1 2025:CGHC:14928 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 122 of 2019 1 - Shiv Kumar Gond S/o Ramsingh Aged About 25 Years R/o Kumhari Darri, Khadiyapara, Police Station Pasan, District Korba Chhattisgarh. ... appellant versus 1 - State Of Chhattisgarh Through The Station House OfÏcer, Police Of Police Station Manendragarh District Korea Chhattisgarh ... Respondent For Appellant : Mr. Anil Gulati, Advocate For Res/State : Ms. Isha Jajodia, Panel Lawyer Hon’ble Shri Justice Ravindra Kumar Agrawal Judgment on Board 27.03.2025 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 20.12.2018 passed by the learned First Additional Session Judge, Manendragarh, District- Korea (C.G.) in S. T. No. 85/2017 whereby the appellant has been convicted and sentenced as under: Conviction U/S Sentence Fine In default of payment of Fine 376(1) of Indian Penal Code Rigorous imprisonment for 7 years Rs. 500/- S. I. For 1 month 2 324 of Indian Penal Code Rigorous imprisonment for 01 year Rs. 500/- S. I. For 1 month All the sentences have been directed to run concurrently. 2. Case of the prosecution, in brief, is that on 02.05.2017, the victim (PW01) lodged a written complaint to the police Ex. P/1 with the allegation that on 30.04.2017 her husband had gone to village Khadgawan and she alongwith her children were in her house. On the same day at about 3.00pm, her cousin brother alongwith his two friends came to her house to place invitation card of marriage function and since it was the late in the evening, they stayed in her house in the night. At about 1-2.00 o' clock in the night, the appellant came to her room and committed rape upon her and given a teeth bite on her right cheek. Despite raising an alarm, no one came there to rescue her thereafter, she bolted the door from inside the room and went for sleep. On 01.05.2017 in the evening, when her husband came back from marriage function she informed the incident to him and lodged the report. On the basis of written report, the Police has registered the FIR Ex. P/2 for the offence under Section 376 and 323 of the Indian Penal Code (in short IPC) against the appellant. The victim was sent for her medical examination to Community Health Centre, Manendragarh. Since there was no lady doctor available at the Community Health Centre, Manendragarh at that time, (as the lady doctor was on leave), she was referred to District Hospital, Baikunthpur where Dr. Swati Bansariya (PW-09) has medically examined her and gave her report vide Ex. P/9. While medically examine the victim, the doctor has noticed teeth bite mark on her right cheek and other external injuries has not been found on her body. Two slides of her vaginal swab was prepared, sealed and handed it over to police for its chemical examination. The spot map Ex.P/3 was prepared by the Police and spot map Ex. P/5 was prepared by the Patwari. The appellant was arrested on 23.05.2017 and he 3 too was sent for medical examination to Community Health Centre, Manendragarh where Dr. L. P. Marawi (PW10) has medically examined him and gave his report Ex. P/10. After examination of the appellant, the doctor has opined that the appellant is able to perform sexual intercourse. 3. The statement of witnesses were recorded under section 161 of Cr.P.C. Statement of the victim under Section 164 of Cr.P.C. have been recorded. 4. After completion of usual investigation, charge sheet was filed against the appellant for the offence under Section 376, 323 and 324 of Indian Penal Code before the learned Judicial Magistrate First Class, Manendragarh 5. The case was committed to the Court of learned Sessions Judge, Koriya from where the same has been transferred to the learned trial Court for its trial. The Trial Court has framed charges against the appellant namely- Shiv Kumar Gond for the offences under Sections 376 and 324 of IPC. The accused person denied the charge and claimed trial. 6. In order to establish the charges against the appellant, the prosecution has examined as many as 12 witnesses. The statement of the appellant was also recorded under section 313 of Cr.P.C. in which he denied the material appearing against him plead innocence and stated that he is innocent and has falsely been implicated in the case. 7. After appreciation of oral & documentary evidence available on record, learned trial court has convicted the appellant and sentenced him as mentioned in the earlier part of this judgment. Hence this appeal. 8. Learned counsel for the appellant would argue that the prosecution has failed to prove its case against the appellant beyond reasonable doubts. There are material omission and contradiction in the evidence of the prosecution witnesses, which cannot be made basis for his conviction. He would further submit that the conduct of the victim is highly suspicious as at the relevant point of time, other members of the family were also there but no one woke up when the alleged offence is committing. It is further stated that alongwith 4 the victim, her children were also there who were sleeping but they too have not heard any noise of the act of the appellant. He would further submit that from the entire evidence of the victim, the ingredients of the offence under Section 376 of IPC is missing. He would also submit that although the teeth bite mark has been found on the cheek of the victim but there is no further enquiry was conducted about the age as to how old injury mark was, even it has also not been established by the prosecution while leading evidence that the teeth bite mark is correspondent with the physical structure of the teeth of the appellant. In absence of any cogent and clinching evidence the appellant can not be convicted and he is entitled for the acquittal. 