Harel Kanwar @ Daroga @ Dodra Vs State of Chhattisgarh

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Page No.1 of 8 IN CRA-1090-2019

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Digitally SAIFAN signed by KHAN SAIFAN KHAN

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2025:CGHC:58727-DB

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Criminal Appeal No. 1090 of 2019

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[Arising out of judgment dt. 10.08.2017, passed in Session Case No.29/2015 (State of Chhattisgarh v. Harel Kanwar @ Daroga @ Dodra) by the Addl. Sessions Judge, Katghora, District Korba (CG)]

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Harel Kanwar @ Daroga @ Dodra, S/o Chamar Singh, aged about 58 years, R/o Bhada (Nagoi), Police Station Pali, District Korba (Chhattisgarh)

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... Appellant/ (On Bail)

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Versus

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State of Chhattisgarh, through Police Station Pali, District Korba (Chhattisgarh)

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... Respondent

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[Cause-title taken from Case Information System (CIS)]

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For Appellant : Mr. Khilendra Sahu, Advocate on behalf of Mr. Vivek Shrivastava, Adv For Respondent-State : Mr. Pankaj Singh, Panel Lawyer

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Judgment on Board (03.12.2025)

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Sanjay K. Agrawal, J

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(1) Invoking criminal appellate jurisdiction of this Court, the sole

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appellant herein has preferred this criminal appeal under Section 374(2) of Cr.P.C., calling in question the legality, validity and

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correctness of the impugned judgment of conviction and order of sentence dated 10.08.2017, passed in Session Case No.29/2015 (State of Chhattisgarh v. Harel Kanwar @ Daroga @ Dodra) by the Addl. Sessions Judge, Katghora, District Korba (CG), whereby he has been convicted for offence under Section 376 of IPC and sentenced to undergo imprisonment for life with fine of Rs.2,000/- and, in default of payment of fine amount, additional rigorous imprisonment for 02 months.

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(2) The case of the prosecution, in short, is that 07 months prior to 09.01.2015, at Village Bhada (Nagoi), which comes within the ambit of Police Station Pali, District Korba (CG), the appellant committed sexual intercourse with major victim (PW-06) against her will and consent, due to which, she became pregnant and delivered child and, thereby, said to have committed the aforesaid offence.

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(3) It is further case of the prosecution that the marriage of the victim (PW-06) was solemnized 15 years prior to the date of incident and, since victim’s husband used to commit cruelty upon her, she left her matrimonial house and used to reside alongwith his brotherSingiram (PW-02) and sister-in-law Samarin Bai (PW-01) and, meanwhile, victim’s husband also died. It is also the case of the prosecution that 7-8 months prior to 09.01.2015, when the victim (PW-06) had gone to the jungle for collecting firewood, the appellantaccused herein grabbed her, took her to his house, situated near the

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Page No.3 of 8 IN CRA-1090-2019

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jungle and committed sexual intercourse/rape with her. Thereafter, on 09.01.2015, Samarin Bai (PW-01)- sister-in-law of the victim, for the first time noticed that the victim’s stomach was slightly bloated and, on account of which, she took her to nearby Anganwadi Centre, where they came to know that the victim (PW-06) was carrying pregnancy of about 06-07 months. Thereafter, the victim reported the matter to the police, upon which, FIR (Ex.P/01) was registered against the appellant and wheels of investigation started running in the crime, in which, spot map was prepared vide Ex.P/05. After obtaining necessary consent vide Ex.P/02, the victim was medically examined and, as per MLC report (Ex.P/03) it has been stated that no definite opinion can be given because the victim was not cooperative and, as such, she was referred to District Hospital. Thereafter, again on 24.01.2015, the victim was medically examined by Dr. Smt. Alakhnanda Tirki (PW-08) and, according to her MLC report (Ex.P/07) it has been opined that no signs of external injuries seen over the body of the victim and she is carrying 32 weeks pregnancy. The accused appellant was arrested vide Ex.P/24 and sent for medical examination. Appellant’s MLC report is Ex.P/06 and further his one slide was also sealed and seized vide Ex.P/08. Thereafter, statements of witnesses were recorded and, after due investigation, the appellant was charge-sheeted for the aforesaid offences in the competent criminal Court having jurisdiction, which

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Page No.4 of 8 IN CRA-1090-2019

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was thereafter committed to the Court of Sessions for hearing and trial in accordance with law, in which, the appellant abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated.

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(4) The prosecution in order to prove its case examined as many as 13 witnesses and exhibited 26 documents, whereas the appellantaccused in support of his defence neither examined any witness not exhibited any document.

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(5) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant herein for offence under Section 376 of IPC and sentenced him as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellantaccused questioning the impugned judgment of conviction and order of sentence.

