Santosh Kunjam vs State Of Chhattisgarh
2021 Latest Caselaw 1533 Chatt

                                                                          NAFR

           HIGH COURT OF CHHATTISGARH, BILASPUR

                   Criminal Appeal No. 168 of 2017

• Budharu Ram Meravi, S/o Ram Singh Meravi, Aged About 26 Years, R/o
  Village Manpur Naka, Police Station Gandai, District Rajnandgaon,
  Chhattisgarh.

                                                                   ---- Appellant

                                    Versus

• State   of   Chhattisgarh       Through    Police   Station   Gandai,   District
  Rajnandgaon, Chhattisgarh.

                                                                ---- Respondent

AND

Criminal Appeal No. 396 of 2019

• Santosh Kunjam, S/o Darshan Kunjam Aged About 21 Years, R/o Village Makarkund, Thana-Gandai, District : Rajnandgaon, Chhattisgarh.

---- Appellant

Versus

• State of Chhattisgarh Through Station House Officer, Thana- Gandai, District- Rajnandgaon, Chhattisgarh.

                                                                ---- Respondent




  For Appellants              :      Ms. Itu Rani Mukherjee and Shri
                                     Dhirendra    Prasad    Mishra,   Advocates.
  For State/Respondent        :      Shri Aakash Pandey, Panel Lawyer.
                 Hon'ble Shri Justice Arvind Singh Chandel
                               Judgment on Board


03/08/2021

1. These appeal have been preferred against the impugned judgment

dated 20.07.2016 passed in Special Case No.02/2014 by the

Additional Sessions Judge, Khairagarh, District Ragnandgaon, (C.G.)

wherein appellants have been convicted and sentenced as under :

Conviction Sentence

U/s 363 of the I.P.C. R.I. for 4 years and fine of Rs.1,000/-

with default stipulations.

U/s 366(d) of the I.P.C. R.I. for 4 years and fine of Rs.1,000/-

with default stipulations.

U/s 506-B of the I.P.C. R.I. for 1 years and fine of Rs.500/-

with default stipulations.

U/s 376(2)(N) of the I.P.C. R.I. for 10 years and fine of Rs.

1,000/- with default stipulations.

All sentences to run concurrently.

2. In the present case, age of the prosecutrix (PW-1) at the relevant time

was 15 years and 11 months. According to the entries made in Dakhil

Kharij register i.e. Ex.P-9, date of birth of the prosecutrix is mentioned

as 25.12.1997. Date of incident is 08.12.2013. According to the case of

prosecution, on 08.12.2013 at around 7:30-8:00 PM, when prosecutrix

went out of her house for throwing water, allegedly, accused/appellants

caught hold her hand and took her near 'rahar bharri' and committed

forcible sexual intercourse with her one by one. After the commission

of alleged incident, prosecutrix came to her house and narrated about the incident to her mother. On the next date of incident i.e. 09.12.2013,

F.I.R. vide Ex.P-1 was lodged by the prosecutrix. Statement of the

prosecutrix and other witnesses were recorded under Section 161 of

the Cr.P.C. After completion of the investigation, a charge-sheet was

filed. To prove the guilt of the accused/appellants, prosecution has

examined as many as 12 witnesses. No defence witness has been

examined. Statement of appellants under Section 313 of the Cr.P.C.

was recorded, wherein accused/appellants have pleaded innocence

and false implication.

3. After completion of trial, the trial Court has convicted and sentenced

the accused/appellants as mentioned in paragraph 1 of this judgment.

Hence, this appeal.

4. Learned Counsels appearing on behalf of the appellants submit that

appellants are innocent and are falsely implicated in the present case.

They further submit that trial Court has wrongly convicted the

appellants without there being sufficient and clinching evidence against

them. It is further stated that statement of the prosecutrix (PW-1) is

suspicious. Prosecutrix in her examination-in-chief has supported the

case of prosecution but during cross-examination she has admitted the

fact that at the time of alleged incident, there was darkness at the

place of occurrence of alleged act and due to which she could not

identify that who had caught her and committed sexual intercourse

with her. Prosecutrix has disclosed the names of appellants only at the

behest of his uncle. Also, the medical report of the prosecutrix does not

support the case of prosecution. Therefore, conviction of the

appellants are not sustainable.

5. Per contra, learned Counsel appearing for the State supports the

impugned judgment and submits that sentence awarded by the trial

Court is just and proper and requires no interference.

6. I have heard learned Counsel appearing for the parties, perused the

record, statement of the witnesses and other annexed documents

minutely.

7. With regard to the alleged incident, prosecutrix (PW-1) has deposed

that on the date of incident when she went out at 'badi' then

accused/appellants caught hold her and took her at 'rahar' field and

they both committed rape with her one by one. Thereafter, she

narrated about the alleged incident to her parents and her uncle. Then

on the next day, prosecutrix lodged F.I.R. vide Ex.P-1 at the police

station against the accused/appellants. In para 14 and 23 of cross-

examination of the prosecutrix, she has admitted the fact that there

was darkness at the place of occurrence of the incident due to which

she was unable to identify the accused persons and was unable to tell

their names that who caught her and committed sexual intercourse

with her. She further admitted the fact that names of the present

appellants were told to her by her uncle and thereafter, she has

disclosed the names of the appellants. She further admitted the fact

that in paragraph 20 and 22, report was lodged by her uncle and

further admitted that she has given Court statement as tutored by his

uncle.

8. Dr. Leela Ramteke (PW-5) examined the prosecutrix on 09.12.2013,

and she found that there was bleeding from her vagina and found one

injury measured ¼ x ¼ x ¼ cm. She also found six abrasion in right hand of the prosecutrix. She also found one lacerated wound at the

outer side of vagina of the prosecutrix which may occur due to

scratching by nails. She has not given any definite opinion regarding

commission of intercourse or forcible sexual intercourse with the

prosecutrix. She has further admitted the fact that if forcible intercourse

would have happened with the prosecutrix then there might have

occurred redness or swelling in the vagina of the prosecutrix and in

this matter no such injury has been found.

9. On minute examination of the above evidence, it makes clear that

though prosecutrix has admitted the fact regarding commission of

alleged act with her but she has also admitted the fact that she has

disclosed the names of the appellants as tutored/persuaded by her

uncle. Further, prosecutrix was not aware about the persons who had

committed sexual intercourse with her. She has further admitted that

there was darkness at the place of occurrence of alleged act and also

the F.I.R. was lodged by her uncle and at that time prosecutrix was

standing outside the police station. From the medical report of the

prosecutrix and from the admission made by Doctor Leela Ramteke

(PW-5), it appears that no forcible sexual intercourse has been

committed with the prosecutrix. Though one lacerated wound has

been found in the vagina of the prosecutrix but the Doctor has

admitted that said wound may occur by self-caused.

10. Looking to the entire evidence adduced by the prosecution, and on

perusal of statement of the prosecutrix (PW-1), in my considered view,

her statement is not reliable and on the basis of her shaky statement,

conviction of appellants are not sustainable and therefore, appellants are entitled to get benefit of doubt.

11. Consequently, the appeals are allowed. The conviction and sentence

of the appellants are set aside and they are acquitted of the charge

framed against them.

12. Records of the Court below be sent back along with a copy of this

order forthwith for information and necessary compliance.

Sd/-

(Arvind Singh Chandel) Judge Prakash