Aietram vs State Of Chhattisgarh
2021 Latest Caselaw 1720 Chatt

                                                                                 NAFR

               HIGH COURT OF CHHATTISGARH, BILASPUR

                        Criminal Appeal No. 54 of 2018

   • Aietram, S/o Shri Lachchan Kumar, Aged About 18 Years & 5 months (as
     per order sheet), R/o Dunudunipani, P.S. Piperchedi, Dist. Gariyaband,
     Chhattisgarh.

                                                                       ---- Appellant

                                       Versus

   • State of Chhattisgarh Through              Police   Station   Piperchedi,    Dist.
     Gariyaband, Chhattisgarh.

                                                                    ---- Respondent

       For Appellant            :       Shri J.K. Gupta, Advocate.
       For State/Respondent     :       Shri Aakash Gupta, Panel Lawyer.




                Hon'ble Shri Justice Arvind Singh Chandel
                              Judgment on Board

12/08/2021

1. This appeal has been preferred against the impugned judgment dated

25/11/2017 passed in Sessions Trial No.11/2017 by the Additional

Sessions Judge, (C.G.) wherein appellant has been convicted and

sentenced as under :

Conviction Sentence

U/s 450 of the I.P.C. R.I. for 3 years & fine amount of Rs.200/- with default stipulations.

U/s 363 of the I.P.C. R.I. for 3 years & fine amount of Rs.200/- with default stipulations.

U/s 366 of the I.P.C. R.I. for 5 years & fine amount of Rs.

500/- with default stipulations.

U/s 376(1) of the I.P.C. R.I. for 7 years & fine amount of Rs.

500/- with default stipulations.

U/s 4 of POCSO Act, R.I. for 7 years & fine amount of Rs.500/- with default stipulations.

All sentences to run concurrently.

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

was about 15 years. According to the entries in Dakhil Kharij Panji,

vide Ex.P-15C date of birth of the prosecutrix is mentioned as

22.04.2000. Date of incident is 07.06.2015. According to case of the

prosecution, on 04.06.2015 at about 23:00 hours, when prosecutrix

was sleeping at her house with her grandmother namely Mangli Bai

(PW-8), accused/appellant entered in the house and forcibly took out

the prosecutrix to a nearby deserted place and committed forcible

sexual intercourse with her. Thereafter, appellant fled away from the

spot and the prosecutrix while returning house was seen by Kejauram

(PW-4). She narrated the entire incident to Kejauram and then to her

family members. On 10.06.2015, F.I.R. vide Ex.P-4 was lodged by the

prosecutrix (PW-2) against appellant. Thereafter, she was medically

examined by Dr. B. Bara (PW-16). Statement of the prosecutrix and

other witnesses were recorded under Section 161 of Cr.P.C. After

completion of the investigation, a charge-sheet was filed. To prove the

guilt of the accused/appellant, prosecution has examined as many as

16 witnesses. No defence witness has been examined. Statement of

appellant under Section 313 of the Cr.P.C. was recorded, wherein

accused/appellant has pleaded innocence and false implication.

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

the appellant as mentioned in paragraph 1 of this judgment. Hence,

this appeal.

4. Learned Counsel appearing on behalf of the appellant submits that

appellant is innocent and is falsely implicated in the present case. He

further submits that trial Court has wrongly convicted the appellant

without there being sufficient and clinching evidence against him.

Referring to the statement of prosecutrix, it is argued by learned

Counsel that on its perusal, it appears that there was love relationship

between appellant and prosecutrix and due to this reason, prosecutrix

left her house on her own will and join the company of the appellant at

a deserted place. Further referring to paragraph 8 of cross-

examination of the prosecutrix, it is argued that prosecutrix herself has

categorically admitted the fact that appellant had not done any

wrongful act with her. Despite of that, trial Court has convicted the

appellant. Also, while examining the prosecutrix, doctor has not given

any definite opinion regarding commission of alleged act. Therefore,

conviction of the appellant is 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. Prosecutrix (PW-2) in her Court statement has deposed that on the date of incident, she was sleeping in her house and about 11:00 PM,

appellant entered in her house, tied her mouth with clothes and took

her towards stream and committed rape with her. Thereafter, appellant

left the spot and she returned to her house. During cross-examination,

though, she denied the suggestion that there was love relationship

between her and appellant but she had admitted that on the date of

incident at night, when her grandmother Mangli Bai (PW-8) woke up

and did not find the prosecutrix in the house, then she (grandmother),

alongwith other villagers came out of the house to search her and

reached at the stream. She further admitted that after seeing her

grandmother and other villagers coming, appellant fled away from the

spot and she stayed there. In paragraph 8 of her cross-examination,

she further admitted the fact that appellant had not done any wrongful

act with her. She further admitted that a meeting was held in the village

regarding love relationship between her and appellant and after four

days of the meeting, she lodged F.I.R. vide Ex.P-4 against appellant on

being told by her father. Uncle of the prosecutrix Kejauram (PW-4),

also deposed that when he came to know that her niece (prosecutrix)

was missing, he went towards the stream to search her, then one

Sunder (mama of the prosecutrix) told him that he has seen the

appellant fleeing away. In paragraph 4 of his cross-examination, this

witness also admitted that he has seen the prosecutrix at the spot and

when he asked the prosecutrix, then she replied that she had come to

attend call of nature. He categorically deposed that at the time of

incident, prosecutrix had made no complaint regarding the alleged act.

Mangli Bai, grandmother of the prosecutrix (PW-8) in her Court

statement has deposed that on the date of incident at night, prosecutrix was sleeping with her and when she woke up at about

11:00 PM then she found that prosecutrix was not present in the

house. Later on, other family members searched the prosecutrix and

brought her back to the house. Dr. B. Bara (PW-16) who examined the

prosecutrix has also opined that no injury was found in the body of the

prosecutrix. Hymen of the prosecutrix was old ruptured and no recent

symptom of forcible sexual intercourse was found.

8. On minute examination of statement of above witnesses, it is clear that

though, prosecutrix (PW-2) has admitted the fact that appellant has

forcibly caught her and committed rape with her, but her statement is

not reliable, as it is not in dispute that prosecutrix was sleeping with

her grandmother Mangli Bai (PW-8), and if appellant had forcibly taken

her, then her grandmother Mangli Bai would have awaken. From the

admission made by the prosecutrix, it is also clear that when other

family members and villagers came to search her, then appellant fled

away from the spot and at that time she had not made any complaint

to them regarding the alleged act. From her admission, it is also clear

that there was love relationship between prosecutrix and appellant and

a meeting was held in the village regarding the same. Prosecutrix has

also admitted the fact that appellant has not done any wrongful act

with her. Looking to the entire statement of prosecutrix (PW-2),

Kejauram (PW-4) and Mangli Bai, grandmother of prosecutrix (PW-8),

it appears that there was love relationship between prosecutrix and

appellant and due to this reason prosecutrix herself had left the house

and joined the company of the appellant on the date of incident. There

is no evidence available on record which shows that appellant, in any

manner, had enticed or allured the prosecutrix to join his company.

There is also no evidence available which show that appellant has

committed forcible sexual intercourse with the prosecutrix. Therefore,

findings of the trial Court appears to be not in accordance with the

evidence available on record. Thus, conviction of the appellant is not

sustainable.

9. Consequently, appeal is allowed. The conviction and sentence of the

appellant is set aside and he is acquitted of the charge framed against

him.

10. 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