Nafr High Court · 2025
Case Details
1 Digitally signed by AVANISH KUMAR PATHAK Date: 2025.01.22 11:06:54 +0530 2025:CGHC:3519 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1279 of 2024 Reserved on 10-1-2025 Delivered on 21-1-2025 Lakhan Kewat @ Nannu S/o Late Budhram Kewat Aged About 19 Years R/o Of Village - Pasid, Police Station - Bilha, District Bilaspur (C.G.) State Of Chhattisgarh Through Police Station Bilha, District Bilaspur (C.G.) versus ... Appellant ... Respondent For appellant : Mr. Sanjay Kumar Yadav, Adv. For Respondent : Ms. Sunita Manikpuri, Dy. Govt. Adv. (Hon’ble Mr. Naresh Kumar Chandravanshi, J) C A V Judgment 1. 2. With consent of learned counsel for the parties, heard finally. This criminal appeal has been preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (henceforth, referred to as ‘Cr.P.C.’) against impugned judgment dated 11-6-2024 passed by the Special Judge [Scheduled Castes and Scheduled Tribes (Prevention of Atrocity) Act, 1989], in Sessions Case No. 316/2021, whereby the appellant has been convicted and sentenced in the following manner :- Sr. No. 1 Conviction under Section Sentence Fine sen- tence Default stipulation 376 of the IPC 10 years RI Rs. 2,000/- Addl. RI for 2 2. 506-II, IPC 6 months RI -- -- two months Both the substantive jail sentences have been directed to run consecutively. 3. Case of the prosecution in brief is that, on 12-9-2021 at 00.30 hours, victim/prosecutrix aged about 19 years made written complaint (Ex. P- 13) in the PS Bilha, Distt. Bilaspur against appellant alleging inter alia that, on 11-9-2021, her parents had gone to other village. She was in the house along with her nephew aged about 13 years. At about 07.00 pm, when they were in the house, at that time, appellant entered into her house, abused and threatened her nephew and ousted him. Thereafter, appellant took her in machine room, torn her frock and he raped her. Appellant had also threatened her that, if she tells others about the incident, then he will kill her. At about 9.00 p.m., when parents of victim/prosecutrix reached, then she told them about the incident and written complaint (Ex. P-13) was made, based
Facts
on which, FIR (Ex. P-14) was lodged at 00.30 hours at night on 12-9-2021 itself. During the course of investigation, victim/ prosecutrix was got medically examined by Dr. Khushboo Sahu (P.W. 4). She prepared vaginal slides, handed over undergarments/panty and vaginal slides of the victim/prosecutrix to the Constable for chemical examination. Nazri Naksha (Ex. P-1) and Sthal panchnama (Ex. P-2) were prepared. Statement of victim/prosecutrix under Section 164 of the Cr.P.C. was recorded. Ossification test of victim/prosecutrix was got conducted. Statements of witnesses were recorded. Appellant/ accused was arrested vide arrest memo Ex. P-18. He was also examined by doctor. FSL report (Ex. P-5) was received, which was 3 reported to be positive. After due investigation, charge sheet under Section 376 and 506 of the IPC was filed before Judicial Magistrate, Bilha, Distt. Bilaspur, who in turn, committed the case to the Sessions Judge, Bilaspur thereafter case was transferred to the Special Judge (Atrocity), Additional Charge, Additional Sessions Judge (FTC), Bilaspur (CG) (hereinafter referred to as ‘trial Court’), who tried the case. 4. Learned trial Court framed charges against appellant for the offence under Section 376 and 506-II of the IPC, which was denied by the appellant. To bring home the charge, prosecution examined as many as 14 witnesses and exhibited 23 documents. Appellant was examined under Section 313 of the Cr.P.C. in which, he denied all the incriminating circumstances appeared against him in the evidence led by the prosecution. Appellant stated in his defence in accused statement that, there was love affair between him and the victim/ prosecutrix, but after his marriage, she used to compel him to meet with her. She also used to call him over phone, which was come in the knowledge of his wife, thereafter she had threatened him to implicate him, because he refused to meet her. He has pleaded innocence and false implication. But, he has not examined any witness in his defence. 5. After considering the evidence, learned trial Court convicted and sentenced the appellant as has been mentioned in para 2 of this judgment. 6. The appellant has challenged legality and propriety of the impugned judgment by filing this appeal. 4 7.
