1 2025:CGHC:41179 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1087 of 2016 Khomlal @ Khemu Sahu S/o Budhuram Sahu Aged About 67 Years R/o Dundera Chowki, Utai District Durg Chhattisgarh, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Police Station Utai District Durg Chhattisgarh, Chhattisgarh ... Respondent(s) (Cause-title taken from the Case Information System) For Appellant(s) : Mr. Vipin Tiwari, Advocate For Respondent(s) : Mr. R.C.S. Deo, Panel Lawyer Hon'ble Shri Justice Bibhu Datta Guru Judgment on Board 14/08/2025 1. This criminal appeal preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order of sentence dated 28.04.2016 passed in Sessions Trial No. 107/2015 by the learned SOURABH BHILWAR Digitally signed by SOURABH BHILWAR Date: 2025.08.23 12:13:06 +0530 2 Additional Sessions Judge (F.T.C.), Durg, C.G., whereby the appellant has been convicted and sentenced as under:- Conviction Sentence U/s 376(1) of IPC Rigorous imprisonment for seven years and fine of Rs. 10,000/- with default stipulation. U/s 323 of the IPC Rigorous imprisonment for three months and fine of Rs. 100/- with default stipulation. Both the sentences were directed to run concurrently. 2. Case of the prosecution in brief is that on 20/08/2015, a report was lodged by the victim in Utai police station against the accused to the effect that she has three sons, she lives with her son Lalit, the health of the children in her family remains poor, for this reason on 18.08.2015, the victim called the village Baiga accused Khomlal to get her house tied up. The accused reached victim's house, performed puja and said that an exorcism proceeding has to be done to the victim at 12 midnight, took her inside the room and closed the door, and asked the family members to stay outside, and where inside the room, he made the victim drink some diluted water, thereafter, the accused took off the clothes of the victim, raped her, bit her face and threatened to ruin the whole house if she told anyone about the incident. Due to this she did not tell anyone about the incident. Thereafter on 20.08.2015 the victim informed her son and neighbour about the incident. On the basis of report lodged by the 3 victim, Utai police station registered the First Information Report (Ex.- P/1) and took it into investigation. 3. During investigation, Spot Map (Ex.P/15) was prepared. Statement of the Victim and the Statements of witnesses were recorded. Subsequently after completing the investigation, a charge-sheet was submitted before the Court. 4. After framing the charges against the accused/appellant, the charges were read out and explained to the appellant, he denied committing the crime and demanded trial. 5. In order to bring home the offence, the prosecution has examined 11 witnesses in its support. Statement of the accused/appellant under Section 313 Cr.P.C was recorded, wherein he has pleaded his innocence and false implication in the matter. 6. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 28.04.2016 convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal. 7. Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case. He would submit that the conviction against the appellant is bad in law and it is not supported by the evidence of the prosecution beyond reasonable doubt. He would submit that while passing the impugned judgment the trial Court failed to appreciate the fact that there are material contradictions and omissions in the statements of the prosecution witnesses. He would submit that the 4 medical report is not supported the version of the prosecution. Learned counsel would submit that without there being any cogent evidence, the conviction of the appellant is bad in the eyes of law. 8. Learned counsel appearing for the State opposes the submissions made by the counsel for the appellant and submits that the conviction of the appellant is well merited which does not call for any interference. Therefore, this appeal deserves to be dismissed. 9. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 10. It is an admitted fact that the victim in the present matter is an sexagenarian widow lady hence the first question arises before this Court whether the accused committed rape upon the victim or not. 11. The victim was examined as PW/2 who stated in her statement that she knows the accused and he used to work as a Baiga. Coming to the incident, she stated that it was about 6 months ago, the children of the family were remain ill regularly, due to which she called the accused to get the house tied. The accused came along with two other persons to her house for puja, one of whom was named Bhojram. They started the puja in the room of her house, all the family members were sitting outside in the shade, then the accused called her inside the room, and closed the door, and gave her some solution to drink, and after removing her clothes, raped her. She further stated that she resisted 3-4 times, and tried to open the door, but all her efforts went in vain. At around 11:30 pm, the 5 accused left her, thereafter she opened the door and came out. Whereas in her cross-examination, she categorically stated that she had called the accused for Puja, he came and perform Puja on the same day. She stated that at the time of Puja, her daughter-in-law, son, Bhojram, all were present in the house. She also stated that the accused and Bhojram were sleeping in her house on the date of the incident, at 4:00 am, the accused's son was called, then he came and took the accused away. She vehemently stated that she did not immediately inform the son, daughter-in-law and other family members sitting in the shade outside the puja room about the incident on the same day even on the second day of the incident. She stated that there was a commotion due to my resistance 3-4 times, which must have been heard by the son, daughter-in-law and others sitting in the shade outside the puja room. She further stated that she was always remains unwell and she used to have pain in her urination area, for which she used to get treatment. 