Manoj Kumar Soni Vs State of Chhattisgarh

The appeal under Section 374 of Code of Criminal Procedure, 1973 has been preferred against the judgment of conviction and order of sentence dated 13.05.2008 passed by the learned Special Sessions Judge, Ambikapur District- Surguja (C.G.) in Special Sessions Trial No. 85/2006 whereby the learned trial Court has acquitted the co-accused Kailash Mungeria of all the charges levelled against him, but convicted and sentenced the appellant as under:-

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Conviction	Sentence
U/s 376(1) of I.P.C.	R.I. for 7 years and fine
	of Rs. 200/-, in default of
	payment of fine to
	undergo additional R.I. for one month.
U/s 366 of I.P.C.	R.I. for 05 years with fine
	of Rs. 200/-, in default of
	payment of fine to
	undergo additional R.I.
	for one month.

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(Both substantive sentences are directed to run concurrently.)

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Brief facts of the case as adumbrated from the impugned judgment is that on 21.02.2006, at 3 pm, the prosecutrix went to co-accused Christopher Joseph aka Kailash Mungeria’s house as the appellant Manoj Kumar Soni came to her house and told her elder sister that the prosecutrix has been invited to the birthday of Joseph’s son which will be celebrated today in Joseph’s house, where he lives in rent situated at Mission Road, Ambikapur. Thereafter, the prosecutrix along with the appellant Manoj Kumar Soni went to the house of co-accused Christopher Joseph by motorcycle as being apprised by the appellant Manoj Kumar Soni. When they both entered the house of the coaccused Christopher Joseph, neither the co-accused, nor his wife were present there, then the prosecutrix requested the appellant to let her go to her house, but the appellant took advantage of the situation, made her fall on the ground and without her consent satiated his lust by committing forcible sexual intercourse upon her on the pretext of marriage. However, the prosecutrix disclosed regarding the incident to her sister of the same day. As the present appellant promised to marry

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the prosecutrix, the prosecutrix waited for him, but when she came to know that the appellant has denied his marriage with the prosecutrix as he was about to marry some other girl, then the prosecutrix lodged the F.I.R. on 29.05.2006 against the appellant and the co-accused though the incident was said to have been taken place on 21.02.2006.

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Thereafter, the accused/appellant and the co-accused were taken into custody and the statement of the accused/appellant and the coaccused and other relevant witnesses were recorded under Section 161 of Cr.P.C. After completion of due and necessary investigation, charge-sheet was filed before the Chief Judicial Magistrate, Ambikapur and the case was committed to the learned Special Sessions Judge Ambikapur, District-Surguja (C.G.) for offence under Sections 363, 366, 376 (2) (g) of IPC and Section 3 (2) (v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

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The prosecution in order to bring home the offence, examined as many as 12 witnesses. Statement of the accused/appellant and the coaccused were also recorded under Section 313 of Cr.P.C. wherein they denied all the incriminating circumstances appearing against them and pleaded innocence and false implication in the case. However, no witness has been adduced in their defence.

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Learned trial Court after completion of trial and upon appreciation of oral and documentary evidence, by its impugned judgment, convicted and sentenced the appellant and the co-accused as mentioned in the opening paragraph of this judgment. Hence, this appeal.

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Learned counsel for the appellant submits that the impugned judgment of conviction and order of sentence is illegal, improper, contrary and unwarranted to the facts, evidence and circumstances of the case,

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hence the impugned judgment and order of sentence is liable to be set aside. The learned trial Court has committed gross irregularity by not properly appreciating the facts, evidence and circumstances of the case particularly the facts that the medical report of the doctor has not supported the prosecution story. It is an admitted position that the F.I.R was lodged by the prosecutrix after three months of the incident and no satisfactory explanation has been offered by the prosecutrix, hence the case appears to be suspicious. The learned trial Court itself finds that the prosecutrix is not below the age of 18 years and acquitted the appellant under Section 363 of IPC, but the learned trial Court on the same set of evidence, convicted the appellant under Sections 366 and 376 of IPC which is against the law and facts and circumstances of the case. As such the impugned judgment is liable to be set aside.

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Ex adverso , learned counsel for the State supported the impugned judgment and submits that the learned trial Court minutely appreciated the oral and documentary evidence and rightly convicted the present appellant and the co-accused, so this appeal is being devoid of any merit and is liable to be dismissed.

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I have heard both the counsel for the parties and perused the material available on record including the impugned judgment with utmost circumspection.

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It is clear from record of learned trial Court that learned trial Court framed charges under Sections 363, 366 and 376(2) (g) of IPC read with Section 3 (2) (v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against the appellant and other co-

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accused person and after appreciation of oral and documentary evidence, the learned trial Court acquitted the appellant under Section 363 of IPC and other co-accused for offence under sections 363, 376, 366 and Section 3 (2) (v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, but convicted the present appellant under Sections 376(1) and 366 of IPC.

