix to take care of his daughter/prosecutrix and further he told that the prosecutrix was also got scolded from her father as the uncle of the prosecutrix and father of the prosecutrix thought that the prosecutrix was having illicit affair with the accused/appellant. 18. (PW/11) Smt. Maheshiya has stated in her examination-in-chief that she saw the accused fleeing from the spot and the prosecutrix was crying. The prosecutrix told her that the accused/appellant committed wrong things with her. She admitted the suggestion of defence that when she heard some noise, then she woke up her husband and asked the prosecutrix that who came, to which the prosecutrix stated that the accused/appellant came over to her house. She admitted the suggestion of defence that she runs a ration shop in her house and people used to come over her house. 19. As per the prosecution, age of the prosecutrix is 14 years, but there is no clinching and legally admissible evidence produced by the prosecution regarding the same.