Sudama Yadav Vs State of Chhattisgarh

1. This criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (henceforth, Cr.P.C.) has been preferred by the appellant/accused challenging the judgment of conviction and order of sentence dated 17.03.2025 passed by Sessions Judge, Sarguja (Ambikapur),C.G. in Sessions Trial No. 455/2004 whereby the appellant has been convicted for the offence 376 of the IPC and sentence him to undergo rigorous imprisonment for seven years with fine of Rs. 1,000/-, in default of payment of fine, to further undergo R.I. for three months.

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2. Case of the prosecution, in brief, is that on 07.09.2004, at about 8.30 AM, victim, aged about 36 years had gone to take water at hand pump, seeing her alone, appellant forcefully took her to the house of Etwar singh by gagging her mouth and raped her. On being screamed by victim, her husband reached there and assaulted the appellant by means of stick (MaMk), thereafter, he (appellant) ran away from the spot. FIR to this effect was lodged on the same day in police Station Lakhanpur, District Surguja (C.G.) for the offence punishable under Section 376 of the IPC against the appellant. Undergarment (चड्डी) of victim was seized vide seizure memo (Ex.P-3). Spot map was prepared by the Police as well as Patwari. One aluminum dekchi (xat) was seized from the place of occurrence vide seizure Memo (Ex.P-8). Victim was medically examined by Dr. R. Ekka (PW-5), who vide MLC report (Ex.P-9) opined that victim is habitual to sexual intercourse, therefore, no definite opinion can be given with regard to recent sexual intercourse with her. She preserved vaginal slide and undergarment (चड्डी) of victim and handed over the same to the concerned constable for chemical examination. The appellant was also medically examined by Dr. Prem Singh Marko (PW-6). Statement of the witnesses under Section 161 Cr.P.C. was recorded.

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3. After completion of investigation, charge-sheet under Section 376 of the IPC was filed against the appellant before Judicial Magistrate First Class, Ambikapur, who in turn, committed the case to the Sessions Judge, Sarguja (Ambikapur), who tried the case. Learned Sessions Judge, Sarguja, Ambikapur framed charge under Section 376 of the IPC against the appellant, who abjured the guilt and claimed trial.

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4. So as to hold appellant/accused guilty, the prosecution examined as many as 12 witnesses and exhibited 23 documents. Statement of the

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appellant/accused was recorded under Section 313 of Cr.P.C. in which he denied all the circumstances appearing against him in the prosecution evidence, pleaded innocence and false implication. No defence witness has been examined in support of the appellant/accused.

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5. Learned counsel appearing for the appellant would submit that in the instant case, only victim (PW-1), her husband (PW-2) and their son (PW-4) have been examined, as material witnesses of facts. Dashrath Ram (PW-3) is also material witness of fact, but he reached on the spot allegedly after hearing commotion, thus, material witnesses are victim, her husband and their son. He further submits that from the evidence of victim (PW-1) herself, it is very clear that it was consensual relation between the victim and the appellant, but since her husband saw the incident, therefore, it was revealed. He further submits that if it was done forcefully or without the consent and free will of the victim, then why would she remain silent for an hour, that too, in a dense residential area. He further submits that Dr. R. Ekka (PW-5), who examined the victim/prosecutrix, has specifically admitted the suggestion given by defence counsel that there was no any mark of injury of forceful sexual intercourse with the victim. He further submits that Dashrath Ram (PW-3) & son of the victim (PW-4) are the interested witnesses, therefore, merely on the basis of their testimonies, conviction of appellant under Section 376 of IPC cannot be upheld, as there is no cogent evidence in this regard, hence, he prays that the appeal may be allowed and the appellant may be acquitted of the alleged charge by setting aside the judgment of conviction and order of sentence passed by the Sessions Court.

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6. Per contra, learned counsel for the State/respondent would submit that impugned judgment of conviction and order of sentence convicting and

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sentencing the accused/appellant as mentioned above, is based on proper appreciation of evidence available on record, which does not call for any interference.

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7. I have heard learned counsel for the parties, considered their rival submissions and went through the record with utmost circumspection.

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8. Victim (PW-1) has stated in her deposition that when she had gone to take water at Tubewell situated near School, at that time, appellant came from behind and grabbed her with his hands and gagged her mouth and, thereafter, took her to the house of one Etwar Singh, where he raped her by putting off undergarments of both of them. She further deposed that despite her protests, appellant avoid it and set her free after about one hour, thereafter, she cried, listening which, her husband came there and scolded the appellant.

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9. Brother of the victim (PW-2) has also supported the above-stated facts that the appellant forcefully consummated the victim. This fact has also been supported by son of victim (PW-4).

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10. The victim was medically examined by Dr. R. Ekka (PW-5), as per her deposition, no external, internal or physical injury in respect of forceful intercourse with the victim/prosecutrix was found on her person.

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11. Thus, from the perusal of deposition of victim (PW-1) and her husband (PW-2), it is clear that the place where the alleged incident is alleged to have been taken place, is a dense residential area of the village where the School is also situated and time of incident is said to be 8.30 AM, at that time, mostly villagers are stayed at their home or usually go to nature’s call etc., but on being cried by victim, only her husband reached the spot whereas if she

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would have cried, then apart from her husband, other residents of nearby houses may also reach there. Dashrath Ram (PW-03) went there after listening commotion, but he reached subsequent to the incident. As per deposition of victim, the accused/appellant gagged her mouth and did the wrong act with her, despite her protest and the appellant left her after an hour and on being screamed, her husband came there. This fact also goes against the truthfulness of the prosecution case, as if appellant had taken her forcefully and sexually exploited her for one hour, then she ought to have cried as soon as the appellant hold her, but she did not do the same, rather she cried after the appellant held her for an hour.

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12. Son of the victim (PW-4) has admitted in his cross-examination that in the month of Chaitra , he, his mother (victim), brother, the appellant and his daughter had gone to Kundargarh. He has also admitted in his crossexamination that the accused/appellant had got stitched school uniform for him. This fact shows that appellant had good relation with the victim and alleged act of cohabition between them was consensual, but since the incident was revealed to her husband, which compelled her to lodge FIR under pressure.

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13. Having considered the evidence adduced by the prosecution and discussion made herein-above, it is found that without any lawful evidence, learned Sessions Judge has convicted the appellant for consensual cohibition between them, which does not fall under the offence of rape, therefore, judgment of conviction and order of sentence passed by the learned Session is found to be perverse and illegal.

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14. In view of the foregoing discussion, criminal appeal is allowed. Impugned judgment of conviction and order of sentence dated 17.03.005 passed by the learned Sessions Judge, Sarguja (Ambikapur) is liable to be and is hereby set aside and the appellant is acquitted of the charge under section 376 of the IPC.

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15. The appellant is reported to be on bail, his bail bonds shall remain in force for a further period of six months in view of the provisions contained in Section 481 of the BNSS, 2023

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16. Let a copy of this judgment and the record of the court below be transmitted to the trial court concerned forthwith for necessary information and compliance.

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Sd/(Naresh Kumar Chandravanshi) Judge

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amit AMITKUMARDUBEY Digitallysigned byAMIT KUMARDUBEYDate:2025.10.1511:23:16+0530

Sudama Yadav v. State of Chhattisgarh

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Sudama Yadav v. State of Chhattisgarh

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