1 2025:CGHC:31637 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 300 of 2007 Judgment Reserved on : 03.04.2025 Judgment Delivered on : 09.07.2025  Mahesh (Teacher), S/o Rooplal, aged about 21 years, resident of village Ahilda in the [Police Chowki Lawan] Police Station Kasdol, District Raipur (C.G.) ---- Appellant Versus  State of Chhattisgarh Through The [Police Chowki Lawan] Police Station – Kasdol, District Raipur (C.G.) ---- Respondent For Appellant : Mr. Satya Prakash Verma, Advocate For Respondent/State : Mr. Devesh G. Kela, P.L. Hon'ble Smt. Justice Rajani Dubey (C A V Judgment) 1. This appeal arises out of the judgment of conviction and order of sentence dated 13.04.2007 passed by the 1st Additional Sessions Judge, Balodabazar (C.G.) in Sessions Trial No.278/2006, whereby the appellant stands convicted and sentenced as under :- 2 CONVICTION SENTENCE Under Section 376 (2) (f)/511 of IPC R.I. for 05 years with fine of Rs.500/-, in default of payment of fine amount, additional R.I. for one month. Under Section 342 of IPC R.I for 06 months with fine of Rs.500/-, in default of payment of fine amount, additional R.I. for one month. 2. Prosecution story, in brief, is that on 29.03.2006, the accused/appellant who is the Teacher, told the Prosecutrix (PW-1) that her father is calling her and took her to his house, where he committed rape with her. Thereafter, she came back to school and while playing with her friend Nutan and Sugrita she told them about the act of the accused/appellant. On the same day at evening, when prosecutrix’s friend Nutan and Sugrita again asked her about the act of the accused/appellant, which was heard by mother of prosecutrix (PW-2), whereupon PW-2 mother of prosecutrix asked about the incident then Prosecutrix (PW- 1) narrated the incident to her mother PW-2 that the accused/appellant committed rape with her. Thereafter, at night the incident was informed to father of Prosecutrix (PW- 3) by her mother PW-2 and on next day, a panchayat meeting was convened in which the accused/appellant confessed to have committed the crime. Then, a report was made in police station and F.I.R. (Ex.P-7) under Sections 376, 511 of IPC came to be lodged against the 3 accused/appellant. The statement of the prosecutrix was recorded. She was sent for medical examination to Primary Health Center, Lawan, where she was medically examined by Dr. (Mrs.) Pratiksha Chouhan (PW-10) who gave her report under Ex.P-5 and after examination she referred the prosecutrix to Gynecologist at District Hospital, Raipur for hymen examination. The prosecutrix was examined at District Hospital, Raipur by Dr. (Mrs.) Sheela Tiwari (PW- 17), who gave her report under Ex.P-6 and no opinion was given regarding commission of rape. The accused/appellant was also sent for medical examiantion to Primary Health Center, Kasdol, when he was examined by Dr. Ramsewak Joshi (PW-9), who gave his report under Ex.P-9 opining that the accused/appellant is capable to perform sexual intercourse. Patwari prepared spot map vide Ex.P-3. Inquest was prepared vide Ex.P-1. Vaginal slides of the prosecutrix were seized under Ex.P-2. The vaginal slides of the prosecutrix was sent for chemical examination to FSL, Raipur under Ex.P-12 and report of FSL was obtained, according to which, human sperm was not found in vaginal slides. 3. After filing of the charge sheet, the trail Court framed the charge under Sections 342 and 376 (2) (f)/511 of IPC against the accused/appellant. 4. So as to hold the accused/appellant guilty, the prosecution 4 examined as many as 13 witnesses. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C. in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication. 5. The 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. 6. Learned counsel for the appellant submits that the written report alleged to have been lodged by mother of prosecutrix (PW-2), who is rustic villager and the same was drafted and prepared by one Deo Kumar, owner of S.T.D. and PCO, who had enmity with the appellant, and the thumb impression of mother of prosecutrix was illegally taken by him and therefore he has been falsely implicated in the crime in question. Learned counsel further submits that the contents of written report were not explained and read over to mother of prosecutrix (PW-2) and it was simply told by Deo Kumar that the report contained slapping of her daughter by the accused/appellant. Learned counsel also submits that the prosecution has not examined other witnesses who have been named in the FIR with whom the accused/appellant alleged to have committed sexual assault, which also points towards the false implication of the accused/appellant. The 5 prosecution has examined as many as 12 witnesses but none of the witnesses have supported the prosecution story and the material witnesses PW-1 and PW-2 turned hostile. The finding of the learned Trial Court is based on conjuncture and surmises which is not sustainable in law. The learned trial Court did not consider that