1 2025:CGHC:40459 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment Reserved on 12.06.2025. Judgment Delivered on 12 .08.2025. CRA No. 588 of 2007 Deepak Shrivastava S/o Sewak Lal Shrivastava, R/o Village Changurda, P.S. Gatapar, Tahsil Khairagarh, Distt.- Rajnandgaon, C.G. ... Appellant versus State of Chhattisgarh, through G.R.P. Chauki Charoda/G.R.P Police Station Bhilai, District Durg (C.G.) ... Respondent For Appellant : Mr. Vinod Kumar Sharma along with Mr. G.P. Mathur, Advocate. For State : Ms. Nandkumari Kashyap, Advocate. Hon’ble Smt. Justice Rajani Dubey CAV Judgment 1. The appeal under Section 374 of Code of Criminal Procedure, 1973 has been preferred against the judgment of conviction and order of sentence dated 03.05.2007 passed by the learned Sessions Judge, Durg (C.G.) in Sessions Case No. 159/2006 whereby the appellant has been convicted and sentenced as under:- Digitally signed by RAVVA UTTEJ KUMAR RAJU 2 Conviction Sentence U/S 366 of IPC R.I. for 07 years with fine of Rs. 500/-, in default of payment of fine to undergo S.I. for 01 month. U/S 376 (1) of IPC R.I. for 07 years with fine of Rs. 500/-, in default of payment of fine to undergo S.I. for 01 month. (Both the sentences are directed to run concurrently.) 2. Briefly stated facts of the case is that the prosecutrix/victim lives in C. Cabin Gandhinagar Devbaloda with her husband and children. On 03.01.2006, her husband along with her elder son went to their tea shop regarding work, her middle son went to the school and she was at home with her younger son and doing household work. At around twelve o'clock the accused/appellant Deepak Shrivastava came to her house, threatened her by saying that he will either break her hand or he will die or he will kill her and despite the victim’s protests, he forcibly made her sit on his scooter and took her to Durg from her house and then by train he took the victim to Dongargarh. As the victim’s husband Ramchand Shrivastav along with his elder son returned home after finishing their work at about 8 pm, then they found that the house main door was opened, neither the victim, nor his younger son were present in the house and their things were scattered. Upon enquiring the neighbours, they got no information and his middle son too told him that he knows nothing. Thereafter, he enquired at the houses of his relatives and family members and he came to know that they are also unaware of his spouse’s whereabouts. The husband of the victim kept 3 searching her for many days but she was not found. Then, on 21.01.2006, he submitted a written missing report vide Ex. P/12, along with his wife’s photograph and her description vide Ex. P/25, at GRP Police post Charoda through his sister Sheetala Shrivastava, as he was hospitalized at that time. On the basis of the said report, a missing person report was registered at the police post. The appellant after taking the victim to Dongargarh made her reside in the Kaveri Lodge as it was already too late and in the night he committed forcible sexual intercourse with her against her will. Thereafter, on 04.01.2006, the appellant brought them by bus to his village Chagurda, District- Rajnandgaon, where the mother of the accused/appellant was already present. The victim told the mother of the accused/appellant that she was brought here by the accused/appellant and she wants to go back to her husband and children, to which she threatened her by saying that you are not going to anywhere, we are not leaving you. As the husband of the victim lodged missing report, the police got information regarding the victim as she is currently residing in village Chagurda at her relatives home, to verify the same the Asst. Sub Inspector Rajkumar Borjha (PW/06) sent Constable Ashwani Kumar (PW/07) to village Chagurda where victim was found at the accused/Deepak Shrivastav’s house. Constable Ashwani Kumar recorded statement of of the victim vide Ex. P/13 and the accused statement was recorded vide Ex. P/14 in front of Panch and Kotwar. The victim was told by the appellants to not to disclose to the police that the accused/Deepak brought her by threatening her and did something wrong with her and she was under coercion to say that she came out of her own free will, as such she gave the same statement. On the basis of the statements, 4 the victim was found to be staying with the accused Deepak voluntarily, further investigation of disappearance was stopped and the information was given to Shital Shrivastava, who had filed the missing report, as the husband of the victim was not at his home in Charauda due to ill health and went to his village, Dabri. 