1 2025:CGHC:1307 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1848 of 2024 Dileshwar Dhritlahare S/o Naindas Dhritlahare, Aged About 31 Years R/o Satnam Nagar Ameri, Police Station Sakari, District-Bilaspur (C.G.) (In jail) ... Appellant versus State Of Chhattisgarh Through Police Station- Sakari, Distt.-Bilaspur (C.G.) ... Respondent For Appellant : Mr. N.K. Chatterjee, Advocate. For Respondent : Mr. Vivek Sharma, Panel Lawyer. (Hon’ble Mr. Justice Naresh Kumar Chandravanshi) Judgment on Board 08/01/2025 1. This criminal appeal filed by the appellant-accused under Section 415 of Bhartiya Nagrik Suraksha Sanhita, 2023 (henceforth, “BNSS, 2023”) is directed against the impugned judgment of conviction and order of sentence dated 18th September, 2024 passed by Special Judge, Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989 , additional Charge of Additional Sessions Judge (F.T.C.), Bilaspur, District Bilaspur in Sessions Trial No. 202/2001, whereby he has been convicted for the offence under Section 376 of the IPC and sentenced to undergo rigorous imprisonment for 10 years with fine of Rs.2,000/-, in default of payment of fine, to further 2 undergo rigorous imprisonment for two months. Fine amount has already been deposited. 2. Case of the prosecution, in brief, is that the victim / prosecutrix, who is aged about 26 years, made a written report to the police station Sakri, District Bilaspur alleging that in the night of 11.04.2021, at about 9.30 P.M., her husband had gone to deliver food to Life Care Hospital and the door of the house opened, she was sleeping in her house, at that time, present appellant came there and slept on her and kissed her and by removing her clothes, committed rape on her, at the same time, her husband came in the house and saw the victim/prosecutrix and appellant / accused in an objectionable condition, thereafter, he dragged both of them out and shouted, then when the neighbours came there, she narrated the entire incident to the neighbours namely Kunjan Baghel, Narayan Banjare and Mana Banjare and, thereafter, she went to the police station alongwith her husband and lodged the report. Thereafter, FIR No. 142/2021 has been registered against the appellant under Section 376 of the IPC. After usual investigation, charge-sheet under Section 376 of the IPC has been filed before the Judicial Magistrate First Class, Bilha, Bilapur, who, in turn committed the case to the Sessions Judge, thereafter, the case was transferred to the Special Judge (Atrocities), Additional Charge of Additional Sessions Judge (F.T.C.), Bilaspur i.e. trial Court, for trial. 3. The trial Court framed charge under Section 376 of the IPC and the same was read and explained to the appellant. He abjured his guilt and entered into defence by submitting that he is innocent. 4. In order to establish the charge against the appellant, the prosecution examined as many as 13 witnesses and exhibited 17 documents i.e. Ex.P-1 3 to Ex.P-17. The statement to the appellant under Section 313 of the CrPC was also recorded in which he denied the material appearing against him and stated that he is innocent and he has been falsely implicated in the case. He has not examined any witness in support of his defence. 5. After appreciating the oral and documentary evidence available on record, the learned trial Court has convicted the accused /appellant and sentenced him as has been mentioned in opening paragraph of the judgment. Being aggrieved and dissatisfied with the judgment convicting & sentencing the accused/appellant for the aforesaid offence, instant criminal appeal has been preferred questioning the same. 6. Learned counsel appearing for the appellant submits that appellant has been convicted without any cogent evidence. He further submits that contains of FIR and statement of victim/prosecutrix recorded under Section 164 of the Cr.P.C. itself show that it was a consensual relation, which is being given colour of offence of rape only because husband of the prosecutix (PW-2) caught red handed the victim/prosecutrix and the appellant in an objectionable position. He further submits that except Premlal Banjare (PW-2), who is husband of victim/prosecutrix, other witnesses are hearsay witnesses and the only material against the appellant is FSL report (Ex.P-17), which is chemical examination report of vaginal slide & petticoat of the victim/prosecutrix and underwear of appellant/accused, in which, male spermatozoa has been reported to be found on the vaginal slide & petticoat of the prosecutrix, as also on the underwear of appellant/accused, but Dr. Astha Bharat (PW-7), who has allegedly collected vaginal slide and petticoat of victim / prosecutrix, herself has not stated that after said collection, she had sealed the same, as such, 4 FSL report cannot be held reliable beyond reasonable doubt in fact situation of the instant case. It is further contended that, it is not a case of rape, rather it is a case of consensual physical relation and the prosecution has failed to prove that it was fall in the category of offence of rape. 7. Per contra, learned counsel for the State while supporting the impugned judgment would submit that impugned judgment is based on cogent evidence, therefore, the appeal is liable to be rejected. 8. I have heard learned counsel for the parties and perused the record of the trial court with utmost circumspection. 9. Perusal of contains of FIR and the statement of the victim / proscutrix recorded under Section 164 of the Cr.P.C. would show that at the time of incident i.e. at about 9.30 pm, when victim/prosecutrix was sleeping in her house, which is house of only one room, at that time appellant/accused came there and sexually exploited her, at the same time, husband of victim reached there and he ousted both of them by dragging them, thereafter, hearing hue & cry, neighbours namely Kunjan Baghel (PW-3), Mona Banjare (PW-4) and Narayan Banjare (PW-13) reached there. Although, aforesaid act has been stated as rape by victim / prosecutrix and after lodging FIR, she was medically examined on very next date of incident i.e. 12.04.2021 by Dr. Astha Bharat (PW-7), but as per her deposition, she did not found any injury over the body of the victim and she has shown her inability to give firm opinion that rape was committed with the victim or not. 10. Premlal Banjare (PW-2) is husband of victim-prosecutrix whereas Kunjan Baghel (PW-3), Mona Banjare (PW-4) and Naryan Banjare (PW-5) are the neighbours of victim / prosecutrix. They have stated in their deposition that they went to the spot only after hearing hue & cry / dispute. 