Chattisgarh High Court
Naiharsay vs State Of Chhattisgarh on 16 July, 2021
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.51 of 2017
Judgment Reserved on : 5.7.2021
Judgment Delivered on : 16.7.2021
Naiharsay, son of Nouharsay, aged about 28 years, resident of Village
Kumarta, Police Station Kapu, District Raigarh, Chhattisgarh, Presently
resident of Village Thakur Podi, Police Station Kapu, District Raigarh,
Chhattisgarh
---- Appellant
versus
State of Chhattisgarh through Police Station Kapu, District Raigarh,
Chhattisgarh
--- Respondent
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For Appellant : Shri Awadh Tripathi, Advocate
For Respondent : Shri Amit Singh, Panel Lawyer
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Hon'ble Shri Justice Arvind Singh Chandel
C.A.V. JUDGMENT
1. The instant appeal has been preferred against judgment dated
21.12.2016 passed by the Additional Sessions Judge (FTC),
Raigarh in Sessions Trial No.114 of 2012, whereby the Appellant
has been convicted and sentenced as under:
Conviction Sentence
Under Section 376 of the Rigorous Imprisonment for
Indian Penal Code 10 years and fine of
Rs.10,000 with default
stipulation
2. Case of the prosecution, in short, is that on 30.4.2012, i.e., the date
of registration of First Information Report (Ex.P2), the prosecutrix
(PW3) was 24 years old. On 30.4.2012 itself, she made a written
complaint (Ex.P1) alleging therein that she got acquainted with the
Appellant in July, 2009. She met with him at Village Thakur Podi.
In 2009, on the day of Dhanteras Festival, at about 7:30 p.m., the
Appellant made forcible physical relationship with her. Thereafter,
he apologised for his act and promised to marry her. Considering
his apology to be genuine, she did not make any complaint. Next
day, he took her to his house. There, his parents also assured her
that on completion of her studies, they will perform her marriage
with the Appellant. It is further alleged that thereafter the Appellant
took her to many villages, namely, Patarapara, Kumrata, Miriguda,
Dharamjaigarh, Surungpani and Gerwani and introduced her there
as his wife. He also committed sexual intercourse with her there.
Thereafter, surprisingly, in December, 2011, he refused to marry
her. Prior to that, in July, 2011, a social meeting was convened in
Kilkila Temple in which also he admitted his guilt. On the basis of
the written complaint (Ex.P1), First Information Report (Ex.P2) was
registered. Statements of witnesses were recorded under Section
161 of the Code of Criminal Procedure. On completion of the
investigation, a charge-sheet was filed against the Appellant. A
charge was framed against him.
3. To bring home the offence, the prosecution examined as many as
13 witnesses. Statement of the Appellant was also recorded under
Section 313 of the Code of Criminal Procedure in which he denied
the guilt, pleaded innocence and false implication. No witness has
been examined in his defence.
4. On completion of the trial, the Trial Court, vide the judgment under
challenge, convicted and sentenced the Appellant as mentioned in
1st paragraph of this judgment. Hence, this appeal.
5. Learned Counsel appearing for the Appellant submitted that it is not
in dispute that at the time of alleged incident, the prosecutrix was a
major girl. According to her deposition, the first incident of sexual
intercourse was done with her by the Appellant on the day of
Dhanteras Festival in July, 2009. The written complaint (Ex.P1)
was lodged by her in April, 2012. The delay in lodging the
complaint has not properly been explained. It was further argued
that from the statement of the prosecutrix (PW3), it is established
that physical relationship continued between her and the Appellant
for a long period of about 3 years. Both also visited various places
as husband and wife. But, during this long period, she never raised
any complaint against the Appellant. In July, 2011, when the
Appellant admitted his guilt in a social meeting convened in a
temple, at that time also, she did not raise any complaint against
him. In December, 2011, when the Appellant refused to marry her,
at that time also, she did not make any complaint. Therefore, it is
clear that she was a consenting party and the physical relationship
continued between them with her consent. Placing reliance on
(2020) 10 SCC 108 (Maheshwar Tigga v. State of Jharkhand), it
was submitted that misconception of fact has to be in proximity of
time to the occurrence and cannot be spread over years.
Therefore, it was argued that it cannot be accepted that the
prosecutrix consented to the Appellant for commission of sexual
intercourse for a long period of 3 years on a false promise of
marriage. Since the prosecutrix was a major girl and was a
consenting party, the conviction is not sustainable.
6. On the contrary, Learned Counsel appearing for the State opposed
the submissions put-forth on behalf of the Appellant and supported
the impugned judgment.
7. I have heard Learned Counsel appearing for the parties and
minutely perused the entire material available on record including
the statements of the prosecutrix and other witnesses.
8. It is not in dispute that at the time of first incident, i.e., on the day of
Dhanteras Festival in 2009, the prosecutrix (PW3) was 21 years
old. According to her Court statement, at the time of first incident,
the Appellant committed forcible sexual intercourse with her. Her
statement in this regard is also supported by her sister Shakuntala
(PW8) and brother-in-law Mohanlal (PW6). But, none of these
three made any complaint in this regard. Without there being any
acquaintance between the Appellant and the prosecutrix, the
Appellant dragged her to the school and committed forcible sexual
intercourse with her there appears to be doubtful.
9. As deposed by the prosecutrix (PW3), she and the Appellant visited
Villages Patarapara, Kumrata, Miriguda, Dharamjaigarh,
Surungpani and Gerwani and the Appellant introduced her there as
his wife and made physical relationship with her there. She further
deposed that a social meeting was convened in Kilkila Temple in
July, 2011 in which the Appellant admitted his guilt. Thereafter,
finally, in December, 2011, he refused to marry her. But, she did
not make any report in July, 2011 or in December, 2011. When
engagement of the Appellant with another girl took place and his
marriage was fixed then she made the written complaint (Ex.P1) in
April, 2012. From her above conduct, it appears that whatever
relation continued between her and the Appellant, her consent was
involved therefor. From her statement, it is established that the
physical relationship continued between her and the Appellant for a
long period of 3 years. In July, 2011, the Appellant admitted his
guilt in the social meeting and in December, 2011, he, finally,
refused to marry her, but, she did not make any complaint against
the Appellant on those occasions. Furthermore, from her
statement, it is clear that the physical relationship continued
between them during the period from July, 2011 to December, 2011
also. Even after admitting his guilt by the Appellant in the social
meeting convened in July, 2011, she allowed him to make physical
relationship with her and she did not make any complaint against
him. In December, 2011 also, when he finally refused to marry her,
she did not make any complaint against him. She made the
complaint (Ex.P1) only after his engagement for marriage with
another girl took place. Therefore, her statement that she
consented for the physical relationship on a false promise of
marriage is not acceptable. The evidence clearly establishes that
there was her consent for the physical relationship for the long
period of 3 years. Since she was a major girl and was a consenting
party, the conviction under Section 376 of the Indian Penal Code
imposed upon the Appellant is not sustainable.
10. Consequently, the appeal is allowed. The impugned judgment of
conviction and sentence is set aside. The Appellant is acquitted of
the charge framed against him.
Sd/-
(Arvind Singh Chandel)
JUDGE
Gopal
