Virendra Vishwakarma Vs State of Chhattisgarh

This appeal has been preferred by the appellant under Section 374 (2) of the Code of Criminal Procedure, 1973 against judgment dated 29.07.2005 passed by the Sessions Judge, Jashpur (C.G.) in Sessions Trial No. 38/2005, wherein the said court convicted and sentenced the appellant as under:-

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Conviction	Sentence
U/s 450 of IPC	: R.I. for 3 years and fine of Rs. 200/- in default
	of payment of fine, further R.I. for 1 month.
U/s 363 of IPC	: R.I. for 3 years and fine of Rs. 200/- in default

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	of payment of fine, further R.I. for 1 month.
U/s 366 of IPC	: R.I. for 4 years and fine of Rs. 250/- in default
	of payment of fine, further R.I. for 10 days.
U/s 376 of IPC	: R.I. for 7 years and fine of Rs. 300/- in default
	of payment of fine, further R.I. for 15 days.

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All the sentences are directed to run concurrently.

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The prosecution’s case, in brief, is that on 17.03.2005 in night at about 8:00 PM, the victim (PW/1), was present at her house in village Uparghincha. At that time, her parents had gone out of the village for a social visit, and she was at home along with her younger sisters, Lalita and Pushpa. The accused came to her house and asked her to accompany him to Raigarh. When the victim refused, the accused threatened to assault her. Thereafter, he allured and forcibly took her away to Raigarh against her will. At Raigarh, near the Jindal Company, the accused took shelter at the house of one Suman in a Depot. While staying there, the accused, on the pretext of marriage, forcibly committed sexual intercourse with the victim on three occasions. On 20.03.2005, searching for her, Devcharan (PW/ 3) and the elder brother of the accused, Hiradhar, reached there. On the first day, the accused hid the victim. On the next day, i.e., 21.03.2005, when Devcharan and Bhuneshwar again reached there, they brought both the victim and the accused back to village Uparghincha. Subsequently, on 24.03.2005, the victim lodged a report (Exhibit P/1) at Police Station Kansabel regarding the incident.

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After completion of the investigation, a charge sheet was filed before the Court of the Judicial Magistrate First Class, Jashpur and the case

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was subsequently committed to the Court of Session. Based on the evidence on record, charges were framed against the accused under Sections 450, 363, 366, 376 of the Indian Penal Code. The accused denied the charges and claimed to be tried.

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The prosecution, in order to bring home the guilt of the accused, has examined witnesses namely Parmila (PW-1), Binduram (PW-2), Devcharan (PW-3), Dr. Smt. R. Toppo (PW-4), Dr. Y.K. Toppo (PW-5), Udaynath Singh (PW-6), Shankar Sidar, Patwari (PW-7) and S.L. Sharma, Assistant Sub-Inspector (PW-8) & exhibited documents namely FIR (Ex. P/1), Consent for medical examination (Ex. P/2), Najri Naksha (Ex. P/3), Patwari Naksha (Ex. P/4), Seizure memos (Ex. P/5 to Ex.P/8), memo for medical examination of victim (Ex. P/9), memo for medical examination of accused (Ex. P/10), Birth Certificate (Ex. P/11), Dakhil Kharij (Ex. P/12), Application for medical examination of the victim (Ex. P/13), Memo to CHC for medical examination of the victim (Ex. P/14), Memo to CHC for medical examination of the accused (Ex. P/15) and Receipt of FSL, Raipur (Ex. P/16). The accused was examined under Section 313 of the Cr.P.C. wherein he has denied the charges levelled against him and has taken plea of false implication on the pretext that father of the victim wanted him to work under him only as labour.

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The learned Trial Court, after due appreciation of the evidence and material available on record, held that the appellant had committed the offences and accordingly convicted him vide judgment dated 29.07.2005 for offences punishable under Sections 450, 363, 366 and 376 of the IPC, and sentenced him as stated hereinabove. Being

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aggrieved by the said judgment of conviction and order of sentence, the appellant has preferred the present appeal before this Court, primarily contending that the prosecution has failed to prove the age of the victim beyond reasonable doubt and has also overlooked the fact that the victim was a consenting party, thereby entitling him to acquittal of the charges.

