1 2025:CGHC:40355-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 788 of 2019 Judgment Reserved on : 20.06.2025 Judgment Delivered on : 12.08.2025  Shailesh Masih, S/o Sant Masih, aged about 43 years,R/o Jyotipur, Gaurela, District Bilaspur (C.G.). ... Appellant versus  State of Chhattisgarh : Through : The Station House Officer, Police Station – Gaurela, District Bilaspur (C.G.) ... Respondent (Cause title is taken from CIS Software) For Appellant : Mr. Goutam Khetrapal, Advocate on behalf of Mr. Jitendra Shrivastava, Advocate For Respondent : Mr. Devesh G. Kela, P.L. Hon'ble Smt. Justice Rajani Dubey & Hon'ble Shri Justice Amitendra Kishore Prasad 2 (C A V Judgment) Per Rajani Dubey, J 1. This appeal is directed against the impugned judgment of conviction and order of sentence dated 15.04.2019 passed by learned Special Additional Sessions Judge, Pendra Road, District Bilaspur (C.G.), in Special Sessions Trial No.03/2019, whereby and whereunder appellant has been held guilty for commission of offence and sentenced him as described below :- CONVICTION SENTENCE Under Section 376 IPC R.I. for 07 years with fine of Rs.1000/- and in default of payment of fine amount to further undergo R.I. for 03 months. Under Section 506 Part (II). R.I. for 07 year with fine of Rs.1000/- and in default of payment of fine amount, to further undergo R.I. for 03 months. 2. The prosecution story, leading to conviction of the appellant is that, on 20.09.2018, Complainant/mother of Prosecutrix (PW-2) made a written report (Ex.P-5) in Police Station – Gourela, District Bilaspur (C.G.) to the effect that when her daughter/Prosecutrix (PW-1) was residing with her grand mother (Nani) in the house of Milton Christian on rent, at the 3 relevant time, the wife of appellant namely Archana Masih told her (PW-2) to give Prosecutrix (PW-1) to her and she would take care of her, give education and keep & treat her as her child. The complainant (PW-2) relying and trusting upon the wife of appellant, sent her daughter/Prosecutrix (PW-1) to the house of appellant from where she used to go to shool. It was also alleged in the written complaint that during her stay in the appellant’s house, in the year 2017, when the Prosecutrix was sleeping in the kitchen, the appellant at around 12.00 AM, entered her room, gagged her mouth and committed forceful sexual intercourse showing knife. It was also averred in the complaint that the appellant used to send the Prosecutrix (PW-1) to Church. When the Prosecutrix (PW-1) was going to school, the appellant used to snatch the school bag and hide it. When the Prosecutrix (PW-1) complained pain in her private part then she narrated the whole incident to her sister who then informed the same to her mother. On the basis of said written report of the complaint (PW-2), the police registered an FIR (Ex.P-6) being Crime No.263/2018 and the matter was investigated. During investigation, statements of the Prosecutrix (PW-1), Complainant/mother of Prosecutrix 4 (PW-2), sister of Prosecutrix (PW-6) and grand mother of Prosecutrix (PW-7) were recorded. Consent letter of Prosecutrix and her mother were also obtained and the Prosecutrix was medically examined. Spot map was also prepared by the Patwari. 3. After completing usual investigation, charge sheet was filed against the appellant under Sections 376, 506 of IPC & Sections 6 and 8 of POCSO Act. After filing of the charge sheet, the trial Judge has framed the charge against the appellant accordingly, to which, the appellant abjured his guilt and pleaded for trial. 4. So as to hold the accused-appellant guilty, the prosecution has examined as many as 11 witnesses. Statement of the accused-appellant was also recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication. 5. The learned trial Court after hearing counsel for the respective parties and considering the material available on record, has convicted and sentenced the accused-appellant as mentioned in para 1 of this judgment. Hence, this appeal. 5 6. Learned counsel for the appellant submits that the impugned judgment of conviction and order of sentence is contrary to the law and facts available on record. There is absolutely no evidence against the appellant to connect him with the crime in question. The incident is alleged to have taken place in the month of August, 2017 and the report was lodged on 20.09.2018, as such, there is huge delay of about one year but no plausible explanation has been offered in this regard. Learned counsel further submits that the Prosecutrix (PW-1) was a major lady and she had not disclosed this fact to anyone. The medical report of the Prosecutrix is also nil. The material witnesses PW-2 and PW-7 have also not supported the case of the prosecution and they have stated that the Prosecutrix (PW-1) has not stated anything against the appellant with regard to alleged offence. Learned counsel also submits that though the Prosecutrix (PW-1) was residing in the house of appellant but mere residence does not automatically