1 / 8 2025:CGHC:7365 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1122 of 2019 Judgment reserved on 19.11.2024 Judgment delivered on 10.02.2025 Purshottam Sahu S/o Shri Radhelal Sahu Aged About 21 Years R/o Village Bhansoj, Brahm Baba Chowk, P.S. Arang, Distric Raipur Chhattisgarh., District : Raipur, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through The Police Station Pandri, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh …...Respondent ---------------------------------------------------------------------------------------- For the Appellant : Mr. Basant Kaiwartya, Advocate Respondent/State : Mr. K.K.Baharani, Panel Lawyer ---------------------------------------------------------------------------------------- Hon'ble Shri Justice Narendra Kumar Vyas CAV Judgment 1. This Criminal Appeal under Section 374 (2) of CrPC has been filed against the judgment of conviction and order of sentence dated 27.06.2019 passed by Additional Sessions Judge (FTC) Raipur in Sessions Trial No. 226 of 2017 by which the appellant has been convicted under Section 376 (1) IPC and has been sentenced to undergo rigorous imprisonment for 7 years to pay SANTOSH KUMAR SHARMA Digitally signed by SANTOSH KUMAR SHARMA Date: 2025.02.10 18:09:18 +0530 2 / 8 fine of Rs. 1000/- in default of payment of fine to undergo additional RI for two months under Section 376 (1) of the IPC. 2. The prosecution case, in brief, is that on 27.09.2017 a typed complaint (Ex.P-1) was made by victim before Police Station Pandri, Raipur and on the basis of which FIR (Ex.P-2) has been lodged alleging that on 25.09.2017 the accused who was friend of her husband has told her husband that he has no means to go his home so that he wanted to stay at his house and on this, her husband brought him to his house. On 25.09.2017 at night after taking dinner the accused and her husband were slept and she was slept in the same room with some distance. It is also the case of the prosecution that when her husband went to bring vehicle for transportation of luggage about 12.00 PM on 26.09.2017, the appellant who stayed at home stated that he was not feeling well. After departure of her husband, the appellant started to bring her down and when she tried to shout, he pressed her mouth and committed forcefully sexual intercourse with her and threatened to kill her husband, if she disclose the incident to anyone. It is also stated that after arrival of her husband they went to their village where she narrated the incident to her husband after reaching to their village. On the basis of complaint, FIR under Crime No. 394/14 under Section 376, 506 IPC was registered against the appellant on 27.09.2017. The victim was medically examined by the doctor and the doctor opined that the victim may be subjected sexual intercourse which can be ascertained after 3 / 8 chemical analysis only. Dr. Snehlata Singh (PW-3) gave her report Ex.P-7. Accused/appellant was also medically examined by Dr. Santosh Bhandari (PW-2) who gave his report Ex. P-6. On completion of usual formalities, challan was filed before the Court on 09.03.2018 learned Sessions Judge on hearing the parties and after appreciation of evidence and material on record convicted the appellant as mentioned above. 3. In order to bring home the guilt of the appellant, prosecution has examined as many as 5 witnesses, Tikeshwari Sahu (PW-1), Dr. Santosh Bhandari (PW-2), Dr. Snehlata Singh (PW-3), Murli Sahu (PW-4), K.R. Sinha (Ex.P-5). 4. The victim was examined under Section 164 CrPC wherein she has stated that she has not informed the incident to her husband while going to Bhansoj on 27.09.2017 though the accused was stepped down from the vehicle on the midway. 5. The victim was examined before the Court wherein she has stated that the accused caught hold of her left hand when she made an attempt to shout the accused pressed her neck and has removed her clothes and committed rape upon the victim. She has also stated that the accused threatened to kill her husband therefore, she has not stated anything to her husband. The witness was crossed examined by the defense wherein she has stated that on 25.09.2017 the accused was also slept in the same room and by touching her feet, he asked her to leave the room for short period. She has also stated that she has not informed the incident to her husband. She has also 4 / 8 admitted that she has not narrated incident of rape on 26.09.2017 to anyone. Though the alleged incident was committed at 12 o'clock in the noon. She has also admitted that when her husband had brought the vehicle she has not informed the incident on 25.09.2017 regarding incident of rape. She has also stated that she was alone with her husband for 1 and ½ hours in the vehicle, though the accused was sitting back side of the vehicle with the goods, still she has not informed the incident to her husband. She has also stated that after incident 25.09.2017 she was regularly in relationship with her husband. She has also admitted that the undergarment was seized on 27.09.2017 whereas she has already washed her undergarment which she wore on 25.09.2017. She has also admitted that she was sleeping in her matrimonial house with her husband in the same room. 6. Dr. Snehalata Singh (PW-3) has stated in her statement that on 27.08.2017 she examined the victim wherein no external or internal injury was found on any part of the body of the victim. She has further deposed that victim was married lady and habitual of sexual intercourse. She has stated that she has not found any semen on the undergarment of the victim. She opined that there was no recent sexual intercourse with the victim, however she prepared vaginal smear slides and handed them over to the Police for chemical examination. No analysis report confirming the allegation of the victim is produced or proved by the prosecution before the trial Court. 