9. On the other hand, the learned counsel for the State while opposing the arguments advanced by the counsel for the appellant contended that except minor contradiction & omission, the prosecution has proved its case beyond reasonable doubt. The victim has levelled the allegation against the appellant that in the night he committed rape upon her and when her husband came from the marriage function she informed him and then report has been lodged. A teeth bite mark has also been found on the body of the victim which further supports the allegation made by her. Even if the family members who were sleeping in the same room not woke up, that itself does not dilute the case of the prosecution because its depend upon the facts of the each case regarding presence of the other persons as well as the alarm raised by the victim. Had she been the consenting party there was no reason for her to lodged the report against the appellant and the teeth bite injury itself shows that she was not the consenting party and subjected to rape by the appellant therefore, the learned trial court after considering the entire evidence available on record, by the impugned judgment has rightly been convicted and sentenced the appellant which is absolutely justified and needs no interference. 5 10. I have heard the counsel for the parties and perused the material available on record. 11. The victim (PW01) has stated in her evidence that on the date of incident, she was alongwith her children in her house at that time, the appellant alongwith his two friends came there to give the marriage invitation card. After having meals with them she asked them to stay in her house. In the night, when she was sleeping alongwith her daughter in her room, at that time the appellant came to her room and committed rape upon her. When she raised alarm the appellant gave a teeth bite on her right cheek and fled away from the place. On the next day, she lodged the report which is Ex. P/1. In cross-examination, she admitted that the age of her son is 19 years and her daughter is 12 years. Prior to the date of incident, she was not known to the appellant and she first time saw him. Before coming to her house the appellant alongwith his two friends had gone to her parents' house and from there she received information that these three persons i.e the appellant and his two friends are coming to her house. The appellant and his two friends reached to her house at about 3.00 pm and at that time her husband was not there in the house. Up to 4.00 pm in the day, the appellant already given the marriage invitation card and free from his work and at about 4.00 pm the appellant was started to proceed to returned back to his house. She admitted in her cross-examination that on the date of incident, her son was also there in the house and her daughter was sleeping with her. The appellant and his friends were sleeping in the hall of the house and her room was adjoining to the hall. She admitted further in her cross-examination that the appellant had removed her clothes at the time of incident and when he committed rape upon her the appellant had also removed his clothes. She admitted that at the time of incident she had not tried to give scratch marks on his body or any scuffling has happened. She also admitted that she has not given any teeth bite mark on the body of the appellant. The appellant has 6 committed rape upon her for about 20-25 mins. While fleeing from the place the appellant took his pant and shirt and his two friends were not fled from the place and they stayed there in her house. At the time of incident, she raised her voice but no one came there to rescue her even her daughter was not woke-up who was sleeping just beside her. She further stated that even after the incident she had not woked up the friends of the appellant who were sleeping in the hall, the friends of the appellant had gone on the next day by Jeep. And even she has not informed her son and she has also not informed the incident to her sister-in-law and brother-in-law and has not disclosed the incident to anyone through mobile phone. 12. From the evidence of this witness, it is quite vivid that on the date of incident the appellant and his two friends were sleeping in the hall, she was sleeping in her room which is adjoining to the hall, she had not bolted the door of her bedroom from inside, particularly when she saw the appellant and his two friends for the first time in her house. She was not acquainted with the appellant and his friends, she permitted them to stay in the night despite having completion of their work to deliver the marriage card at 4.00 pm further her daughter who was sleeping just beside her could not woke up even after raising the alarm by her. After commission of the incident as alleged by her she had not informed the same to the friends of the appellant, her daughter, her son and other family members through mobile phone. She has not protested the act of the appellant while committing the offence except that she raised alarm but no one came there. She admitted that she has not given any nail scratch mark or teeth bite on the body of the appellant and she has not tired to struggle. The conduct of the victim that in presence of the family members alongwith two friends of the appellant, she has not informed the incident to anyone or even her other family member or her neighbour which goes to show that she was the consenting party in making consensual physical relationship. Though a teeth bite was found on the 7 cheek of the victim but in the fact that she herself not given any teeth bite on the body of the appellant rather it is the appellant who given the teeth bite of the right cheek of the victim which further goes to show that she was intimate with the appellant without raising any objection. 13. The son of the victim (PW03) has not stated anything against the appellant and has turned hostile. He stated in his evidence that when he came to his house, he saw the appellant and his two friends in his house they were unknown to him and he did not know about any incident to his mother. He has not supported the evidence of his own mother. He stated in his cross- examination that he did not know about the incident. 