Omprakash Verma vs State Of Chhattisgarh
2022 Latest Caselaw 7199 Chatt

                                    1

                                                                     NAFR

        HIGH COURT OF CHHATTISGARH, BILASPUR

                  Judgment reserved on : 14/09/2022
                 Judgment delivered on:      01 /12/2022


                         CRA No. 1453 of 2021
      Omprakash Verma S/o Shri Santu Verma, Aged About 23
       Years, R/o Gram - Bahera (Ghivri) Police Station - Bemetara
       District Bemetara Chhattisgarh.
                                                         ---- Appellant
                                Versus
      State of Chhattisgarh Through District Magistrate, Bemetara
       District Bemetara Chhattisgarh.
                                                       ---- Respondent

For Appellant : Ms. Indira Tripathi, Adv.

For State
[[
                                :       Mr. B.P. Banjare, Dy. G.A.

                  Hon'ble Smt. Justice Rajani Dubey
                             CAV Judgment

1. The instant appeal has been preferred against the judgment

of conviction and order of sentence dated 12.11.2021

passed by learned 1st Additional Sessions Judge (FTC),

Bemetara, District Bemetara (C.G.) in CIS No. Session Case -

36/2020 whereby and whereunder, learned Judge convicted

the appellant under Sections 376, 450 & 506 Part II of the

IPC and sentenced him as under:-

Section Sentence U/s. 376 of IPC R.I. for 10 years and fine of Rs. 1,000/- with default stipulation.

U/s. 450 of IPC R.I. for 05 years and fine of Rs. 500/- with default stipulation.

U/s. 506-II of R.I. for 1 year and fine of Rs. 500/- with IPC default stipulation.

2. Brief facts of the prosecution case are that, on 16.06.2020

at about 11:50 PM, prosecutrix filed written report at Police

Station Bemetara on the ground that on 16.06.2020 at about

10 PM, when her husband had gone to attend marriage

function at village Baiji, at that time, accused/appellant Om

Prakash Verma, taking the advantage of her loneliness

entered her house, threatened her for dire consequences

and committed rape with her. After some time, her husband

returned home. He saw the appellant with the prosecutrix

committing the alleged crime. Seeing the husband of the

prosecutrix, appellant ran away from there. On the basis of

said report, offence was registered against the appellant and

after completion of investigation, charge-sheet was filed and

charges were framed against him under Sections 450, 506

Part II and 376 of IPC.

3. So as to hold the accused/appellant guilty, the prosecution

has examined as many as 12 witnesses and exhibited total

24 documents. 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. After examination of oral and documentary evidence,

learned Judge convicted the appellant under Sections 376,

450 & 506 Part II of the IPC and sentenced him as

mentioned above in para 1 of this order. Hence, the present

appeal filed by the appellant.

5. Learned counsel for the appellant submitted that the

impugned judgment of conviction and order of sentence is

contrary to the material evidence available on record. She

further contended that learned trial Court failed to

appreciate the evidence of the prosecutrix (PW-1) & her

husband Aajuram Verma (PW-2). It is clear from the

evidence that mother--in-law, father-in-law, brother-in-law,

second wife of prosecutrix's husband and children were

present in the house at the time of alleged incident but the

prosecution did not make witness any of them. It is further

submitted that on the date of incident newly wedded wife of

the present appellant had come just after the marriage in

the home of appellant and function of Dharam Tika

(Reception) was going on in the presence of number of

persons, so, it clearly appears that prosecutrix has falsely

implicated the appellant on undue pressure of her husband

because her husband has suspected when he saw the

prosecutrix talking with appellant's mobile phone. The

prosecutrix admitted this fact that she used the mobile

phone of the appellant to talk with her relative. Furthermore,

medical report also not supported the prosecution case.

Learned trial Court erred in considering the overall

circumstances of the case, therefore, the impugned order

passed by the learned trial Court be set-aside and the

appellant may kindly be acquitted from the alleged charges.

6. In support of her argument learned counsel for the appellant

placed reliance in the matters of Sadashiv Ramrao Hadbe

Vs. State of Maharashtra and Another reported in

(2006) 10 SCC 92.

7. On the other hand, learned State counsel has supported the

impugned judgment of conviction and order of sentence of

the Court below and submitted that the prosecutrix had no

ulterior motive against the appellant and her statement is

reliable, so the appellant had rightly been convicted by the

trial Court.

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

records including the impugned judgment.

9. The prosecutrix (PW-1) stated in her examination in chief

that at about 10 PM the accused entered her house seeing

her alone, threatened to kill her and forcibly raped her and

after about five minutes when her husband reached there he

saw the accused committing rape on her, seeing him,

appellant ran away from there. Husband of the prosecutrix

Aajuram Verma (PW-2) also admitted the same fact in his

examination-in-chief stating that entering the room of his

house appellant was committing sexual intercourse with her

wife and when the appellant saw him, at once, he ran away

from there. His wife/prosecutrix stated him that appellant

was committing rape forcibly.

