Diwakar Ram Bareth Vs State of Chhattisgarh

This appeal has been filed under section 374 (2) of the Code of Criminal Procedure, 1973 (for short CrPC), being aggrieved by the judgment dated 03/07/2003 passed by the Additional Session Judge, Shakti, District – Bilaspur (C.G.) in Sessions Trial No. 05/2003 by which the appellant has been convicted

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and sentenced in the following manner :-

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Conviction	Sentence
Under Section 376(1) of I.P.C	R.I. for 08 years and fine of Rs.1000/- in
	default of payment of fine additional R.I.

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	of 02 months
Under Section 323 of I.P.C	R.I. for 04 months and fine of Rs.500/- in default of payment of fine additional R.I. of 01 month.
Both the se	ntence to run concurrently

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Case of the prosecution, in nutshell, is that on the date of incident i.e. 25/10/2002 at about 02:00PM, the prosecutrix had gone to her field situated at Village – Budhikhaar Palaadikala, Police Station – Baradwaar. At that time one person met the prosecutrix and engaged in conversation. When the prosecutrix started cutting the paddy crop at that time the appellant who was identified by the prosecutrix in the identification parade caught her from behind, upon which prosecutrix tried to free herself upon which she was plunged on the floor when she made alarm, the appellant pressed her neck and assaulted her with hands and fists as a result of which the prosecutrix got fainted on the spot and after sometime, she regained her consciousness and informed the incident to her sister-in-law at home. Report was lodged on 25/10/2002 to the Police Station – Baradwaar upon which crime No.195/2002 was registered vide Ex.P/1 and after lodging the report went to her house. Spot map was prepared vide Ex.P/4. During answering the natural’s call she found that she was subjected to intercourse and some stickiness was felt in her private parts. This was intimated to her husband and on the next day, the incident was reported to police station. As the factum of sexual intercourse was came into light, the prosecutrix was medically examined and appellant was identified by her in the identification parade vide Ex.P/5. Broken bangles, chain, under garments of the prosecutrix were seized vide Ex.P/15. The slide prepared from the private part of the prosecutrix and the clothes were medically examined from State Forensic Science Laboratory, Raipur vide Ex.P/1 and as per their report vide Ex.P/29 semen spots and spermatozoa were found on the clothes, under garments and

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petty coat.

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After completion of investigation, charge-sheet was filed section 376, 323 and 506-II of the I.P.C. before the Additional Chief Judicial Magistrate, Sakti. Criminal case No.5296/2002 was registered by the ACJM and vide its order dated 04/01/2003 committed the case to the Sessions Court, Bilaspur who made over the case to the learned trial court for trial.

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The appellant was charged for an offense punishable under section 376, 322, 323 and 506 Part – II of the I.P.C. who denied the charges and claimed to be tried.

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Prosecution examined 15 witnesses and exhibited as many as 30 documents. Statement of the accused under Section 313 of the Cr.P.C. was recorded in which he claimed his innocence and pleaded false implication. One defense witness DW/1 – Lalooram Sahu was examined.

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The learned trial Court on assessment of the material placed on record, convicted and sentenced the appellant as stated in the first paragraph of the judgment.

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Learned counsel for the appellant vehemently argued that the prosecution was unable to bring home the guilt of the appellant beyond reasonable doubt. He submits that the story put forth by the prosecution is unrealistic and cannot be relied upon to sustained conviction. He submits that the incident is said to have occurred at 02:00 PM in the open field, therefore it cannot be believed that no one has seen the incident. He submits that initially the prosecutrix lodged FIR regarding outraging her modesty and subsequently on the next day, she has stated that she was subjected to sexual intercourse which creates doubt in the credibility of the statement of the prosecutrix. He further submits that presence of semen on the clothes would ipso facto not lead to a conclusion that the prosecutrix was subjected to sexual intercourse by the appellant as she was a

