Afr High Court · 2025
Case Details
1 / 13 2025:CGHC:21360 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR (Judgment Reserved on 26/03/2025) (Judgment Delivered on 08/05/2025) CRA No. 295 of 2021 1 - Anil Karsh S/o Shankar Lal Karsh, Aged About 40 Years 2 - Anita Karsh, W/o Anil Karsh, Aged About 35 Years Both R/o Village Lakhurri, P.S. Saragaon, District Janjgir Champa (Chhattisgarh) versus ... Appellants State of Chhattisgarh Through The District Magistrate, District Janjgir Champa ... Respondent For Appellants For State : : Mr. Amit Singh Chouhan, Advocate Ms. Prabha Sharma, Panel Lawyer Hon’ble Shri Arvind Kumar Verma, Judge (CAV Judgment) 1. The appellant has filed the instant criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 questioning the judgment of conviction and order of sentence dated 24/02/2021 ASHUTOSH MISHRA Digitally signed by ASHUTOSH MISHRA Date: 2025.05.12 18:21:49 +0530 2 / 13 passed by the Additional Sessions Judge, Fast Track Court Janjgir, District Janjgir-Champa, (C.G.) in S.T. No.64/2017, whereby the appellants have been convicted and sentenced as under:- For Appellant No.1 Anil Karsh Conviction Sentence Under Section 342 of I.P.C. Under Section 376 of I.P.C. R.I. for 01 Year with fine of Rs.500/- in default of payment of fine, further R.I. for 01 Month. R.I. for 10 Years with fine of Rs.1000/-, in default of payment of fine further R.I. for 06 months For Appellant No.2 Anita Karsh Conviction Sentence Under Section 342 of I.P.C. R.I. for 01 Year with fine of Rs.500/- in default of payment of fine, further R.I. for 01 Month. Under Section 120-B of I.P.C. read with Section 376 of IPC R.I. for 07 Years with fine of Rs.1000/-, in default of payment of fine further R.I. for 06 months 2. The case of the prosecution in brief is that on 19.08.2017, the prosecutrix submitted a written complaint (Ex. P.-1) at the Police Station that on 18.08.2017 at 2.30 p.m. she was at her home with her family, at that time Anil Karsh's wife Anita came to call her, she went to Anil's home after informing her mother-in-law and took her son Laxman. As soon as she reached Anil's home in the shade, Anil caught her hand and started taking her to the room, when she did not 3 / 13 enter, his wife Anita pushed her inside the room, as soon as she reached inside the room, Anil closed the door of the room, his wife Anita went towards the cola with her son, Anil forcefully threw her on the ground, tore her panties and raped her and started saying that whenever I call you, you will come, then she said yes out of fear, when she came out of the room after opening the door, the accused threatened her that she should not tell anyone about the incident. If she tells anyone, they will kill her and her family. She ran away with her son and came home and informed her husband, mother-in-law and father-in-law about the incident. On the basis of the written
Facts
complaint of the prosecutor, a First Information Report (Ex. P.-2) was registered against the accused in Police Station under Crime No. 121/17 Sections 376, 342, 120B, 506, 34 IPC. 3. It is also the case of the prosecution that after obtaining permission (application Ex.P.-14) for examination of the prosecutrix and consent from the prosecutrix (consent letter Ex.P.-3) from the Sub-Divisional Magistrate, Champa, the examination of the prosecutrix was conducted after sending an application (Ex.P.-21) to the Tehsildar Champa for getting the site map drawn by the Patwari, the Patwari prepared a site map (Ex.P.-5) and a Panchnama (Ex.P.-6), the statement of the prosecutrix before the Judicial Magistrate First Class Champa under Section 164 Cr.P.C. (Ex.P.-8) was recorded, a sky blue coloured petticoat was recovered from the possession of the prosecutrix (Seizure Memorandum Ex.P.-7), slides of the prosecutrix from the possession of lady constable Ruby Asmin, brown coloured 4 / 13 undergarment of the prosecutrix from the house of accused Anil (Seizure Memorandum Ex.P.-9). Grey coloured Bermuda was seized from the possession of Anil (seizure memo Ex.P.-10), the accused were arrested (arrest memo Ex.P.-22 and Ex.P.-23), accused Anil was sent for trial (application Ex.P.-13), the Bermuda seized from accused Anil was sent to Community Health Centre Bamhnidih for query (application Ex.P.-16) and the petticoat and innerwear of the complainant were sent to Government BDM. Hospital Champa (application Ex.P.-17) was sent for query, the seized exhibits were sent to the Regional Forensic Forensic Science Laboratory for examination through the memorandum of the Superintendent of Police (Ex.P.