Dhyan Singh Gond vs State Of Chhattisgarh
2022 Latest Caselaw 6879 Chatt

                                              1

                                                                                 NAFR

        HIGH COURT OF CHHATTISGARH, BILASPUR

                     Judgment reserved on : 24/08/2022
                     Judgment delivered on: 17/11/2022
                             CRA No. 1 of 2020
      Dhyan Singh Gond S/o Babulal Gond Aged About 27 Years
       R/o Padkhuri, Police Station Gaurella, District Bilaspur,
       Chhattisgarh.
                                                                       ---- Appellant
                                        Versus
      State of Chhattisgarh Through Police Station Gaurella,
       District Bilaspur, Chhattisgarh.
                                                                  ---- Respondent

For Appellant                           :         Mr. Virendra Verma, 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

15.11.2019 passed by learned Additional Sessions Judge,

Pendra Road, District Bilaspur (C.G.) in Sessions Trial No.

21/2019 whereby and whereunder, learned Judge convicted

the appellant under Sections 376 & 450 of the Indian Penal

Code and sentenced him to undergo R.I. for 10 years plus

fine of Rs. 5,000/- and R. I. for 5 years plus fine of Rs. 500/-

respectively, with default stipulation.

2. Brief facts of the prosecution case are that, in the

intervening night of 29/30 June 2018, the husband of the

victim was out of station, at about 1.30 A.M.

accused/appellant entered the house of victim breaking the

door of her house, gagged her mouth and forcibly

committed sexual intercourse with her. Victim raised alarm

whereupon her neighbourer Nanbai (PW-2) came there to

whom she narrated the incident. After two days, husband of

the victim returned to her village and with him she went to

Police Station Gaurella and lodged FIR (Ex. P/1) against the

applicant. With the Consent (Ex. P/3) of the prosecutrix, she

was sent for medical examination. After completion of

investigation, charge-sheet was filed against the appellant

and charges were framed under Sections 376 & 450 of

Indian Penal Code.

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

has examined as many as 10 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 convicted him under Sections 376 & 450 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. He

further contended that learned trial Court erred in relying

upon the statement of the prosecutrix (PW-1) as her

statement suffered from various inherent defects rendering

it wholly unreliable. The prosecution story was neither

supported by circumstantial evidence nor medical evidence.

He further submitted that there is delay in lodging the FIR

but learned trial Court has not given due emphasis on it,

therefore, 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 Hem Raj Vs. State of

Haryana reported in (2014) 2 SCC 395.

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 Sections 376

& 450 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. Prosecutrix (PW-1) in her examination-in-chief has stated

about the rape mentioning that appellant/accused

committed sexual intercourse with her forcefully entering

her house in absence of her husband. She admitted in para

6 that at the time of incident her children were with her. The

door was closed from inside and there was a wooden

supporter (club) in support of the door. In para 8 she further

admitted that when Nanbai (PW-2) came at the spot, the

accused/appellant was not present there. Nanbai (PW-2)

stated in her statement that hearing voice of prosecutrix,

she reached there and saw that appellant was running but

prosecutrix stated nothing about the incident. On being

asked, she stated that Dhyan Singh had entered the house.

The prosecution declared this witness hostile and cross-

examined her but in her cross-examination she denied all

suggestions of prosecution. She also did not support her

Police Statement (Ex.P/6). Except her, Jamuna Gond (PW-4)

has also denied his police statement (Ex. P/8).

10. Dr. Subhadra Paikra (PW-8) opined that prosecutrix is

habitual of sexual intercourse and gave her report (Ex.

P/13). As per prosecution, date of incident is in the night of

29th June 2018 and prosecutrix lodged FIR on 2nd July 2018.

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. But in this

case all independent witnesses have not supported the

prosecutrix statement. In FIR (Ex. P/1) the prosecutrix

stated that appellant has broken the door of her house but

in her Court Statement she stated that only supporter

(wooden club) was broken. Having gone through the records

and considering the deposition of the prosecutrix, this Court

find not only the material contradictions but even the

manner in which the alleged incident has taken place as per

the version of the prosecutrix is not believable. There is

nothing in record to prove that the door was broken. Medical

report has also not supported the prosecution. Any specific

reason has also not been given about the delay in lodging

FIR. Thus, the solitary version of the prosecutrix cannot be

taken as a truth as face value and in the absence of any

other supporting evidence, there is no scope to sustain the

conviction and sentence imposed upon the appellant and

the accused is to be given the benefit of doubt.

12. 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 of IPC beyond

reasonable doubts. The finding of the learned trial Court

convicting and sentencing the appellant under the aforesaid

offence is not sustainable and also is not in accordance with

proper consideration of oral and documentary evidence

available on record and is liable to be set-aside.

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

Impugned judgment convicting and sentencing the

accused/appellant 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/-