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The appellant remained in jail from 24.03.2005 to 29.07.2005 during trial and after conviction from 29.07.2005 to 24.07.2009 on the date when he was released on bail by this Court in the present appeal. Thus, he remained in jail for 4 years and 4 months.

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Learned counsel for the appellant would submit that the accused has been falsely implicated. He would further submit that the prosecution has failed to establish the age of the victim beyond reasonable doubt. Though a Dakhil Kharij Register (Ex. P/12) has been produced, the same has not been duly proved in accordance with law. In absence of reliable and cogent evidence regarding age, the benefit of doubt ought to be extended to the appellant. Consequently, the victim cannot be conclusively held to be a minor at the time of the alleged incident. She would further submit that the evidence on record clearly indicates that the victim was a consenting party. Her conduct, as reflected from her testimony, shows that she voluntarily accompanied the appellant to Raigarh and stayed with him for several days without raising any alarm, despite having opportunities to do so. Learned counsel would also contend that there is an unexplained delay in lodging the FIR. The alleged incident took place on 17.03.2005, whereas the report was lodged on 24.03.2005. This delay has not been satisfactorily explained

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by the prosecution, which casts doubt on the veracity of the prosecution story and suggests possibility of embellishment or afterthought. It is further argued that the medical evidence does not conclusively support the case of forcible sexual intercourse as no injury on the body of the victim has been reported. The appellant, in his statement under Section 313 Cr.P.C., has specifically stated that he has been falsely implicated due to personal reasons, as the father of the victim wanted the appellant to work under him which was defence of the accused but the learned trial Court has not taken into consideration the said defence.

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She would further submit that the learned trial Court in paragraph 9 of the judgment has recorded its finding that as per the opinion of the Doctor the victim’s age was 16 years or less than it, therefore, the trial Court has taken a view that the age of victim is 16 years and it has recorded its finding that for commission of offence under Section 376 of the IPC the victim is competent to give consent for sexual intercourse, still erred in convicting the accused for commission of offence under Section 376 of the IPC. She has further submitted that so far as the conviction of the appellant for committing the offence under Section 450, 363 and 366 of the IPC the appellant has already paid the fine amount and undergone the sentence of 4 years and 4 months, as such, he has already undergone the sentence which has been awarded to him. Since, the victim is a consenting party, therefore, the appellant deserves to be acquitted from the commission of offence under Section 376 of the IPC and would pray for allowing

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the appeal by acquitting the accused from the commission of offence under Section 376 of the IPC.

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On the other hand, learned State counsel would submit that the learned Trial Court has rightly appreciated the oral as well as documentary evidence available on record and has arrived at a wellreasoned finding of guilt. The impugned judgment does not suffer from any illegality or perversity warranting interference by this Court. He would further submit that the testimony of the victim (PW-1) is clear, consistent, and inspires confidence. She has categorically deposed that the accused forcibly took her away against her will and committed sexual intercourse on the pretext of marriage. It is a settled position of law that the sole testimony of the victim, if found reliable, is sufficient to base conviction without corroboration. He would further submit that the prosecution has duly proved the age of the victim by producing Dakhil Kharij Register (Ex. P/12). The evidence on record clearly establishes that the victim was a minor at the time of the incident, and therefore, her consent, if any, is immaterial in the eyes of law. Even otherwise, the consent of the victim was obtained under the false promise of marriage, which vitiates consent under law. The delay in lodging the FIR has been sufficiently explained by the prosecution. The victim was under the control and influence of the accused and was recovered later by her relatives. The delay, therefore, is natural and does not affect the credibility of the prosecution case. Learned counsel would further submit that the medical evidence corroborates the version of the victim regarding sexual intercourse. It is further argued that there is no plausible reason for the victim or her family members to falsely

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implicate the accused in such a serious offence, which involves social stigma and disgrace. The prosecution has successfully established all the essential ingredients of offences under Sections 363 (kidnapping), 366 (abduction for illicit purpose), 450 (house trespass), and 375 (rape) of the IPC. The conduct of the accused clearly demonstrates his culpability. As such, no ground for interference by this Court is made out and therefore, he would pray for dismissal of the appeal.