-18), from where the report (Ex.P.-20) was received, after further investigation, a charge sheet was filed against the accused in Crime No. 121/17 under Sections 376, 342, 120 (B), 506, 34 IPC on 03.10.2017 before Judicial Magistrate First Class Janjgir. 4. Criminal case no. 842/17 under section 376, 342 120 (B)/34, 506 IPC was registered by the Judicial Magistrate First Class Janjgir. The case was committed to the Sessions Court, District Janjgir-Champa (CG) on 14.11.2017 and received on transfer to this Court on 21.11.2017. 5. Against accused Anil Karsh, charges were framed under sections 120B, 342, 376 and 506 part-2 IPC and against accused Anita Karsh, charges were framed under sections 120B read with 376, 342 and 5 / 13 506 part-2 IPC and after the charges were read out and explained to them, the accused denied the charges and sought trial. 6. In order to bring home the offence, the prosecution examined as many as 10 witnesses and exhibited 23 documents. After appreciation of oral as well as documentary evidence produced by the prosecution the learned trial Court has convicted the appellant sentenced him as mentioned in para -1 of this judgment, hence, this appeal.
Legal Reasoning
circumstances of the case, we are of the view of that the benefit of doubt should be given in favour of the accused persons. 20. It is a settled proposition that when 2-3 views came to fore, the evidence which favours the accused is required to be admitted. This proposition has been been laid down in the matter of Kali Ram vs. State of H.P. reported in (1973) 2 SCC 808 and has been reiterated in the matter of Pradeep Kumar vs. State of Chhattisgarh reported in (2023) 5 SCC 350 wherein, relevant para-27 reads as under :- “27. It is important to note that the cardinal principles in the administration of criminal justice in cases where heavy reliance is placed on circumstantial evidence, is that where two views are possible, one pointing to the guilt of the accused and the other towards his innocence, the one which is favourable to the accused must be adopted.” 13 / 13
Arguments
7. Learned counsel appearing for the appellants would submit that the learned trial Court has erred in law and facts both while passing the judgment of conviction and sentences which is liable to be set-aside. He would next contend that the deposition of the prosecutrix does not support the circumstances under which the offence is said to have been committed by the accused persons. He would next contend that the learned Trial Court should also have considered that the prosecutrix has not raised any alarm while committing offence by the accused. He would next contend that there is no any injury found by the doctor on the body of prosecutrix and medical evidence does not support her case. He would next contend that the place of incident is a dense locality and adjoining houses where villagers are living and it is impossible that in such a dense locality, any person may commit such type of incident and no one would hear the alarm of the prosecutrix. 8. He would next contend that the evidence of rape upon the 6 / 13 prosecutrix is shaky by the depositions of prosecutrix, her father-in- law, her husband and her son no other independent witness are available in the case who saw the prosecutrix going to the house of accused persons, returning from the house of the accused persons, or any hue or cry of the prosecutrix. He would next contend that on the date of incident, the husband of the prosecutrix was in his house but the incident was naratted on the next morning. Thereafter, her husband has gone to other village and the prosecutrix has come to police station along with her father-in-law. The state of affair and conduct of the prosecutrix and her family members are highly suspecious which reflects the concocted story developed by the prosecutrix against the accused persons. He would next contend that the child of the prosecutrix namely Laxman Yadav (P.W.5) has admitted in para 3 of his cross examination that he has deposed as tuted by his mother. In the examination in chief, he has not stated that the appellant/accused no. 2 has involved in the offence in any manner. He placed his reliance in the law laid down by the Hon’ble Supreme Court in the matter of Dola alias Dolagobinda Pradhan and Another vs. State of Odisha {reported in (2018) 18 SCC 695} and would lastly submit that this Court may kindly be pleased to allow this appeal and set aside the conviction passed by the learned trial court and the appellants may kindly be acquitted from the charges. 