1 2025:CGHC:11527 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 608 of 2020 Bhesan @ Santosh Vishwakarma S/o Hemlal Vishwakarma Aged About 29 Years R/o Village- Mura, Thana- Kurud, District- Mahasamund, (C.G.). ... Appellant versus State Of Chhattisgarh Through Station House Officer, Police Station- Rakhi, District- Raipur, (C.G.). ... Respondent For Appellant :Ms. Varsha Sharma, Advocate. For Respondent/State :Ms. Isha Jajodia, P.L. for the State. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 07/03/2025 1. The present criminal appeal has been filed under Section 374(2) of Criminal Procedure Code 1973, against the impugned judgment of conviction and sentenced dated 27.11.2019 passed by learned Additional Sessions Judge, (F.T.C.) District – Raipur (C.G.) in Sessions Case No.145 of 2018, whereby the appellant has been convicted for the offence under Section 376(1) of IPC and sentenced him to R.I. for 10 years with fine of Rs.1,000/- in default of payment of fine amount further R.I. for two months. 2 2. The brief facts of the case are that on 23.04.2018, the victim PW-1 lodged the report against the appellant that she is residing with her parents. On 21.04.2018 at about 8:00pm. when she was returning after answering the call of nature, on the way the appellant came there, dragged her towards threshing field of one villager and committed rape upon her. When she protested, she received injuries on her left hand elbow and neck and by scuffling her bangles were also broken. The appellant has also assaulted her when she protested and threatened her. On the report of the victim PW-1, the FIR Ex.P/1 was registered against the appellant for the offence under Section 376, 323 & 506 of IPC. She was sent for her medical examination to Community Health Center, Abhanpur, where she was being medically examined by Dr. S.D. Kanwar PW-6, who medically examined her and gave report Ex.P/10. While medically examined the victim the doctor has found abrasion at base of right side of neck size 3x2cm, abrasion on left elbow 1/4 x 1/4 cm and on internal examination, he found that her hymen was fresh torn, fresh bleeding seen and vaginal examination was painful and she opined that as per her finding, sexual intercourse done with the victim. Two slides of her vaginal swab were prepared, sealed and handed over to the police for its chemical examination. Vide Ex.P-3, Spot map was prepared and Ex.P/15 was prepared by police. The underwear of the victim was seized vide seizure memo Ex.P/4. The broken pieces of bangles were seized from the spot vide seizure memo Ex.P/7. The appellant was arrested on 24.01.2015 and he too was sent for his medical examination to District Hospital Raipur, where PW-2, Dr. S.K. Agrawal has medially examined him and gave report Ex.P/8. After medically 3 examined the appellant, the doctor has found him capable to perform sexual intercourse. The underwear of the appellant has been seized vide seizure memo Ex.P/12. The vaginal slides, underwear of the victim as well as underwear of the appellant were sent for its chemical examination to State FSL Raipur, from where FSL report has been received and as per FSL report, semen and sperm were found on the sent articles. The statement of the witnesses under Section 161 of Cr.P.C. has been recorded, statement of under Section 164 of Cr.P.C of the victim has also been recorded and after completion of usual investigation, charge-sheet was filed before the learned Judicial Magistrate 1st Class, Raipur for the offence under Sections 376,323 & 506 of IPC against the appellant. 3. The case was committed to the Court of learned Sessions Judge, Raipur from where the same has been transferred to the learned trial Court for its trial. 4. The learned trial Court has framed charge against the appellant for the offence under Sections 376(1), 506 part II & 323 of IPC. The appellant denied the charge and claimed trial. 5. In order to prove the charge against the appellant, the prosecution has examined as many as 8 witnesses. The statement of the appellant under Section 313 of Cr.P.C. has also been recorded in which he denied the circumstances appears against him, pleaded innocence and has submitted that he has been falsely implicated in the offence. One defence witness has been examined by the appellant. 6. After appreciation of the oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted and sentenced 4 the appellant as mentioned in the earlier part of the judgment. Hence, this appeal. 7. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses, and their evidence cannot be made basis for convicting the appellant for the alleged offence. She would further submit that the alleged incident is of the night time and there was complete darkness and the victim could not identify the person who have committed offence with her but on suspicion, she made allegation against the present appellant. She admitted in her evidence that at the time of lodging of the report, the victim was not known the name of the appellant whereas, the FIR bears the name of the appellant which itself shows that the appellant has been falsely implicated in the offence. She would further submit that alleged incident is occurred on 21.04.2018 but the report has been lodged on 23.04.2018 which is delayed and no explanation has been offered by the victim for lodging of the delayed FIR. Therefore, there is no clinching and cogent evidence against the appellant and he is entitled for acquittal. 8. On the other hand, learned counsel for the State opposes and has submitted that from the evidence of victim herself the offence against the appellant is proved though she could not know his name but she knows the appellant by his face and she explained in her evidence as to how she came to know about the name of the appellant. Despite having darkness on the place of the incident, she identify the appellant. The injuries have been found on the body of the victim and in her vaginal swab semen and sperm were also found which 5 corroborate the allegation against the appellant that he committed rape upon her. The evidence of the victim has also been corroborated by the evidence of other witnesses and therefore, there is ample evidence in the record against the appellant to convict him in the offence in question and his appeal is liable to be dismissed. 9. I have heard learned counsel for the parties and perused the material available on record. 10. PW-1 the victim has stated in her evidence that on the date of incident when she was returning after answering the call of nature, on the way the appellant came there, dragged her towards threshing field and committed rape upon her. By the incident, she received injuries on her elbow and neck and her bangles were also broken. The appellant has also assaulted her and pressed her breast. She lost her consciousness and the appellant fled away from the place. When she regain her conscious after short moment, she wore her clothes and came back her house. Since appellant had given threatening to her, she did not disclose it to her mother. After two days, she disclosed the incident to her neighbor who, in turn, disclosed the same to her parents and then her parents verified the incident from her and then the report has been lodged. 