5 They have not stated that they heard screaming of the victim / prosecutrix. Thus, as per these witnesses, they went on the spot listening hue & cry / dispute between the appellant and husband of victim/proscutrix. Thereafter, they were informed by the husband of the victim and others that appellant has committed rape with her. Being hearsay witnesses, their deposition is not helpful to the prosecution. 11. As per deposition of victim / prosecutrix (PW-1) when appellant / accused was sexually exploiting her, at that time, she screamed a lot but due to the cooler fan running in the room, no-one could hear her voice. But, this fact has neither been disclosed by her in F.I.R. (Ex.P-2) nor in her statement recorded under Section 164 of Cr.P.C. (Ex.D-1) or in her police statement recorded under Section 161 of the Cr.P.C., that she had screamed when the appellant was sexuality exploiting her. If she would have raised alarm /screamed, then, of-course some of the neighbours would have come there because as per spot map (Ex.P-5) prepared by Patwari Dhirendra Singh (PW-5), houses of the neighbours are just in front of the house of the victim / prosecutrix. Even police or patwari have not shown any cooler in spot map (Exs. P-4) & (Ex.P-5) in the house of victim / prosecutrix and such cooler has also not been seized, therefore, statement of victim / prosecutrix that she screamed a lot at the time of incident, but due to the cooler fan running in the house, her voice could not be heard by any persons, is not found to be reliable. 12. Victim / prosecutrix (PW-1) has stated in paragraph 7 of her deposition that at the time of incident, her three children were also sleeping in the room, but neither in FIR (Ex.P-2), police statement recorded under Section 161 of the Cr.P.C. or statement recorded under section 164 of the 6 Cr.P.C. nor in the deposition recorded in the Court, she has stated that on being screamed by her whether her children were wake up or not. Omission of this fact further creates doubt upon the aforesaid statement of the victim / prosecutrix that she had raised alarm / screamed at the time of incident. 13. Although, as per FSL report (Ex.P-17), semen stains and human sperm have been reported to be found in vaginal slide (“A”) and petticoat (“B”) of victim and as also Chaddi (“C”) of appellant, but from the evidence available on record it is not established beyond reasonable doubt that appellant had forcefully sexually exploited the victim / prosecutrix, rather it seems that the victim / prosecutrix is consenting party to the act of the appellant/accused, but when the husband of victim came there and found them in an objectionable position, then only the same was given the colour of offence of rape. In such circumstances, merely on the fact that FSL report (Ex.P-17) is positive, it cannot be held that appellant / accused had forcefully sexually exploited the victim/prosecutrix. This fact also does not inspire confidence of the Court because Dr. Astha Bharat (PW-7), who had medically examined the victim/prosecutrix, has not proved in her statement that after preparing vaginal slide of victim/prosecutrix and recovering her petticoat, she had sealed those articles, thereafter, she had handed over the same to the concerned constable for chemical examination. 14. Upon minute scrutiny of the evidence brought by the prosecution to substantiate the charges alleged against the appellant, it does not establish beyond reasonable doubt that appellant had raped the victim / prosecutrix, rather it seems that it was a consensual relation between victim/prosecutrix and the appellant/accused and since they were caught red handed by the 7 husband of the victim / prosecutrix, then only the FIR (Ex.P-2) was lodged by the victim/prosecutrix against the appellant/accused. 15. In view of the foregoing discussion, it is found that learned trial Court without appreciating deposition of victim/prosecutrix and other oral & documentary evidence in its true perspective in accordance with law, has relied upon same for convicting the accused/appellant, which is found to be perverse and illegal, as it is settled proposition of law that by only making statement about a fact, any offence cannot be held proved until and unless, the same is proved by cogent and clinching evidence. In the instant case, the prosecution has utterly failed to prove the offence of rape against the appellant / accused beyond reasonable doubt. Therefore, offence under Section 376 of the IPC is not made out against the appellant. 16. Accordingly, the criminal appeal is allowed and the impugned judgment of conviction and order of sentence dated 18th September, 2024 is set aside. The appellant stands acquitted of the offence under Section 376 of the IPC. The appellant is reported to be in jail since 18.09.2024. He be released forthwith, if not required in any other case. 17. Keeping in view of the provisions contained in Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023, the appellant is directed to furnish a personal bond for a sum of Rs.25,000/- with one surety in the like amount before the concerned trial Court, which shall be effective for a period of six months alongwith an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereon shall appear before the Hon’ble Supreme Court. 8 18. The trial Court record alongwith the copy of this judgment be sent back immediately to the concerned trial Court for compliance and necessary action. Sd/- (Naresh Kumar Chandravanshi) Judge Amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.01.10 18:11:03 +0530