Suraj Yadav @ Golu vs State Of Chhattisgarh

Challenge in this appeal is to the judgment of conviction and order of sentence dated 06.08.2019 passed by the learned Additional Sessions Judge (FTC), Durg in Special Criminal Case No.147/2016, whereby the appellant has been convicted under Sections 450, 376 (2) (i) & 376 read with Section 511 of IPC and sentenced to undergo as under:-

Sr.

Sentence u/S

Conviction

1.

450 of IPC

RI for 7 years with fine of Rs.500/- and in default of fine amount, additional RI for 2 months

2.

376 (2) (i) of IPC

RI for 10 years with fine of Rs.500/- and in default of fine amount, additional RI for 2 months

3.

376 read with

Section 511 of IPC

RI for 7 years with fine of Rs.500/- and in default of fine amount, additional RI for 2 months

Brief facts of the case are that on 31.08.2016 when the mother of the prosecutrix had gone to perform work in rolling mill and brother Roshan Verma had gone out of the house and father had also gone in the vicinity, at about 5:30 to 6 pm the appellant entered into the house of the prosecutrix, gagged her mouth and committed forcible sexual intercourse with her. After sometime, the father of the prosecutrix came there while calling prosecutrix’s name, then the appellant flew away from the place of occurrence and was also seen by the father of the prosecutrix. Subsequently after about one month, a report was lodged against the appellant.

The prosecutrix was sent for medical examination. The appellant as well as the prosecutrix were sent for medical examination and spot map was also prepared. After completion of charge sheet, charges were framed against the appellant for the aforesaid offences.

In order to prove the guilt of the accused/appellant, the prosecution examined as many as 9 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 convicted and sentenced the appellant for the aforesaid offences, 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 as well as evidence available on record. The offence under Sections 450 & 376 read with Section 511 of IPC is not made out against the appellant in any corner of law. The learned Trial Court has convicted the appellant on the basis of statement of PW-6-Leela Verma, which is not reliable. The learned Trial Court has failed to consider that the prosecutrix was in love affair with the appellant and further has failed to consider the medical evidence available on record as well. The prosecution has failed to prove the ingredients of Sections 450 & 376 read with Section 511 of IPC. The statements of the prosecution witnesses are also not reliable. There are material contradictions and omissions in their statements. Therefore, the judgment passed by the learned Trial Court may kindly be set aside.

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 complainant Parmeshwar Verma (PW-1) stated in his evidence in para 2 as under:-

In the cross-examination, he denied the suggestions of prosecution and stated that the accused had not committed anything wrong in front of him and previously also he had not done anything wrong, as such this witness was declared hostile. He also denied his police statement from Part A to A of Ex-P/8.

In her 164 statement, she stated that prior to one month of the this incident as well, the accused had come to her house and was trying to commit rape with her but at the same time her sister came there, upon which the accused flew away from the place of occurrence, but the said incident was not reported and even the present incident was reported after about one month of the incident.

It is clear from the statements of the prosecutrix that she did not state about commission of rape by the appellant before the Magistrate. Dr. Babita Saxena (PW-2) examined the prosecutrix on 01.09.2016 and opined that no definite opinion can be given regarding recent sexual intercourse and gave her report vide Ex-P/9. She did not find any injury in private part of the prosecutrix or any sign of recent sexual intercourse and she advised for FSL examination. In FSL report (Ex-P/24), no semen was found on Article A,B,C,D & E. The learned Trial Court also found that the medical report does not support the prosecution case and inspite of the same, the appellant was convicted only on the basis of the statement of the prosecutrix.

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. But in the present case, the prosecutrix changed her statement every time and before the Magistrate, she stated only about attempt of rape. In her examination-in-chief, she stated that on the date of incident, the appellant was only trying to commit rape and the incident of rape was prior to one month of lodging report. In her cross-examination, she admitted the suggestions of defence and stated that the appellant never committed rape with her but when the Trial Court asked regarding the incident then she stated that whatever she stated in her examination-in-chief is true. Her father Parmeshwar Verma (PW-1) also stated before the Trial Court that the appellant was only trying to commit rape with her daughter. The medical report also does not support the prosecution case. In these circumstances, the prosecution has failed to prove its case beyond all reasonable doubt against the appellant for the offence punishable under Section Section 376 (2) (i) of IPC, whereas for remaining offences punishable under Sections 450 and 376 read with Section 511 of IPC, the prosecution has been able to prove its case against the appellant.

In view of the foregoing discussions, as far as the offence punishable under Section 376 (2) (i) of IPC is concerned, the finding of learned Trial Court is not based on proper appreciation of oral and documentary evidence available on record, as such the conviction of the appellant under Section 376 (2) (i) of IPC and sentenced imposed thereunder is hereby set aside and the appellant is acquitted of the said charges, whereas for remaining part of offence, his conviction is maintained. The appellant is in jail since 02.09.2016 i.e. for more than 6 years, as such he has already undergone more than half of the jail sentence, therefore, for the remaining offences punishable under Sections 450 and 376 read with Section 511 of IPC, he is sentenced to the period already undergone by him.

In the result, the appeal is partly allowed. The conviction of the accused/appellant under Section 376 (2) (i) of IPC and sentenced imposed thereunder is hereby set aside and he is acquitted of the said charges, whereas for the remaining offences punishable under Sections 450 and 376 read with Section 511 of IPC, his conviction is maintained, however, he is sentenced to the period already undergone by him. The accused/appellant is in jail. He be released forthwith if he is not otherwise required to be detained in any other offence.