infer a legal or institutional relationship of trust or authority as contemplated under Section 376(2(f) of IPC. The said section specifically applies to cases involving persons who are ‘relative, guardian or teacher’ or others in a defined position of trust 6 or authority. In the present case, there is no evidence on record to suggest that the appellant held any such formal position or authority. Learned counsel also submits that the Prosecutrix, as per her own deposition, continued to reside with the appellant’s family for an extended period. The medical evidence does not suggest any external injuries or resistance. No immediate outcry was made. Learned counsel also submits the consent of the Prosecutrix cannot be invalidated only on the ground of appellant being a dominant position for the reason that the prosecution has neither alleged nor proved such a circumstance. There is no whisper in the prosecution’s version aas well as in the 313 Cr.PC statement that the appellant exercised such ‘dominance’ over the Prosecutrix so as to vitiate her consent. No charge under Section 376 (2)(k) of IPC was ever framed and it is well settled that in respect of a charge once framed, there can only be an order of conviction or acquittal. A conviction on a charge not framed would amount to denial of a fair trial. Learned counsel also submits that even though, in the offence of rape, the statement of Prosecutrix is sufficient to prove the guilt of the accused, this Hon’ble Court in Jitendra Kumar V. State of 7 Chhattisgarh, reported in 2023 SCC OnLine Chh 389, held that despite allegations of rape and criminal intimidation, the Prosecutrix’s evidence does not inspire confidence and that the prosecution had not disclosed the true genesis of the crime, thereby granting the benefit of doubt to the appellant. Learned counsel also submits that in the present case, the conduct of the Prosecutrix, continued stay, no resistance and no immediate disclosure contradicts the claim of forced sexual intercourse. Therefore, the appellant deserves to be acquitted extending benefit of doubt. In support of his submission, he would rely upon the decision of this High Court in the matter of Ramprasad Vs. State of Chhattisgarh reported in 2025 SCC OnLine Chh 3388. 7. On the other hand, learned counsel for the State submits that the learned trial Court after appreciating oral and documentary evidence has rightly convicted the accused- appellant and no interference is called for by this Court. The appeal has no merit and the same deserves to be dismissed. 8. We have heard learned counsel for the parties and perused the material available on record. 8 9. It is apparent from the record of the learned trial Court that charges under Sections Sections 376, 506 of IPC & Sections 4 and 6 of POCSO Act were framed against the appellant and after appreciation of oral and documentary evidence, the learned trial Court while acquitting the appellant from the charge under Sections 4 and 6 of POCSO Act, convicted him under Section 376 and 506 part II of IPC & sentenced him as described in para 01 of this judgment. 10. The question which arises before this Court whether the appellant committed sexual intercourse with Prosecutrix against her Will and consent & threatened her of life. 11. Prosecutrix (PW-1) has stated that at the time of incident she along with her family members were residing on rent in the house of Milton, who is aunt of appellant, where she came into acquaintance with the appellant and his wife & thereafter, visitation of house of appellant commenced. The appellant often used to visit Milton’s house and then they got acquainted with the appellant and his wife. The appellant always used to visit Milton's house. They used to see that they are siblings. Then the appellant’s wife came to their house and told her mother that they have four 9 daughters, give one daughter to them, they would keep her (this witness) in their house and educate but her mother refused to give. This witness has also stated that thereafter next day the appellant and his wife both came to their house and started saying the same thing again then her mother told the Prosecutrix. Her mother agreed to send the Prosecutrix to the appellant’s house, then the appellant and his wife brought the Prosecutrix to their house. After staying there for a day or two, they took her to Tikarkala school for admission and got her admitted there. This witness has also stated that thereafter she started doing household work by staying at the appellant’s house. The appellant used to look at her with bad intentions. Then the appellant slowly started touching her body. She used to resist the act of the appellant and say that “what are you doing uncle” ?. Then the appellant used to say that he is not doing anything. The appellant used to touch her breast. Many times when she used to go to the bathroom to take a bath, the appellant used to come to the bathroom as well. This witness has also stated that at night when everyone used