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I have heard learned counsel for the parties and perused the documents placed on record with utmost circumspection.

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From perusal of records, the points to be determined by this Court

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are:-

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Whether the prosecution has proved that the accused committed rape upon the victim, and if so, whether such act was with her consent and whether she was competent to give consent, thereby attracting offence under Section 376 of the IPC?

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To examine the issue required to be determined, it is expedient for this Court to extract Section 375 of IPC applicable at the time of incident prior to 03.02.2013 and evidence led by the prosecution, which read as under:-

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375. Rape— A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :-

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(First.)— Against her will.

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(Secondly.) — Without her consent.

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(Thirdly.) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt,

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(Fourthly.) — With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

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(Fifthly.) — With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

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(Sixthly.) — With or without her consent, when she is under sixteen years of age.

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The victim (PW/1) in her examination in chief supported the case of the prosecution and stated that the accused has committed sexual intercourse with her against her will and had allured her on the pretext of marriage and in her cross-examination she has denied that the accused was working in her house for two years. She has also denied that she has love affair with the accused. She has denied that the accused has committed sexual intercourse with her with consent.

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Dr. Smt. R. Toppo (PW/04), who examined the victim, deposed that upon examination, the breasts of the victim were found not fully developed. Pubic hair was present. The labia majora and labia minora were found to be healthy. The posterior part of the hymen was found torn. The vagina admitted two fingers. An old injury measuring approximately ¼ × 1½ cm, bluish in colour, was present on the posterior part of the vaginal passage. She opined that the victim was subject to sexual intercourse and the injury was approximately 5 to 8 days old. In her opinion, the age of the victim was 16 years or less, however, she advised for radiology for age determination.

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Udaynath Singh, Headmaster (PW/06), who recorded the victim’s date of birth in the Dakhil Kharij Register, stated that according to the said register, the victim’s date of birth is 12.05.1989, which was entered on the basis of the information provided by her parents, he admitted that no certificate verifying the child’s age was obtained at the time of school admission. He further acknowledged that, in the village, dates of birth are often recorded based on guesswork of their parents.

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S.L. Sharma, Assistant Sub-Inspector (PW/08) in his examination in chief has supported the case of the prosecution and in his crossexamination he has stated that though victim’s younger sister has narrated about showing of the knife in committing the offence, but he has not seized the knife.

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Upon careful appreciation of the entire evidence available on record, this Court proceeds to determine the issues framed hereinabove. So far as the age of the victim is concerned, the prosecution has relied upon the entry in the Dakhil Kharij Register (Ex. P/12). The entry in the school register, as deposed by PW/06 (Udaynath Singh), is admittedly based upon the information supplied by the parents and cannot be said to be a conclusive proof of age in absence of supporting materials. Even the learned trial Court in its paragraph 9 of the judgment has recorded its finding that as per the medical evidence the age of the victim is 16 years as such, she is capable of giving consent unless the prosecution is able to prove beyond reasonable doubt that she was incapable to give consent for the reasons of mental disability or any other infirmity like unsoundness of mind, intoxication or administration by the accused personally or through another of any

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stupefying or unwholesome substance thereby she is unable to understand the nature and consequence of the giving the consent.

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Even PW/2, the victim’s father, in his examination-in-chief stated that the accused, on the strength of a knife, forcibly allured the victim. Further PW/8, the Investigating Officer, in his cross-examination has admitted that although the victim and her sister had stated that the accused had shown a knife, he has not seized knife from the accused. This omission creates a material infirmity in the prosecution case and casts doubt on the version of the victim that she was forcibly allured by the accused, and thereafter, the offence of rape was committed.