3. On 07.04.2006, the husband of the victim came to take her back to the accused Deepak’s house, she was ready to come with him, but the appellant filthily abused the husband of the victim and made him go back to his house and he did not let the victim to go with her husband. On 11.04.2006 at 8 pm, the accused Deepak Srivastava left the victim at her home. During 03.01.2006 to 11.04.2006 satiated her lust upon the victim by committing forcible sexual intercourse with her against her own free will and the mother of the accused Deepak, helped him to commit such heinous act. The victim narrated the entire incident to her relatives and husband soon after returning home. On 17.04.2006, the prosecutrix/victim along with her husband Ramchandra Shrivastava appeared at GRP Police Station and gave statement vide Ex. P/15 which was taken by Asst. Sub Inspector Rajkumar Borjha (PW/06). That statement was against the accused, thereafter, the husband of the victim consulted his higher officials and by giving application of Ex. P/17, got victim’s statement recorded vide Ex. P/16 before Sidharth Das (PW/09) S.D.M, Durg on 18.04.2006 which was against the accused. Thereafter, Asst. Sub Inspector Rajkumar Borjha (PW/06) took consent from the victim regarding medical examination of her private parts vide Ex. P/06 and took consent from the husband of the victim regarding medical examination of her private parts vide Ex. P/10 and then an application was given to the S.D.M, Durg as Ex. P/07 and 5 got approval from him on D to D part of the said application. All this procedure was going on and it became night and as it was late night, the victim told that she would get her medical examination done the next day and she was sent for medical examination and they did let her go. On 19.04.2006 the victim along with her husband came to Police Station Charoda and submitted a written report of this incident as Ex. P/05 at GRP Police Station Charoda. On the basis of which Asst. Sub Inspector Rajkumar Borjha (PW/06) registered an F.I.R. vide Ex. P/04 against the appellants/accused persons. 4. Thereafter, on 19.04.2006 the victim vide application Ex. P/01 was sent to Government Hospital, Supela with the Head Constable-Smt. Manki Thakur (PW/01) to get her medical examination done where Dr. Chakravarthy, Senior Medical Officer examined the victim’s private part and gave his report vide Ex. P/02. Head Constable-Manki Thakur brought back the sealed packet given to her by Dr. Chakravarthy and gave it to the Asst. Sub Inspector Rajkumar Borjha (PW/06) where it was already mentioned that it was the victim’s vaginal slide and the same was seized vide Ex. P/03. 5. During investigation, the Asst. Sub Inspector Rajkumar Borjha seized the Register of the Kaveri Lodge vide Ex. P/17 which is situated at Dongargarh and regarding the relevant details a photocopy was made and the Register of Manager Roop Lal vide Ex. P/18 Supurdnama was given. Thereafter, he in search of the appellants/accused persons went to village Chagurda and brought them on 28.05.2006 to GRP Police Station and on 9:15 pm they have been taken into custody vide Ex. P/19 and Ex. P/20 and their arrest details was given to their relatives vide Ex. P/21 and the same information was given to C.J.M Durg vide 6 Ex. P/22, vide Ex. P/23 the appellant/accused Deepak was sent to Government Hospital, Supela for his medical examination, where Dr. Gopinath (PW/04) gave his report vide Ex. P/09. The spot map of the house of the accused was prepared by the Asst. Sub Inspector Rajkumar Borjha vide Ex. P/24 in front of the witnesses. The statement of the accused persons/appellants and other relevant witnesses were recorded under Section 161 of Cr.P.C. 6. After completion of due and necessary investigation, charge-sheet was filed against the appellants before Chief Judicial Magistrate First Class, Durg (C.G.) and the case was committed to the Sessions Judge, Durg (C.G.) 7. The prosecution in order to bring home the offence, examined as many as 09 witnesses. Statement of the accused/appellants was also recorded under Section 313 of Cr.P.C. wherein they denied all the incriminating circumstances appearing against them and pleaded their innocence and false implication in the case. However, they adduced 02 witnesses in their defence. 