to sleep after dinner, the appellant used to come to her room (kitchen) at night and when she used to close the door, he did not let her 10 close it. The appellant used to come to her bed and start touching her body. When she refused, the appellant used to extend threat by showing her a knife and used to do wrong things with her forcefully and the appellant used to put his hands here and there. This witness has also stated that the appellant used to threat and blackmail her. When she used to go to school, he used to pick her up from school and would not let her go. The appellant would not even let her go to church. He used to bring her from church and after bringing her home, he would commit forceful sexual intercourse with her and beat her up. When she used to go to her home, the appellant used to take her from there and when she used to go to Podki University, the appellant used to call her and say that he will come to pick her up. She has also stated that when she used to not agree to go to the appellant’s house, her mother used to call her saying that she is a lazy person and her mother used to sent her to the appellant’s house. This witness has also stated that in the month of May, 2018, she had come back to her house for celebrating her birthday and thereafter she did not go the appellant’s house. During stay in her house when she was not able to perform the household work, her sister asked her 11 as to what had happened, then she narrated the whole incident to her sister, who then informed her mother over mobile phone and then they lodged the report against the appellant in police station. After lodging the report, the police personnel had taken her to hospital for medical examination and she gave her consent vide Ex.P-1. Thereafter, spot map vide Ex.P-2 was prepared by Patwari, inspection report vide Ex.P-3. Spot panchanama was prepared by police vide Ex.P-4 and this witness has admitted her signature on the aforesaid documents on ‘A to A’ part. 12. The prosecution declared this witness (PW-1) hostile and cross-examined her and in cross-examination the Prosecutrix (PW-1) admitted this suggestion of the prosecution that in the month of August when she was sleeping in kitchen after dinner, the appellant came at around 12.00 AM and started gagging her mouth. When she woke-up, the appellant threatened her showing knife and forcefully committed sexual intercourse with her. She has also admitted that the appellant used to commit sexual intercourse with her against her will whenever he got time alone. She has also admitted that when she was narrating the incident to her sister, she had developed abdominal 12 pain. She has also admitted that the appellant had been committing sexual intercourse with her for last 10 months by threatening and also threatened her of life if she disclose the incident to anyone. In para 7 of cross-examination, the Prosecutrix (PW-1) denied this suggestion that while they were living on rent in the house of appellant’s maternal aunt, outsiders used to come to their house, therefore, the appellant had told her aunt to get the house vacated and then they lodged the false report in police station against the appellant, but she admitted this suggestion that after vacating Milton’s house they started residing in the house of one Yakub on rent and during their stay in the house of Yakub they lodged report against the appellant. Further, in para 8 of her cross-examination, this witness has stated that she did not know who live in the house of appellant but she says that the appellant’s wife, two children and his mother live in his house and it is wrong to say that she never went to the house of appellant. Further, in para 11 of her cross- examination, the Prosecutrix (PW-1) has stated that before informing the incident to her sister, she did not disclose the incident to anyone. She denied this suggestion that she did not disclose the incident to anyone before informing her 13 sister as nothing bad has happened. 13. Mother of Prosecutrix (PW-2) supporting the statement of the Prosecutrix stated that the appellant and his wife were demanding her daughter (Prosecutrix) saying that they will provide education and treat her as their daughter. She has also stated that the Prosecutrix had come to her house on 19.05.2018 as it was her birthday and demanded some money but she refused to give her money then she went to her sister at Podki University and started working there. She has also stated that during her stay at Podki University, the Prosecutrix informed the incident to her sister then she (sister of the prosecutrix) informed the incident to her (this witness) over phone that the Prosecutrix did not want to go to the house of appellant as the appellant has committed bad things with her. She has also stated that her daughter (sister of prosecutrix) has also informed her (this witness) that the Prosecutrix had told her about irritation in her private part. Thereafter, she informed the incident to her mother and lodged the report against the appellant. This witness has denied this suggestion that the house was vacated by Milton at the instance of appellant and because of this they were having grudge. She has also denied that 14 they have lodged the false report due to enmity. 