-1- 2025:CGHC:11469 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 827 of 2023 Ramprasad Son Of Shri Kaleshwar Ram, Aged About 45 Years Caste- Raut, R/o. Village Belaghat Kansabel, Thana Kanabel, District Jashpur Chhattisgarh ... Petitioner(s) versus State Of Chhattisgarh Through Police Station Kansabel, District Jashpur Chhattisgarh ... Respondent(s) For Appellant : Mr. Vikas Kumar Pandey, Advocate For Respondent/State : Ms. Ankita Shukla, Panel Lawyer SB: Hon'ble Shri Ramesh Sinha, Chief Justice Judgment on Board 07/03/2025 1. This appeal is listed today for orders on appearance of the appellant pursuant to bailable warrant issued against him vide order dated 31.01.2025. 2. Learned counsel appearing for the appellant submits that though the Digitally signed by PRAVEEN KUMAR SINHA Date: 2025.03.10 16:46:00 +0530 -2- appellant was present in the Court before recess but when the matter is taken up for hearing he is not present. 3. With the consent of learned counsel appearing for the parties, this appeal itself is being heard finally today. 4. 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 03.03.2023 passed by learned Additional Sessions Judge (FTC) Jashpur, District- Jashpur (CG) in Sessions Trial No. 65/2021, whereby the appellant/accused has been convicted and sentenced in the following manner: CONVICTION SENTENCE U/s 343 of IPC Rigorous Imprisonment for 1 year with fine of Rs.1000/-, in default of payment of fine 3 months additional RI U/s 506- II of IPC Rigorous Imprisonment for 2 years with fine of Rs.1000/-, in default of payment of fine 3 months additional RI U/s 25 of the Arms Act Rigorous Imprisonment for 3 years with fine of Rs.1000/-, in default of payment of fine 3 months additional RI U/s 376 (2) (n) of IPC Rigorous Imprisonment for 10 years with fine of Rs.1000/-, in default of payment of fine 3 months additional RI All the sentences to run concurrently 5. Case of the prosecution, in brief, is that the victim/complainant lodged a written report in Police Station Kansabel stating that she is a resident of -3- village Dondapani, P.O. Bandarchua, Chowki- Dokra, Police Station- Kansabel, District-Jashpur (CG). Due to her poor health, she was coming to Belaghat for exorcism for about two years. Whenever she had pain in her body and her children were unwell, they remained healthy due to exorcism done by baba. On Thursday 11.03.2021, the accused Ramprasad came to her house Dondapani and stayed in her house for three days. Meanwhile, he went to watch a Nagpuri program in Tamasingha on 12.03.2021 and after coming back he started doing various things with her. On Sunday 14.03.2021, when he was said that it has been three days, now go home, then the accused said that he will not go, if he goes home then he will take the victim along with him and if victim does not go then he will kill her. Out of fear, the victim entered the house and locked it. Thereafter accused/appellant said that if she wants to remain alive then come with him and asked her to swear in the name of ‘Bhole Baba’ to live with him. He threatened that if the victim refuses then he will kill her. On Monday 15.03.2021, the accused forcibly brought her to Belaghat by threatening to beat her and took her inside his hut and took out a chopper and said that if she does not agree to his words then he will kill her with this chopper, due to which, she got scared and kept quiet. After that the accused kept doing wrong things (rape) with the victim for three days. On 18.03.2021 in the morning, when some other persons came for exorcism the accused came out of the hut, at the same time, she escaped from the back door of the hut and went to Dondapani and hid in someone else's house. The accused also reached Dondapani in search of her and started looking around. After that, the victim's father called Panch Murari Sai, -4- Sarpanch Sanket Sai Pankra and Kotwar Bharat Ram and informed them. The victim told the Panch, Sarpanch, Kotwar and the people of the village that he was forcefully raped by the accused Baba Ramprasad by showing her chopper. 6. On the basis of the said written complaint by the victim, First Information Report was registered against the accused Ramprasad in Police Station Kansabel under Crime No. 42/2021, for the offence Section 376 IPC and Section 25 of the Arms Act. During the investigation, the iron chopper used in the incident was seized from the accused. Medical examination of the victim and the accused was conducted. After recording the statements of the witnesses and finding evidence of crime against the accused, he was arrested and after completion of investigation, charge sheet was filed in the court of Judicial Magistrate First Class Bagicha wherefrom the case was remitted to the Court of Sessions Judge, Jashpur, which in turn, was received for trial in the Court of Additional Sessions Judge, Jashpur. Learned trial Court framed charges against the accused/appellant under Section 376 (2) (n), 506-II, 343 of IPC and Section 25 of the Arms Act. The charges were read over and explained to him, which was denied by the appellant and he prayed for trial of his case. 7. Prosecution in order to prove its case examined as many as 15 witnesses and exhibited as many as 26 documents i.e. Ex. P-1 to P-26. 