8. Learned trial Court after completion of trial and upon appreciation of oral and documentary evidence, by its impugned judgment, convicted and sentenced the appellant as mentioned in the opening paragraph of this judgment. Hence, this appeal. 9. Learned counsel for the appellants submits that the judgment of the trial Court is not sustainable in law. The learned trial Court has failed to appreciated the facts on record that the prosecutrix/victim willingly remained with the accused for 10 days at different places and offence under 366/376 of IPC cannot be proved as it was with planning and consent of the prosecutrix/victim. He further submits that the 7 prosecution has failed to prove the age of the prosecutrix/victim that she is below 18 years and the record itself establishes that the prosecutrix/victim willingly fled with the appellant, as such the learned trial Court has failed to appreciate that prosecutrix/victim was consenting party to the act of the appellant and she neither tried to return to her husband’s place, nor the husband of the prosecutrix brought her to his place despite knowing the she is residing with the accused Deepak Shrivastava at village Changurda and moreover, it was the accused Deepak Shrivastava who spent his own money and escorted the prosecutrix/victim to her husband’s place on 11.04.2006. The learned trial Court gave perverse finding by failing to consider from the evidence of (PW/05) Ramchandra Shrivastava, husband of the prosecutrix that the accused Deepak is his close relative as the accused is married to his cousin sister and both visit each other’s house for past 14 years on various occasions. It is clear from para 26 of cross-examination of the victim’s husband that last year the accused Deepak Shrivastava stayed in the house of the prosecutrix/victim for 12 to 13 days when sister of the husband viz. Shitla’s son Raju was murdered. The prosecution has failed to prove its case beyond reasonable doubt, despite that the learned trial Court has wrongly convicted the accused persons/appellants. As such, the impugned judgment of conviction and order of sentence is liable to be set aside. 10. Reliance has been placed on the decision of Hon’ble Apex Court in the matter of Jinish Lal Shah v. State of Bihar reported in (2003) 1 M.P. Weekly Notes 155. 11. Ex adverso, learned counsel for the State supported the impugned judgment and submits that the learned trial Court minutely appreciated 8 the oral and documentary evidence and rightly convicted the present accused/appellant, so this appeal is devoid of any merit and is liable to be dismissed. 12. Heard both the counsel for the parties and perused the material available on record including the impugned judgment with utmost circumspection. 13. It is clear from record of the learned trial Court that the learned trial Court framed charges against the appellant under Sections 366 & 376(1) of IPC against the appellant and framed charges under Section 368 of IPC against the co-accused Smt. Satyabhama and after appreciation of oral and documentary evidence, the learned trial Court acquitted the co-accused of the offence under Section 368, but convicted the appellant under Sections 366 and 376 (1) of IPC. 14. It is clear from the statement of prosecutrix/victim (PW/03) that she is a married lady and she is aged about 34 years, and on 03.01.2006 the accused/appellant Deepak Shrivastava came to her house, and at that time, the husband of the victim went to his tea stall as he runs a tea shop and at that time the victim was in the house with his minor son of 31/2 years. The present accused/appellant told her to come with him to his village Changurda and he threatened her by saying that if she denies, either he will kill himself or he will kill her. It is further clear from her deposition that her middle son went to school at that time and her elder son went with his father to the tea shop regarding work and then the victim went to Power House with the appellant on his scooter and the appellant left his scooter there itself and then, by bus they travelled 9 to Durg and then they reached to Durg Railway Station and by train they travelled to Dongargarh, where the accused committed sexual intercourse without her consent and on 19.01.2006, police came to the house of the accused/appellant along with the Sarpanch and Kotwar as the husband of the victim lodged missing report