1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 418 of 2016 1 - Ramkumar Khatrjee S/o Horilal Khatrjee, Aged About 25 Years R/o Village Dhamni, Police Station Hasaud, District Janjgir - Champa Chhattisgarh. ... Appellant Versus 1 - State of Chhattisgarh Through Police Station Malkharauda, District Janjgir - Champa Chhattisgarh. ... Respondent(s) For Appellant : Shri Deepak Kumar Singh, Advocate. For State : Shri Shailendra Sharma, Panel Lawyer. Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on board 02.01.2025 1. The present appeal has been filed by the appellant against the judgment of conviction and order of sentence dated 10.03.2016 passed by the Ist Additional Sessions Judge, Sakti, in Sessions Case No.181 of 2014 whereby the appellant has been convicted for the offence under Section 376(1) IPC and sentenced to undergo RI for 10 years with fine of Rs.5000/- and in default of payment of fine amount, further RI for six months. 2. Brief facts of the case are that on 27.06.2014 an FIR has been registered against the appellant for the offence under Sections 450 and 376 IPC with the allegation that on 23.03.2014 the prosecutrix had Digitally signed by INDRAJEET SAHU Date: 2025.01.14 17:11:32 +0530 2 lodged a report for the offence under Section 498-A, 323 and 34 IPC against her husband, father in law and brother in law on which the accused persons were chargesheeted. Subsequent to that charge sheet, the prosecutrix was found along with the preset appellant in a suspicious condition near Toilet at village Dhamni who were detained by the persons of the vicinity and the FIR against the appellant was registered for the offence under Section 456 IPC and he was also chargesheeted for the said offence. Thereafter, the prosecutrix made her complaint along with an affidavit to the senior police authority on which an enquiry was conducted by the Sub Divisional Officer (Police) Chandrapur, who after enquiry submitted his report. During inquiry the prosecutrix have made her statement that on 23.03.2014 at about 4 AM the appellant has committed rape upon her. After a detailed enquiry, the report was submitted on 24.06.2014 by the SDO(P) Chandrapur and then under the direction of Superintendent of Police the present FIR has been registered against the appellant. The prosecutrix was sent for medical examination to Community Health Centre Malkharoda however since no lady doctor was available at CHC Malkharoda, she was referred to CHC Sakti where she was medically examined by PW-10 Dr. CK Singh. While examining the prosecutrix, the doctor has not noticed any external injuries over her body and opined that no definite opinion can be given regarding rape and she is habitual to sexual intercourse. Two slides of vaginal swab of the prosecutrix prepared, sealed and handed it over to the police for its chemical examination. Spot Map Ex.P./3 was prepared by the police whereas Ex.P/4 was prepared by the Patwari. The appellant was 3 arrested on 02.07.2014 and he too was sent for his medical examination to Primary Health Centre, Chandrapur, where PW-1 Dr. RK Patel medically examined the appellant and found him capable to perform sexual intercourse. Two semen slides were prepared and handed over to the police for chemical examination and his report is Ex.P/1. Vaginal as well as semen slides were sent for chemical examination to FSL Raipur from where report Ex.P/14 was received in which semen and sperms were found present. 3. The statement of witnesses were recorded under Section 161 CrPC. The statement of prosecutrix under Section 164 CrPC was also recorded and after completion of usual investigation charge sheet was filed before the Judicial Magistrate First Class Malkharoda for the offence under Section 376 IPC. The case was committed to the court of Sessions Judge Janjgir Champa from where the same has been transferred to trial court for its trial. The trial court has framed charge for the offence under Sections 450 and 376(1) IPC. The appellant denied the charge and claimed trial. 4. To prove the guilt of accused, the prosecution has examined 11 witnesses. The statement of accused under Section 313 CrPC was recorded in which he denied the circumstances appears against him, plead innocence and submitted that in laws of prosecutrix is his relatives. The father in law of the prosecutrix and his father are co- brother (Sadu). When the husband of prosecutrix got ill, his father gave him Rs.50,000/-on loan. When they demanded their amount back, in order to avoid their liability to repay the same, the prosecutrix lodged a false case against him. The prosecutrix and her family members have 4 committed Marpeet and broken his right leg. After completion of trial, the Trial Court has convicted and sentenced the appellant as mentioned in the earlier paragraph of this judgment. Hence this appeal. 5. 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. He would further submit that the conduct of the prosecutrix is highly suspicious that on 23.03.2014 she lodged a report against her husband and in laws for the offence under Section 498-A, 323 and 34 IPC and on the same day the offence against the appellant under Section 456 IPC was registered when she was found in suspicious condition with him near toilet at village Dhamni. Further, when she made a complaint to the Superintendent of Police, the matter was enquired by the SDO(P) in which she made her statement that she was subjected to rape by the appellant on 23.03.2014 at about 4 AM and then the preset FIR against the appellant has been registered. In her evidence she has disclosed that she was confined by the appellant and his six other companions in the room, but except the present appellant, the police has not inquired the matter with respect to other accused persons and they have not arrayed as accused persons in the present case. The intention of prosecutrix is clear that she herself has lodged a report against her husband and in laws when she was found in suspicious condition along with appellant by the persons of the vicinity. The present appellant was chargesheeted for the offence under Section 456 IPC and on subsequent complaint the present FIR has been registered which itself shows her suspicious conduct, yet the 5 Trial court has convicted him for the alleged offence. The prosecutrix was a married lady. She cannot be confined by anyone for about 11 days and there is no sufficient evidence on record that