1 2025:CGHC:1314 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 821 of 2018 Bharat Kumar Khairwar S/o Parasram Aged About 30 Years R/o- Moti Sagar Para, Near Kushth Ashram, Korba, Police Station- Kotwali, Korba, District- Korba, Chhattisgarh., District : Korba, Chhattisgarh ... Appellant(s) versus State Of Chhattisgarh Through- The Station House Officer, Police Station- Kotwali, Korba, District- Korba, Chhattisgarh., District : Korba, Chhattisgarh ... Respondent(s) (Cause title taken from Case Information System) For Appellant : Mr. Manoj Kumar Jaiswal, Advocate For Respondent/State : Mr. Shailendra Sharma, Panel Lawyer Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on Board 08/01/2025 1. Being aggrieved by the judgment of conviction and sentence dated 25.04.2018, passed by learned Second Additional Sessions Judge, Korba, in Sessions Case No. 78 of 2017, whereby the present appellant has been convicted for the offence under Section 376 of IPC and sentenced for R.I. for 10 years with fine of Rs. 3000/-, in default of payment of fine, additional R.I. for 3 months, the present appeal under section 374(2) of the Code of Criminal Procedure, 1973 has been filed. Digitally signed by VEDPRAKASH DEWANGAN 2 2. The brief facts of the case are that, in the intervening night of 24/25.06.2017, when the victim was sleeping in her room at Leprosy Ashram, Moti Sagar Para, Korba, at about 2:00 AM, the appellant entered into her room, dragged her towards backside of the Ashram by gagging her mouth and behind the Ashram committed rape upon her. When she tried to shout, he gagged her mouth, and after commission of the rape upon her, he fled away. After sometime, she heard the noise of other inmates of the Ashram, who took her to Ashram and after informing the incident to them, she lodged the report on 25.06.2017. On the report made by the victim, the FIR (exhibit P-11) was registered for the offence under section 376 of IPC against the appellant. The victim was sent for her medical examination to District Hospital, Korba, where PW-4/Dr. Veena Agrawal has medically examined her, who after her medical examination gave report (exhibit P-9). In the medical report, the doctor has found no injuries on her body. However, observed that the victim was suffered by paralysis by left hand and leg. She opined that the lady is habitual for intercourse, so no definite opinion could be given about time and duration. Two slides of her vaginal swab were prepared, sealed, and handed over to the police for its chemical examination. The spot map (exhibit P-14) was prepared by the police. The petticoat of the victim was also recovered vide seizure memo (exhibit P-16). The appellant was arrested on 25.06.2017 and he too was sent for his medical examination to Primary Health Centre, Korba, where he was being medically examined by PW-10/Dr. Kamal Kishore Dewangan, who after his examination gave report (exhibit P-34). According to the medical report of the 3 appellant, the appellant was found able to perform sexual intercourse. Two slides of his semen was also prepared, sealed and handed over to the police for chemical examination. The underwear of the appellant was also seized vide seizure memo (exhibit P-22). The vaginal slides of the victim, her petticoat, pubic hair of the appellant, semen slide of the appellant and underwear of the appellant were sent for FSL examination to Regional FSL Bilaspur, from where report (exhibit P-27) was received and according to the FSL report, the vaginal slide of the victim, semen slide of the appellant, and the underwear of the appellant was found to be positive with semen and sperm. *******During the investigation, the victim had died on 29.06.2017, while she was staying at the Leprosy Ashram. To avoid any suspicion, the post-mortem was conducted of her dead body, which is Exhibit P-31. According to the postmortem report of the victim (exhibit P-32), the doctor has opined that the death of the deceased was due to hypoglycemic shock due to starvation, seems to be accidental. Statement of the witnesses have been recorded and after completion of usual investigation, a charge sheet was filed against the appellant for the offence under section 376 of IPC before the learned Chief Judicial Magistrate, Korba. The case was committed to the Court of learned Sessions Judge, Korba, from where the same has been transferred to the learned trial Court for its trial. 3. Learned trial Court has framed charge for the offence under section 376 of IPC. The appellant denied the charge and claimed trial. 4 4. In order to prove the charge against the appellant, the prosecution has examined as many as 10 witnesses. Statement of the appellant under section 313 of CRPC has also been recorded, in which he denied the circumstances appears against him, plead innocence and have submitted that he has been falsely implicated in the offence. 5. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted and sentenced the appellant as mentioned in the earlier part of the judgment. Hence, this appeal. 6. 