Chattisgarh High Court

Ganesh Ram vs The State Of Madhya Pradesh on 8 October, 2021

                                         1

                                                                          NAFR


              HIGH COURT OF CHHATTISGARH, BILASPUR


                            CRA No. 2063 of 1999
                       Order reserved on : 06/09/2021
                      Order delivered on : 08/10/2021
      Ganesh Ram, S/o Milouram, Aged About 30 Years, Occupation-
       Agriculturist, R/o Village- Boergaon, Tahsil & District-
       Mahasamund, M.P., (now C.G.)
                                                                 ---- Appellant
                                       Versus
      The State of Madhya Pradesh (now C.G.), through Police
       Station- Mahasamund.
                                                              ---- Respondent

For Appellant                      :         Mr. Rahul Mishra, through
                                             Legal Aid
For Respondent/State               :         Mr. B.P. Banjare, Dy. G.A.

                     Hon'ble Smt. Justice Rajani Dubey
                                  CAV Order
08.10.2021

1. Present appeal is preferred against the impugned judgment of conviction and order of sentence dated 24.12.1998 passed by First Additional Sessions Judge, District- Mahasamund (C.G.) in Sessions Trial No. 414/1993 whereby, the trial court has convicted and sentenced the appellant as under:-

 S.No.        Conviction                          Sentence
     1.         Under        Rigorous Imprisonment for 8 years and to pay
             Section 376    fine of Rs. 2000/-, in default of payment of fine,
              (1) of IPC                 4 months additional R.I.

2. Brief facts of the case are that on the date of incident, at about 10-11.00 A.M., when the prosecutrix was cutting grass in the field of Vena Bai at Village Boergaon, accused/appellant came there and after pushing her on the ground, forcibly committed rape on her. She has

stated that the accused gaged his mouth and when she bite him, villager Sukalu came there and the accused ran away. Thereafter, she shouted and ran towards her house and narrated the incident to her mother Keja Bai (PW-9) and brother Kamta Sahu (PW-10). FIR (Ex.P/3) was registered against the appellant under Section 376 (1) of IPC. Spot-map was prepared vide Ex. P/8. Dr. Amita Jha (PW-16) has medically examined the prosecutrix (PW-5) and gave her report (Ex. P/22). Dr. Omprakash Dubey (PW-7) examined the appellant and gave his report vide Ex. P/6 according to which the appellant is found capable of performing sexual intercourse. After investigation, charge- sheet was filed against the appellant and charges were framed against him under Section 376 (1) of IPC.

3. So as to hold the accused/appellant guilty, the prosecution has examined as many as 16 witnesses. 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. On the basis of oral and documentary evidence, trial court has convicted the appellant under Section 376 (1) of IPC and sentenced him as mentioned in para 1. Hence, this appeal filed by the appellant.

5. Learned counsel for the appellant submits that the impugned judgment is contrary to the facts, law and circumstances of the case. Learned court below failed to consider that the prosecution could not prove its case beyond reasonable doubts and the appellant deserves to be acquitted. Learned court below has failed to consider the fact that the FIR has been lodged after a delay of 7 hours and no sufficient cause has been shown for delay in lodging the FIR. The learned trial court did not appreciate the oral and documentary evidence properly and there is material contradiction in the evidence of the prosecutrix (PW-5) and other witnesses which makes the whole prosecution story doubtful. Medical report also does not support the prosecution case. Findings of the trial court are erroneous and bad in law, therefore, the appellant deserves to be acquitted and the impugned judgment is liable

to be set aside.

6. Per contra, learned counsel appearing for the State supported the impugned judgment and submits that the sentence awarded by the trial court is just and proper and requires no interference.

7. Heard learned counsel for the parties and perused the material available on record including the impugned judgment.

8. In the present case, prosecutrix (PW-5) has stated in her examination-in-chief about the incident but she has stated in para 8 of her cross-examination that,

"vfHk;qDr us esjs lkFk vk/kk ?kaVk xyr dke fd;k FkkA lqdkyw bl chp dc vk x;k Fkk ;g eq>s ugha ekyweA ftl le; vfHk;qDr ds cqjk dke djus ds ckn eSa mBh rks lqdkyw us vkokt ekjh Fkh rks eSua s lqdkyw dks djhc 30 dne dh nwjh ij ns[kk FkkA ;g lgh gS fd eSua s ?kVuk ds ckn vius diM+ksa dk mBdj >kM+k FkkA ;g lgh gS fd tc vfHk;qDr esjs lkFk cqjk dke dj jgk Fkk rks lqdkyw us ,d vkokt yxkbZ Fkh vkSj vfHk;qDr cqjk dke dj pqdk FkkA rHkh lqdkyw us ,d vkokt yxkbZ FkhA"

9. Dr. Amita Jha (PW-16) has medically examined the prosecutrix (PW-5) and gave her report vide Ex.P/22. She opined that there is no internal or external injury found on the body of the prosecutrix and no definite opinion can be given about the recent sexual intercourse as she is habitual to sexual intercourse.