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married lady and residing with her husband on the date of incident. It is further submitted that the prosecution has not conducted any DNA test to ascertain as to whether the spermatozoa found on the articles seized is of the present applicant. The factum of sexual intercourse could not be proved by way of medical evidence as the doctor has not given any positive opinion with regard to recent sexual intercourse. He further submits that the statement of the prosecutrix is not impeccable treating her to be sterling witness. To buttress his submission, learned counsel for the appellant placed reliance upon decisions of Hon’ble Supreme Court in the case of Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130, Jalal v. Emperor, AIR 1930 Lahore 193 (1), Indar Singh and anr. v. Emperor, AIR 1927 Lahore 867, Hem Raj v. State of Haryana, (2014) 2 SCC 395, Devi Lal v. State of Rajasthan, AIR 2019 SC 688 and judgment of this Court in the case of Ramsurat @ Surta v. State of Madhya Pradesh, (2013) 2 CGLJ 399 . Therefore, it is submitted that the appeal deserves to be allowed and the appellant may be acquitted from all the charges.

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Per contra, learned counsel for the State vehemently argued that as a result of the overt act of the appellant, the prosecutrix fell unconscious. Taking advantage of the same, she was subjected to sexual intercourse during her unconsciousness and as such initially the prosecutrix could not ascertain as to whether she was subjected to sexual intercourse by the appellant. She immediately reported the matter to the police station and later on when she came to a suspicion that she was subjected to sexual intercourse, the same was informed to the police on the very next day. He submits that the prosecutrix in her statement has categorically deposed against the appellant in the manner the incident had occurred. The statement of the prosecutrix also finds corroboration with her medical report which indicates multiple injuries on the person of the prosecutrix. He submits that the prosecutrix was subjected to assault. He further

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goes on to submit that the appellant was identified in the identification parade, therefore there was no occasion for the prosecutrix to falsely implicate the appellant.

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Heard learned counsel for the parties, considered their rival submission and also perused the record with utmost circumspection.

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The conviction for the offence under Section 376 of IPC can sustain only on the solitary statement of the prosecutrix if the statement of the prosecutrix is impeccable, credible and she could be termed as sterling witness. In the case in hand, from the statement of the prosecutrix, it is quite vivid that she has categorically described the happening of the incident. Initially the prosecutrix lodged a report indicating therein that she was subjected to assault and her modesty was outraged by an unidentified person. After lodging the report, the prosecutrix came back to home and after sometime she realised that she may have been subjected to sexual intercourse and informed about the same to her husband. On the next day at dawn, they went to the police station where medical examination of the prosecutrix was conducted. In the medical examination, Dr. Smt. Lalita Rajbala (PW5) found the following injuries on the person of the prosecutrix -

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"9. Four small scratch marks were found above the knee of Meenabai's right leg. All of them were 1 x 1 mm in size. Two horizontal scratch marks were also found on the left knee. The size of upper abrasion was 1 cm x 1 mm, size of second abrasion was 1.5 cm x 1 mm, above this injury there were 5 small scratch marks. All the injuries were of size 1 mm x 1 mm. Abrasion was found on right back whose size was 3 cm x 2.5 cm. Contusion on lower part of right abdomen whose size was 2 cm x 5 cm was found with redness. Linear abrasion on middle part of right hip whose length was 1 cm. Abrasion was found on back part of right thigh whose size was 2.5 cm x 2 cm. Two small scratches were found on outer part of left knee. 5 small abrasions were found on left back below capilla. All of their size was 2 cm x 1 mm. It has been mentioned

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in clause 9 of page number 4 of the report of Ex.P.6. My signature is on parts B to B of Ex.P.8. On parts C to C, the constable's signature was obtained on P.8 and after sealing it, the slide was handed over."

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The doctor has also examined the prosecutrix and gave the following report with regard to internal assessment -

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“7. The vulva and vagina were normal and no injury was found. The hymen was old and torn. The mouth of the uterus was facing downwards and towards the front. The uterus was tapered in shape on the side. Thick white discharge was found, two slides of which were prepared and handed over to the constable. There was an infection in the mouth of the uterus and it was bleeding on touching it."

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Though the doctor has stated that no definite opinion can be given with regard to sexual intercourse, from the statement of the prosecutrix, it is quite vivid that the incident had occurred and her modesty was outraged. The question which remains to be decided is as to whether the appellant has committed sexual intercourse with the prosecutrix while she was unconscious. Udayram (PW2) husband of the prosecutrix has categorically deposed that the prosecutrix suspected about commission of sexual intercourse with her and at dawn on the next day, he advised her to lodge report. It is not a case that statement of the prosecutrix cannot be believed. Report was lodged against an unknown person and therefore, the prosecutrix at the time of lodging of report was unknown about the culprit. Naturally, as she was not aware of the culprit, she would not go and lodge a false report of sexual intercourse on suspicion. It is also to be seen that in the test identification parade (Ex.P/5), the prosecutrix has clearly identified the appellant. Therefore, involvement of the appellant in commission of crime cannot be ruled out.