she tried to save herself and to flee from the place. In alternative, he would submit that the appellant is in jail since 10.03.2016 and has undergone almost about 8 years and 9 months of his jail sentence. In the year 2014 when the alleged offence is said to have been committed, the minimum sentence for the offence under Section 376 IPC was of 7 years, and therefore, considering the facts and circumstances of the case and the status of the parties, the sentence awarded to the appellant may be reduced to the period already undergone by him. 6. On the other hand, the counsel for the State opposes the submissions and have submitted that there is sufficient evidence against the appellant that he committed rape upon the prosecutrix on 23.03.2014 for which she lodged a report against the appellant. Since the police authorities have not registered her case for the offence of rape, she visited various police authorities and ultimately made a complaint to the Superintendent of Police on which the matter was inquired by the SDO(P) Chandrapur and then under the direction of Superintendent of Police, the present FIR has been registered against the appellant. The prosecutrix disclosed about the details of incident in her evidence and defence could not elicited any contradiction in her evidence so that her evidence can be disbelieved. Therefore, the trial court after considering the sufficient evidence available on record against the appellant, has convicted and sentenced him which needs no interference and his appeal is liable to be dismissed. 6 7. I have heard the counsel for the parties and perused the records of the case. 8. PW-2, the prosecutrix, have stated in her evidence that she got married with her husband in the year 2009. On 23.03.2014 at about 4-4:30 AM when she was going to Toilet situated in her backyard, the appellant and his other companion came there, the appellant gagged her mouth and committed rape upon her beside the toilet. When she shouted for help, her husband, in laws and other persons of vicinity came there and got the appellant red handed in naked condition and their companion fled away from the spot. Thereafter they had gone to the police station to lodge a report, but the police refused to register offence. The Station House Officer detained her husband and in laws in the police station and pressurized her to go with the appellant in his village, but she refused to go with the appellant and insisted for lodging her report and to medically examine her. It is the police authorities who forcefully send her with the appellant by a Marshal vehicle who took her to village Dhamni where she was confined in a room for about 11 days by the appellant. During her confinement in the room, total seven persons including the present appellant committed rape upon her for about 11 days. She also states that when she requested the appellant to leave her to her husband’s house, he replied that he has taken her after giving money at police station and till its recovery, he will not leave her. In between that period, she found a mobile phone plugged for charging through which she made a telephonic call to her husband and informed that she will come out from the house at 7:30-8 in the night and when she came out from the house at 7:30-8 in the night, she 7 found her husband and came back with her husband to her house and on the next day she went to police station for lodging of the report. Despite her insisting for lodging report, the police have not registered the offence and then she had gone to the Superintendent of Police but he too sent them back to the police station. Thereafter they have taken assistance of one Journalist through whom a news was published in media and then only the offence has been registered against the appellant. She was medically examined and after inquiry, charge sheet was filed. In cross examination she admits that some altercation took place between her husband and villagers on which her husband received injuries and was admitted in the hospital. Her husband was prosecuted also for the said offence of Marpeet. She further admits that in dowry harassment case, she compromised with her husband, brother in law and father in law and had gone to her matrimonial house on 02.04.2014. She made a statement on 14.06.2014 to Hasaud Police Station that she on her own will came to her husband at village Chhoteraveli, but she denied that her husband has committed Marpeet with her raising suspicion of her having illicit relationship with the appellant. She also denied the suggestion given by the defence that her father in law had called the appellant for returning back the amount of Rs.50,000/- which was borrowed by him for treatment of her husband. She also denied the suggestion that when the appellant demanded his amount back, her husband, brother in law and father in law have committed Marpeet with him. She admits that she is residing in her matrimonial house along with her husband. She specifically 8 states that she had gone to lodge a report to the police, but report was not recorded and father of appellant was already present in the police station. The SHO, after talking to someone in the telephone, detained her husband, her brother in law and father in law in the lockup and pressurized her to go with the appellant, but she denied and insisted to lodge her report. The SHO slapped her and forcibly sent her to village Dhamni and left her with the mother of appellant where she was confined for about 11 days and in between that period, total 7 persons have committed rape upon her. Some how she got opportunity to inform her husband by mobile phone which was plugged in charging and then her husband came there and took her back. From the evidence of prosecutrix it appears that she remain firm in saying that the appellant has committed rape upon her and defence was unable to extract any material from her evidence which makes her allegation of rape doubtful or prosecutrix was not subjected to rape by the appellant. 