the accused/appellant reside in a joint family and nobody has seen the prosecutrix entering the house of accused/appellant. Learned counsel also submits that all the five witnesses including the mother and father of prosecutirx have only stated about slapping the prosecutrix by the accused/appellant and mother of prosecutrix (PW-2) had gone to police station for lodging the report of slapping. There is contradiction and omission in the statement of prosecutrix (PW-1) the same is not safe to rely for convicting the appellant. The learned trial Court while passing the impugned judgment of conviction has completely ignored the evidence fevouring the appellant. The prosecution has utterly failed to prove the guilt of the accused/appellant beyond shadow of doubt and the benefit of doubt has to be extended to the accused/appellant. In support of his submission, learned counsel placed reliance on the decisions of Hon’ble Apex Court in the matter of Manohar Lal Vs. State of M.P. reported in 2014 (4) CCSC 2125 (SC), Hem Raj Vs. State of Haryana reported in 6 2014 (1) CCSC 206 (SC), Dola @ Dolagobinda Pradhan & Anr. Vs. State of Odisha reported in 2018 SAR (Criminal) 1123 and this Court’s judgment in State of C.G. Vs. Gorelal reported in 2018 (3) SCLJ 97 (DB). 7. On the other hand, supporting the impugned judgment it has been argued by the State counsel that the conviction of the accused/appellant is strictly in accordance law and there is no infirmity in the same. 8. I have heard learned counsel for the parties and perused the material available on record. 9. It is apparent from the record of the learned trial Court that the learned trial Court framed charges under Sections 342 and 376 (2) (f)/511 of the IPC against the accused/appellant and after appreciation of oral and documentary evidence, the learned trial Court convicted the accused/appellant accordingly. 10. The question which arises for consideration by this Court is whether the accused/appellant had committed rape with Prosecutrix. 11. To determine the factor whether rape has been committed by accused/appellant on the Prosecutrix (PW-1) or not, apart from the oral evidence, medical evidence, which is found in the present case, is also to be seen and discussed. 12. The medical examination report about rape is Ex.P-5 proved by PW-10, which shows that at the time of examination of 7 the Prosecutrix (PW-1), secondary sexual character were not developed. No mark of injury on body was found. On examination of private parts, no bleeding was found. Redness and congestion around introits and thus, the prosecutrix was referred to Gynecologist by PW-10 Dr. (Mrs.) Pratiksha Chouhan. Two slides of vagina were prepared and handed over to constable for its chemical examination. 13. The prosecutrix (PW-1) was then examined by Dr. (Smt.) Sheela Tiwari, Gynecologist (PW-17) and gave her report under Ex.P-6, according to which, no external injury was found over private part, there was no congestion, no bleeding, hymen was intact and no tenderness was found. No opinion regarding rape was given by the doctor (PW-17). Thus, from the above, it appears that so far as the medical evidence pertaining to commission of offence of rape is concerned, it is nil. 14. Now this Court shall examine the evidence of Prosecutrix (PW-1), her mother (PW-2), father (PW-3), Garib Das Ghritlahare (PW-6), Mehattar Lal Sahu (PW-7) and Sita Ram Sahu (PW-8), based on their statements the learned trial Court recorded the finding of conviction. 15. The learned trial Court after satisfying itself that the Prosecutrix (PW-1) is able to answer the question rationally put to her, examined her. Prosecutrix (PW-1), in her 8 examination-in-chief, has not supported the case of the prosecution and prosecution declared her hostile & cross- examined her. In cross-examination, she has admitted the suggestion of prosecution that the accused/appellant took her to his house and after removing his clothes slept on her and when she started crying, the accused/appellant told her not to disclose about this to anyone. When the defence counsel cross-examined the prosecutrix then she stated that she never went to accused/appellant’s house and she cannot tell as to how many rooms were there in his house. When a question was asked whether the accused/appellant did not remove any clothes and nor any incident has occurred ?, to which, the prosecutrix (PW-1) remained silent. 16. Mother of prosecutrix (PW-2) has stated that her daughter told that the teacher has committed maarpeet with her and except this she did not tell anything. The prosecution declared this witness hostile and cross-examined her but she denied all suggestions of prosecution and also denied her report. This witness has admitted this suggestion of prosecution that they had compromised the dispute with accused/appellant. This witness has also admitted this suggestion of defence that the report was written by Dev Kumar and she put her thumb impression on the report and the report was not read over to her. 9 17. Father of prosecutrix (PW-3) has also not supported the case of the prosecution and turned hostile. The prosecution cross-examined this witness but he denied all suggestions of the prosecution. 