7 / 13 9. On the other hand, learned counsel for the State opposes the submission advanced by learned counsel for the appellants and submit that the prosecution has proved its case beyond the reasonable doubt. Therefore, there is no illegality or infirmity in the finding of learned trial Court and the impugned judgment of the Court below needs no interference. 10. I have heard learned counsel appearing for the respective parties and perused the record of the trial Court and other material available on record with utmost circumspection. 11. The Prosecutrix who is examined as PW-1 has stated that the incident is of Friday afternoon, 18/08/2017. The accused Anita came to her house at about 1.30 pm and was waiting for her to take her to her house while she was bathing. She refused to go to the accused's house but the appellant did not agree and started insisting. Then she went to the accused's house on the insistence of her mother-in-law. It was about 2 pm at that time. She further in para 3 has stated that she was sitting in the shade of the accused's house and talking to the accused, her son had also gone with her. The accused Anil started holding her hand in front of his wife and her son, when she screamed he stuffed a cloth in my mouth and took her inside the room and the accused Anita went towards the garden with the child of the prosecutrix. After taking the prosecutrix inside the room the accused closed the door and opened the buttons of the blouse of the prosecutrix and tore her panties and forcibly raped her. She cried, 8 / 13 and even fell at his feet but the accused did not listen. She further in para 4 stated that after raping her, the accused told her to come whenever he calls her, she said yes thinking that she would open the door out of fear. The accused also told her that if she tells this to anyone, he will kill her family. When the accused opened the door, she ran away from there and came to her house. At that time, the people of her house had gone out for work, after they came back the next day morning, she informed her husband, mother-in-law, father- in-law about the incident. After that she went to Saragaon police station to report it. This witness further in her cross examination has stated that she knows the accused since she came to her in-laws' house. They are her close relatives. Further in para 12 she has stated that the accused did not tie her hands. It is wrong to say that I did not resist when the accused opened the buttons of my blouse. When the witness was asked that why did she not scream while opening her blouse, to which she says that she could not scream as she had put a cloth in her mouth. It is wrong to say that I did not resist when the accused was tearing her underwear she herself says that she was moving a lot and was trying to stop him from removing the underwear. 12. Son of the prosecutrix has been examined as PW-5 he in his examination-in-chief has stated that he recognizes the accused present in the court. He further stated that on the date of the incident, his father, mother and grandparents were at home. On the day of the incident, accused Anita, who was present in the court, came to call 9 / 13 his mother. He went with his mother. Accused Anil, who was present in the court, took his mother there by holding her hand and locked her in a room and stuffed a cloth in his mother's mouth and closed the door. In his cross examination he has stated that he had not gone inside the house along with his mother. He has also stated that he has not seen putting cloth in the mouth of his mother the said fact was told to him by the prosecutrix. He further stated that “I am giving statement today as per the instructions of my mother”. 13. The doctor who examined the prosecutrix has been examined as PW-3. She on examination of the prosecutrix stated that she is posted as Medical Officer in BDM Hospital Champa since the year 2015. She has further deposed that on 19/08/2017, when the prosecutrix was brought for examination by woman constable of Saragaon police station, then she examined her and found the following facts:- “1. Victim’s identification mark was a tattoo mark on the upper part of the palm of his left hand. 2. Victim was fully conscious. She was talking properly and was mentally sound. 3. On external examination, there were no marks of injury on the body. 4. Victim’s last menstruation was on 04.08.17. 5 Victim’s stomach was soft. 6. On internal examination, the secondary genitals of Victim were fully developed. 7. No vaginal discharge was found. 8. No signs of any injury were found in Victim’s internal 10 / 13 organs. 