11. In cross-examination, she admitted that the appellant used to come to her neighbors house and the appellant is relative of her neighbor the place where she had gone to answer the call of nature is at the distance of about 10 paces of her house. She denied the suggestion given by the defence that the person who committed rape upon her, she has not seen him. She further stated that at the time of incident, the appellant gagged her mouth despite that she had shouted. In her 6 cross-examination, she further admitted the suggestion given by the defence that it was a dark night, she saw the face of the appellant but she did not know his name and subsequently, she came to know about the name of the appellant. She further admitted that she saw the appellant in the house of the neighbor 4-5 days back, therefore, she identify the appellant. From the cross-examination of this witness, the defence could not extracted any material which makes her evidence doubtful rather despite having night time, she duly identified the appellant that he committed the rape upon her. Though, she stated that she did not know about the name of the appellant but she examined that when the appellant was called by the police, his parents has called him by his name then she came to know about his name. 12. PW-4 is the neighbor of the victim who supported the evidence of the victim that on the date of the incident when she had gone to answer the call of nature, the appellant committed rape upon her in threshing field and thereafter, she disclosed the incident to her mother. Though she is not the witness of the incident nor she had seen the appellant present on the spot but she supported that the victim has informed about the incident to her and she informed it to her parents. There is nothing unusual in her evidence and her evidence is supported the evidence of the victim. 13. PW-2 the mother of the victim and PW-3 is the father of the victim have also supported the prosecution’s case that after commission of offence the victim has disclosed the incident to their neighbor PW-4, who informed them about the incident and then they asked from the victim and then she disclosed about the incident. The evidence of PW- 7 2 and 3 are also in corroboration with the evidence of victim PW-1 and her neighbor PW-4. 14. PW-6 Dr. S.D. Kanwar who medically examined the victim has found the injuries on the body of the victim as she stated in the FIR also. Abrasions have found on her neck and left elbow and her hymen was found fresh torn and active bleeding was present and she opined that the victim was subjected to sexual intercourse and gave her report Ex.P/10. Nothing in her cross-examination also which makes her evidence unbelievable or doubtful. The evidence of doctor as well as victim further supported by the FSL report, in which semen and sperm were found on the vaginal slides of the victim as well as her underwear and underwear of the appellant. Therefore, from the evidence the guilt of the appellant has duly been established by the prosecution by leading cogent and clinching evidence. 15. The defence witness examined by the appellant is with respect to the plea of alibi that on the date of incident he was not in the village. This witness is the neighbor of the victim and uncle of the appellant, but from perusal of the evidence of the victim as well as other witnesses, defence of the plea of alibi has not been taken by the appellant and no cross-examination has been made to that effect. Further the plea of alibi has not been proved by the appellant in accordance with law. Merely by saying that the appellant was not present in the village is not sufficient to prove the plea of alibi and something more is required for the same. 16. Therefore, I found that there are ample evidence against the appellant in the case to convict him in the alleged offence. In view of above, the 8 conviction of the appellant for the offence under Section 376(1) of IPC is maintained. 17. In the matter of Parhlad & Anr. Vs. State of Haryana reported in (2015) 8 SCC 688, The Hon’ble Supreme Court has observed in para 17 & 18 which reads as under:- 17. It has to be borne in mind that an offence of rape is basically an assault on the human rights of a victim. It is an attack on her individuality. It creates an incurable dent in her right and free will and personal sovereignty over the physical frame. Everyone in any civilised society has to show respect for the other individual and no individual has any right to invade on physical frame of another in any manner. It is not only an offence but such an act creates a scar in the marrows of the mind of the victim. Anyone who indulges in a crime of such nature not only does he violate the penal provision of the IPC but also right of equality, right of individual identity and in the ultimate eventuality an important aspect of rule of law which is a constitutional commitment. The Constitution of India, an organic document, confers rights. It does not condescend or confer any allowance or grant. It recognises rights and the rights are strongly entrenched in the constitutional framework, its ethos and philosophy, subject to certain limitation. Dignity of every citizen flows from the fundamental precepts of the equality clause engrafted under Articles 14 and right to life under Article 21 of the Constitution, for they are the “fon juris” of our Constitution. 18. The said rights are constitutionally secured. Therefore, regard being had to the gravity of the offence, reduction of sentence indicating any imaginary special reason would be an anathema to the very concept of rule of law. The perpetrators of the crime must realize that when they indulge in such an offence, the really create a concavity in the dignity and bodily integrity of an individual which is recognized, assured and affirmed by the very essence of Article 21 of the Constitution. 18. For the forgoing reason, I do not found any good ground to interfere with the impugned judgment of conviction and sentence passed by learned trial Court. 19. Consequently, the appeal filed by the appellant fails and hereby dismissed. The appellant is reported to be in jail since 24.04.2018. He shall serve the entire sentence as awarded by the learned trial Court. 20. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail 9 sentence 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 High Court Legal Services Committee or the Supreme Court Legal Services Committee. 21. The trial Court record along with a copy of this judgment be sent back to the trial Court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) JUDGE Vaibhav/alok ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2025.04.03 10:11:45 +0530