Appeal against conviction under Sections 376 and 450 of IPC. Court set aside conviction, acquitted appellant, noting lack of evidence for non-consent or age below 16.
Appellant acquitted of charges under Sections 376 and 450 IPC; impugned judgment set aside.
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 1020 of 2008
----Appellant
Versus
---- Respondent
For Appellant Shri R.K. Pali, Advocate. For Respondent/State Shri V.P. Banjare, Deputy Government Advocate.
Hon'ble Shri Justice Gautam Chourdiya Judgment on Board
06/11/2020
sentence dated 14.11.2008 passed by the 2nd Additional Sessions Judge, Baloda-Bazar, District Raipur, C.G. in Sessions Trial No.23/2008, whereby the appellant stands convicted and sentenced as under:-
| Conviction | Sentence |
|---|---|
| Under Section 376 of Indian Penal Code (hereinafter referred to as the 'IPC') |
Rigorous Imprisonment for three years and fine of Rs.3,000/-, in default of payment of fine to further undergo Rigorous Imprisonment for nine months |
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Under Section 450 of Indian Rigorous Imprisonment for three Penal Code years and fine of Rs.3,000/-, in default of payment of fine to further undergo Rigorous Imprisonment for nine months
(Both sentences were directed to concurrently)
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against the appellant under Section 376 of IPC. The trial Court framed the charges under Sections 450 and 376 of IPC against the appellant which were denied by him and he prayed for trial.
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He further submits that neither medical report was proved or produced before the trial Court nor any independent witness has supported the prosecution case. He submits that the statement of the prosecutrix is wholly unreliable considering the overall evidence on record, therefore, it is clear that if there was any sexual intercourse between the appellant and the prosecutrix, she was a consenting party to that act. Therefore, the impugned judgment of conviction and order of sentence deserves to be set aside and the appellant be acquitted of the said charges.
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at page No.28, one photo-copy of mark-sheet of middle school of prosecutrix is there where her date of birth is mentioned as 27.07.1991 but that document is unexhibited. However, the parents of the prosecutrix have also not been examined by the prosecution. Further, Prosecutrix herself admitted in her deposition that she was having affair with the appellant prior to lodging of the FIR and she has no knowledge when they first physically came in contact with each other. Therefore, looking to the statement of PW-1 Prosecutrix and the documents available on record, it cannot be presumed or proved that the prosecutrix was below the age of 16 years at the time of incident.
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were acquainted with each other and she never disclosed their physical relations to anybody.
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appellant was ready to marry her. In these letters, she has nowhere stated anything about the commission of rape by the appellant.
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on number of occasions. Further, Prosecutrix was unable to state the date or month when appellant committed sexual intercourse with her. No any fact is mentioned in Article-A & Ex.P-5, letters written by the appellant and Ex.D-1 & Ex.D-2, letters written by the prosecutrix, about their physical relations. When prosecutrix went to the home of appellant to live as his wife and appellant's elder brother expelled her from home, then she went to the police station and lodged the FIR Ex.P-1 against the appellant. Further, in this case prosecutrix was medically examined by the Medical Officer but that document is neither exhibited nor produced before the trial Court. Also, no Investigating Officer has been examined by the prosecution in this case nor any FSL report proved or produced by the prosecution before the trial Court. In these circumstances, keeping in view the judgment in the matter of Rajesh Patel (supra), it cannot be said that sexual intercourse between them was per force or against her will or without her consent, rather it appears to be a peaceful affair with the consent of the prosecutrix. This being the position, the appellant can, by no stretch of imagination, be held guilty of the offence under Sections 376 and 450 of IPC, as has been held by the trial Court, and he deserves to be acquitted of the said charges by extending him benefit of doubt.
The appellant is reported to be on bail, therefore, his bail
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bonds shall continue for a period of six months from today in view
of provisions of Section 437-A of Cr.PC.
Sd/Gautam Chourdiya Judge
Akhilesh
3 issues framed by the court
Whether the sexual intercourse between the appellant and the prosecutrix was consensual based on available evidence.
Whether the prosecutrix was below the age of 16 years at the time of the incident.
Whether benefit of doubt should be extended to the appellant given the lack of conclusive evidence regarding non-consent.
Colour shows how this judgement treated each authority
Rajesh Patel vs State of JharkhandRelied on¶17
(2013) Volume 3 SCC 791 · Who else cites this
3 provisions across 2 enactments
Gameshwar
State of Chhattisgarh
Gautam Chourdiya
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