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(6) Mr. Khilendra Sahu, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for the aforesaid offence, as the prosecution has failed to prove the same beyond reasonable doubt. He vehemently argued that there is delay of 7-8 months in lodging the FIR. There is no direct or indirect evidence available on record to hold the appellant guilty of the offence. Even otherwise, neither medical and forensic examination nor DNA profiling has

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been conducted in the present case to demonstrate that the appellant herein is the biological father of the child/baby of the victim (PW-06). Hence, the learned trial Court is absolutely unjustified in convicting the appellant for the offence in question and, therefore, the present appeal deserves to be allowed and the appellant is liable to be acquitted of the said charges on the basis of benefit of doubt.

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(7) Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. In view of the statements of prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellant for offence under Section 376 of IPC. Thus, the present appeal deserves to be dismissed.

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(8) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

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(9) In the case at hand, admittedly, on the date of offence, the victim (PW-06) was major and her marriage was solemnized 15 years prior to the date of incident and, since victim’s husband used to commit cruelty upon her, she left her matrimonial house and used to reside alongwith his brother- Singiram (PW-02) and sister-in-law

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Samarin Bai (PW-01). Further, as per the statement of the victim (PW-06) at Para-04, despite she left her matrimonial house, her husband was in regular contact with her and used to sleep with her in her brother’s house. However, it is the case of the prosecution that on account of physical relationship made by the appellant herein, the victim (PW-06) became pregnant and delivered child, but there is no medical or forensic evidence to substantiate the said fact. Even, no DNA profiling has bee conducted in the present case in order to demonstrate that the appellant herein is the biological father of victim’s child. The FIR (Ex.P/01) has also been lodged by the victim (PW-06) after a delay of about 07-08 months.

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(10) Under such circumstances, it would be profitable here to notice the decision of the Supreme Court in the matter of Vijayan v. State of Kerala1 , wherein their Lordships have clearly held that in cases where the sole testimony of the prosecutrix is available, it is very dangerous to convict the accused, specially in absence of DNA profiling and when the prosecutrix could venture to wait for seven months for filing the FIR for rape and observed in Para-5 as under:

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“ 5. …...In cases where the sole testimony of the prosecutrix is available, it is very dangerous to convict the accused, specially when the prosecutrix could venture to wait for seven months for filing the FIR for rape. This leaves the accused totally defenceless. Had the prosecutrix lodged the complaint soon after the incident, there would have been some supporting

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1 (2008) 14 SCC 763

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evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. If the prosecutrix has willingly submitted herself to sexual intercourse and waited for seven months for filing the FIR it will be very hazardous to convict on such sole oral testimony. Moreover, no DNA test was conducted to find out whether the child was born out of the said incident of rape and that the appellant-accused was responsible for the said child. In the face of lack of any other evidence, it is unsafe to convict the accused. Therefore, we are of the opinion that the view taken by the trial court and the learned Single Judge of the High Court in convicting the appellant-accused under Section 376 IPC cannot be sustained. Consequently, we set aside the judgment and order of the trial court as also of the High Court and quash the conviction and sentence of the appellant-accused under Section 376 IPC. The accused may be released forthwith from custody if not required in any other case.”

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(11) The ratio decidendi of Vijayan (supra) has further been followed with approval in Parkash Chand v. State of Himachal Pradesh2 .

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(12) Reverting to the facts of the present case, in light of the abovequoted principles of law it is quite vivid that there is no medical or forensic evidence to substantiate that on account of physical relationship made by the appellant herein with the victim (PW-06), she became pregnant and delivered child and, even otherwise, no DNA profiling has also been conducted to find out whether victim’s child was born out of the incident of rape in question and the appellant-accused is responsible for the said child and, further, FIR 2 (2019) 5 SCC 628

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(Ex.P/01) has also been lodged by the victim (PW-06) after a delay of about 07-08 months, therefore, for the aforesaid reasons, the learned trial Court committed grave legal error in convicting and sentencing the appellant for the offence under Section 376 of IPC and he is liable to be acquitted from the said charge on the basis of benefit of doubt. We hereby hold accordingly.

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(13) In view of aforesaid discussion, the conviction and sentence of the appellant for offence punishable under Section Section 376 of IPC, as imposed upon him by the learned trial Court, is hereby set aside. The appellant is acquitted of the said charge on the basis of benefit of doubt. Since the appellant is already on bail, he need not to surrender. However, his bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the CrPC.

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(14) Consequently, this criminal appeal is allowed to the extent indicated herein-above.

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(15) Let a certified copy of this order alongwith original record be transmitted to the trial Court for necessary information and action, if any.

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sd/Sd/(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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s@if

Harel Kanwar @ Daroga @ Dodra v. State of Chhattisgarh

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Harel Kanwar @ Daroga @ Dodra v. State of Chhattisgarh

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