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Now the question which falls for consideration as to whether the prosecutrix was subjected to sexual intercourse while she was unconscious. After the incident, FIR was lodged by the prosecutrix on the same day i.e. 25/10/2002. In the FIR,

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she does not state that she was subjected to sexual intercourse. On being suspect that she was subjected to intercourse, she informs about it to the police on the next day i.e. 26/10/2002. On the same day, she was medically examined by Dr. Smt. Lalita Rajbala (PW/5). She gave a report of no definite opinion of sexual intercourse as prosecutrix is habitual to intercourse. She found injuries as described in earlier paragraph of the judgment. She prepared slide of the prosecutrix. From the spot, undergarment of the prosecutrix having stains were also seized. The petticoat of the prosecutux, her slide & underwear seized from the spot were sent for chemical examination to FSL, Raipur. According to FSL report (Ex.P/29) all the above articles contained human sperms & semen spots. The prosecutrix is a married lady. It is not brought on record that on 25/10/2002, she had intercourse with her husband to suggest that the sperms found on the slide & undergarment may be of her husband. The prosecutrix as soon as suspected of having sexual intercourse intimated the same to police. At that time also, she was not aware about the appellant. In her deposition before the learned trial Court, she vividly described the incident & remained firm throughout. Therefore, it is quite apparent on record that after prosecutux fainted, she was subjected to sexual intercourse by the appellant.

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The case laws cited by learned counsel for the appellant with due respect do not help the appellant in the given facts & circumstances of the case. In the case of Jalal (supra), it has been held that mere finding of semen on complainant’s clothing is not sufficient to prove rape. Similar view was expressed in the case of Indar Singh (supra). In the case of Krishan Kumar Malik (supra), it has been held that to hold accused guilty for commission of rape, solitary evidence of prosecutrix is sufficient provided same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. It has been further held that the prosecution could have still resorted to this procedure of getting DNA test or analysis and matching of semen of appellant with that

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found on undergarments of the prosecutrix to make it a full proof case. In this case, the appellant was a differently abled person. In the case of Hemraj (supra), the Hon’ble Supreme Court found the evidence of the prosecutrix totally unreliable and deserves to be discarded. In case of Devi Lal (supra) it has been held that suspicion, however grave, cannot substitute proof. The factual scenario of the above cases are distinguishable from the present case. The involvement of the appellant in the crime has been proved by the prosecution. The appellant was identified by the prosecutrix. She sustained injuries as described earlier. Though initially, she did not lodge report of sexual intercourse, however, as she felt that she was also subjected to sexual intercourse, she informed about the police. Sperms & semen spots were found in the FSL report of undergarment of the prosecutrix, which was seized from spot. Slides of prosecutrix also contained sperms in the FSL report. She was not known to the appellant during lodging of report & medical examination. She sustained injuries on her person. In view of the above facts & circumstances, the care laws so cited are not helpful to the appellant.

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Thus, as a fall out of the above discussion, the prosecution was able to bring home the guilt of the appellant beyond reasonable doubt. Therefore, conviction of appellant under Section 376(1) and 323 of IPC is hereby maintained. However, instead of 8 years, the appellant is sentenced to 7 years of R.I. under Section 376 (1) of IPC. Fine amount and default sentence is not disturbed.

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Appeal, thus, allowed in part as indicated above. The appellant is on bail. His bail bond is cancelled, He is directed to surrender to serve the remaining sentence as awarded by this Court. Records of the trial Court with copy of this judgment be sent back for information and necessary compliance.

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Sd/- (Sachin Singh Rajput) Judge

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Deepti / Ashish

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Digitally signed by DEEPTI DEEPTI HARIKUMAR HARIKUMAR Date:2025.05.08 10:35:56 +0530

Diwakar Ram Bareth v. State of Chhattisgarh

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Diwakar Ram Bareth v. State of Chhattisgarh

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