14. Sister of Prosecutrix (PW-6) has stated that on 19/05/2018, the Prosecutrix came to her house in Podki Lalpur to celebrate her birthday. She worked there for a month. After a month, Prosecutrix told me that she was having pain in her abdomen. She asked the Prosecutrix why she was having pain in her stomach but she did not tell then she slapped her. Thereafter, the Prosecutrix told her that she was having pain in her period area and the appellant had done wrong things (sexual intercourse) with her. After that, this witness informed her mother about the incident. Her mother then informed this witness’s grand-mother about the incident. She has also stated that they went to the police station and lodged a report. This witness also went on to state that earlier they used to live at Milton Masih's house on rent. P.K. Milton and her maternal grand-mother called her and told that the appellant people will take good care of Prosecutrix and she will study by staying at their home. The Prosecutrix used to stay there while studying. Then during vacations Prosecutrix came to her at Podki Lalpur. Then she came back from Podki and stayed at the appellant’s house for a week or two and then she came back to me. Then she 15 started saying that she will stay here for a few days and will not go back. Then the appellant called this witness and said that tell the Prosecutrix to talk to him. Thereafter she (this witness) told the Prosecutrix to talk to him but she refused to talk with appellant. Then she (this witness) turned on the speaker of the mobile and told her to talk then appellant asked the Prosecutrix that her period has come or not. Then she (this witness) objected the appellant, whereupon the appellant said that he was not talking to her, he is talking to her sister Prosecutrix. Thereafter, she informed her mother about the aforesaid matter. In cross-examination, this witness has stated that she had told the police while giving her statement that "her sister came to Lalpur to celebrate her birthday and worked with her for a month, after that, her sister was having pain in her stomach; she asked her why it was happening; she did not tell her; when she slapped her, she (prosecutrix) told that she was having pain in her period area; Appellant Shailesh Masih has done wrong things with her; then she told her mother and grand- mother; her grandmother and Milton said that send the girl (prosecutrix) and that they will take care of her well; after a few days her sister came to Lalpur on vacation; then her 16 sister went from Podki and stayed at the appellant’s house for a week or two; then she came back to her and said that she will not go as she does not feel well there, then the appellant called her (this witness) and said that tell the Prosecutrix to talk with him; then she told the Prosecutrix to talk to him; then the Prosecutrix said that she will not talk; then she turned on the speaker of the mobile and told her (prosecutrix) about it; then the appellant asked if her period has come or not; then she asked him how are he talking; then the appellant said that she is not talking to her, he is talking to her (this witness’s) sister.", but if her above mentioned statement is not written in her police statement (Ex.D-03), she cannot tell the reason. This witness has admitted that they stayed at Milton’s house for one year and after vacating the Milton’s house, they stayed in the house of Yakub. 15. Grand-mother of the Prosecutrix (PW-7) has stated that the appellant, his wife and Achla sister had taken the Prosecutrix with them on the pretext of giving education and they had also told that they would deposit Rs.1,000/- every month. She has also stated that she did not know as to what had happened with her grand-daughter (prosecutrix). The 17 prosecution declared this witness hostile and cross- examined her then she admitted that the Prosecutrix had told her that in the month of August, 2017, the appellant committed sexual intercourse with her by showing knife. In cross-examination, this witness has also admitted that it is correct to say that her daughter (PW-2) was married in village Sarabhara and she has five children. It is wrong to say that PW-2 was thrown out of the house by her husband along with children. It is correct to say that PW-2 left her husband's house and came to her house with her children. It is correct to say that after staying in her house for a few days, she started living in Milton's house and we started working there. It is wrong to say that while living in Sarabhara, Michael who resided in Sarbahra used to visit PW-2. It is wrong to say that husband of PW-2 and her in- laws threw her out from there due to the above reason. This witness has denied this suggestion that Michael used to visit her daughter (PW-2) at Jyotipur frequently and because of this the appellant, who is a relative of Milton, told Milton that he was getting a bad name in the locality. She has denied this suggestion that due to this reason they were thrown out of Milton’s house and that they had grudge against the 18 appellant for this reason. This witness has admitted this suggestion that before PW-6 told them, the Prosecutrix (PW-1) had not given them any information about the incident. 