-1- 2025:CGHC:10937 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 617 of 2023 Basant Patel S/o Ram Bagas Patel Aged About 34 Years R/o Village- Kochar, Police Chouki- Belghana, Thana- Kota, District - Bilaspur, Chhattisgarh, Hal Mukam- Farm House of Tamboli, Khandoba Mandir Para, Ratanpur, Police Station- Ratanpur, District : Bilaspur, Chhattisgarh ... Appellant (s) versus State Of Chhattisgarh Through Police Station Ratanpur, District : Bilaspur, Chhattisgarh ... Respondent(s) For Appellant : Ms. Vikeshveri, Advocate For Respondent/State : Ms. Monika Thakur, Panel Lawyer SB: Hon'ble Shri Ramesh Sinha, Chief Justice Judgment on Board 05/03/2025 1. Heard on IA No.4, which is an application for urgent hearing of the appeal. 2. On due consideration of the grounds pleaded in the application and the submissions made by learned counsel for the appellant, the application is Digitally signed by PRAVEEN KUMAR SINHA Date: 2025.03.10 16:12:55 +0530 -2- allowed. With the consent of learned counsel appearing for the parties, this appeal is heard finally. 3. This criminal appeal filed by the appellant/accused under Section 374(2) of Cr.P.C. is directed against the judgment of conviction and order of sentence dated 25th January 2023 passed by learned Additional Sessions Judge, (FTC), Bilaspur (CG) in Sessions Trial No. 307/2021, whereby the appellant/accused has been convicted and sentenced in the following manner: CONVICTION SENTENCE U/s 323 of IPC Rigorous Imprisonment for 1 year with fine of Rs.1000/-, in default of payment of fine 1 month additional RI U/s. 376 of IPC Rigorous Imprisonment for 10 years with fine of Rs.5000/-, in default of payment of fine, 4 months additional RI 4. Case of prosecution, in brief, is that the prosecutrix aged 18 years 06 months submitted a written complaint at the Police Station Ratanpur on 18.09.2021 at 18:20 hrs. to the effect that she is a resident of Mopka, Bilaspur. Four days ago, she came to Ratanpur at her sister's house in search of work. Her brother-in-law had asked her to provide job in a cloth shop, pursuant to which on 18.09.2021 she was leaving the house with her brother-in-law at around 04:00 to come to Ratanpur. At that time, accused Basant Patel came there and started driving her brother-in-law's motorcycle forcefully saying that he also has to go to Ratanpur. She, her brother-in-law and sister's younger son aged 03 years were all coming to -3- Ratanpur. On the way near Shanichari Chowk, when her brother-in-law got a call on his mobile, he stopped the motorcycle and while talking on mobile phone her brother-in-law went towards the shop along with his son. At the same time, the accused in the name of bringing karil (bamboo shoot/bamboo sprout) from nearby place, took her forcefully to the jungle behind Lakhani Mata temple. When she screamed, the accused pulled out her slacks and after tying her hands and gagging her mouth with a cloth, threw her on the ground and raped her forcefully. When she said that she will tell her sister about the incident, the accused slapped her two-three times and threatened her by saying that if she tells anyone, he will kill her. The accused made her sit on the motorcycle and brought her to Shanichari Chowk. When her brother-in-law asked her where she had gone, she told her brother-in-law about the incident and called her sister and told her about the incident too. Thereafter she went to the police station with her sister and brother-in-law and filed a written complaint about the incident. On the basis of the written complaint of prosecutrix, First Information Report was registered at Police Station Ratanpur under Crime No. 464/2021 under Sections 376, 506 of the IPC. Thereafter, after completing the investigation, charge sheet was filed before the Judicial Magistrate First Class, Kota, District Bilaspur for the offences under Sections 376, 506, 323 of IPC. Since the case was triable by the Sessions Court, it was committed to the Sessions Court, which in turn was transferred to Court of Additional Sessions Judge (FTC), Bilaspur for trial. 5. Learned trial Court framed charges against the accused/appellant under Sections 376, 506 (Part-II) and 323 of the IPC. When the charges were -4- read out to him, the accused denied the charges and sought trial. 6. Prosecution in order to prove its case examined as many as 12 witnesses and exhibited as many as 23 documents i.e. Ex. P-1 to P-23. Statement of accused person was also recorded under Section 313 of Cr.P.C. in which he denied all incriminating evidence appearing against him, pleaded innocence and false implication and he has not examined any witness in his defence. 7. The learned Additional Sessions Judge, (FTC), Bilaspur, after appreciating oral and documentary evidence available on record vide impugned judgment dated 25.01.2023 convicted and sentenced the appellant as mentioned in paragraph-3 of this judgment. Being aggrieved by the said judgment, the instant appeal under Section 374 (2) of CrPC has been preferred by the appellant. 8. Assailing the impugned judgment of conviction and order of sentence passed by the learned trial Court, learned counsel for the appellant submits that finding recorded by the learned trial Court is baseless, perverse, erroneous and contrary to the material evidence available on record. Learned trial Court failed to appreciate the oral and documentary evidence placed before it in its proper perspective. There are material contradictions and omissions in the statements of the witnesses which cannot be made basis for conviction of the appellant. Prosecution has not adduced any cogent and reliable evidence to prove the guilt of the appellant. In the light of evidence available on record, false implication of the appellant cannot be ruled out. In the absence of any medical evidence, version of the -5- prosecutrix cannot be said to be reliable. No independent witness has been examined by the prosecution to substantiate the story of rape. Therefore, this appeal may be allowed and the impugned judgment of conviction and order of sentence be set aside. 9. On the other hand, learned State Counsel opposing the prayer of learned counsel for appellant, would submit that looking to the nature and gravity of offence, no interference is called for with the impugned judgment of conviction and order of sentence. The prosecution has proved its case beyond reasonable doubt by adducing sufficient oral and documentary evidence. The appeal is liable to be dismissed. 10. I have heard learned counsel for the parties and also perused the records of the trial Court including the impugned judgment. 