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The learned trial Court finds in para 08 of its judgment that the prosecution has failed to prove this fact that the prosecutrix was below 18 years of age at the time of incident i.e., 21.02.2006.

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(PW/01) prosecutrix has stated that on the date of incident, she went to co-accused Christopher Joseph aka Kailash Mungeria’s house as the appellant Manoj came to her house and told her elder sister that the prosecutrix has been invited to the birthday of Joseph’s son which will be celebrated today in Joseph’s house, where he lives in rent situated at Mission Road, Ambikapur. Thereafter, the prosecutrix along with the appellant Manoj Kumar Soni went to the house of co-accused Christopher Joseph by motorcycle as being apprised by the appellant Manoj Kumar Soni. When they both entered the house of the coaccused Christopher Joseph, neither the co-accused, nor his wife were present there, then the appellant Manoj Kumar Soni told her that he will be back soon as he was being ordered to bring rice by the wife of the co-accused. The appellant came back after 10-15 minutes, he did not bring rice, he locked the door from outside after entering into house, the appellant made her fall on the ground and without her consent, satiated his lust by committing forcible sexual intercourse upon her on pretext of

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marriage. Later, she told this incident to her sister on the same day and her sister told this incident to her father, then they lodged F.I.R. vide Ex. P/05 against the accused/appellant.

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(PW/02) father of the prosecutrix stated that the accused/appellant came to his house along with his sister and told him that they want to talk to him regarding something, then he made them sit in his house and the sister of the appellant disclosed the fact that his brother/appellant is in love with the prosecutrix. She then went on saying that the appellant’s parents are against this alliance, but she is in support of his brother/appellant regarding the same. However, the father of the prosecutrix denied their marriage proposal by saying that his daughter is only of 16 years of age, which is not for marriageable age.

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(PW/05) sister of the prosecutrix stated that the accused/appellant Manoj came at about 4 pm, apprised her regarding the birthday of Christopher Joseph’s son and on this ground, he took her sister/prosecutrix with him and later on she was apprised by the prosecutrix herself that forcible sexual intercourse was committed upon her by the appellant Manoj Kumar Soni on pretext of marriage.

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(PW/10) Anand Kumar Gupta has stated that the prosecutrix is member of his folk theatre troupe/cultural roadshow “ Kalajathha ”. On 18.01.2006, he was apprised by Ashish that maarpeet took place between uncle of the prosecutrix and the appellant Manoj Kumar Soni, upon gathering details regarding the same, he came to know that the prosecutrix and the appellant Manoj Kumar Soni were being noticed by the uncle of the prosecutrix at Wadraf Nagar. He also came to know

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that the prosecutrix is having love affair with the appellant Manoj Kumar Soni. Thereafter, in his examination-in-chief he admitted that he told the prosecutrix that they go to many places to give programs, hence they should have control on their character and he told the prosecutrix to not to work in his troupe any further as she broke the discipline of his troupe and then, the prosecutrix left working for his folk theatre troupe.

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PW/11 Dr. Shashikala Toppo examined the prosecutrix on 29.05.2006 and she stated that no definite opinion can be given regarding sexual intercourse of the prosecutrix and she gave her report vide Ex. P/12.

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As per F.I.R. (Ex. P/05), the date of incident is 21.02.2006 and date of lodging of F.I.R. is 29.05.2006, i.e., delay of three months, and there is no satisfactory explanation given by the prosecution regarding the same. The medical report also does no support the case of the prosecution and as per PW/02 father of the prosecutrix and PW/10 Anand Kumar Gupta, the prosecutrix and the appellant Manoj Kumar Soni were in love with each other and the learned trial Court finds that the prosecutrix is not below the age of 18 years. So, the medical report does not support the commission of forcible sexual intercourse upon the prosecutrix and it is also clear that the prosecutrix is the consenting party to the act of the appellant Manoj Kumar Soni as she was in love with the said appellant.

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From close scrutiny of statement of the prosecutrix “ the accused committed forcible sexual intercourse upon her before three months without her consent” is unreliable and untrustworthy. The prosecution has failed to prove its case beyond reasonable doubts, but the learned

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trial Court did not appreciate all these facts and convicted the appellant.

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Ex consequenti , the appeal is allowed . The impugned judgment of conviction and order of sentence dated 13.05.2008 is set aside and the appellant is acquitted of the aforesaid charges leveled against him.

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Keeping in view the provisions of section 481 of BNSS 2023, the appellant is directed to furnish a personal bond for a sum of Rs. 25,000/- in the like amount before the court concerned forthwith, 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 notice thereof, shall appear before the Hon’ble Supreme Court.

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The trial Court record along with a 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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U. K. Raju

Manoj Kumar Soni v. State of Chhattisgarh

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Manoj Kumar Soni v. State of Chhattisgarh

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