Dineshwar Prasad vs State Of Chhattisgarh

Challenge in this appeal is to the judgment of conviction and order of sentence dated 31.01.2002 passed by the learned 1st 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.

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.

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.

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.

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.

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.

Heard learned counsel for the parties and perused the material available on record.

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 “अभियुक्त उसके पूर्व भी मेरे बाड़ी में आता जाता था। मैने इसलिए कोई हल्ला गुल्ला शोर शरबा नही किया। अभियुक्त ने मुझे लिटा दिया और मैं चुपचाप लेटी रही। और अभियुक्त जब उठकर चला गया तब भी मैने हल्ला गुल्ला नही किया”. 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.

The Hon’ble Apex Court in the matter of Krishan Kumar Malik vs State of Haryana (2011) 7 SCC 130 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.

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 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.

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.

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.