5 / 8 7. Murli Sahu (PW-4) who has admitted in the cross-examination that he has not informed to anyone about weeping of his wife and also not informed to anybody regarding manhandling, abusing or threatening by the accused to the victim. He has also admitted that accused is known to him for last two years and he was his friend. This witness also admitted that the accused provided assistance for loading the luggage in the vehicle and was sitting with the luggage in the vehicle. He has also admitted that wife was sitting with him in front side along with driver still the wife has not informed him about the incident. He has also admitted that from 25.09.2017 to 28.09.2017 he and victim were sleeping in the same bed and physical relationship was developed. 8. The accused did not examine any witness in his support. Statement of the accused was recorded under Section 313 CrPC. The learned trial Court on the basis of evidence, material on record has convicted the appellant for commission of offence under Section 376(1) of the IPC and sentenced him to undergo RI for 7 years. This Court on 01.12.2022 has allowed the suspension of sentence and released the appellant on bail. Being aggrieved with the order of conviction, the appellant has preferred this Criminal appeal. Hence, this appeal. 9. Learned counsel for the accused/appellant submits that present is a case of no evidence still the accused/appellant has been convicted under Section 376 (1) IPC on the basis of written report Ex. P-1, which is erroneous and illegal. He would further 6 / 8 submit that the whole prosecution story is against the facts and circumstances of the case as alleged offence could not be committed in a populated area where other neighbours were present in a broad daylight. He would further submit that there are material omissions in the statements of victim as well as her husband. Alternatively, he submits that the victim was a consenting party. He would further submit that there was love affair and consent between the appellant and the victim and the husband of the victim had caught his wife with the appellant thereafter FIR was lodged against him. He would further submit that medical report did not support the case of the prosecution case and would pray for allowing the appeal. 10. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that the findings recorded by the Court below convicting the accused/appellants under Section 376 (1) IPC are strictly in accordance with law and there is no infirmity in the same. 11. I have heard counsel for the parties, and perused the evidence on record. 12. From the evidence, it is not in dispute that the victim is major and married woman and the victim’s husband was known to the appellant for last two years. The evidence of the victim clearly suggests that she has not objected the incident of touching her feet by the accused on 25.09.2017 and directing her to leave the room for sometime. Even the victim in her evidence before the Court has stated that the accused has 7 / 8 removed her clothes and thereafter committed rape upon her. This evidence itself creates doubt over the evidence of the victim. If accused removed victim’s clothes forcefully then it should be torned but no such material was seized by the prosecution from the place of incident. Similarly, admission of the victim as well as her husband wherein they have admitted that they were sitting in front side of the vehicle with driver and the accused was sitting back side of the vehicle, as such she was ample opportunity to inform the incident to her husband still she did not disclose the fact of incident to her husband which creates doubt over the version of the victim. The victim has also stated that she is known to the accused as he was the friend of her husband. The prosecution case further leads to doubtful as the medical examination has also not supported the case of the prosecution. 13. In this case, the entire allegation of the prosecution is primarily based on the statement of the victim wherein she has constantly changed her statement on several occasions which is evident from the statement that she has stated the appellant forcefully raped her, but she never tried to get rid of the hands of the appellant. As per evidence of prosecution in a thickly populated area where victim was residing in a rented house where other tenants were also residing and the alleged incident has taken place at broad daylight and if she could have resisted by shouting then it could be heard by other tenants also which creates doubt over the case of the prosecution. 8 / 8 From the evidence brought in record it seems that the victim was a consenting party and there was sufÏcient opportunity was brought on record to lodge FIR in time but the same has been lodged on 27.09.2017 in other police Station. 14. In view of the foregoing discussion, it is quite vivid that the victim who was aged about 19 years, married woman and she was also a consenting party, therefore, offence under Section 376(1) IPC cannot be attracted. Accordingly, the appeal is allowed and impugned judgment of the trial Court is set aside. The accused is acquitted from the charges of commission of rape under Section 376(1) IPC. The appellant is reported to be on bail. The bail bond shall be inforce for six months under Section 437(6) of CrPC. Sd/- (Narendra Kumar Vyas) Judge Santosh