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 the prosecution witnesses, which cannot be made the basis for holding conviction of the appellant. He would further submit that since the victim has not been examined, therefore no offence of rape is proved in the case. He would further submit that the victim was residing in the Leprosy Ashram and she suffered from leprosy disease and having very weak physique including paralysis on her left part of the body. In such a condition, it would not be possible for the appellant to commit any offence with her. He would further submit that she might have raised alarm, when she was being dragged by the appellant. Yet, there is no evidence that she has raised alarm while she was being dragged by the appellant. *******No external injuries have been found on the body of the victim. Therefore, there is no sufficient evidence against the appellant to convict him in the offence in question. Therefore, the appeal may be 5 allowed and the appellant may be acquitted from the alleged offence. In alternative, he would submit that the appellant is in jail since 26.06.2017 and he has already completed more than 7 years of his sentence. In the year 2017, the minimum sentence provided for the offence under section 376 of IPC was 7 years and therefore, the sentence awarded to the appellant may be reduced for the period already undergone by him as he has already served the minimum sentence provided for the offence. 7. On the other hand, learned counsel for the State opposes and has submitted that prompt report has been lodged by the victim. She was physically very weak and suffered by the paralysis of her left side of body. It is specifically came in the FIR that when she tried to raise her alarm, the appellant gagged her mouth for which she could not raise her alarm. She immediately informed the incident to the other inmates of the Ashram and thereby, there is sufficient explanation by the prosecution and therefore, there is sufficient evidence against the appellant. *******Due to her weak physique and ill health, she had succumbed after about 4 days of the incident, but in the fact that she was a widow lady residing at the Leprosy Ashram, yet in her vaginal slides, sperm and semen were found. He would further submits that when they found the door of the room opened, they started searching her and found her backside of the Ashram in naked condition, then they informed the incident to the other persons of the vicinity. He would also submit that even if no injuries have been found on the body of the victim, looking to her weak physical condition, dominant position 6 of the appellant, and also the place where the alleged incident is said to have been committed by the appellant i.e. muddy, the injury is not necessary to be found on her body, even if the victim has died after about 4 days and she has not been examined before the learned trial Court, the other evidence available on record clearly suggests that she was subjected to rape by the appellant. Therefore, the learned trial Court has rightly convicted the appellant and sentenced him, which needs no interference. 8. I have heard learned counsel for the parties and perused the record of the case. 9. True it is that the victim has died on 29.06.2017 and from her post- mortem report (exhibit P-32), it reflects that she died due to hypoglycemic shock due to starvation, but considering the fact that 4 days prior to the date of her death, she was suffered from the offence of rape by the appellant. Therefore, this Court proceeds to examine the other evidences available on record. 10. PW-1, who is another inmate of the Ashram, has stated in his evidence that the victim was resided at Leprosy Ashram at Moti Sagar Para and he too was also the resident of the same Ashram. On the date of incident, when he tried to open the door of his room, he found that the door was bolted from outside. When she knocked the door from inside, after hearing the noise, the other inmates of the Ashram came there and they opened the door from outside. When he returned back, after answering the call of nature, he found that the door of the room of the victim was opened. When they saw her room, they could not found her there. Thereafter, they started searching her 7 by calling her name. When they heard her murmuring, they saw that she was lying on the back side of the Ashram. Then she informed that the appellant has pressed her neck and committed rape upon her. They informed the police and with the help of police, the victim was taken to her room. In cross examination, he admitted that prior to the date of incident, the victim was suffering from paralysis by her left side of the body. She was very weak and suffering from disease. There is nothing in his cross examination, which suggests that this witness has deposing the incorrect fact that the victim has not informed any incident to him or the condition in which she was found on the back side of the Ashram. 