Omprakash Verma vs State Of Chhattisgarh

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 IPC

R.I. for 1 year and fine of Rs. 500/- with default stipulation.

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.

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.

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.

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.

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.

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.

I have heard learned counsel for the parties and perused the records including the impugned judgment.

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.

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:-

Prosecutrix further stated in para 4 of her cross-examination that:

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.

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.

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.”

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.

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.

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.