It is clear from the evidence of prosecutrix (PW-1) and

her husband Aajuram Verma (PW-2) that when appellant

was committing sexual intercourse with prosecutrix, at that

time husband of the prosecutrix reached there and saw the

incident.

10. The prosecutrix admitted in her cross-examination that on

the date of incident reception function of the appellant was

going on and she also admitted that her mother-in-law or

father-in-law did not come the spot on her shouting as they

are hard of hearing. The relevant part of cross-examination

of prosecutrix is as under:-

;g lgh gS fd vkjksih dk fookg gks pqdk gS vkSj ;g dguk lgh gS

fd ?kVuk fnukad dks gh vkjksih dk /keZVhdk (reception) FkkA ;g dguk

lgh gS fd ml fnu vkjksih ds ;gka mlds fj'rsnkj yksx /keZVhdk esa 'kjhd gksus

vk;s FksA

;g dguk lgh gS fd vkjksih eq>s tku ls ekjus dh /kedh fn;k Fkk

ftlls eSa Mj x;h FkhA

esjs fpYykus ij esjs lkl&llqj blfy, ugh vk;s D;ksafd os dku ls de

lqurs gSa vkSj cgjs gSaA

Prosecutrix further stated in para 4 of her cross-examination

that:

;g dguk xyr gS fd ?kVuk fnukad dks ?kVuk ds iwoZ eSa vkjksih ds

eksCkkbYk ls vius nsoj ls ckr dh Fkh lk{kh dk dguk gS fd vkjksih Lo;a esjs

nsoj ls ckr fd;k FkkA ;g dguk xyr gS fd esjs dgus ij vkjksih us esjs nsoj

ls ckr fd;k Fkk] Lor% dgrh gS fd esjh lkl vkjksih dks esjs nsoj ls ckr djus

ds fy, cksyh Fkh] rc og ckr fd;k FkkA ;g dguk lgh gS fd vkjksih esjs cPps

ds pIiy ?kweus ds laca/k esa esjs nsoj ls ckr fd;k FkkA ;g dguk lgh gS fd

mijksDr ckrphr ?kVuk ds iwoZ djhc 9-45 cts gqvk FkkA ;g dguk lgh gS fd

ikSus nl cts rd esjh lkl tx jgh FkhA

Looking to the statement of the prosecutrix and her

husband the whole incident seems to be highly improbable.

Prosecutrix admitted this fact that till 9:45 her mother-in-law

was with her and was talking to her brother-in-law with the

mobile phone of the appellant. Defence suggested that

mobile phone of the appellant was used by the prosecutrix

but she denied the same. It is clear from the statement of

the prosecutrix that at that time, mobile phone of the

appellant was used by prosecutrix and her mother-in-law.

11. Dr. Samta Rangari (PW-11) opined that she did not find any

sign of forcible sexual intercourse and she referred the same

for forensic examination. Forensic examination report (Ex.

P/19) suggested that no semen was found in the articles i.e.

A (Petticote) & B (Slide of prosecutrix). It is clear from the

evidence of the prosecutrix that other family members were

present at the time of incident and it is not possible that if

prosecutrix had raised her voice, her family members would

not have noticed the same. The doctor who examined the

prosecutrix did not find any injury on her body.

12. In the matter of Sadashiv Ramrao (supra), Hon'ble Apex

Court held in para 9 as under:-

"It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole

testimony of the prosecutrix when the entire case is improbable and unlikely to happen."

13. In this case also, the evidence produced by the prosecutrix

is not believable. FSL report has also not supported the

prosecution case. The learned trial Court convicted the

appellant only on the basis of statement of prosecutrix, but

it is clear form cross examination of prosecutrix that her

statement is not reliable.

14. Taking an overall view of the matter, this Court finds that

the prosecution has failed to establish the guilt against the

appellant under Sections 376, 450, 506 Part II of the IPC

beyond reasonable doubts. The finding of the learned trial

Court convicting and sentencing the appellant under the

aforesaid offence is not in accordance with proper

consideration of oral and documentary evidence available

on record and is liable to be set-aside and the appellant is

entitled to the benefit of doubt.

15. In view of the above discussion, the appeal is allowed. The

Impugned judgment convicting and sentencing the

accused/appellant from the charges as mentioned above is

set-aside. The appellant is acquitted of the charges levelled

against him. The appellant is reported to be on bail. His bail

bond furnished by him stand discharged.

Sd/-

(Rajani Dubey) JUDGE V/-