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Since the Trial Court itself has recorded a finding in paragraph 9 that the victim was 16 years of age, it follows that, under Section 375 (sixthly) of the IPC as it stood prior to 03.02.2013, the age of consent was 16 years. In the absence of any infirmity as contemplated under Section 375 IPC, and considering that the victim voluntarily accompanied the accused to Raigarh and stayed with him for a few days, the issue of consent assumes significance. There is no evidence on record of any immediate resistance or alarm raised by the victim during this period despite having the opportunity to do so. Further, the medical evidence does not disclose any fresh external injuries on the body of the victim indicative of forcible sexual intercourse. In these circumstances, particularly in view of the prosecution’s failure to conclusively establish that the victim was below the age of consent, the conduct of the victim, as borne out from the evidence, gives rise to a reasonable doubt as to whether the act was against her consent or

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with her consent. Therefore, the possibility that the victim was a consenting party cannot be ruled out.

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Considering the well-settled principle of criminal jurisprudence that where two views are possible, the one favourable to the accused must be adopted, it is evident that the prosecution has failed to establish the charge beyond reasonable doubt. In the present case, the evidence on record does not inspire sufficient confidence to hold the appellant guilty of the offence punishable under Section 376 IPC. Accordingly, the appellant is entitled to the benefit of doubt. He therefore deserves to be acquitted of the charge for the offence under Section 376 of the IPC.

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However, as regards the offences under Sections 363, 366, and 450 IPC, the testimony of the victim (PW/01), duly corroborated by PW/02 and PW/03, clearly establishes that the accused entered the victim’s house in the absence of her parents and took her away. The act of taking the victim from her lawful guardians without their consent constitutes the offence of kidnapping under Section 363 IPC. Further, the circumstances indicate that the accused induced the victim to accompany him with the intent of having illicit relations, thereby attracting the offence under Section 366 IPC. Additionally, the act of entering the house with such intent brings the case within the ambit of Section 450 IPC. The prosecution has successfully proved these offences beyond reasonable doubt. The acquittal of the accused for the offence under Section 376 IPC, on the ground of benefit of doubt regarding consent and the victim’s age being 16 years, does not absolve him of liability under Sections 363 and 366 IPC, where the

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relevant age threshold is below 18 years. In the present case, the victim being 16 years old clearly satisfies this requirement. Thus, the learned Trial Court has not committed any illegality in convicting the accused for the offences under Sections 363, 366, and 450 IPC. Accordingly, the conviction of the appellant for these offences deserves to be affirmed and is hereby affirmed.

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From the record, it is evident that the appellant has already undergone incarceration for a period of 4 years and 4 months. All the sentences awarded by the Trial Court, namely 3 years, 4 years, and 4 years, were directed to run concurrently. Therefore, the appellant has already served the maximum sentence imposed upon him and as such, he is not required to undergo any further sentence for the said offences.

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Accordingly, the appeal is partly allowed. The conviction and sentence of the appellant for the offence punishable under Section 376 of the Indian Penal Code are hereby set aside, and the appellant is acquitted of the said charge and the conviction of the appellant under Sections 363, 366, and 450 of the Indian Penal Code, as recorded by the learned Trial Court, is hereby affirmed.

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The appellant is on bail. His bail bonds stand discharged in view of the provisions of Section 480 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

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With the aforesaid modifications, the appeal is partly allowed.

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Sd/-

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(Narendra Kumar Vyas) Judge

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Digitally signed by KISHORE KISHORE KUMAR KUMAR DESHMUKH DESHMUKH Date: 2026.04.25 15:50:23 +0530

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Deshmukh

Virendra Vishwakarma v. State of Chhattisgarh

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Virendra Vishwakarma v. State of Chhattisgarh

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