1 / 9 2025:CGHC:42682 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 668 of 2009  Santosh Kumar Gayakwad, S/o Shri Paltan Gayakwad, aged about 18 years, R/o village Bharenga, Police Station – Abhanpur, District Raipur (C.G.) ... Appellant versus  State Of Chhattisgarh Through : The Station House Officer, Police Station – Abhanpur, District Raipur (C.G.) ... Respondent For Appellant : Mr. C.R. Sahu, Advocate. For Respondent/State : Ms. Nand Kumari Kashyap, P.L. Hon'ble Smt. Justice Rajani Dubey, J (Judgment on Board) 22/08/2025 1. The appellant in this appeal under Section 374 (2) of CrPC has challenged the legality, validity and propriety of the judgment of conviction and order of sentence dated 27.08.2009 passed by the14th Additional Sessions Judge 2 / 9 (F.T.C.), Raipur (C.G.) in Sessions Trial No.10/2009, whereby the appellant stands convicted and sentenced as under: Conviction Sentence Under Section 376 read with section 511 of IPC. Rigorous Imprisonment for 05 years with fine of Rs.500/-, in default of payment of fine to further undergo additional R.I. for 03 months. 2. Case of the prosecution, in brief, is that on 15.10.2008 at around 8.00 PM, appellant was watching television in the house of prosecutrix (PW-1) and her mother (PW-2) was in another room. When the prosecutrix (PW-1) was returning after answering the call of nature, the appellant got up and took the prosecutrix in courtyard, lay her down, removed her and his undergarment, started committing rape with her but the prosecutrix (PW-1) screamed loudly taking her mother’s name, and upon seeing her mother (PW-2), the appellant ran away from the spot. Further case of the prosecution is that the father of prosecutrix (PW-6) had gone out of village and after his return on 16.10.2008, the prosecutrix (PW-1) and her mother (PW-2) narrated the incident to him, whereupon the father of prosecutrix (PW-6) assembled village sarpanch Pritam (PW-4), village Kotwar Vishram Das (PW-8), Udhoram (PW-3) and Jaigul (PW-5) & a panchayat meeting was convened near Guru Ghasidas square of the 3 / 9 village, where the prosecutrix (PW-1) narrated the incident to all of them but in the said meeting appellant was not present. Thereafter, prosecutrix (PW-1) along with her mother (PW-2) and father (PW-6) went to police station – Abhanpur and lodged FIR (Ex.P-1) being Crime No.388/2008 under Section 376 and 511 of IPC against the appellant. 3. During the course of investigation, consent of prosecutrix was obtained vide Ex.P-8 and she was sent for medical examination to Community Health Center, Abhanpur vide Ex.P-10, where she was medically examined by Dr. (Smt.) S.D. Kanwar (PW-10) who gave her report under Ex.P-14 noticing (i) secondary sexual character not well developed; (ii) old healed abrasion on the back upper lumber region in the middle in the size of 1 ½ cm x ½ cm by hard and rough object; (iii) no injury was found over medial side of thigh and (iv) labia majora and minora were were intact. The appellant was also sent for medical examination to Community Health Center, Abhanpur vide Ex.P-11, where he was medically examined by Dr. M.S. Johri (PW-7) and gave his report under Ex.P-5 opining that the appellant was capable for performing sexual intercourse. The appellant was arrested under arrest memo Ex.P./7. During the investigation, the statement of the prosecutrix and the statement of other 4 / 9 witnesses were recorded. After completion of usual investigation, charge-sheet was filed against the appellant under Sections 376 and 511 of IPC. Thereafter, learned trial Court framed charges under Sections 376 and 511 of IPC, to which he abjured his guilt and prayed for trial. 4. In order to prove its case, the prosecution examined as many as 11 witnesses. Statement of the accused was also recorded under Section 313 of CrPC in which he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. In defence, two witness namely Sohan Yadav (PW-1) and Budhelal (PW-2) were also examined. 5. Learned trial Court after hearing counsel for the respective parties and considering the material available on record, convicted him as mentioned in para 1 of this judgment. Hence, this appeal. 6. Learned counsel for the appellant submits that he is not pressing this appeal on merit and would confine his argument to the sentence part only. He submits that the incident took place in the year 2008, the appeal is pending since 2009, the appellant at the time of incident was aged around 48 years and by now he is aged around 64 years, he remained in jail for 01 years and 07 days, and no useful purpose would be served in again sending him back to jail, 5 / 9 therefore, his sentence may be reduced to the period already undergone by him. 7. On the other hand, learned State counsel supporting the impugned judgment submits that the learned trial Court minutely appreciated oral and documentary evidence and has rightly convicted the appellant. So, the appeal being without any merit is liable to be dismissed. 