Santosh Verma Vs State of Chhattisgarh

This appeal arises out of the judgment of conviction and order of sentence dated 31.01.2003 passed by the learned 4^th Additional Sessions Judge, Durg, Chhattisgarh, in Sessions Trial No. 259/2002

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whereby, the trial court convicted the appellant is as under:-

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Conviction	Sentence
U/s. 376(1) of Indian Penal Code	Rigorous imprisonment for 07 years and fine of Rs. 5,000/-, in default of payment of fine 06 months additional rigorous imprisonment.

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Brief facts of the case are that, the prosecutrix performed marriage with the cousin of appellant/accused namely Chhotu @ Khubchand Verma without the consent of her parents and was living with him in the house of Birajo Bai on rent at village Kohka. It is said that the

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appellant was paternal brother (QwQsjk HkkbZ) of Khubchand, who was also living in the said house. On 12.05.2001, during the summer season, at night, Khubchand, his sister and the accused/appellant were sleeping on the terrace, whereas the prosecutrix Shakun was sleeping inside the house with her small child. In the midnight, the accused/appellant came to the room of prosecutrix on the pretext of drinking water and came on the bed of prosecutrix and committed forcible sexual intercourse with her. Thereafter, the appellant told the prosecutrix that he is not her husband. After knowing this, the prosecutrix objected and when she told her husband, her husband Khubchand said that the appellant is his brother and nothing should be said to him. Two days later, when the prosecutrix objected to the appellant in front of her husband, the appellant slapped the prosecutrix in front of her husband. After that the husband of prosecutrix started harassing the prosecutrix by not providing food and water. Then, being upset, the prosecutrix wrote a letter to his father, who lives in Batag village. Her father Mansha Ram Yadav came and she told him about the incident. Thereafter a written report of the incident was lodged at the police station. The police got the prosecutrix medically tested. The clothes worn by the prosecutrix on the date of the incident were also seized. Medical examination of the appellant was done and whatever clothes she was wearing were seized. The doctor found the appellant capable of sexual intercourse. The seized cloth and the swab made from the prosecutrix's vagina were sent to the Forensic Science Laboratory. Statements of witnesses were taken. After completing the necessary investigation, a charge sheet was filed in the Court. According to the prosecutrix, her

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age was above 17 years at the time of incident.

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So as to hold the accused/appellant guilty, the prosecution has examined as many as 6 witnesses and exhibited 12 documents. Statement of the accused/ appellant was also recorded under Section 313 of Cr.P.C., in which he denied the charges levelled against him in the prosecution case & pleaded his innocence and false implication in the case.

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The trial court after hearing counsel for the respective parties and considering the material available on record has convicted and sentenced the accused/appellant as mentioned in para 1 of this judgment.

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Learned counsel for the appellant submits that the impugned judgment passed by the learned 4^th Additional Sessions Judge is bad, illegal, perverse and contrary to law applicable to the facts and circumstances and evidence available on record. Learned trial court erred in holding that the appellant has committed offence punishable under Section 376(1) of Indian Penal Code. The impugned judgment passed by the learned court below is based on surmises and conjectures. The learned court below has utterly failed to appreciate the evidence in its proper and right perspective. The learned Trial Judge failed to see that the allegation whatsoever levelled against the appellant during the course of Trial does not fall under the purview of Section 376(1) of Indian Penal Code.

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On the other hand, supporting the impugned judgment it has been

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argued by the State counsel that conviction of the accused/appellant is strictly in accordance with law and there is no infirmity in the same.

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I have heard learned counsel for the parties and perused the material available on record.

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It is clear from the record of learned trial Court that the prosecution has examined 7 witnesses to prove its case against the appellant. The prosecutrix (PW-1) stated in her evidence that she was in love affair with Khubchand and she was living with Khubchand for about 10 months. Accused was his cousin. On 12.05.2001 in the night, when she was sleeping with her child in the room and her husband was sleeping on the terrace, at that time accused Santosh came and committed sexual intercourse with her. Prosecutrix was in impression that the accused was his husband, but after committing the offence, the appellant told that he is not her husband and he is brother of her husband. He promised her not to disclose about the incident to anyone. Next morning when she told about the incident to her husband, to which her husband scolded her. After 2-3 days when the accused again repeated the act with the prosecutrix, she objected, upon which the accused slapped her and without informing her left to reside on other rented house. When the father of prosecutrix came, she went along with him to her parents house and reported the matter to the police station.