18. Santram Sahu (PW-4) is the Sarpanch of the village. He has stated that father of prosecutrix (PW-3) told him that the accused/appellant had committed maarpeet with his daughter (PW-1). The prosecution declared this witness hostile and cross-examined him but he denied all suggestions of the prosecution. 19. Garib Das Ghrutlahre (PW-6), Mehattar Lal Sahu (PW-7) and Sitaram Sahu (PW-8) have also not supported the case of the prosecution. The prosecution declared them hostile and cross-examined them, however, they denied all suggestions of the prosecution. 20. The Hon’ble Apex Court in the matter of Dola (supra), observed in para 20 as under “20. The evidence of the victim/prosecutrix and her husband (PW-3) are unreliable and untrustworthy inasmuch as they are not credible witnesses. Their evidence bristles with contradictions and is full of improbabilities. We cannot resist placing on record that the prosecution has tried to rope in the appellants merely on assumptions, surmises and conjectures. The story of the prosecution is built on the materials placed on record, which seems 10 to be neither the truth, nor wholly the truth. Teh findings of the courts below, though concurrent, do not merit acceptance or approval in our hands with regard to the glaring infirmities and illegalities vitiating them, and the patent errors apparent on the face of record resulting in serious and grave miscarriage of justice to the appellants.” 21. This Court in the matter of Gorelal (supra) held in para 24 as under :- “24. From the evidence of prosecution side, it is established that immediately after the incident, respondent made attempt to save life of the deceased and just after the incident he called neighbours, took the deceased and admitted her in Government Hospital and when she was shifted to Meo Hospital Nagpur from Government Hospital, Kawardha, respondent remained present there till her death. The conduct of the respondent is indicative of the fact that he is not culprit. First dying declaration is made on the next day of the incident and second dying declaration was recorded at the instance of the father of the deceased after 16 days of the incident i.e., 22-8-1999 and in between there were chances of tutoring the deceased. True it is that conviction can be indisputably based on a dying declaration but before it can be acted upon, the same must be held to have been rendered in consistency. Consistency in dying declaration is the relevant factor for placing full reliance thereupon. In the present case, deceased had 11 stated contradictory and inconsistent version in different dying declarations. It is settled principles of law that if any one speaks differently in different stage, it is difficult to be accepted on its face value. 22. Now reverting to the case in hand, it is apparent from the statement of prosecutrix (PW-1) that in examination-in-chief she did not support the case of the prosecution and when prosecution declared her hostile and cross-examined her then she admitted the suggestion of prosecution and when defence cross-examined her, she also admitted the suggestions of the defence, as such, she is not consistent in her statement and it is difficult to rely upon her statement. Further, mother and father of the prosecutrix (PW-2 and PW-3) have also not supported the case of the prosecution. This Court has already discussed the medical evidence of Dr. (PW-17) and her MLC report (Ex.P-6), which is nil in respect of rape. 23. Thus, for the reasons stated above and keeping in view the guidelines of Hon’ble Apex Court in the matter of Dola (supra) and looking to the entire facts and circumstances of the case, the statement of the Prosecutrix (PW-1) on the point that she was taken by the accused/appellant to his house and committed rape with her cannot be said to be reliable and trustworthy and in view of this conclusion, the findings of the learned 1st Addl. Sessions Judge, 12 Balodabazar by which the accused/appellant was convicted for the offence under Sections 376(2)(f)/511 and 342 of IPC cannot be sustained and liable to be set aside and this appeal deserves to be allowed and the accused appellant is entitled for acquittal. 24. Accordingly, this appeal filed by the accused appellant is allowed and the impugned judgment of conviction and order of sentence dated 13.04.2007 passed by the learned 1st Addl. Sessions Judge, Balodabazar (C.G.) are set aside and the accused appellant is acquitted of the charge levelled against him. 25. The appellant is already on bail. His bail bonds shall remain operative for a period of six months in view of Section 481 of BNSS. 26. Let a copy of this judgment and the original record be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Rajani Dubey) JUDGE pekde Digitally signed by VIJAY BHARATRAO PEKDE