Chattisgarh High Court

Vinod Kumar vs State Of Chhattisgarh on 17 November, 2022

                                     1

                                                                      NAFR

         HIGH COURT OF CHHATTISGARH, BILASPUR

                  Judgment reserved on : 17/08/2022
                  Judgment delivered on: 17/11/2022


                         CRA No. 642 of 2006

        Vinod Kumar, aged about 23 years, S/o. Jethu Ram Dhiwar,
         Occupation- Labour, R/o. Village- Kopara, Police Station
         Rajim, District Raipur (C.G.)


                                                          ---- Appellant
                                 Versus
        State of Chhattisgarh, through the District Magistrate, Raipur
         (C.G.)
                                                        ---- 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 impugned

judgment of conviction and order of sentence dated

26.08.2006 passed by learned 1st Additional Sessions Judge,

Raipur, Camp Court, Gariyabandh, District Raipur (C.G.) in

Sessions Trial No. 187/2006 whereby and whereunder,

learned Judge acquitted the appellant of Sections 363 & 366

of IPC and convicted him under Section 376 of the IPC and

sentenced him to undergo R.I. for 10 years plus fine of Rs.

2,000/- with default stipulation.

2. Brief facts of the prosecution case are that, at the time of

incident i.e. on 29.01.2006 prosecutrix was aged about 16

years who started residing at her aunt's (Maosi) house at

Village Raka some days prior to the incident. On the date of

incident she came to her Village Kopra from there she went

somewhere without giving information to her parents. On

that, father of prosecutrix namely Puranik Sahu searched

his daughter and came to know that appellant forcefully

abducted her and kept her in his home. On 31.01.2006, he

lodged a report at Police Station Rajim about the incident

and, on that basis, police personnel rushed to the

appellant's house, the prosecutrix was recovered from his

house and Recovery Panchnama (Ex. P/1) was prepared. An

FIR (Ex.P/2) was registered against the appellant under

Sections 363, 366 & 376 of IPC and after Consent (Ex.P/3) of

her father, prosecutrix was sent for medical examination.

After receiving Medical Examination Reports of prosecutrix

(Ex. P/10) and appellant (Ex.P/7) respectively, and after due

investigation, charge-sheet was filed against the appellant

and charges were framed under Sections 363, 366 & 376 of

Indian Penal Code.

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

has examined as many as 11 witnesses and exhibited total

17 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 acquitted the appellant of Sections 363 & 366

of IPC and convicted him under Section 376 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 in its judgment in

para 14 categorically held that the evidence of the

prosecutrix (PW-1) is not reliable but without looking into

material improvement in the evidence of the prosecutrix,

held the appellant guilty for the alleged charge of Section

376 of IPC. The police statement of prosecutrix clearly

indicate her consent because without any intimation she left

her home and started residing at the home of the appellant.

She further contended that as per prosecution case

prosecutrix resided for more than two days in the house of

appellant but she did not raise her voice nor complained to

anyone. Lastly she submitted that the evidence of the

prosecutrix as well as her relatives are not proved by the

prosecution beyond reasonable doubt so conviction of the

appellant cannot be sustained. As the entire evidence shows

that the prosecutrix was a consenting party, the impugned

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

appellant may kindly be acquitted from the alleged charge.

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

placed reliance in the matters of G. Achyut Kumar Vs.

State of Odisha reported in 2020 SCC OnLine Ori 417,

Hem Raj Vs. State of Haryana reported in (2014) 2 SCC

395 & Maheshwar Tigga Vs. State of Jharkhand

reported in (2020) 10 SCC 108.

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

impugned judgment of conviction and order of sentence of

the Court below convicting the appellant under Section 376

of the IPC, being based on the material available on record.

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

records including the impugned judgment.

9. It is clear from the record that prosecutrix (PW-1) stated in

her statement before the trial Court in paras 1 & 2 that the

appellant forcefully abducted her and committed sexual

intercourse but in para 7 of her cross-examination she

herself admitted that appellant asked her to flee, on that,

being afraid she consumed poison and was admitted to

hospital. Again in paras 9 & 10 she admitted that when she

was in the house of appellant, her family members duly

visited to the house of appellant and the police personal

reached there on the very next day. He stated in para 13

that:-

Þ;g dguk lgh gS fd eSus vius iqfyl c;ku Ikzn'kZ Mh-1 esa ;g crk;h Fkh eSa vius

NksVs HkkbZ ls lkFk [ksr x;h Fkh vkjksih vius xk<h ds ikl [khp dj yk;k ;fn ;g

ckr esjs izn'kZ Mh-1 esa ugha fy[k gS mldk dkj.k eSa ugha crk ldrhA

In Ex. D/1 prosecutrix stated in B to B part that the

appellant many times established physical relations with her

in assurance of marriage. Again she stated from C to C part

that appellant used to take her in his house at day time and

in the absence of any person he used to establish physical

relation and would state to perform marriage and from

Sunday he kept me with him and stating to perform

marriage. But in para 12 of her cross-examination she

denied the above-stated statement. Even her father Puranik

Sahu (PW-2) has also denied his police statement (Ex. D/2)

10. Learned trial Court found in para 11 that the age of the

prosecutrix is above 19 years and the charges under

Sections 363 & 366 of IPC were not proved against the

appellant but learned trial Court convicted the appellant

under Section 376 of IPC.

11. In Krishan Kumar Malik v. State of Haryana (2011) 7 SCC

130, Hon'ble Apex Court held that to hold an accused guilty

for commission of an offence of rape, the solitary evidence

of the prosecutrix is sufficient provided the same inspires

confidence and appears to be absolutely trustworthy,

unblemished and should be of sterling quality. In the present

case having gone through and considered the deposition of

the prosecutrix (PW-1) and her father (PW-2) this Court find

that there are material contradictions. Not only there are

material contradictions, but even the manner in which the

alleged incident has taken place as per the version of the

prosecutrix is not believable. The learned trial Court found

that prosecutrix is a major lady and acquitted the appellant

of Sections 363 & 366 of IPC.

12. Kotwar Chetan Lal Devraj (PW-4) stated in examination-in-

chief that:

ÞyMdh dk ukuk vkSj pkpk cq/kk# esjs dks cqykus vk;s oks yksx esjs dks

cksys fd gekjh yMdh 'kk;n fouksn ds ;gka gS ge yksx dks ugha fn[kkuk

pkgrs gSA rqe yksx pyksxs rks njoktk [kksy ds fn[kk;sxhA fQj eSa mu yksxks

ds lkFk vkjksih ds ?kj x;kA fouksn dh cgu igys >wB cksyh vkSj ckn esa

njoktk [kksy ds yMdh dks crk;h vkSj ge yksxksa dks fn[kkbZA yMdh ds

ifjokj okys Hkh ogka igqap x;s FksA ge yksxks us yMdh dks cgqr le>k;k

fdUrq yMdh ugha ekuh vkSj ml fnu vkjksih fouksn ds ?kj esa gh FkhA fQj

ge yksx vius vius ?kj pys x;sAß

It is clear from the statements of Kotwar Chetan Lal Devraj (PW-4),

prosecutrix (PW-1) and her father (PW-2) that prosecutrix was

consenting party and she went with the appellant with her own

will to live with him in his house.