Khokshi @ Somnath Vs State of Chhattisgarh

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2025:CGHC:45504

Digitally signed by AJAY KUMAR DWIVEDI DN: cn=AJAY KUMAR DWIVEDI, ou=HIGH COURT, o=HIGH COURT OF CHHATTISGARH, st=Chhattisgarh, c=IN Date: 2025.09.09 14:48:48 +0530

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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NAFR

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CRA No. 737 of 2005

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Khokshi @ Somnath, S/o Khaniyalal, Caste-Bhatra, aged about 46 years, R/o Baihaguda Chowki, Bastar, District Bastar (CG)

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... Appellant.

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versus

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State of Chhattisgarh through Police Station In-charge, Thana Bhanpuri, District Bastar (CG)

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... Respondent.

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For Appellant : Ms. Swati Verma, Advocate. For Res/State : Mr. Dilman Rati Minj, Govt. Advocate.

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Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board

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08.09.2025

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The present Criminal Appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 has been preferred against the judgment of conviction and order of sentence dated 12.08.2005 passed by the Fourth Additional Sessions Judge (FTC), Jagdalpur, Chhattisgarh in Sessions Trial No.63/2005, whereby the appellant has been convicted for commission of offence under Section 376 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for 7 years and to pay a fine of Rs.200/-, in default of payment of fine to further undergo RI for 2 months.

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Prosecution case, in brief, is that on 01.01.2005 at Village NP people were celebrating Diyari festival. The appellant along with his wife had gone to the said village to meet his son-in-law R (PW3) and for celebrating said festival. The prosecutrix G (PW-2), a married lady, aged about 36 years, is also a resident of same village and resided along with her husband C (PW-3) and her children. The house of R (PW-3) is adjacent to the house of the prosecutrix (PW-2). On the date of incident i.e. 01.01.2005, in the night, the prosecutrix was sleeping with her family members. At about 10 pm, when the prosecutrix woke up to attend the call of nature and went outside of the house at Baadi, the accused/appellant came there and by pressing her mouth and grabbing her hands took her to Kothar which was situated nearby and committed rape with her and fled away. Thereafter, the prosecutrix came to her house and narrated the entire incident to her husband. They had also informed about the incident to Village Kotwar GR (PW-5) and Village Sarpanch SR (PW-4). On the next day i.e. 02.01.2005 at about 5 pm the prosecutrix (PW-2) has lodged an FIR at Police Station Manpuri, Bastar vide Ex.P-2.

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Crime details form and spot sketch map were prepared vide Ex.P-5. Nazri Naksha was also prepared by Patwari vide Ex.P-14. The prosecutrix was medically examined by Dr. SP (PW-8) who has submitted medical report vide Ex.P-9A. During her examination she did not find any external or internal injury on the body of the

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victim. Investigating Officer SS (PW-7) has seized Saari/cloth of the prosecutrix vide Ex.P-4 which was proved by prosecutrix and same was examined by Dr. SP (PW-8) and same was sent to FSL. The doctor has also prepared vaginal slide of the prosecutrix and sent the same to FSL for examination. As per FSL report (Ex.P-21), stains present on Saari and vaginal slide were of human semen and same was found positive. The appellant was medically examined by Dr. KS (PW-1), who submitted his medical report vide Ex.P-1, and found that the appellant was capable to perform sexual intercourse. Subsequently, statement of the witnesses were recorded.

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After completion of the investigation, charge-sheet was filed before the jurisdictional criminal Court, which in turn committed the case to the Court of Sessions for trial.

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Statement of the appellant was recorded under Section 313 Cr.P.C., in which, he pleaded innocence and false implication and claimed to be tried. However, he has not adduced any defence witnesses.

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In order to bring home the charges, the prosecution examined as many as 8 witnesses and exhibited 21 documents.

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After evaluating the evidence, learned trial Court vide impugned judgment convicted and sentenced the appellant as mentioned in initial paragraph of this judgment. Hence, this appeal.

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Ms. Swati Verma, learned counsel for the appellant submits that the findings arrived at by the trial Court is perverse to the evidence

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available on record. She would submit that the prosecutrix (PW-2) has stated that she was forcefully dragged by the appellant but the said version is not corroborated by the medical evidence. She further submits that one of the material witnesses i.e. Sarpanch of the said village (PW-4) categorically deposed that on the same night of incident husband of the prosecutrix informed him that he has caught red handed his wife with the appellant. Counsel further submits that there was political rivalry between family of the complainant and appellant. Learned counsel also submits that at the time of incident village people were celebrating Diyari festival and as per Map (Ex.P-5) the place of incident appears to be a public place as the alleged place of incident i.e. Baadi and Kothar are adjacent to the road and other houses are also situated near the place of incident and, therefore, there are chances of false implications and whole story of the prosecution is under suspicion. In view of such submission, counsel submits that the trial Court has committed grave error in convicting the accused under Section 376 IPC and the appellant deserves benefit of doubt and as such he may acquitted of the said charge.