12. PW/1 daughter-in-law of the victim categorically stated in her statement that they themselves called the accused on their own. He came, performed the puja and after some time he called her mother-in-law (victim) inside the room, they remained outside, she stated that she and other family members were there but they couldn't make out anything and did not hear any noise from the room. She further stated that after coming out of the room, her mother-in-law did not immediately tell anything about the incident and her mother-in-law was normal on the second day of the incident. This witness stated that there was an injury 6 on her face. However further she stated that she did not see any injury on her mother-in-law's face in the morning even on the second day of the incident. 13. PW/4- Vijay Sahu who stated in his statement that the accused asked him to come with him to the house of Lalit for performing a puja. Upon which he agreed and went with the accused at about 9:30-10:00 PM. After completing the puja, he returned to his home at about 12:00 on the same day. In spite of this, he does not stated anything about the incident. 14. PW/6- Dr. Mamta Gendre, Medical Officer, Community Health Centre, Utai who conducted the medical examination of the victim, submitted her medical report Ex.P/6 and stated that no definite opinion can be given about when the sexual intercourse has been done with the victim. Whereas in her cross-examination, she stated that there are scratch marks on the victim's labia minora and as also the said injuries caused to the victim could have occurred within a period of 15-20 hours of the examination. 15. Upon cumulative analysis of the above statements and medical evidence, it appears that there are material contradictions and omissions in the statements of the witnesses. From the evidence adduced by the prosecution, it is evident that several persons of the family members including Vijay Sahu (PW/4) were present in the house at the time of incident particularly in front of the room where the alleged rape has been committed by the accused however no one has heard the commotion of resistance though the victim has stated in her statement that she had 7 resisted 3-4 times and tried to open the door. It is very improbable to accept the fact that the prosecutrix when raped by the accused, she did not disclose the said fact to the family members who were present there even on the second day of the incident. She disclosed the incident after two days i.e. 20/08/2015. As far as scratch marks on the victim's labia minora are concerned, the victim herself stated that she used to get the treatment for that genital/ reproductive disease. 16. In the absence of evidence to prove that the accused has committed rape, the prosecution's case is significantly weakened. The lack of evidence in this regard raises reasonable doubt about the accused's involvement in the alleged offence. In criminal anticipation, the burden of proof lies with the prosecution to establish the guilt of the accused beyond reasonable doubt. Without any evidence to substantiate the charge of rape, it becomes challenging for the prosecution to meet this burden. The Court would need to carefully consider the absence of evidence and its implications on the prosecution's case, potentially leading to the benefit of doubt being given to the accused. 17. As far the conviction under Section 323 IPC is concerned, It specifies that anyone who intentionally inflicts hurt on another person can be punished with imprisonment up to one year, a fine of up to one thousand rupees, or both. The victim stated that while she was inside the room, in the attempt of saving herself, she resisted 3-4 times, and tried to open the door, then the accused pulled her down, and climbed over her. Further when making statement before police, she had told that the accused had 8 bitten her on the face during the incident, and she did not tell anyone about this. In this regard, the medical witness (PW/6) has categorically stated in her statement that there were marks on both sides of the victim's chin. She stated that the marks could not be caused by falling, whereas she vehemently opined that if a person is hit or collides with a hard object, then the marks can be caused. Even the daughter-in-law of the victim i.e. PW/1 has stated in her evidence that she did not see any injury on the face of the victim. Therefore, the appellant cannot be convicted under Section 323 of IPC. 18. For the foregoing reasons, the prosecution has failed to prove its case beyond reasonable doubt, the prosecution witnesses did not support the version of the prosecution, therefore, I am of the view that the appellant is entitled to be acquitted. 19. The accused is acquitted of the charges for which he was tried. The appellant is reported to be on bail. His bail bonds are not discharged at this stage and the bonds shall remain operative for a period of six months in view of Section 481 of the BNSS. Accordingly, the Criminal Appeal is allowed. 20. The trial court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- (Bibhu Datta Guru) Judge $ Bhilwar/ Gowri