16. Kewal Singh (PW-8) has not supported the case of the prosecution but he admitted his signature on seizure memo (Ex.P-9). The prosecution declared this witness hostile and cross-examined him but he denied this suggestion of prosecution that the police had seized school admission register of Primary School, Sarbahra. 17. Dr. Subhadra Painkra (PW-4) examined the Prosecutrix but she did not find any external or internal injury and according to this witness, the Prosecutrix was habitual for sexual intercourse and gave her report under Ex.P-8 and prepared two vaginal slides of Prosecutrix, and as per FSL report (Ex.P-21), semen was not found in vaginal slides of the prosecutrix. 18. Close scrutiny of the evidence of Prosecutrix (PW-1), her mother (PW-2), sister (PW-6) and grand-mother (PW-7) makes it clear that at the time of alleged incident, the Prosecutrix was residing with the appellant in his home. It was suggested by the appellant in para 12 of cross- 19 examination of the Prosecutrix (PW-1) that while working at the appellant’s house, the appellant’s wife, his mother and sister took good care of her but the Prosecutrix denied this suggestion, and it was also suggested that she used to came back to her house after preparing meal. 19. In para 5 of cross-examination of PW-2, mother of Prosecutrix, it was again suggested that the appellant and his wife had demanded the Prosecutrix and when she came back to Jyotipur from Podki, at that time the Prosecutrix was working in the house of appellant and she had gone to meet her daughter, this suggestion was admitted by PW-2. She has also admitted that her daughter often used to come to the house. 20. Sister of Prosecutrix (PW-6) has also admitted the suggestion of defence in para 5 of her cross-examination that the Prosecutrix used to work in the house of appellant and during that period she often used to come to the house of her mother. This witness has denied this suggestion that the Prosecutrix used to come to the house of her mother at night after performing domestic work in the house of appellant. Grand-mother of the Prosecutrix (PW-7), in para 5 of her cross-examination, has also admitted this 20 suggestion of prosecution that appellant was in acquaintance with her family members and being satisfied of this, they had sent the Prosecutrix to the house of appellant. 21. All the aforesaid suggestions given by the defence proved this fact beyond reasonable doubt that the Prosecutrix was living with appellant at his home and when she went to her sister (PW-6), she informed the incident that the appellant committed sexual intercourse with her forcefully. The Prosecutrix (PW-1) also remained firm in her cross- examination and the defence has not been able to elicit anything in her cross-examination to discredit her testimony especially to the fact that the appellant has not committed sexual intercourse with her without her Will and consent. The appellant, in his statement recorded under Section 313 of Cr.P.C., did not explain as to why the Prosecutrix (PW-1) and her family members would falsely implicate him. Suggestion was given by the defence that the appellant has been falsely implicated in the crime in question for getting the house vacated but looking to the statement of the Prosecutrix (PW-1), it is proved that the appellant committed sexual intercourse with her without her Will and consent at 21 the time when she was living with appellant in his house. That apart, medical report (Ex.P-8) is also suggestive of the fact that the prosecutrix was subjected to sexually intercourse. According to report (Ex.P-8), old hymen was ruptured and she was habitual of sexual intercourse. So, the learned trial Court also minutely appreciated oral and documentary evidence and has rightly convicted the appellant for the offence punishable under Sections 376 and 506 Part-II of IPC. 22. We do not find any illegality or infirmity in the impugned judgment of conviction and order of sentence warranting any interference by this Court. The learned trial Court was fully justified in convicting the appellant. 23. In the result, the appeal is dismissed. 24. The appellant is on bail. He be sent back to jail for serving remaining jail sentence. 25. The Lower Court records along with copy of this judgment be sent back immediately to the trial Court concerned and Jail Superintendent for compliance and necessary action. Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge pekde Digitally signed by VIJAY BHARATRAO PEKDE Date: 2025.08.12 16:58:15 +0530