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At the time of incident, the prosecutrix was aged about 17 years, she has stated that she would not have permitted the accused, if she was having the knowledge that the accused was not her husband. In

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cross-examination, she admitted this fact. On the date of incident, sister of Khubchand was also there in the house. Due to the said incident, she was left by her husband to village Kurud. Prosecutrix has stated that the said dispute arose, when she wrote a letter to her father. Mansha Ram (PW-2) has also stated that her daughter is aged about 16 years 9 months and Khubchand eloped with her daughter. Her daughter has written a letter to her father stating that Khubchand had beaten her and accused had rap her.

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Birajo Bai (PW-3) has stated that prosecutrix and her husband were residing in her house on rent and father of prosecutrix came and took away with him.

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Vinod Kumar (PW-6) has stated that the accused committed sexual intercourse with the prosecutrix and she was in the impression that the accused was her husband. When the matter was brought to the knowledge of husband of prosecutrix, he avoided the same. In the cross-examination, she admitted that Mansha Ram told that his daughter has sent a letter and in which she has stated about torturing by her husband. Thereafter the prosecutrix has lodged a report against her husband.

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Hemant Kumar Chhekar (PW-7) has stated that Mansha Ram told him that when her daughter was sleeping, accused/appellant entered in the room and committed rape on her.

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As per the statement of the prosecutrix and other witnesses, the incident occurred on 12.05.2001 and the prosecutrix lodged F.I.R.

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(Ex.P/2) on 05.07.2001. As per Ex.P/1, the incident occurred on 12.05.2001 and written report was lodged on 05.07.2001, but F.I.R. was not exhibited by the prosecution. Ex.P/2 is photocopy of F.I.R. filed by the prosecution, which was against Chhotu @ Khubanchd and accused Santosh Verma and on this report, offence under Section 363, 366, 376 and 506/34 of IPC was registered against accused and his brother Khubchand Verma. Prosecutrix and her father admitted the fact that prosecutrix eloped with Khubchand Verma and was living with him since 10 months. In the statement recorded under Section 313 Cr.P.C. appellant has stated that Khubchand was his cousin and prosecutrix and Khubchand were in love affair and due to dispute with Khubchand, she has made false allegation against the accused. The prosecution did not examine any doctor. It is clear from the F.I.R. that as per prosecutrix, incident was of 12.05.2001 and F.I.R. was lodged on 05.07.2001. Investigating officer (R.P. Shukla/PW-5) has admitted in his cross examination that prosecutrix filed her written report vide Ex.P/1 and on that day her husband also came with her. It is not true that prosecutrix met with her father and made allegation against the accused.

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The learned trial Court only appreciated the evidence of prosecutrix and finds that she wrote a letter Ex.P/2 on compelling circumstances, but it is very unreliable statement of the prosecutrix that she was in the impression the accused was her husband and later on the accused told that he was not her husband.

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Recently, in case of “ Nirmal Premkumar & another v. State Rep. By Inspector of Police ” Criminal Appeal No. 1098/2024, judgment

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dated 11.03.2024, Hon'ble Supreme Court has held in para 22 as under:

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“22. Conviction undoubtedly can be recorded on the sole evidence of a victim of crime; however, it must undergo a strict scrutiny through the well-settled legal principles as established by this Court in a catena of decisions. …...”

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In this case, it is clear that the statement of prosecutrix is not reliable. The prosecutrix also did not explain the delay in lodging the F.I.R. It is also clear that there was some dispute between the prosecutrix and her husband Khubchand. The prosecutrix eloped with him and later on dispute arose between them. Prosecution has seized the school register of the prosecutrix vide Ex.P/10, but prosecution did not examine the Principal or any staff of the school and did not prove the entry of school register. Age of the prosecutrix is also not proved by the prosecution. Prosecution has utterly failed to prove its case beyond reasonable doubt.

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On the basis of aforesaid discussions, this Court is of the view that the learned trial Court committed an error in convicting and sentencing the appellant under Section 376(1) of Indian Penal Code.

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In the result, the appeal is allowed . Conviction and sentence awarded to the appellant under Section 376(1) of Indian Penal Code is set aside. The appellant is acquitted of the charge-sheet framed against him. The appellant is reported to be on bail, therefore, the same shall remain operative for a period of 06 months from today by virtue of the provisions of Section 437-A of Cr.P.C. bail bonds shall stand discharged.

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Keeping in view the provisions of Section 437-A of CrPC, the appellant is directed to furnish a personal bond in terms of form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs. 25,000/- with two reliable sureties in the like amount before the Court concerned 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.

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The record of the trial Court along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.

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Sd/- (Rajani Dubey) Judge

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ved

Santosh Verma v. State of Chhattisgarh

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Santosh Verma v. State of Chhattisgarh

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