Legal Reasoning
suggestion that, they used to talk for hours. Having considered the totality of the aforesaid evidence, only on the basis of aforesaid statement of P.W. 7, it cannot be held that, appellant and victim/ prosecutrix were in love affair and victim/ prosecutrix herself had called appellant at the time of incident. 7 14. As per deposition of victim/prosecutrix (P.W. 10), appellant has torn her frock. This fact was also told by her to her father, sister, brother-in- law and her torn frock has also been seized vide seizure memo Ex. P-8, which has been supported by the Assistant Sub Inspector Heturam Verma (P.W. 13) and victim’s father. In aforesaid seizure memo, it has been specifically stated that frock of victim/prosecutrix was torn and zip of it was also broken. 15. Incident had occurred on 11-9-2021 at about 7.00 pm and on next day at 1.15 pm, victim /prosecutrix was medically examined by Dr. Khushboo Sahu (P.W. 4). Vide MLC report (Ex. P-7) prepared by her, she has stated that, she had not found any injury over the body of victim / prosecutrix, but she has specifically stated that, there were scratches present over the right elbow of the victim/prosecutrix and as per medical report, victim/prosecutrix was also complaining pain on it and also on the neck. She had also prepared two vaginal slides of victim/prosecutrix and handed over it and brown colour panty of victim/prosecutrix to the concerned constable after sealing the same. Underwear of the appellant has also been seized by the police vide seizure memo Ex. P-11. In FSL report (Ex. P-5), semen and human spermatozoa have been reported to be found in vaginal slide (Article A) of the victim/prosecutrix, her panty (Article B) and underwear (Article C) of accused. 16. Learned counsel for the appellant stressed upon admission made by Dr. Khushboo Sahu (P.W. 4) that brown colour panty of victim/prosecutrix was being produced by her after calling it by the doctor. Thus, panty of victim/prosecutrix was changed subsequently, therefore FSL 8 report (Ex. P-5) cannot be relied upon. Aforesaid contention of the defence counsel is not found to be sustainable, as Dr. Khushboo Sahu (P.W. 4) herself has clarified the fact that, victim/prosecutrix had told her that she has changed the panty which she had worn at the time of incident, therefore, she got called that panty, which was of brown colour and which the victim/prosecutrix had worn at the time of incident, and therefore, she had corrected the colour of panty in MLC report (Ex. P-7) from ‘light gray’ to ‘brown’. This clarification is found to be sufficient for change of colour of panty in MLC report. Therefore, contention raised by learned counsel for the appellant is not found to be sustainable. 17. Though in medical examination of victim/ prosecutrix, no grievous or visible & noticeable injury has been reported to be found by Dr. Khushbu Sahu, over the body part or private part of the victim/prosecutrix and she has opined that no definite opinion can be given about recent rape with the victim/prosecutrix but, in medical examination, she has found scratches over right elbow of the victim/prosecutrix. She has further deposed that there was pain on those scratches and there was also pain over her neck region. The manner in which rape was committed by the appellant with the victim/prosecutrix, as he abused and threatened her nephew, torn her frock and dragged her in other room, where he raped her, in these circumstances, it can be supposed that, the young girl would have come under fear, as such, she could have surrendered herself. Therefore, not finding any noticeable injury except scratches over body of victim /prosecutrix could not be a ground to discard other evidence available on record. 9 18. Hon’ble Supreme Court in the case of Ganesan v. State represented by its Inspector of Police, [(2020) 10 SCC 573], has held that there can be a conviction on the sole testimony of the victim/prosecutrix when the deposition of the prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality. 19. In the instant case, as has been discussed above, nothing has been elicited in the cross-examination of the victim/prosecutrix to disbelieve her deposition about rape committed with her by the appellant. Her statement upto some extent also gets support from her nephew (P.W. 7) and after about 2 hours, when parents and other relatives came back, then she had told them about the incident, which is her natural conduct. Further, torn frock of victim/prosecutrix has been seized by the police. Though not very noticeable but scratches and pain were found in her body in medical examination and further FSL report (Ex. P-5) also supported the deposition of victim/ prosecutrix, as semen and human spermatozoa have been found in vaginal slide and panty of the victim/prosecutrix as well as underwear of the appellant. 20. In view of above discussion and evidence available on record, I do not find any infirmity or illegality in holding guilty the appellant by learned trial Court for the offence under Section 376 of the IPC. Hence, same is affirmed. 21. So far as conviction of the appellant under Section 506-II is concerned, neither victim/ prosecutrix (P.W. 10) nor her nephew (P.W. 7), who was present on the spot when appellant went to the house of the victim/prosecutrix, have stated in their deposition that appellant had 10 threatened to kill victim/ prosecutrix. Single word has not been uttered by them in their court statement in this regard. Therefore, only on the basis of hearsay witnesses i.e. father and sister of victim /prosecutrix, the appellant cannot be held guilty for the offence punishable under Section 506-II of the IPC. Learned trial Court has held the appellant guilty for the offence under Section 506-II, IPC, only on the basis of hearsay witnesses, which is not legal evidence. As such, conviction of the appellant under section 506-II of the IPC and sentence imposed thereunder is not found to be sustainable. Hence the same is set aside. 22. In the result, the appeal is partly allowed. Conviction and sentence of appellant under Section 506-II of IPC awarded by the trial Court is set aside and he is acquitted of the above offence. However, his conviction under Section 376 of the IPC and the sentence imposed thereunder by the trial Court vide impugned judgment, is affirmed. 23. The appellant is stated to be in jail. He is directed to serve out the sentence as awarded to him. 24. Record of the trial Court along with a copy of this judgment be returned back to the trial Court. 25. Appeal partly allowed. Sd/- (Naresh Kumar Chandravanshi) JUDGE Pathak
