1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment reserved on : 24/08/2022
Judgment delivered on: 17/11/2022
CRA No. 1 of 2020
Dhyan Singh Gond S/o Babulal Gond Aged About 27 Years
R/o Padkhuri, Police Station Gaurella, District Bilaspur,
Chhattisgarh.
---- Appellant
Versus
State of Chhattisgarh Through Police Station Gaurella,
District Bilaspur, Chhattisgarh.
---- Respondent
For Appellant : Mr. Virendra Verma, Adv.
For State
[[
: Mr. B. P. Banjare, Dy. G.A.
Hon'ble Smt. Justice Rajani Dubey
CAV Judgment
1. The instant appeal has been preferred against the impugned judgment of conviction and order of sentence dated 15.11.2019 passed by learned Additional Sessions Judge, Pendra Road, District Bilaspur (C.G.) in Sessions Trial No. 21/2019 whereby and whereunder, learned Judge convicted the appellant under Sections 376 & 450 of the Indian Penal Code and sentenced him to undergo R.I. for 10 years plus fine of Rs. 5,000/- and R. I. for 5 years plus fine of Rs. 500/- respectively, with default stipulation.
2. Brief facts of the prosecution case are that, in the intervening night of 29/30 June 2018, the husband of the victim was out of station, at about 1.30 A.M. accused/appellant entered the house of victim breaking the door of her house, gagged her mouth and forcibly 2 committed sexual intercourse with her. Victim raised alarm whereupon her neighbourer Nanbai (PW-2) came there to whom she narrated the incident. After two days, husband of the victim returned to her village and with him she went to Police Station Gaurella and lodged FIR (Ex. P/1) against the applicant. With the Consent (Ex. P/3) of the prosecutrix, she was sent for medical examination. After completion of investigation, charge-sheet was filed against the appellant and charges were framed under Sections 376 & 450 of Indian Penal Code.
3. So as to hold the accused/appellant guilty, the prosecution has examined as many as 10 witnesses and exhibited total 17 documents. Statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the charges leveled against him and pleaded innocence and false implication in the case.
4. After examination of oral and documentary evidence, learned Judge convicted him under Sections 376 & 450 of the IPC and sentenced him as mentioned above in para 1 of this order. Hence, the present appeal filed by the appellant.
5. Learned counsel for the appellant submitted that the impugned judgment of conviction and order of sentence is contrary to the material evidence available on record. He further contended that learned trial Court erred in relying upon the statement of the prosecutrix (PW-1) as her statement suffered from various inherent defects rendering it wholly unreliable. The prosecution story was neither 3 supported by circumstantial evidence nor medical evidence. He further submitted that there is delay in lodging the FIR but learned trial Court has not given due emphasis on it, therefore, the impugned order passed by the learned trial Court be set-aside and the appellant may kindly be acquitted from the alleged charge.
6. In support of his argument learned counsel for the appellant placed reliance in the matters of Hem Raj Vs. State of Haryana reported in (2014) 2 SCC 395.
7. On the other hand, learned State counsel has supported the impugned judgment of conviction and order of sentence of the Court below convicting the appellant under Sections 376 & 450 of the IPC, being based on the material available on record.
8. I have heard learned counsel for the parties and perused the records including the impugned judgment.
9. Prosecutrix (PW-1) in her examination-in-chief has stated about the rape mentioning that appellant/accused committed sexual intercourse with her forcefully entering her house in absence of her husband. She admitted in para 6 that at the time of incident her children were with her. The door was closed from inside and there was a wooden supporter (club) in support of the door. In para 8 she further admitted that when Nanbai (PW-2) came at the spot, the accused/appellant was not present there. Nanbai (PW-2) stated in her statement that hearing voice of prosecutrix, she reached there and saw that appellant was running but 4 prosecutrix stated nothing about the incident. On being asked, she stated that Dhyan Singh had entered the house. The prosecution declared this witness hostile and cross- examined her but in her cross-examination she denied all suggestions of prosecution. She also did not support her Police Statement (Ex.P/6). Except her, Jamuna Gond (PW-4) has also denied his police statement (Ex. P/8).
10. Dr. Subhadra Paikra (PW-8) opined that prosecutrix is habitual of sexual intercourse and gave her report (Ex. P/13). As per prosecution, date of incident is in the night of 29th June 2018 and prosecutrix lodged FIR on 2nd July 2018.
11. In Krishan Kumar Malik v. State of Haryana (2011) 7 SCC 130, Hon'ble Apex Court held 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. But in this case all independent witnesses have not supported the prosecutrix statement. In FIR (Ex. P/1) the prosecutrix stated that appellant has broken the door of her house but in her Court Statement she stated that only supporter (wooden club) was broken. Having gone through the records and considering the deposition of the prosecutrix, this Court find not only the material contradictions but even the manner in which the alleged incident has taken place as per the version of the prosecutrix is not believable. There is nothing in record to prove that the door was broken. Medical 5 report has also not supported the prosecution. Any specific reason has also not been given about the delay in lodging FIR. Thus, the solitary version of the prosecutrix cannot be taken as a truth as face value and in the absence of any other supporting evidence, there is no scope to sustain the conviction and sentence imposed upon the appellant and the accused is to be given the benefit of doubt.
12. Taking an overall view of the matter, this Court finds that the prosecution has failed to establish the guilt against the appellant under Sections 376 & 450 of IPC beyond reasonable doubts. The finding of the learned trial Court convicting and sentencing the appellant under the aforesaid offence is not sustainable and also is not in accordance with proper consideration of oral and documentary evidence available on record and is liable to be set-aside.
13. In view of the above discussion, the appeal is allowed. The Impugned judgment convicting and sentencing the accused/appellant as mentioned above is set aside. The appellant is acquitted of the charges levelled against him. The appellant is reported to be on bail. His bail bond furnished by him stand discharged.
Sd/-
(Rajani Dubey) JUDGE V/-