10. Prosecutrix (PW-5) has stated in her examination that she informed to Binda Bai (PW-14) and Nirmala Bai (PW-15) about the incident but they did not support the prosecution case and have stated in their examination that prosecutrix did not tell anything about the incident and have been declared hostile.

11. Keja Bai (PW-9), mother of the prosecutrix has stated in her examination that,

1. "ftl ij ls eSa viuh yM+dh iqUuhckbZ ls iwaNh fd D;ksa jks jgh gksA rc og crkbZ fd ?kkl dkVrs le; vfHk;qDr x.ks'kjke us dgk Fkk fd esjs ns[ks gq, ?kkl D;ksa dkV jgh gksA rks eSaus vfHk;qDr ls dgk Fkk fd ;g ?kkl fdlh dk [kjhnk gqvk ugha gSA mlds ckn vfHk;qDr us iqUuhckbZ ds lkFk [khaprku fd;k FkkA"

2. ";g lgh gS fd tc eSua s vius yM+dh iqUuhckbZ ls iwaNk Fkk rks mlus crk;k Fkk fd x.ks'kjke us mls [ksr esa iVd fn;k Fkk vkSj mlds lkFk cqjk dke dj fn;kA"

12. Kamla Bai (PW-10), sister of prosecutrix has stated in para 3 of her examination-in-chief that,

"eq>s ;kn ugh gS fd eSaus iqfyl dks ;g crk;k Fkk ;k ugha fd] esjh cgu crkbZ fd] x.ks'kjke us mls tcju [ksr ds esM+ esa iVd fn;k Fkk vkSj cqjk dke fd;k FkkA"

13. Mother and sister of the prosecutrix have admitted the fact that dispute took place between the appellant and the prosecutrix (PW-5).

14. Prosecutrix (PW-5) has admitted in her cross-examination that,

7. "tc eSaus vfHk;qDr ls dgk Fkk eSa ?kkl dkV jgh gwa rks vfHk;qDr viuh

dkaoj esM+ esa xkM+dj vk;k FkkA"

12. "vfHk;qDr us eq>s /kedh [ksr esa nh FkhA ;g lgh gS fd tc fjiksVZ

djus xbZ Fkh rc eq>s vfHk;qDr }kjk /kedh fn;s tkus dh ckr ;kn FkhA"

15. Dr. Alka Pardal (PW-6) has examined the x-ray report of the prosecutrix and gave her report vide Ex.P/5 and opined that the age of the prosecutrix is about 16 years. However, age of the prosecutrix is not disputed in the present case but it is well settled principle of law that as per the examination of the radiologist, the bony age of the prosecutrix is about 16 years, therefore, there may be a possibility that her age was three years more or less than 16 years and her age was over 18 years. This court has held in the matter of Parmeshwar v. State of Chhattisgarh reported in (2015) 1 High Court Cases (Chh) 592 : 2015 SCC Online Chh 188 in para 15 which reads as under:-

"In a rape case the testimony of the prosecutrix must be reliable and inspired confidence, it should be worthy of credit and it should not suffer from basis infirmity and the probability factors should also not render it untrustworthy of credence. The medical evidence and FSL report as have come in the present case completely belies the testimony of the prosecutrix and renders entire prosecution case doubtful."

16. Prosecutrix (PW-5) has admitted in her examination that Sukalu reached on the spot and he can be seen from near about 30 steps away from her. The Independent witnesses did not support the case of the prosecution and statement of the prosecutrix is also not reliable. The medical evidence also does not support the prosecution case. In the present case, prosecution has failed to prove its case beyond reasonable doubt against the appellant.

17. As discussed above, the offence punishable under Section 376(1) of IPC is not sustainable and prosecution has failed to prove the offence beyond reasonable doubts, and, therefore, the appeal is allowed and the impugned judgment and order of conviction and sentenced passed by the learned court below is hereby set aside and the appellant is acquitted of the charges levelled against him. The accused/appellant is reported to be on bail. His bail bonds stand discharged. Fine be refunded if, any deposited by the appellant in the trial court.