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. -5- 8. The learned Additional Sessions Judge, (FTC), Jashpur, District- Jashpur after appreciating oral and documentary evidence available on record vide impugned judgment dated 03.03.2023 convicted and sentenced the appellant as mentioned in paragraph-4 of this judgment. Being aggrieved by the said judgment, the instant appeal under Section 374 (2) of CrPC has been preferred by the appellant. 9. 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 in the statement 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. Medical evidence also does not support the story of the prosecution. The victim and the accused had a love affair for two and half years. Victim had established sexual relations with the accused with her consent. The accused did not intimidate the victim by threatening her and no weapon has been seized from the possession of the accused. As the prosecution has failed to prove its case beyond doubt impugned judgment of conviction and order of sentence is liable to be set aside. 10. 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, conduct of the appellant, no interference is called for -6- warranting interference with the impugned judgment of conviction and order of sentence. 11. I have heard learned counsel for the parties and also perused the records of the trial Court including the impugned judgment. 12. Statement of the victim/prosecutrix (PW1) is recorded before the trial Court on 14.09.2021. In her statement she stated that she recognizes accused- Ramprasad. She has three children. She lives in Village- Dodapani. Accused/appellant lives in Belaghat. She works as a labourer and maintain herself and her children. The accused Ramprasad practices exorcism and also gives herbs. As she had a problem of white discharge, she underwent a lot of medical treatment but did not get cured. Then she used to go to the accused for herbal treatment for the last two years. The accused used to give her herbs for her illness, which gave her a lot of relief. People from the neighbouring villages also used to go to the accused for herbal treatment. One day at about 10’ O clock in the morning in the month of March which date she does not remember, she went to the house of the accused to get some herbs for treatment. The accused did not give her the herbs and kept her in his hut for three days and during these three days the accused threatened her by showing a knife and saying that if she does not obey him then he will stab her with the knife. When other people came to the accused for exorcism, he made them return from outside saying that he does not do exorcism. When the accused kept her for three days, three people came to him for exorcism and the accused was exorcising them. She was also sitting among those people. Saying the accused that she had to make tea, go to collect wood and will not run -7- away, she left the house of the accused and instead of going on the road, she walked through the fields and jungles to reach her village. After reaching village, instead of going to house, she went to the house of her uncle-in-law Mahavir. However, before her reaching , the accused had already reached her house with a knife in his hand while searching for her. She was hiding in her uncle-in-law house out of fear of the accused. Her uncle-in-law and other people of the village were seeing the accused that he was searching for her, then her uncle-in-law called the village watchman Bharat. Even when the watchman came, the accused was roaming around the village. All the people of the village got scared seeing the accused. In para-6 of her examination-in-chief she stated that the police made the accused take out the weapon that he had kept in his bag. The witness showed her hand up to the elbow and said that he had kept a weapon like a long knife and a tong for exorcising, which was also one hand long and a peacock feather for exorcising. On the next day, she along with the village Panch and Patel went to the Kansabel police station and lodged the written report. In para-9 of her evidence, she stated that even before this incident, the accused used to come to her house. In para-15 of her cross- examination, she admitted the suggestion that she along with her children used to visit the accused's house at any time and further that due to their acquaintance with the accused, accused also started visiting her house regularly. In para-18 of her cross -examination, she admitted the suggestion that some people of the village used to get angry with the accused due to his frequent visits, due to which she used to tell the accused that he should not come to her house too often, the villagers -8- misunderstand. She admitted that the accused used to talk to her on mobile. In para-22 of her cross-examination , she admitted the suggestion that when the accused came to her village to watch a Nagpuri program, he asked her to drop him back after two days. She went to Belaghat hut from Dodapani with the accused. During that time she stayed there for three days. She admitted the suggestion that the place where the hut is located in Belaghat is a very winding place and the distance of the hut from the road is only 5 to 10 steps and that since the said hut is near the main road, there is a lot of traffic and congestion there and buses, trucks, tempos, motorcycles keep coming and going 24 hours a day. She admitted that since there are many turns near the accused's hut, the vehicles going there move at a very slow speed. In para-23 of her cross-examination she admitted that whenever she went to hut of the accused, she lived a normal life and did all the