Jai Singh vs State Of C.G
2021 Latest Caselaw 3706 Chatt

                                     1

                                                               NAFR

       HIGH COURT OF CHHATTISGARH, BILASPUR

                        CRA No. 298 of 2002

                   Order Reserved on : 30.09.2021
                 Order Delivered on : 15.12.2021

      Jai Singh S/o Bali, aged 32 years, occupation cultivation,
       Resident of village Badalavand, Chuki Bakawand, Thana
       Nagar Nar, District Bastar (C.G.)

                                                        ---- Appellant
                                Versus


      State of Chhattisgarh Through The District Magistrate,
       Bastar at Jagdalpur (C.G.)
                                                  ---- Respondent

For Appellant. - Ms. Seema Singh, Advocate. For Respondent - Mr. Ishwar Jaiswal, P.L.

Hon'ble Smt Justice Rajani Dubey

CAV Order

1. This appeal arises out of the judgment of conviction and

order of sentence dated 03.01.2002 passed by Special

Judge, (Scheduled Castes and Scheduled Tribes)

(Prevention of Atrocities)/ Additional Sessions Judge,

Jagdalpur (C.G.), in Sessions Trial No.515/2000

convicting the accused/appellant under Sections 376 (1)

IPC & sentencing him to undergo R.I. for seven years

with fine of Rs.2,000/-, plus default stipulations.

2. As per the prosecution case, on 11.10.2000 FIR (Ex.P/1)

was lodged by the prosecutrix (PW/1), alleging in it that

on 08.10.2000 at about 11.30 pm, she along with her 3

year daughter was sleeping on platform near the house

and her husband had gone to see V.C.R. saying that he

would come after some time. When the prosecutrix was

in deep sleep, the accused/appellant came there, caught

hold of her hands, gaged her mouth by left hand and

committed forcible sexual intercourse with her. It has

been also alleged that when the sexual intercourse was

being committed, husband of the prosecutrix came there

and on seeing her husband the accused/appellant ran

away from the spot. Based on this, offence under

Sections 376 IPC was registered against the

accused/appellant. On 10.10.2000, the prosecutrix was

medically examined vide Ex.P/2 by Dr. (Mrs.) A. Chandra

Rao (PW/5) who opined that no positive finding of recent

forceful sexual intercourse was noticed and the

prosecutrix is habitual for sexual intercourse. The

accused/appellant was also medically examined vide

Ex.P/4 and was found to be capable of performing sexual

intercourse.

3. After investigation, charge sheet was filed against the

accused/appellant under Section 376 (1) IPC.

4. So as to hold the accused/appellant guilty, the

prosecution examined as many as 06 witnesses.

Statement of the accused/appellant was also recorded

under Section 313 of Cr.P.C. in which he denied the

circumstances appearing against him in the prosecution

case, pleaded innocence and false implication.

5. The trial Court after hearing counsel for the respective

parties and considering the material available on record

has convicted and sentenced the accused/appellant as

mentioned in para-1 of this judgment. Hence, this

appeal.

6. Learned counsel for the appellant submits as under:

(i) That the accused/appellant has been falsely

implicated in the crime in question.

(ii) That even if the entire prosecution case is taken as it

is, prima-facie no case is made out against the

appellant. It has been also argued that when the

husband of the prosecutrix saw the appellant and

prosecutrix in the objectionable condition, the report

has been lodged that too after three days of the

incident.

(iii) That there is contradiction and omission in the

statement of the Prosecutrix (PW/1) and the FIR

(Ex.P/1) and has changed the entire prosecution

story.

(iv) That there is delay of about 3 days in lodging the FIR

and no plausible explanation has been given by the

prosecution in this regard.

(v) That there is contradiction in the statement of

Prosecutrix (PW/1) and her husband Tularam (PW/2)

on material point which shows that the

accused/appellant has been falsely implicated in the

crime in question. Tularam (PW/2) has stated in his

statement that he had seen two persons, one ran

away from the place of incident and the another one

was caught in the house but PW/2 has not stated the

name of second person either in his 161 Cr.P.C.

statement or before the Court below.

(vi) That the appellant has received 26% permanent

disability and on the date of incident there was

plaster on his leg and he could walk only with the

assistance of stick and in such a condition it is not

possible for the appellant to run away from the spot

as has been stated by Prosecutrix (PW/1) and her

husband Tularam (PW/2) in their evidence. Therefore,

the impugned judgment of conviction and order of

sentence is liable to be set aside.

7. On the other hand, learned counsel for the State

supporting the impugned judgment of conviction and

order of sentence submits that the learned trial Court

has rightly convicted the appellant and no interfere is

called for.

8. I have heard learned counsel for the parties and perused

the material available on record.

9. Prosecutrix (PW/1) has stated that on the date of

incident at about 11.30 pm, wen she along with her

daughter was sleeping on the platform near the house,

the accused/appellant came there, pushed her down the

platform and committed forcible sexual intercourse.