11. PW-2, who is also an inmate of the said Ashram, has stated in her evidence that in the night when she heard the noise of knocking the door, she found that her door was also bolted from outside and the other inmate of the Ashram had opened the door of PW-1 first and then her door was also opened from outside. When they saw the door of the victim was opened, they started searching her and found that she was lying at some distance of the Ashram. She was pooled with the mud and was naked. She was not able to shout and then she called the ward member and thereafter police was being informed. The victim has informed her that the appellant has dragged her towards the place and committed rape upon her. She also informed that the appellant gagged her mouth, therefore she could not raise her alarm. In cross-examination also, this witness has remained firm in saying that when they started searching the victim, they found her in a naked condition near the Ashram and she 8 informed that the appellant dragged her and committed rape upon her. 12. PW-4/Dr. Meena Agrawal, who medically examined the victim, though had not found any external injuries on her body, but she observed that the victim was physically weak and suffered by paralysis of her left part of the body. Since she was the married lady and habitual to sexual intercourse, no definite opinion could be given with respect to the sexual intercourse. However, two slides of her vaginal swab were prepared, sealed and handed over for its chemical examination. 13. PW-5/Vivek Sharma, who is the Inspector of police and Investigating officer of the case, has stated in his evidence that on 25.06.2017, the victim has lodged a report to the police station that the appellant has dragged her from Leprosy Ashram and committed rape upon her. The report lodged by the victim is Exhibit P-11 and thereafter he sent her for medical examination to District Hospital, Korba. He proved the manner in which he investigated the matter. He also proved that on 29.06.2017, a merg intimation was given about the death of the victim, which has been recorded as Exhibit P-30 and he sent her dead body for its post-mortem to PHC, Korba. He obtained its post- mortem report (exhibit P-32). In cross-examination, he too has remained firm in the procedural aspect of the investigation and proved the entire investigation. The prosecution has also proved the FSL report (exhibit P-27) in which the vaginal swab of the victim was found positive with the semen and sperm. It has come on record that her husband has already died, she was a very weak physical 9 character having suffered by paralysis on her left part of the body, resided at Leprosy Ashram, in such a condition it cannot be expected from anyone that she indulged in making consensual physical relation with anyone so that the possibility of presence of semen and sperm on her vaginal swab can be ruled out. But in the present facts and circumstances of the case, presence of semen and sperm in her vaginal swab supports the allegation that she was subjected to sexual intercourse, which is supported by the other evidence available on record. 14. PW-6 is the lady constable, who has taken the victim to the hospital for her medical examination and the witness of seizure memo is Exhibit P-17. From her evidence, she denied any tampering with the vaginal slides, which has been seized in her presence. PW-7 is the witness, who has taken the seized article to FSL Bilaspur. PW-10, Dr. Kamal Kishore Dewangan has found the appellant capable to perform sexual intercourse and gave his report (exhibit P-34). 15. From all these evidences, it has been established by the prosecution that in the intervening night of 24/25.06.2017, the appellant committed rape upon the victim. PW-10, Dr. Kamal Kishore Dewangan has found the appellant capable to perform sexual intercourse and gave his report (exhibit P-34). From the evidence of PW-1 and PW-2, who were the inmates of the Ashram, where the victim was residing, have duly supported the prosecution's case. The condition, in which the victim was found, presence of semen and sperms on her vaginal slides, which was prepared by PW-4, Dr. Meena Agrawal. 10 16. From the report (exhibit P-11), which has been lodged by the victim herself, in which she raised allegations against the appellant, this Court is of the opinion that there are sufficient evidence on record to convict the appellant for the offence in question, even if the victim could not be examined due to her death, yet the evidence available on record proves the fact that she was being subjected to rape by the appellant. Therefore, the conviction of the appellant for the offence under Section 376 of IPC is affirmed. 17. The next question for consideration would be that, what would be the appropriate sentence for the offence? 18. The learned trial Court has imposed sentence upon the appellant for R.I. for 10 years, with fine of Rs. 3000/-. The incident is of intervening night of 24/25.06.2017. On that prevailing day, the minimum sentence provided for the offence under Section 376 was 7 years. Considering the peculiar facts and circumstances of the case, I deem it proper to reduce the sentence awarded to the appellant for the alleged offence. Therefore, while maintaining the conviction of the appellant under Section 376 of IPC, his sentence is reduced from R.I. for 10 years to R.I. for 7 years, with fine of Rs. 3000/-, in default of payment of fine, further R.I. for 3 months. 19. With this modification of sentence, the appeal is partly allowed. The appellant is deported to be in jail since 25.06.2017. He is entitled for set-off of his undergone period. 20. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail 11 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. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Ravindra Kumar Agrawal) Judge ved