Arguments
Learned counsel for the appellant would submit that, it is not a case of rape, rather, there was love affair between the appellant and victim / prosecutrix, but after marriage of appellant, when he refused to meet her, then only, she has falsely implicated appellant in instant case. As per case of prosecution, at the time of alleged incident, victim /prosecutrix and her nephew (Bahan ka Lakda), aged about 13 years, were present in the house, and he was ousted by appellant by abusing him, if it would have been so, then why he did not inform about the incident to the neighbours. Even she herself has not stated that at the time of alleged incident, she had raised any alarm to help her. If appellant would have raped her, then various visible and internal injuries would have been caused on her body as well as her private part, but Dr. Khushboo Sahu (P.W. 4), who had examined victim/ prosecutrix on very next day, has not found any such injury, rather she has specifically reported in the MLC report (Ex. P-7) of the prosecutrix that no injury was found upon her body as well as her private part, rather only scratches were found on her right elbow. 7.1 Learned counsel for the appellant further submits that, although in FSL report (Ex. P-5), semen stains and human spermatozoa have been reported to be found in vaginal slide of prosecutrix (article A), her panty (Article B) and underwear of appellant (Article C), but Dr. Khushboo Sahu (P.W. 4) herself has admitted that said panty was brought subsequently at the time of examination of victim/prosecutrix, therefore, FSL report (Ex. P-5) cannot be relied upon. The circumstances, as projected by the prosecution, are not proved to be reliable to the testimony of victim/ prosecutrix, her nephew and other prosecution witnesses and there is no independent 5 witness. FSL report (Ex. P-5) is also not credible. But, learned trial court without appreciating evidence available on record in accordance with law, has convicted and sentenced the accused/appellant, whereas, prosecution has utterly failed to prove its case beyond reasonable doubt, therefore, it is prayed that, this appeal may be allowed and impugned judgment of conviction and order of sentence may be set aside and the appellant may be acquitted of all the charges. 8. Per contra, learned counsel for the State submits that, there is not only eye-witness to the incident, but the victim /prosecutrix and other witnesses have very well supported the case of prosecution, which also gets support from medical evidence as well as FSL report (Ex. P-5), therefore, the appeal is liable to be dismissed. 9. I have heard learned counsel for the parties and perused the material available on record along with the record of the trial Court. 10. Instant case of prosecution is based upon ocular evidence, medical evidence as well as FSL report. 11. Victim/prosecutrix (P.W. 10) has deposed in her Court statement that, at the time of incident, her parents had gone to village Lachhanpur. She was in the house along with son of her sister. At 7.00 pm, when she was cocking food in the house, at that time, appellant came in her house, assaulted her, threatened to her nephew and ousted him, thereafter, appellant took her in machine room, torn her clothes and forcefully raped her. 12. P.W. 7, who is nephew of victim/prosecutrix, has supported her statement to the extent that, at the time of incident, appellant entered into 6 their house, ousted him by abusing and assaulted his Mausi (victim / prosecutrix). This witness has further stated that on being ousted by appellant, he went to roof and informed her maternal grand mother Amrita Sahu and grand mother Basant Sahu about the incident on phone. After receiving information, parents of victim/prosecutrix reached there at about 9.00 pm, thereafter victim/prosecutrix had informed them about the incident. These facts were also supported by father of victim/ prosecutrix (P.W. 9) and her sister (P.W. 5). P.W. 6 is brother-in-law (Jija) of victim/prosecutrix. He has also supported the case of prosecution to the extent that after getting phone call about quarrel, he had also gone to village Pasid, where incident had occurred, then victim/prosecutrix had told about her forceful rape by the appellant. 13. In cross-examination, victim/ prosecutrix (P.W. 10) has denied all the suggestions taken by the defence counsel that, she had love affair with the appellant and they have also got group photo and separate photo with the appellant and she herself called appellant in her house. Father of victim/prosecutrix (PW 9) Dharamlal Sahu has also denied suggestion taken by defence counsel that, there was love affair between appellant and victim/ prosecutrix. Though, P.W. 7 nephew of victim/prosecutrix has admitted in his cross-examination that, appellant used to do missed call to her Mausi (victim/ prosecutrix), then she also used to call him, but he has denied the