Durg (C.G.) v. State of Chhattisgarh, through P.S. Pulgaon, District Durg
Case Details
1 Digitally signed by SHUBHAM SINGH RAGHUVANSHI Date: 2025.03.26 15:27:35 +0530 2025:CGHC:14142 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 171 of 2007 Susheel Kumar, S/o Shiv Prasad Mahilang, aged about 23 years, Occupation-Agriculturist, R/o Basin, Chowki Jewra-Sirsa, P.S. Pulgaon, District-Durg (C.G.) ... Appellant versus State of Chhattisgarh, through P.S. Pulgaon, District Durg (C.G.) Respondent/State For Appellant : Mr. Lavkush Kumar Sahu, Advocate For Respondent/State : Mr. Vivek Mishra, Panel Lawyer Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (24.03.2025) 1. This criminal appeal filed by the appellant-accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 27-01- 2007, passed by learned 4th Additional Sessions Judge, Durg, District Durg (C.G.), in Sessions Case No.270/2005, whereby the appellant-accused has been convicted as under:- Conviction Sentence & Fine U/s 376 of the IPC R.I. for 7 years and fine of 2 Rs.10,000/-, in default thereof, RI for 1 year U/s 342 of the IPC R.I. for 6 months U/s 506-B of the IPC R.I. for 1 year and fine of Rs.500/-, in default thereof, RI for 2 months 2. As per prosecution story, the accused/appellant and the victim (PW-1) are residents of Village Basin, Police Station Pulgaon, Checkpost Jewarasirsa. On the date of the incident i.e. 28/09/05, at around 12 PM, the victim had left her house to call her uncle. When she passed by juvenile house, the juvenile and appellant Susheel met her, and both of them grabbed her, took her inside a room in juvenile’s house, and locked the door. There, the accused Sushil threatened the victim that if she made any noise, he would kill her. He then threw her onto the bed and committed sexual intercourse with her. After committing the crime, he locked the door from outside and left. At around 3–4 PM, when the victim saw the juvenile outside and called out to him. He then came and opened the door. She went home and later reported the incident at Pulgaon Police Station, Checkpost - Jewarsirsa, where a case was registered, and an investigation was initiated. During the investigation, based on the victim’s statement, the victim’s clothes were seized, and her medical examination was conducted. The accused was also arrested and subjected to a medical examination. After completing the investigation, a charge sheet was filed against the accused/appellant. 3. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 19 witnesses and exhibited 25 documents. Statements of the 3 appellant was recorded under Section 313 of Cr.P.C. in which he denied circumstances appearing against him in prosecution case, pleaded innocence and false implication. 4. After hearing the parties, the trial court passed the impugned judgment of conviction and order of sentence. Hence, this appeal.
Legal Reasoning
5. Learned counsel for the appellant submits that in this case there is no clear evidence regarding the date of birth of the victim (PW-1). There is no mention in the FIR that the victim was being raped. There is serious contradiction in the statement of the victim. As far as the question of commission of the alleged offence by the appellant is concerned, learned Counsel for the appellant submits that the sister of the appellant was married to the brother of the victim and after the death of the brother, due to the dispute between the two families, by Chunnu Lal Navarange (PW- 18) brother-in-law of appellant's sister Manju who is the cousin of the victim has lodged this false report against the appellant. Furthermore, the statement of the victim is not corroborated by medical evidence. Thus, the entire case of prosecution against the appellant is doubtful and hence his conviction is not based on valid evidence. Hence, the appellant may be acquitted of the charges leveled against him by setting aside the impugned judgment of conviction and order of sentence. 6. On the other hand, learned counsel for the State submitted that the conclusion given by the trial court regarding conviction and sentence of the appellant is based on sufficient and reliable evidence, which does not require any interference. Therefore, the contention made by the counsel for the appellant is not acceptable, hence, the appeal may 4 be dismissed. 7. Heard learned counsel for the parties and perused the record with utmost circumspection. 8. It is an undisputed fact that both the parties are residents of the same village. The house of the juvenile is said to be at the place of alleged incident at a distance of one house from the house of the victim (PW-1). It is also undisputed that the appellant's sister Manju was married to the victim's brother Kaushal who has died. Manju lives in her maternal home. 9. The report filed by the victim (PW-1) was registered at the police outpost Jevra-Sirsa on 28/09/2005 itself which was under Section 354, 342, 506-B of the Indian Penal Code vide Ex.P-1. It is noteworthy that in this FIR, there is no mention about committing rape by the appellant with the victim (PW-1). Thereafter, a second application (Ex. P-2) was given by her to the police station in-charge of Jevra- Sirsa on 30/09/2005 for necessary action in which the word rape was mentioned for the first time. 10. Victim's cousin Chunnu Lal Navrange (PW-18) has admitted that his brother Kaushal had kept the appellant's sister Manju as his wife. The brothers were divided and lived separately. In the year 2002-03, his brother Kaushal committed suicide. It was he who submitted the application after the report being made to the Police and he became active in this case from 01/10/2005. Along with this, he also got action taken against Manju. This makes it clear that the complainant’s side had a grudge against the appellant's side. It is also clear that the mention of the rape incident came after the intervention of this cousin Chunnu Lal Navrange (PW-18). 