11. The victim/prosecutrix was examined as PW8. In her statement, she stated that she had gone to Ratanpur police station and reported the incident in writing on the date of the incident itself, which is exhibited as Ex.P-11. She stated that she herself had prepared the complaint (Ex.P-11) in her own handwriting. On the basis of her written complaint, First Information Report (Ex.P-10) was registered against the accused which has been supported by the brother-in-law of the prosecutrix (PW-4) and confirmed by the statement of Sub Inspector Daya Jaiswani (PW-7), who has registered the FIR (Ex.P-10). From the written complaint of the incident Exhibit P-11 and the First Information Report Exhibit P-10 it is proved that the report of the incident has been registered without any delay. 12. Dr. Poonam Singh (PW12) is the person who medically examined the -6- prosecutrix vide Ex.P-23. She has stated that on 18-09-2021 at around 09:00 pm, the prosecutrix (PW-8) was brought before her for genital examination by female Constable Neeta Yadav (PW-1). On medical examination she found that the labia majora and labia minora were in normal condition. The victim's hymen was old and her vaginal opening was stretched. The victim had 5 to 6 very small lacerated wounds in her vaginal opening and one was at 6 o'clock position of the vaginal opening. The second wound was at 4 o'clock position of the vaginal opening and was 30.05 cms and was red all around. She was complaining of pain around the vaginal opening and also pain in the internal area. Her uterus was in normal condition. There were no signs of immediate internal injury on the victim. Two swabs were taken from the vaginal fluid of the victim. She opined that there was sexual intercourse with the prosecutrix and stated that definite opinion in this regard could be given only on the basis of the FSL report. The test report given by her is Ex.P.23. 13. It is clear from the statement of Dr. Poonam Singh (PW-12) and the examination report given by her (Ex. P-23) that during the examination she found 5 to 6 very small lacerated wounds in the vagina of the prosecutrix and the redness or pain found in the vagina of the prosecutrix (PW-8) was not due to any disease and the said injury could not have been caused by fingering. 14. Accused/appellant was also medically examined by Dr. Anand Murti Shrivastava (PW2), who in his examination report (Ex.P-3) opined that no such thing was found in the investigation so that it can be proved that the accused is incapable of having sexual intercourse. -7- 15. The main ground taken by the accused in his defence that the brother- in-law of the prosecutrix (PW-4) had borrowed money from him and in order to avoid repaying the loan amount, he implicated him in a rape case through the prosecutrix (PW-8) is demolished from the evidence of material witnesses of the prosecution as the suggestion given by the accused in paragraph-8 of the cross-examination to the elder sister of the prosecutrix (PW-3), in paragraph-14 of the cross-examination to the brother-in-law of the prosecutrix (PW-4) and in paragraph-16 of the cross-examination to the prosecutrix (PW-8) that the accused had given money as loan to the brother-in-law of the prosecutrix (PW-4) and in order to avoid returning the loan amount, the accused has been implicated in the case of rape through the prosecutrix (PW-8), has been totally denied. The fact that the accused had lent money to the brother-in-law of the complainant (PW-4) has not been proved nor has any documentary evidence been produced in this regard and no witness has been produced in his defence to prove the said fact. On behalf of the accused, it has also been suggested to the prosecutrix (PW-8) that she loved the accused and therefore she went with the accused herself, which has been clearly denied by the prosecutrix (PW- 8). No suggestion has been made during cross-examination to the prosecutrix’s elder sister (PW-3), prosecutor's brother-in-law (PW-4) and prosecutrix’s brother (PW-10) that there was a love affair between the accused and the prosecutrix, nor has the said fact been proved by the accused, due to which, it cannot be said that there was a love affair between them, and because of this love affair, prosecutrix went with him of her own free will. -8- 16. There is no rule of law that testimony of the prosecutrix cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal than an injured witness. In this case, prosecutrix has given a vivid account of the entire episode as to how the accused/appellant committed sexual intercourse on her. Moreover, nothing has been elicited by the defence as to why the appellant has been falsely implicated in the crime and thus the stand of false implication taken by the accused/appellant is also not worth acceptance. 17. During examination of the vagina of the accused (PW-8), 7-6 small scraped wounds were found and redness was found around them as is evident from the statement of Dr. Poonam Singh (PW-12) and the examination report given by her in Ex. P-23, and according to Ex. P-23, physical intercourse has taken place with the prosecutrix (PW-8). According to the FSL report (Ex.P-18), semen stains and human sperms have been found in the underwear, slide, swab of the prosecutrix as also in the underwear of the accused. Thus, the incident of rape is also being confirmed by medical and scientific evidence. No discrepancies have been found in the statement of the prosecutrix (PW-8) given under Section 161 of the Cr.P.C and her Court statement. There is no reason to disbelieve the statement of the prosecutrix (PW-8). The evidence of the prosecutrix (PW- 8) remained unrebutted. Therefore, on the basis of the above discussions, this Court is of the opinion that the accused has committed rape on the prosecutrix (PW-8) without her consent. I do not find any infirmity or perversity in the finding recorded by learned trial Court holding the appellant guilty of commission of offence under Sections 323 and 376 of -9- IPC. Thus, conviction of the accused/appellant under Sections 323, 376 of IPC suffers from no illegality and the same is liable to be maintained. 18. In the result, the appeal fails and is hereby dismissed. 19. The appellant is stated to be in jail, he shall serve out the sentences as awarded by the trial Court. 20. The trial court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. 21. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail term, to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of the High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- Sd/- (Ramesh Sinha) Chief Justice Praveen