CAV Judgment

The appellant in this appeal calls in question the legality and validity of the judgment of conviction and order of sentence dated 9.5.2007 passed by Additional Sessions Judge, Gariyaband, Distt. Raipur in ST No.5/2007 whereby the appellant stands convicted under Section 376 of IPC and sentenced to undergo RI for 10 years, pay a fine of Rs.500/- and in default thereof to suffer additional RI for one month.

02. Case of the prosecution, in brief, is that on 30.8.2006 while the prosecutrix was attending the call of nature in the field, the appellant committed forcible sexual intercourse with her and thereafter ran away. She informed about this incident to her husband and in-laws and thereafter lodged report of Ex.P/1 with the police. During investigation, her medical examination was done, her sari, petticoat and underwear of the accused were seized. After completing the usual investigation charge sheet was filed before the concerned jurisdictional Magistrate against the appellant u/s 376 of IPC followed by framing of charge accordingly by learned trial Court against him. The appellant abjured the charge and prayed for trial.

03. To bring home the charge, the prosecution examined 13 witnesses in all. Statement of the accused was recorded under Section 313 of CrPC wherein he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. However, no witness was examined by the accused in his defence.

04. After hearing counsel for the respective parties and appreciation of oral and documentary evidence on record, the learned trial Court convicted and sentenced the accused/appellant as mentioned above.

Hence this appeal.

05. Learned counsel for the appellant would submit that the impugned judgment is per se illegal and contrary to the material available on record. Learned trial Court ought to have appreciated that looking to the manner in which the incident is alleged to have taken place, the prosecutrix had ample opportunity to run away from the clutches of the appellant or raise hue and cry to attract attention of the passersby but she did not do so, which clearly suggests that if any such act was committed by the appellant, the prosecutrix was a consenting party to it. In fact, there being political rivalry between the family of the prosecutrix and that of the appellant, a false report has been lodged against the appellant. The husband of the prosecutrix (PW-2) has denied his police statement Ex.D/1. PW-3 mother-in-law of the prosecutrix admits that as the prosecutrix was defamed in the village, therefore, they lodged report with the police. The medical evidence also does not support the prosecution case. Therefore, considering the facts and circumstances of the case and the overall evidence on record, it is clear that the prosecution has failed to make out a case u/s 376 of IPC against the appellant beyond reasonable doubt and as such, the impugned judgment is liable to be set aside and he be acquitted of the said charge.

06. On the other hand, learned counsel for the State opposing the contention of the appellant would submit that in view of oral and documentary evidence on record, the learned trial Court has rightly convicted and sentenced the appellant by the impugned judgment which calls for no interference by this Court. The present appeal being without any substance is, therefore, liable to be dismissed.

07. Heard learned counsel for the parties and perused the material available on record.

08. It is clear from the record of learned trial Court that the appellant was charged under Section 376 of IPC and after appreciation of oral and documentary evidence, learned trial Court convicted and sentenced him under this section as mentioned in the opening paragraph of this judgment.

09. PW-1 prosecutrix states that on the date of incident she went to the nearby field to attend the cal