9. PW-3, the brother in law of prosecutrix, have stated in his evidence that on the date of incident at about 4-4:30 AM he heard the noise of his sister in law Bachao Bachao then he rushed towards the place from where the noise was coming and saw the appellant committing rape upon her sister in law. He caught hold the appellant in naked condition and his friend fled away from the place. The persons of vicinity also gathered there and thereafter they lodged the report. In the police station, the father of appellant was already present. When his sister in law informed the incident to the police officer, they took her signature in a blank paper and detained them in the lockup and thereafter forcefully 9 sent his sister in law to the house of appellant at village Dhamni. After sometime, she made a telephonic call to her husband and informed that the appellant and other six persons are committing rape upon her and then his brother took her back from the house of appellant and went to lodge the report. When their report was not registered, they approached the Superintendent of Police and Superintendent of Police again sent them to the police station, but their report was not registered. Thereafter, they approached the Inspector General of Police and then under the instructions of Inspector General, their report was registered. In cross examination, he also denied the previous incident of Marpeet between them and also denied the fact of borrowing Rs.50,000/-by them from the appellant. He denied that to repay the said borrowed amount of Rs.50,000/-, they have called the appellant Ramkumar and asked him to stay in their house in the night. He denied any marpeet between them. He admits that police detained them in the lockup on the same day and they faced the dowry harassment case at Malkharoda court in which they compromised the matter. He did not know about the criminal case under Section 326 IPC against his brother and to avoid his arrest, he along with his wife stayed in the house of appellant for about a month. In his cross examination though various incidents between these two families were quarried, but he denied about strange relation between them or any previous incident. With respect to commission of rape by the appellant upon his sister and caught hold the appellant in 10 naked condition are concerned, the same could not be rebutted by the defence in his cross examination. 10. PW-4, who is father in law of the prosecutrix, have also stated that on the date of incident at about 4-4:30 AM when he heard the noise of Bachao Bachao, he rushed to the place of incident and caught hold the appellant in naked condition who was committing rape upon his daughter in law. His one friend fled away from the place of incident. He too have been cross examined on the same fashion as PW-3 was cross examined and he has also made the similar statement as PW-3 has made. From the evidence of this witness also, it is quite vivid that on the date of incident the appellant was caught hold by the witnesses in naked condition while he was committed rape upon the prosecutrix. 11. PW-5 is another relative of the prosecutrix, who also present at the time of incident when the prosecutrix raised alarm and then the family members rushed to the place of incident and caught the appellant in naked condition. He too remain firm in saying that the appellant caught red handed while committing rape upon the prosecutrix. 12. PW-6, the husband of prosecutrix, have also stated that on the date of incident at about 4-4:30 AM when he heard the noise of his wife, he went there and saw the appellant committing rape upon his wife in naked condition. He chased and caught hold him. By that time, his father and other relatives also reached there. His wife informed that appellant has committed rape upon her. Thereafter, they have taken the appellant to police station where the appellant already called his father prior to them. He also stated in his evidence that police refused 11 to register their case, however, under the instructions of higher police authorities the FIR was registered. He too was examined on the aspect of borrowing an amount of Rs.50,000/- by his father from the father of the appellant and as such they have called the appellant for repayment of the said borrowed amount. He admits that in 498-A IPC case they entered into compromise with the prosecutrix and denied that to avoid their liability to repay the amount, they have lodged false report against the appellant. 13. Although, Dr. CK Singh, PW-10, did not find any external injuries on the body of prosecutrix while her medical examination, but in view of the fact that she was a married lady and even if no injuries were found on her body, that itself would not make her evidence doubtful when she is constant in her evidence that appellant has committed rape upon her and other witnesses have proved that appellant was caught hold on the spot in naked condition while committing rape upon the prosecutrix. 14. Thus, in the evidence of all the witnesses it comes that on the date of incident while committing rape upon the prosecutrix, the appellant was caught red handed in naked condition and upon hearing the shout and alarm raised by the prosecutrix, her husband and other family members came on the spot and saw the appellant in naked condition committing rape upon the prosecutrix. 15. In view of the above, there is no hesitation in reaching to the conclusion that the appellant is guilty for commission of offence of rape upon the prosecutrix for which the trial court has convicted him, in which this court does not find any illegality or perversity and accordingly uphold his conviction part. 12 16. So far as sentence part is concerned, the appellant is sentenced to undergo RI for 10 years for the offence under Section 376(1) IPC. The date of incident is 23.03.2014. On the date of incident, the minimum sentence provided for the offence under Section 376(1) was 7 years. Therefore, considering the facts and circumstances of the case, the nature of allegation and further considering the socio economic condition of the parties and also the fact that appellant is in jail since 10.03.2016, ends of justice would meet if the sentence awarded to the appellant is reduced from RI for 10 years to RI for 7 years. Therefore, by upholding the conviction of the appellant for the offence under Section 376(1) IPC, his sentence is reduced for RI for 7 years with fine of Rs.5000/-, in default of payment of fine, further RI for two months. 17. With the aforesaid modification in the sentence part, the appeal is partly allowed. The appellant is reported to be in jail since 10.03.2016. He is entitled for the benefit of set off of his undergone period. 18. Record of court below along with a copy of this judgement be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) Judge inder