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Mr. Dilman Rati Minj, learned State counsel would support the impugned judgment and submits that the prosecution has established its case beyond reasonable doubt, therefore, the impugned judgment is well merited and same does not call for any interference.

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Heard learned counsel for the parties and perused the evidence available on the record with utmost circumspection.

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It is well established that in order to convict the accused for the alleged offence, the prosecution is required to prove its case beyond reasonable doubt. Though in the matter of offence of rape, the testimony of prosecutrix is of paramount consideration but there can be no presumption that a prosecutrix would always tell the entire story truthfully. {See: Abbas Ahmad Choudhary vs State

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Of Assam - 2010 AIR SCW 1917 }

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It is also well established that ordinarily the evidence of a prosecutrix should not be suspected, however, at the same time the evidence cannot be universally and mechanically applied to the facts of every case of sexual assault. In this regard, material observation has been made by the Hon'ble Supreme Court in the matter of Raju Vs. State of MP - (2008) 15 SCC 13 at para 10 and 11 which read thus:-

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“ 10. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, the more so as her statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the Court.

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It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.”

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Considering the aforesaid principles and facts of the case, this Court is bound to reassess the entire material on record.

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Husband of the prosecutrix C (PW-3) in his evidence deposed that after the incident the prosecutrix informed him that in the night when she woke up to answer the call of nature and went to Kothar, the appellant caught hold of her hands and leg and fell her down and committed rape with her. Thereafter, they both informed the said incident to Village Kotwar GR (PW-5) and Village Sarpanch S (PW-4).

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Village Sarpnach S (PW-4), in his cross-examination, deposed that the husband of the prosecutrix (PW-3) informed him that in the night of incident he has caught his wife with appellant in a compromising position. This witness has also admitted the fact that since the husband has caught the prosecutrix with the

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appellant on the date of incident, therefore, on pressure of her husband, the prosecutrix has lodged the FIR. Further, prosecutrix (PW-2) in her evidence admitted the fact that she has not sustained injury over her body, though she has alleged that the appellant forcefully took her to Kothar from Baadi and after felling her down, committed rape with her, however, in the medical examination vide Ex.P-9A, Dr. SP (PW-8) has not found any external or internal injury over her body.

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The other witness, who is village Kotwar, GR (PW-5) only stated that the prosecutrix and her husband belong to his village and on the date of incident, there was Diyari festival and that the appellant does not belong to his village and he is father-in-law of RR(PW-6). He has also stated that husband of the prosecutrix has informed him about the incident. RR (PW-6) son-in-law of the appellant, in whose house the appellant came being a relative, has declared hostile. He has only stated that no such incident has happened and the appellant was sleeping along with his wife in the house at the time of incident.

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Furthermore, in the impugned judgment, the learned trial Court has wrongly overemphasized the FSL report wherein human semen was found on cloth of the victim and vaginal slide. Further, there is no clinching and cogent evidence to correlate such offence with the appellant as prosecutrix as well as appellant both are married. Even otherwise, one of the prosecution witnesses i.e.

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Sarpnach (PW-4) himself stated that husband of the prosecutrix has informed him that prosecutrix was caught red handed by him and on the pressure of husband, the prosecutrix lodged the FIR against the appellant. In such circumstances, this Court finds that the testimony of the prosecutrix with regard to manner of incident cannot be said to be fully reliable and the trial has not appreciated the evidence in proper perspective.

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For the foregoing, this Court is of the view that the prosecution has failed to prove its case beyond reasonable doubt and the trial Court has wrongly convicted the accused/appellant for offence under Section 376 IPC and it ought to have extended benefit of doubt to the appellant. Hence, the appellant deserves benefit of doubt.

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In the result, this Criminal Appeal is allowed . Conviction and sentence imposed upon the accused/appellant under Section 376 IPC are hereby set-aside and he is acquitted of the said charge.

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The appellant is reported to be on bail. He need not surrender. The bail bonds furnished by him shall remain in operation for a period of 6 months from today in view of the provisions contained under Section 437-A of the Cr.P.C.

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Sd/-

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(Deepak Kumar Tiwari) Judge

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Ajay

Khokshi @ Somnath v. State of Chhattisgarh

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Khokshi @ Somnath v. State of Chhattisgarh

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