Chattisgarh High Court
Sudhakar Patel vs State Of Chhattisgarh on 30 January, 2024
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NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 2187 of 2023
1 - Sudhakar Patel Son Of Surjeet Patel, Aged About 23 Years
Resident Of Dandkarwan, Dubapara, Police Station - Chandaura, District -
Surajpur, Chhattisgarh.
---- Appellant
Versus
1 - State Of Chhattisgarh
Through The Station House Officer, Police Station - Chandaura, District -
Surajpur, Chhattisgarh.
---- Respondent
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For Appellant : Mr. Arvind Kumar Shukla, Advocate.
For State : Mr. Luv Sharma, Panel Lawyer.
Hon'ble Shri Justice Ravindra Kumar Agrawal, J.
Judgment on board 30.01.2024.
1. This appeal arise out of judgment of conviction and sentence dated 03.11.2023 passed by the Additional Sessions Judge Pratappur, District Surajpur, in Session Trial No. 04/2022, whereby the appellant has been convicted for the offence under Section 450 & 376 (1) of IPC and sentenced him as below:-
S.No. Conviction Sentences
1 U/s 450 of IPC R.I. for 05 years and fine of Rs. 500/-, in default
of payment of fine 06 months R.I.
2 U/s 376 (1) of IPC R.I. for 10 years and fine of Rs. 1000/-, in
default of payment of fine 01 year R.I.
2. Brief facts of the care are that on 05.11.2021, the prosecutrix, aged about 22 years has lodged a written report to the out post -2- Revati, Police Station- Chandaura, Dist- Surajpur with the allegation that on 02.11.2021 at about 11.30 PM in the night when she was in her house, the appellant entered into her house and committed forceful sexual intercourse with her. The appellant made a telephonic call in the Mobile Phone of her brother in law and when she replied that she is sleeping, at about 11.50 in the night the appellant entered into the house of the prosecutrix and committed forceful sexual intercourse with her. When she raised alarm her family memebers come there and the appellant fled away from that place thereafter she has lodged the report. On the basis of written report (Ex-P/1) , the FIR (Ex-P/2) was registered for the offence under Sections 450 & 376 of IPC and the Police started investigation. The spot map (Ex-P/3) was prepared by the Police, The spot map (Ex-P/5) was prepared by the Patwari. The prosecutrix was sent for her medical examination to CHC Pratappur where Dr. Abhilasha Kori (PW/6) has examined her and gave her report (Ex-P/9). While examining the prosecutrix, the doctor has not found any injury on her body and opined that there was no sign of struggle present and final opinion about recent sexual act report will be given after FSL. Two slides of veginal smear of the prosecutrix was prepared and handed over to the Police for FSL examination. The numbered FIR has been registered vide Ex- P/10 to the Police Station Chhandaura on the basis of un- -3- numbered FIR (Ex-P/2). The two slides veginal smears prepared from the prosecutrix and also the underwear of her has seized as Ex-P/13. The appellant was arrested on 09/11/2021 and he too was sent for his medical examination to the CHC Pratappur where Dr. A.K. Viswakarma (PW/5) has examined him and gave his report (Ex-8). While examining the appellant , the doctor has found that the appellant is capable to perform sexual intercourse. The slides prepared from the vaginal smear of the prosecutrix, her underwear and also the underwear of the appellant were sent for FSL examination to Reginal FSL, Ambikapur from where the report (Ex-P/21) seized by the Police and in according to which the sperms were found on the vaginal smear of the prosecutrix whereas the underwear of the prosecutrix as well as the underwear of the appellant, no sperms and semen were found. The Statement under Section 164 of Cr.P.C. of the prosecutrix was recorded by the Police. The statements under Section 161 of the presecutrix as well as the prosecution witnesses have also been recorded and after completion of investigation chargesheet was filed before the learned Trial Court on 10/01/2022 for the offence under Section 450 & 376 of IPC.
3. On 10/01/2022 itself the charges under Section 450 & 376 of IPC have been framed against the appellant. The appellant abjured his guilt and plead innocence and claimed trial. -4-
4. In order to, bring whom the charge, the prosecution has examined as many as 13 witnesses. The statement under Section 313 of Cr.P.C. of the appellant has also been recorded in which he denied the material appeared against him and plead innocence and have submitted that he has been falsely implicated in the offence.
5. Considering the evidence available on record, the Trial Court has convicted the appellant and sentenced him as mentioned in Para-1 of this Judgment hence this appeal.
6. Learned counsel for the appellant would argue that the appellant is innocent and has been falsely implicated in the offence. The prosecution has failed to prove its case beyond reasonable doubt against the appellant. There is material omission and contradiction in the statement of the prosecutrix as well as the prosecution witnesses. Although, the appellant has denied from the allegation of rape but even if it is found that the appellant has made any physical relation with her, the same cannot be considered to be the rape because the prosecutrix was the consenting party in the act of making physical relation with him. It is not possible for anyone to enter into the anyone house in the night in particularly when her family members are there in the house that too inside the room. Normally the persons are bolted their door from inside and in that condition entering into the house that too in the room of the prosecutrix -5- could not be possible for anyone and therefore the prosecutrix herself was engaged in making consentual physical relation with the appellant and there is no offence of rape is made out against the appellant. The prosecutrix being a married lady and has not raised any hue & cry at the time of making forceful sexual intercourse with her, her allegation becomes doubtful. The witness who heard the notise while making forceful sexual relation with the prosecutrix has not been examined by the prosecution and therefore the benefit of doubt be extended to the appellant and he be acquitted from the alleged offence.
