Chattisgarh High Court
Dineshwar Prasad vs State Of C.G on 5 August, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No.378 of 2002
Judgment reserved on : 24.06.2022
Judgment delivered on : 05.08.2022
Dineshwar Prasad, S/o Samaliya Ram Nishad, aged about 22
years, R/o Village Salawni, P.S. Arjunda, District Durg (C.G.)
---- Appellant
Versus
State of Chhattisgarh, through P.S. Arjunda, District Durg (C.G.)
---- Respondent
For Appellant Mr. H.A.P.S. Bhatia, Advocate
For Respondent Mr. Lalit Jangde, Dy. GA
Hon'ble Justice Smt. Rajani Dubey
C A V Order
1. Challenge in this appeal is to the judgment of conviction and order
of sentence dated 31.01.2002 passed by the learned 1 st Additional
Sessions Judge, Durg in ST No.118/2001, whereby the appellant
has been convicted under Section 376 of IPC and sentenced to
undergo RI for 10 years with fine of Rs.500/- and in default of fine
amount, 3 month's additional RI.
2. Brief facts of the case are that the prosecutrix was residing with her
parents, brother and sister in Village Saloni. On 09.02.2001, her
parents had gone to Bhilai, whereas her younger brother had gone
in the vicinity (basti) and her sister had gone to school. The
prosecutrix was guarding the house. At about 1:30 to 2 pm when
she was applying oil on her body, the accused Dineshwar entered
into her room, closed the doors from inside, removed her clothes
and committed sexual intercourse with her. At that time, nobody was
in the house, therefore, the prosecutrix did not tell about the incident
to anybody. Her parents returned to home on 13.02.2002, then she
narrated the whole incident to her parents and thereafter the report
was lodged against the appellant vide Ex-P/1. The prosecutrix was
sent for medical examination. The Medical Officer examined her and
gave her report vide Ex-P/7. The accused/appellant was also
examined by the Medical Officer and as per Ex-P/14, he was found
capable for sexual intercourse and spot map was also prepared vide
Ex-P/3. After completion of charge sheet, charges were framed
against the appellant under Sections 376 & 450 of IPC.
3. In order to prove the guilt of the accused/appellant, the prosecution
examined as many as 7 witnesses. Statement of the
accused/appellant was also recorded under Section 313 of CrPC, in
which he denied the circumstances appearing against him in the
prosecution case, pleaded innocence and false implication. The
accused/appellant did not examine any witness in his defence.
4. The learned Trial Court after appreciating the oral and documentary
evidence available on record acquitted the appellant for the offence
punishable under Section 450 of IPC and convicted him under
Section 376 of IPC, as mentioned in para 1 of this judgment. Hence,
this appeal has been preferred by the appellant.
5. Learned counsel for the appellant submits that the impugned
judgment is contrary to law, facts and circumstances of the case.
The learned Trial Court should have seen the fact that the FIR was
lodged after 6 days of the incident and no plausible explanation for
delay caused was offered by the prosecution in this regard, as such
in absence of any plausible explanation, the story of the prosecution
should not have been believed. The statement of prosecutrix also
does not support the prosecution case, wherein she stated that she
told her parents about the incident on 13.02.2021, whereas the FIR
was not lodged on that day and the same was lodged on
15.02.2021. He further submits that there are several omissions and
contradictions in the statements of the prosecutrix (PW-1), but the
learned Trial Court ignoring the same convicted the appellant, which
is bad in law as well as facts. It is clear from all the evidence that the
prosecutrix was above 18 years of age and she admitted in her
cross-examination that at the time of incident, she did not feel bad
at the time of intercourse, but later on when her father insisted her,
the report was lodged. It is a clear evidence of her consent, but the
learned Trial Court did not appreciate this fact. Therefore, the
impugned judgment of conviction and sentence is not sustainable in
the eyes of law and the same deserves to be set aside and the
appellant be acquitted of the charges levelled against him.
6. On the other hand, learned State counsel supports the impugned
judgment of conviction and order of sentence and submits that the
prosecution has proved its case beyond reasonable doubt,
therefore, the appeal deserves to be dismissed.
7. Heard learned counsel for the parties and perused the material
available on record.
8. The prosecutrix (PW-1) stated in her examination-in-chief that the
accused committed forcible sexual intercourse with her. In para 13
of her cross-examination, she stated that " vfHk;qDr mlds iwoZ Hkh esjs
ckM+h esa vkrk tkrk FkkA eSus blfy, dksbZ gYyk xqYyk 'kksj 'kjkck ugha
fd;kA vfHk;qDr us eq>s fyVk fn;k vkSj eSa pqipki ysVh jghA vkSj vfHk;qDr
tc mBdj pyk x;k rc Hkh eSus gYyk xqYyk ugh fd;kA ". She further
stated that on that day, her parents were not at home and after 5-6
days when they returned back, then she told the incident to them.
She also admitted that her uncle's house is situated near her house,
but she did not tell her uncle or aunt about the incident. In para 14,
she stated that at the time of incident, she did not feel bad but later
on when her father insisted, the report was lodged. Thus,
considering the statement of the prosecutrix, she seems to be the
consenting party. PW-6 Dr. Smt. Bhanu Deshlahare opined no
internal or external injuries. When a query was done to the doctor
vide Ex-P/7 as to whether the intercourse was done or not, then
vide Ex-P/8, the doctor opined that the intercourse was done with
the prosecutrix. To determine the age of the prosecutrix, the doctor
(PW-6) referred the matter to the Medical Legal Department. Dr. G.
S. Thakur (PW-5) opined that as per x-ray report, the prosecutrix is
aged about 18 years and gave his report vide Ex-P/6.
9. The Hon'ble Apex Court in the matter of Krishan Kumar Malik vs
State of Haryana1 held that to hold an accused guilty for
commission of an offence of rape, the solitary evidence of
prosecutrix is sufficient provided the same inspires confidence and
appears to be absolutely trustworthy, unblemished and should be of
sterling quality.
10. In the case in hand, the statement of the prosecutrix clearly shows
that she was the consenting party. She also did not tell about the
incident to anybody and when her parents returned to home, then
FIR was lodged after 6 days of incident. The Medical Officer did not
find any internal or external injury and when query was done, she
1 (2011) 7 SCC 130
opined that the intercourse was done vide Ex-P/8. The prosecution
has failed to prove this fact that the prosecutrix was below 16 years
of age and as per PW-5 Dr. G. S. Thakur and his report (Ex-P/6),
the prosecutrix was aged about 18 years. In the appearing
circumstances, her evidence is not credible, as such the prosecution
had to prove its case against the appellant beyond reasonable
doubt, which they have failed to do so.
11. In view of the foregoing discussions, particularly the statements of
the prosecutrix, the medical evidence available on record as also
the conduct of the prosecutrix, this Court has no hesitation to say
that the prosecutrix was a consenting party to the act of the
appellant. In these circumstances, the appellant is definitely entitled
to be acquitted of the charges leveled against him by extending him
benefit of doubt.
12. In the result, the appeal is allowed. The conviction of the
accused/appellant under Section 376 of the IPC and sentenced
imposed thereunder are hereby set aside. He is acquitted of the
said charges by extending him benefit of doubt. The
accused/appellant is on bail. His bail bonds shall stand discharged.
Sd/-
Rajani Dubey
Judge
Nirala