When her husband came there and saw the appellant,

he ran away from the spot. The prosecutrix, in para 13

of her evidence, denied the suggestion of defence that

the appellant could not walk due to the accident and

that she is deposing before the Court just to implicate

the appellant falsely. She has also denied the

suggestion that she lodged the report just because the

appellant had removed her from kitchen-garden.

10. Tularam (PW/2) is husband of the prosecutrix. He has

stated in para 6 of his cross-examination that at the time

of incident there were two persons. The appellant, after

seeing him, ran away from the spot and another one

entered into kitchen-garden. He has also stated that in

police station he had told about both the accused

persons but he does not know how the police left

another accused person. In para 9, this witness has

admitted that it's been one year since the appellant's

leg was broken.

11. Mansadan (PW/3) is the villager. He has stated in his

evidence that Tularam (PW/2) had convened a Panchayat

meeting in which appellant and prosecutrix were

present. Prosecutrix told that a thief had entered their

house, then this witness asked as to why the thief had

entered her house. At this stage, this witness has been

declared hostile. In para 3 of his cross-examination, this

witness has stated that the prosecutrix had told that

appellant had entered her house and committed rape

with her.

12. Padam (PW/4) has not supported the case of the

prosecution but stated that in a panchayat meeting the

prosecutrix had told that the appellant has committed

rape with her.

13. Dr. (Smt.) A. Chandrakar (PW/5) examined the

prosecutrix on 10.10.2000 and gave her report Ex.P/2

opining that no positive sign of recent forceful sexual

intercourse was notice in her body and the prosecutrix is

habitual for sexual intercourse.

14. In the instant case, the age of the prosecutrix is 30 years

and she is a married one. It has come in the evidence of

Prosecutrix (PW/1) that prior to the incident, they were

the tenant of appellant and almost 5 years have been

passed leaving his house. In para 2, the Prosecutrix has

stated that when she was sleeping on platform, the

appellant came there, pushed her down the platform

and started committing sexual intercourse, upon which

she told him that as to why he is doing so and if her

husband comes, he would kill her. The evidence of the

prosecutrix makes it crystal clear that though she has

levelled allegation of rape against the accused/appellant

but during the course of sexual intercourse she did not

resist the act of the appellant nor called anyone for help.

The Prosecutrix is not consistent while deposing in the

Court. As per her diary statement and contents of FIR,

the accused/appellant entered her house, caught hold of

her both hands, gagged her mouth and committed

forcible sexual intercourse with her, whereas as per her

Court statement, the appellant first pushed her down the

platform where she was sleeping and then committed

forcible sexual intercourse. It is worth mentioning here

that when the appellant pushed her down, she had

ample opportunity to raise alarm but, according to her

court statement, she could not do so because when she

tried to raise alarm her mouth was gagged by the

appellant. That apart, Tularam (PW/2), husband of the

prosecutrix, developed a new story that he had seen two

persons when he came to his house. The present

appellant, after seeing him, ran away from there and

another entered into kitchen-garden. There is

contradiction and omission in the statements of

prosecutrix PW/1 and her husband PW/2. It is surprising

to note here that the prosecutrix did not utter a single

word about another accused either in 161 Cr.P.C.

statement, in FIR or in the Court statement.

15. As regards commission of rape, Dr. (Smt.) A Chandrakar

(PW/5), who examined the prosecutrix, and gave her

report (Ex.P/2), clearly demonstrate that no recent sign

of forceful sexual intercourse was noticed in the body of

prosecutrix, nor any injury was noticed. It has also come

in the evidence of prosecution witness (PW/2) that it's

been one year since the appellant's leg was broken. In

this context, the disability certificate (Ex.P/13) has been

issued on 04.09.2001 by Dr. B.K. Jha (PW/8), Assistant

Surgeon, Maharani Hospital, Jagdalpur, who has stated

that the appellant was admitted in hospital from

4.06.2000 to 06.06.2000 and total permanent physical

disability of appellant's left leg is 26%. The Doctor has

also stated that the appellant could not walk and run

without the help of stick. Thus, taking into consideration

all the aforesaid facts, the possibility of

accused/appellant being falsely implicated in the crime

in question cannot be ruled out.

16. The findings recorded by the Court below thus appear to

be beyond proper appreciation of the evidence adduced

by the prosecution which cannot have affirmation from

this Court. Since, the prosecution has failed on all fronts

to prove its case beyond shadow of doubts, the benefit,

of course, has to go to the accused/appellant.

17. The appeal is thus allowed, judgment impugned is

hereby set aside and the accused/appellant stands

acquitted of the charges levelled against him. As the

appellant is reported to be on bail, his bail bonds stand

discharged.

Sd/-

(Rajani Dubey) JUDGE Pkd