5 11.In this regard, on 01/10/2005, the medical examination of the victim was done by Dr. Mrs. S. Sawant (PW-18) and a report (Exhibit P-23) has been given by her, according to which no injuries were found on the body of the victim and no clear statement has been given by the Doctor regarding the recent sexual intercourse. The victim has also been found habitual to sexual intercourse. Thus, the statement of the victim is not corroborated by medical evidence. 12. Dr. S. Sawant (PW-18) had prepared the slide of the victim and sent it for chemical test, which was sent to the laboratory for examination and as per the laboratory test report (Exhibit P-23), semen stains and human sperm were found in the underwear of the appellant as well as in the underwear and slide of the victim. The said report has been challenged by the appellant’s party stating that there is no evidence regarding safekeeping of the seized slide and clothes of the victim and it has also been sent with a delay for which there is no satisfactory explanation, therefore the said report cannot be considered beyond doubt. 13. In this case, the doctor has stated that the slide was prepared on 01/10/2005. There is no clear evidence presented by the prosecution as to when and where it was kept safe. From the examination of the test report (Exhibit P-23), it is evident that the Superintendent of Police, Durg sent those materials to the laboratory on 07/11/2005 which were deposited in the laboratory on 22/11/2005. Thus, when the slide was prepared on 01/10/2005, then its sending on 07/11/2005 with a delay of about 01 month and 07 days and even after that, its depositing in the laboratory on 22/11/2005 after about 15 days makes the report completely suspicious because no satisfactory reason has been given by the prosecution for this delay as 6 to in what condition it was kept safe for so many days or not. Therefore, in light of decision of the Supreme Court in the matter of Santa Singh Vs. State of Punjab reported in AIR 1956 SC 526, wherein it has been held that if there is exists a suspicious delay in sending the sealed parcel to the expert, the result is vitiated, the opinion of the FSL report (Ex.P-23) pales into insignificance and cannot be relied upon to convict the appellant herein for the offence in question. It is also noteworthy that the victim has been found to be habitual to sexual intercourse and no test report has been presented to prove that the human sperm and semen found in the slide or underwear of the victim belong to the appellant. In such a situation, the said test report does not provide any support in relation to the prosecution case against the appellant. 14. As far as the question of oral evidence given by the appellant in the Court is concerned, in this regard, it is also clear from the entire evidence presented by the prosecution that the house of the juvenile, where the victim has said that the incident took place, is just one house away from the victim's house. All the family members of the juvenile also live in that house. In the first information report (Exhibit P-1) written by the victim on the day of the incident, it is not mentioned that the appellant had raped her, which is a serious contradiction and omission. Along with this, the victim herself has stated that when she went to report for the first time, she did not mention about the rape and cannot give any reason for this either. 15. There is a contradiction in her Court statement, police statement and report on the issue as to whether the appellant first caught her alone and took her to the room in the house of the juvenile or both the appellant and the 7 juvenile caught her and took her to the room. It also does not appear trustworthy that when a crime was committed against the victim at the house of the juvenile, the family members of the juvenile, who also live in the same house, including his parents etc., would not have heard any sound. The victim has also admitted that the house of Kholbahra is adjacent to her house and in the house of Kholbahra, both her daughters-in-law, grandsons, sons etc. live together and there is a path to the pond adjacent to it, which is frequented by people. The victim has also stated that she did not scream at the time of the incident, the reason for which she has given is that a cloth was stuffed in her mouth, but there is no mention of the matter of putting the cloth in her report (Exhibit P-1). According to the report of the victim, the juvenile was also with the appellant and she was caught and locked inside the room, but in the Court statement she stated that at about 3.30 in the afternoon, when she saw the juvenile from the window and called out to him, he opened the door. In this way, it becomes completely doubtful whether the incident was actually committed. 16. In view of the statement of the victim and the report written by her, medical evidence etc., the victim is not found to be a credible witness beyond doubt and the benefit of doubt goes to the appellant. Thus, this Court finds that the conviction of the appellant is not based on clear, sufficient and reliable evidence. The case of the prosecution against the appellant is not proved beyond doubt. In such a situation, the “impugned judgment” is not found to be sustainable. 17.
Decision
Consequently, the appeal is allowed. The judgment in question is set aside and the appellant is acquitted of the 8 offence charged, giving him the benefit of doubt. 18. 19. It is reported that the appellant is in jail, he be released forthwith if not required to be detained in any other case/s. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and the concerned Superintendent of Jail where the Appellant is lodged and suffering jail sentence, for information and necessary action, if any. Sd/- (Sanjay Kumar Jaiswal) Judge Shubham