14. The husband of the victim (PW07) has stated in his evidence that when he returned back from marriage function his wife had informed about the incident that the appellant committed rape upon her when he came to her house for giving the marriage invitation card. She also informed him that alongwith the appellant, his two other friends were also there who stayed in her house in the night and in the night, the appellant committed rape upon her and given a teeth bite on her cheek. Thereafter, in the next morning he lodged the report. In cross-examination, he admitted that he had not gone to village Khadgawan for any marriage function on 30.04.2017 and he had not disclosed that he had gone to village Khadgawan in a marriage function how the police written in his police statement he did not know. He also did not know the persons who came to his house for giving the marriage invitation card. He further stated that his wife has not informed that she was sleeping in the room after bolting the door. She also did not disclosed the time when the incident was occurred. He further stated that his wife has informed that her daughter was also sleeping there at the time of incident but she could not wake up . Her son was also not woke up at the time of incident. He further admitted that his wife has not informed him that at the time of incident she raised alarm. He too has admitted that the persons who came to his house 8 were stranger and they were not known to each other and they first time came in his house. He also admitted that his wife has not informed the incident to his children and even in the next morning, she had not informed the incident to the other family members. From the evidence of this witness also, it reflects that the three unknown persons came to his house, they stayed in his house, the victim offered them food, both of them sleeping in separate room and in the night, the appellant committed rape upon the victim yet she has not raised alarm and not informed to anyone about the incident of his family members or neighbour even she has not disclosed about the incident to her own children. 15. The daughter of the victim (PW08) has turned hostile and not supported the case of the prosecution and did not state anything against the appellant. In cross-examination, she admitted that in the night all the persons were having dinner together and consumed the liquor. She also admitted that her uncle and aunt have also consumed the liquor and after celebrating the dance, they went for sleep. She admitted that in the night she also went for sleep alongwith uncle and aunt. Her aunt have not disclosed about any incident to her. She further admitted that her aunt had gone up to the bus- stand to leave the two friends of the appellant and it is her aunt whose insisting the appellant and his friends for staying in her house. She also admitted that when she woke up in the morning she saw that her uncle and aunt were sleeping together and the door was bolted from inside. 16. Dr. Swati Bansariya (PW09) who medically examined the victim has not found any external injuries on the body of the victim except a teeth bite on right cheek of the victim. In cross-examination, she admitted that she has not disclosed the age of the injury which was found on the right cheek of the victim but it was old injury. 17. From these evidences this court would find that the conduct of the victim is highly suspicious as she has not raised any alarm at the time of the incident 9 and even she has not informed the incident to anyone of her family despite that her own 19 years old son and daughter were sleeping with her in the house. Even the two friends of the appellant were there in her house. 18. The version of the victim commands great respect and acceptability, but if there are some circumstances which cast some doubt in the mind of the court on the veracity of the victim’s evidence, then it will not be safe to rely on the said version of the victim. There is contradiction and omissions in the statement of the victim and her parents. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the victim. However, there is an important caveat which is that the testimony the victim must inspire confidence. Even though the testimony of victim is not required to be corroborated, if her statement is not believable then the accused cannot be convicted. The prosecution has to bring home charges levelled against the appellant beyond any reasonable doubt, which prosecution has failed to do in the instant case. 19. in view of the facts and circumstance of the case as well as evidence available on record this Court finds difficult to uphold the conviction of the appellant for the offence under Section 376(1) of the IPC as the evidence of victim has not inspired the confidence of the Court to convict the appellant for the said offence however, since the teeth bite mark was found on the right cheek of the victim the doctor Sawiti Bansaria (PW09) has proved the injury of teeth bite on the body of the victim and victim has also raised the allegation that it is the appellant who caused teeth bite on her cheek thus, there is substance in the allegation that it is the appellant who caused teeth bite on the right cheek of the victim. 20. So far as the learned trial Court has convicted the appellant for the offence under Section 324 of IPC for giving teeth bite injury to the victim but considering the nature of offence and nature of injury found on the body of 10 the victim with respect to the teeth bite, this Court is of the opinion that the offence of the appellant comes under the definition of 323 of IPC and not under the 324 of IPC. 21. In view of the above, the appeal filed by the appellant is partly allowed. He is acquitted from the offence of Section 376(1) of IPC and the conviction of the appellant under Section 324 of IPC is also set-aside instead thereof he is convicted under Section 323 of IPC and sentenced R. I. for one year. The impugned judgment of conviction and sentence is set aside/modified to the extent indicated hereinabove. 22. It is reflected from the certificate appended with the impugned judgment under Section 428 of the Cr.P.C. that the appellant has already remained in jail from 23.05.2017 to 20.12.2018 during the trial and thereby he has already completed the sentence of one year as awarded by this Court for the offence under Section 323 of IPC. 23. The trial court record along with a copy of this judgment be sent back immediately t01o the trial court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) Judge amita Digitally signed by AMITA DUBEY Date: 2025.04.25 10:34:58 +0530