2024:CGHC:37779-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 61 of 2013

1 – ABC Note:- Though in the memo of appeal, as also in the CIS system, the details of the victim have been mentioned, but in view of the well settled principles of law, here the same are not mentioned by this Court. Registry is directed to supply copy of the judgment to the parties along with the cause-title of the memo of appeal, as per the extant rules. ---- Appellant versus

1.State Of Chhattisgarh Through PS City Kotwali Raigarh, Civil And Revenue District Raigarh C.G.

2.Chandrashekhar Dubey S/o Krishna Dev Dubey Aged About 36 Years R/o Chandani Chowk Rajapara, Raigarh, PS City Kotwali, Raigarh Civil And Rev. Distt. Raigarh C.G. ---- Respondents And ACQA No. 107 of 2014 State Of Chhattisgarh, Through SHO PS City Kotwali, Distt. Raigarh C.G.

----Appellant Versus Chandrashekhar Dubey S/o Krishnadev Dubey Aged About 36 Years R/o Chandani Chowk, Rajapara, PS City Kotwali, Raigarh, Distt. Raigarh C.G. ---- Respondent GOURI For State : Ms. Nandkumari Kashyap, PL.

MUDALIAR For respondent : Shri Ashish Gupta and Ms. Nikita Rai, Advocate.

Digitally signed by GOURI MUDALIAR Date: 2024.09.27

17:06:46 +0530 /accused For Victim : None.

Hon'ble Shri Justice Goutam Bhaduri &

Hon'ble Shri Justice Radhakishan Agrawal Judgement on Board Per Goutam Bhaduri, J

25/09/2024 Heard.

1. Both the appeals are being heard and decided together by this common judgment. ACQA No. 61 of 2013 is filed by the victim and ACQA No. 107 of

2014 is filed by the State.

2. Both the appeals are against the judgment dated 03/09/2013 passed by the Additional Sessions Judge, Fast Track Court, Raigarh in Sessions Case No.57/2012 whereby the respondent/accused has been acquitted of the charges under Sections 450, 376/511, 323/34 of the IPC.

3. Case of the prosecution, in brief, is that on 19/10/2011 at about 7 pm, while the victim was alone in her house and her husband had gone out, when she opened the main door to come out, two persons with their face covered with scarf were standing at gate and forcefully entered into the house, thereafter dragged the victim to different room. The victim tried to save herself and resisted by throwing bottle and bangles, however, her mouth was gagged and they tried to commit forceful sexual intercourse. The resistance being continued, after 10-15 minutes both the accused fled away from the house. The incident was disclosed to the husband of the victim. Thereafter, the report was made and FIR was registered under Sections 450, 376/511, 323/34 of IPC. The victim was also medically examined and the test identification parade was carried out on 21/10/2011 wherein the victim had identified the present respondent. Statement of brother of the victim and husband and her sister were recorded, thereafter the charge sheet was filed. The accused abjured his guilt and claimed to be tried and the learned Sessions Court after evaluating the evidence of the prosecution, acquitted the accused. Hence, this appeal.

4. Learned counsel appearing for the State would submit that the statement of the victim would show that she was forcefully taken into the room and the accused was identified by the victim, who tried to commit forceful sexual intercourse and having resisted the action, respondent fled away. She further submits that the respondent was identified by the victim in TIP which is not been rebutted and the statement of the victim too corroborates the fact that in the MLC she has sustained abrasion and injuries while such struggle was done. Therefore, there was no occasion before the Session Court to disbelieve the statement and accordingly the acquittal is liable to be interfered.

5. Per contra, learned counsel for the respondent/accused submits that as per the statement of the victim with TIP it shows that it is false implication was made. He would further submit that nature of evidence would show that the accused who was a neighbour, victim could have identified him but victim delibe