of the victim/wife and at that time, the victim did not open her mouth against the appellant as she was having fear of him. As such, police did not brought her back with them and on 07.04.2006, her husband came to take her back home, but the appellant did not let her go with her husband and the appellant filthily abused her husband. Thereafter, on 11.04.2006, the accused/appellant himself escorted the victim to the house of the appellant and he went away. In para 15 of her cross-examination she admitted that when she was travelling with the appellant on scooter, at that time she saw many people, yet she did not shout for any help and further she stated that she did not shout for any help despite many people were there as she travelled to further places with the appellant. She also admitted in para 21 of her cross-examination that on 19.01.2006 police along with Sarpanch and Kotwar came to the appellant’s house and the appellant gave in written that she is living with him with her own free will. In para 24 of her cross-examination she admitted that the accused used to go to work and he also often roams outside. She denied this suggestion that the accused used to commit sexual intercourse with her own will. In para 31 of her cross- examination she admitted that on 19.01.2006 police came to the appellant’s house and enquired her. The conduct of the prosecutrix/victim clearly shows that she went with the appellant with her own consent and she is a married lady and mother of three children 10 and she willingly remained with the appellant for more than two months. It is evident that the victim stated in her deposition that the accused/appellant committed sexual intercourse without her consent, but looking to the conduct of the prosecutrix, her statements are not trustworthy and are unreliable. It is further clear from the statement of prosecutrix/victim that when she was at accused/appellant’s place, on 19.01.2006 police along with Sarpanch and Kotwar came there and she did not even state against the accused/appellant regarding anything with them. Defence witness Sukhnandan (DW/01) stated that the prosecutrix/victim came to the accused/appellant’s house with her own will, (DW/01) admitted his signature on D to D part of Ex. P/13 and C to C part of Ex. P/14. Ex. P/13 is the statement of the prosecutrix/victim filed by the prosecution with charge-sheet and this statement is signed by the prosecutrix/victim and the defence witness (DW/01) Sukhnandan. 15. Prosecutrix/victim’s statement Ex. P/13 is reproduced hererinbelow for ready reference:- euds esSa Jherh iwf.kZek JhokLro ifr jkepanz JhokLro mez 36 o’kZ fuoklh xka/kh uxj lh dsfcu nsocykSnk dh gWawA esjs ifr 'kjkc ihdj ekjihV djrk gSA dksbZ dke Hkh ugh djrk Hkw[kksa ejus dh fLFkfr esa eSa viuh uuan fueZyk ds ifr nhid JhokLro ?kj paxqjnk Fkkuk xkrkikj rglhy [kSjkx<+ iks-vk- nwVkj ftyk jktukanxko fiNys ,d ekg ls vkbZ gWwA eSa viuh ethZ bPNk gks'kks gokl ls ;gka vkdj gWwA viuh fj'rsnkj ds ?kj esa ifr ds tkudkjh ls vkbZ gWWwA esjs ;gka ykus j[kus jgus ds fy, dksbZ Mj ncko ugh Mkyk x;k gSA 11 viuh bPNk ls bl txg gWwA lkekftd ikfjokjhd cSBd esa tks fu.kZ; nsaxsA eq>s Lohdkj gksxk C;ku viuh bPNk gks'kks gokl ethZ ls fn;k Ik<+k lquk oDr ij dke vkosA fnukad 19-02-06 dks uhps fy[ks xokgksa ds le{k xokg gLrk{kj lq[kuanu 'kekZ ¼iap½ iwf.kZek JhokLro f'koyky ¼dksVokj½ lR;Hkkek 16. Defence witness (DW/02) Vinay Kumar Sharma also stated that the prosecutrix/victim lives in accused/appellant Deepak Shrivastava’s house and the victim used to come to his house for calling her husband over phone. Looking to the conduct of the prosecutrix/victim and her statement Ex. P/13 it clearly shows that the prosecutrix/victim is a consenting party party and she with the appellant with her own will, but the learned trial Court did not appreciate all these facts and gave wrong findings. So, prosecution has failed to prove its case beyond reasonable doubt. 17. Ex consequenti, this appeal is allowed and the appellant is acquitted of the said charges. 18. Keeping in view the provisions of section 481 of BNSS 2023, the appellant is directed to furnish a personal bond for a sum of Rs. 25,000/- in the like amount before the court concerned forthwith, which shall be 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 12 notice thereof, shall appear before the Hon’ble Supreme Court. 19. 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. Sd/- (Rajani Dubey) Judge U. K. Raju