9. I prepared two slides of the vaginal discharge of the victim, sealed them and returned them to the same constable, advising him to conduct a chemical test. She opined that she did not find any symptom of recent forceful sexual intercourse with the victim. The victim was habituated to sexual intercourse.” 14. The appellants in their examination under Section 313 Cr.P.C. have stated that they have not committed any offence with the victim and they have admitted that they had called the victim to their house just for household work but the other allegations they have denied. 15. The Supreme Court in the matter of Pramila Vs. State of Uttar Pradesh {(2021) 12 SCC 550} has held that we are not sure and satisfied that the evidence of PW-2 attributing a specific role to the appellant is of such a sterling quality so as to inspire confidence in the Court to base the conviction on the sole evidence of a child witness. The benefit of doubt in the circumstances has to be given to the appellant. 16. The Supreme Court in the matter of Dola Alias Dolagobinda Pradhan and Another Vs. State of Odisha (2018) 18 SCC 695, the Supreme Court has held thus in para 15 which is reproduced hereinbelow:- “15. Curiously, the victim has not sustained any injury except some bruises on her cheeks. Her clothes were not even soiled with mud. In her cross-examination, she admitted that there was a tussle at the time of the alleged incident and that she tried to save herself. She also stated that both the accused persons physically lifted her from the spot and her bangles had 11 / 13 been broken by which she had sustained bleeding injuries on her hands. Furthermore, she said that she also sustained marks of violence on her hands. She did not sustain any injury on her knee, breasts and buttocks. She stated that she has no acquaintance with the accused persons and she did not have any kind of dealings with them. She further admitted that she had worn eight bangles on each of her hands and all her bangles on the right hand were broken and only one bangle of the left hand remained unbroken, and that all the bangles were broken at the spot of offence.” 17. Thus, applying the aforesaid principle in the facts of this case, we are also not sure and satisfied that the evidence of the victim PW-1 and his son (PW-5) is of such a sterling quality so as to inspire confidence in the Court to base the conviction on their evidence. 18. Therefore, from over all appreciation of the evidence and the documents i.e. the medical report, the following facts have emerged:- • That, the MLC report of the victim Ex. P/11 is negative. • That, on medical examination no external or internal injury was found on the body of the victim. • That, the son of the prosecutrix PW-5 is a tutored witness. • That, the prosecutrix has admitted that earlier there was some dispute for money transaction in between the accused and the victim. • That, though the victim disclosed the entire incident to her husband on the same day but no report was immediately lodged and on the next day the husband had gone for his work. It is unnatural conduct that if wife of a person is subjected to rape how it is 12 / 13 possible that such person had not gone for lodging the report and next day he has gone for his work in a routine manner. • That, though it has been alleged that the cloth was gagged in the mouth but there is no injury on the mouth of the victim or other part of the body of the victim. 19. Considering the above facts, it cannot be said that the appellants were the author of the crime and the doubt is created, so the benefit has to lean in favour of the accused. Considering the entire facts &
Decision
21. The appeal is allowed accordingly. The judgment of conviction and order of sentence dated 24/02/2021 is hereby set aside. Appellants stand acquitted of all the charges levelled against them. 22. The appellant No. 1 is reported to be in jail. He be released forthwith, if not required in any other case. 23. Keeping in view the provisions of Section 437-A CrPC (now Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023), the appellant No.1 is directed to furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one reliable surety in the like amount before the Court concerned 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. 24. Appellant No.2 is on bail. Her bail bonds shall remain operative for a period of 06 months in view of Section 437A of CrPC (now Section 481 of Bhartiya Nagrik Suraksha Sanhita, 2023). 25. The lower court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. SD/- (Arvind Kumar Verma) Judge ashu