routine work in a normal way. She used to cook food. She admitted the suggestion that in the absence of the accused, she used to make the visitors sit in the hut and also used to ask about their well- being. In para-24 she admitted the suggestion that when she went to Belaghat with the accused to drop him, she stayed there for three days and they had physical relations for three days. She further admitted the suggestion that when she stayed there, she used to cook food for both and both used to eat together. She admitted the suggestion that after hearing about the weapon, she lodged a report against the accused. In para-28 of her cross-examination she admitted that the hut was small and she also used to stay in the same hut with the accused. In para-29 of her cross- examination,she admitted that that the accused used to visit her house -9- once a day while going to village Dodapani, therefore the people of the village were jealous of the accused. In para-34 of her cross-examination, she admitted the suggestion that she did not tell anyone walking on the road about what was happening to her nor did she shout for help. 13. Sushil Panikera (PW2) is the nephew of victim and is hearsay witness. Bharat Ram (PW3) is the Kotwar of the Village and a seizure witness of chopper . In his evidence he stated that victim told her about the incident. He stated that nothing has been seized before him from any person. Jagatpal Ram (PW4) is also a seizure witness. In his evidence he stated that nothing has been seized before him. In his cross-examination he stated that for treatment victim used to come in the hut of accused and stay there for 1-2 days. Murari Sai (PW5) in his evidence stated that she does know anything about the incident. He is also a hearsay witness. 14. Dr. Anamika Minj (PW11) who has medically examined the victim stated that on 20.03.2021, while she was posted as Medical Officer at CHC Kansabel, lady constable Sharda Nag of Police Station Kansabel brought the victim, aged about 45 years, resident of Dodapani, for medical examination. On external examination of the said victim she found that there was a scratch mark of 0.5 x 1 cm on the thumb of her right hand, which was deep into the skin and her secondary sexual symptoms were fully developed. In the internal examination, she found that the victim's cervix was loose and wide, the hymen was old and torn, the uterus was multi-parous. There was no fresh injury visible around the genitals. She prepared two slides from her vagina for chemical examination, which were sealed and handed over to the same constable. She opined that, no -10- definite opinion can be given as to whether sexual intercourse took place with the victim or not. In her cross-examination she admitted the suggestion that the victim's examination did not show any recent signs of sexual intercourse. She admitted the suggestion that the injury on the victim's right thumb was old and such injury can be caused by nails etc, and that the victim was addicted to sexual intercourse. 15. In the case at hand it is undisputed that the victim and accused are known to each other. It is also an admitted position that the victim had been going to the accused for treatment for two years. 16. A close scrutiny of the aforesaid evidence available on record particularly the evidence of victim/prosecutrix in her cross-examination it is clear that the victim is a fully grown-up lady. From her evidence it is reflecting that she herself went to the house of appellant and voluntarily engaged in making physical relationship with him. She stayed for about three days in the house of appellant and has not made any complaint to anyone about the incident. No injuries have been found on the body of the prosecutrix. From the evidence of prosecutrix, it appears that she was having relationship with the appellant since three years. From the conduct of the victim/prosecutrix possibility of falsely implicating the appellant cannot be ruled out. The complainant- prosecutrix knew the appellant for more than three years. The prosecutrix was in relationship with appellant over a significant period of time and consent of the prosecutrix is not obtained by misrepresentation. Material seizure witnesses have also turned hostile. Under these circumstances, the conviction of the appellant for offence under Sections 343, 506-II, 376(2)(n) of IPC and Section 25 of the -11- Arms Act would be nothing but abuse of process of law . 17. In view of the above discussions, I am of the view that the learned trial Court has committed error in convicting and sentencing the appellant for the offences as alleged against him. 18. In the result, impugned judgment of conviction and order of sentence is held unsustainable in law and the same is, therefore, set aside. The appeal is accordingly allowed. As the appellant is already on bail. His bail bond stands discharged. However, keeping in view the provision of Section 437- A of the Cr.PC (now Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023), the accused-appellant is directed to furnish a personal bond for a sum of Rs.25,000/- with two sureties in the like amount before the court concerned 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 notice thereof, shall appear before the Supreme Court 19. Registry is directed to transmit the trial Court record along with a copy of this order to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Ramesh Sinha) Chief Justice Praveen