7. On the other hand, learned counsel for the State opposes the argument advanced by the learned counsel for the appellant and has submitted that the evidence of the prosecutrix need not be required to be corroborated by the other independent witnesses. She has specifically stated that in the night the appellant entered into her house and committed forceful sexual intercourse with her and when the family member heard the noise and came there, he fled away from that place. Then, the prosecutrix has informed about the incident to her family members. The learned counsel for the State would further submit that the learned Trial Court has rightly convicted and sentence the appellant and the impugned judgment of conviction and sentence needs no interference. -6-
8. I have heard the learned counsel for the parties and perused the records.
9. The prosecutrix (PW/2) has stated in her deposition that on the date of incident, she, her sister-in-law, mother-in-law, brother-in- law and father-in-law were in the house and all of them were sleeping after having their dinner. In the night the appellant was making call in the mobile phone of her brother-in-law and since he was sleeping, he could not receive the mobile phone call. When she answered the mobile phone call then the appellant asked her to woke up her brother-in-law but she refused and then at about 11.30 in the night the appellant entered into her room and committed forceful sexual intercourse with her. During the sexual intercourse, she started shouting, her brother-in-law, sister-in-law and mother-in-law came there and the appellant fled away from there and she informed about the incident to her family members. At that time, her husband was not there. When her husband came from Orissa then she lodged the report. In cross-examination she has admitted that the appellant is her brother-in-law in relation and he regularly used to come in her house. She admitted that she is having separate room in the house having a single door. Her in laws and brother-in-law are also having their separate rooms and they were sleeping by closing the doors of their rooms. She also had gone for sleep at 9 in the night after closing the door. She denied the dispute -7- between the appellant and her in laws regarding the property of the family. She has stated in her cross-examination that she received injuries over her face and doctor has also noticed swelling over her face and no other injuries she has received in the incident, neither her clothes were torned nor her bangles were broken.
10. PW-4, mother in law of the prosecutrix has stated in her deposition that on the date of incident when she was sleeping in her room at about 11 in the night, her son came to her room and woke her up and said that some noise is coming from the room of his sister-in-law and then they along with her brother-in- law and son gone through the room of the prosecutrix and at that time, the appellant went away from the room. On being asked from the prosecutrix she disclosed the incidet and then the report has been lodged. In cross-examination she admitted that, on the date of incident she was in her room and her son and brother-in-law were also in their room. She admitted that the appellant is her neighbor and used to come to her house regularly. She further admits that in absence of her another son, the appellant used to come to her house and she never stopped the appellant to talk with the prosecutrix. She further admits that on the date of incident, she has not seen the appellant there in her house and when she reached the courtyard, the appellant was not there.
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11. From the evidence of PW-4, it appears that on the date of incident at about 11 in the night her son came to her room and said that some noise in coming out from the room of the prosecutrix. It is not the case that the prosecutrix was shouting for help as and when the appellant entered in her room and the son of the PW-4 could have directly went to the room of the prosecutrix to save her but first he came to the room of his mother and informed her about the noise and then they had gone to the room of prosecutrix. Had the alarm of the prosecutrix was to the extent that she was being subjected to forceful sexual intercourse, all the family members immediately would rush to the room of the prosecutrix and save her but it comes in the evidence of PW-4 that some noise is coming out from the room of the prosecutrix and she herself has not disclosed about the incident to her family members but on being asked by the family members she has disclosed about the incident. The son who has informed PW-4 that some noise is coming out from the room of the prosecutrix has not been examined who may be the prime witness to proof the fact that in fact some noise is coming out from the room of the prosecutrix.
12. PW-3 is the husband of the prosecutrix who admittedly was not there on the date of incident and has come in the next day and witness of the fact whatever informed to him by either the prosecutrix or his family members.
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13. PW-10 is the brother-in-law of the prosecutrix, PW-11 is the father-in-law in relation of the prosecutrix, PW-12 is also the father-in-law of the prosecutrix and PW-13 is sister-in-law of the prosecutrix who have turn hostile and have not supported the case of the prosecution.
14. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the prosecutrix. However, there is an important caveat which is that the testimony of the prosecutrix must inspire confidence. Even though the testimony of the prosecutrix is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges levelled against the appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case.
15. Close scrutiny of the evidence makes it clear that the allegation made by the prosecutrix is unacceptable because of the reason that in the night at about 11.30 when the family members were sleeping in their rooms after closing the doors of the rooms, entering the appellant in the room forcefully or without any assistance of the person could not be possible and if the appellant entering inside the room of the prosecutrix without braking the doors, the evidence dragged this court draw a conclusion that with the help of the prosecutrix the appellant -10- entered into her room and it is the prosecutrix who open the door from inside or kept open the door from inside so that the appellant easily entered into her room without making any noise and in the condition and in these facts and circumstances of the case and also the evidence available on record it can be held that she was a consenting party in making physical relation with the appellant and it is only when some noise went out from the room the family members woke up and then the appellant went away from the room. It is also not the case that the family members were tried to chese the appellant and tried to caught him hold, further there is no injuries on the body of the prosecutrix and no signs of struggle.
16. For the forgoing reasons, the offence against the appellant as alleged does not be made out beyond reasonable doubt and the appellant is entitled for benefit of doubt. Accordingly the appeal is allowed. The appellant is acquitted from the charges under Sections 450 & 376 (1) of IPC the appellant is reported to be in Jail since 03.11.2023. He be released forthwith, if not required in any other case.
17. Keeping in view the provisions of Section 437-A CrPC, the appellant is directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with two reliable sureties in the like amount before the Court concerned which shall be -11- effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon'ble Supreme Court.
18. The lower court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.
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(Ravindra Kumar Agrawal) Judge sagrika