8. Heard learned counsel for the parties and perused the record of the learned trial Court. 9. It is clear from the record of the learned trial Court that the learned trial Court framed charges under Sections 376 read with section 511 of IPC and after appreciation of oral and documentary evidence, the learned trial Court convicted him as described in para 1 of this judgment. 10. Prosecutrix (PW-1) was minor aged around 8 years and the trial Court after satisfying itself that the prosecutrix was able to answer the question rationally, examined her. She has stated that on the date of incident, while she was coming from answering the call of nature from bathroom, the appellant caught hold of her near narrow space of the bathroom, removed her undergarment and tried to rape her. She screamed loudly and and upon hearing her cries, her mother reached there and seeing her, the appellant ran away from the spot. In cross-examination, this witness 6 / 9 remained firm to what has been stated in examination-in- chief. 11. Mother of prosecutrix (PW-2) has also stated that the appellant was watching T.V. in the courtyard of her house. The prosecutrix (PW-1) after having meal had gone to answer the call of nature and when she heard the scream of her daughter, she climb up the house and saw her daughter and the appellant were in the bathroom. The appellant had taken off his clothes and caught hold of prosecutrix & both were lying on the ground. He was trying to rape her daughter. She (this witness) screamed loudly as to what was he is doing then the appellant ran away from there holding his clothes. This witness has also remained firm to what has been stated in examination-in-chief. 12. Udhoram (PW-3), Preetam Kumar (PW-4), Jaigul (PW-5) and Jethuram (PW-6) all have stated that after the incident a village meeting was convened in this regard but the appellant did not come in the village meeting and thereafter, the FIR of the incident was lodged against the appellant. 13. Close scrutiny of the evidence makes it clear that on the date of incident, the appellant was watching T.V. in the house of prosecutrix (PW-1) and when she was coming from answering the call of nature from bathroom, the appellant caught hold of her in narrow space near bathroom, 7 / 9 removed her and his undergarment and tried to commit rape with her & when she screamed loudly, her mother (PW-2) climb up the house and saw that her daughter (PW-1) and the appellant were in the bathroom. The appellant had taken off his clothes and caught hold of prosecutrix & both were lying on the ground. The appellant was trying to rape the prosecutrix (PW-1). The defence has cross-examined these witnesses (PW-1 and PW-2) at length but has not been able to elicit anything in their cross-examination to discredit their testimonies especially to the fact that the appellant has not tried to commit rape with prosecutrix. Though the medical report (Ex.P-14) is not suggestive of the fact that the prosecutrix (PW-1) was subjected to rape but when this Court delve into testimony of prosecutrix (PW-1) and her mother (PW-2) what transpires is that the appellant after removing his and prosecutrix’s undergarment, was trying to commit rape and the offence of committing rape was not completed, thus, in such a situation, no benefit of medical report having been nil with regard to commission of rape can be extended to the appellant because the appellant was trying to commit rape as is evident from the evidence of PW- 1 and PW-2. Thus, the the learned trial Court having minutely appreciated the statement of prosecutrix (PW/1), her mother (PW-2), oral and documentary evidence, has 8 / 9 rightly convicted the appellant under Section 376 read with Section 511 of IPC and his conviction under this Section is thus maintained. 14. As regards the sentence, the incident is of the year 2008, the appeal is pending since 2009, the appellant at the time of incident was aged around 48 years and by now he is aged around 64 years, he remained in jail for 01 year and 07 days, thus, in these circumstances, the ends of justice would be served if he is sentenced to the period already undergone by him. 15. In the result, the appeal is allowed in part. While maintaining the conviction of appellant under Section 376 r/w section 511 of IPC, his sentence under these sections is reduced to the period already undergone by him. The impugned judgment stands modified to the above extent. 16. The appellant is on bail. Keeping in view the provisions of Section 437-A Cr.P.C. (481 of the B.N.S.S.), the appellant is directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with 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 9 / 9 notice thereof shall appear before the Hon’ble Supreme Court. 17. Let a copy of this judgment and the original record be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Rajani Dubey) Judge pekde Digitally signed by VIJAY BHARATRAO PEKDE Date: 2025.08.28 11:22:19 +0530