Vinod Kumar vs State Of Chhattisgarh

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.

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.

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.

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.

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.

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.

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.

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

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:-

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)

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.

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.

Kotwar Chetan Lal Devraj (PW-4) stated in examination-in-chief that:

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.

Dr. Snehlata Shrivastava (PW-8) has opined about recent sexual intercourse but looking to the statements of the father of the prosecutrix and other witnesses it is not proved that appellant has committed sexual intercourse without consent of the prosecutrix. Taking an overall view of the matter, this Court finds that the prosecution has failed to establish the guilt against the appellant under Section 376 of 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.

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 charge levelled against him. The appellant is reported to be on bail. His bail bond furnished by him stand discharged.