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HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No. 154 of 2014

Dharam Singh, S/o. Shri Hari by Caste Dhakad, Aged About 60 Years, By

caste Dhakad, Occupation Labour, R/o. Gurugovind Singh, Ward No.36,

Near Bhairam Dev Mandir Jagdalpur, P.S. Bodhghat, Distt. Bastar, Civil &

Revenue District Bastar (C.G.)

---- Appellant

Versus

State Of Chhattisgarh, Through Station House Officer, Police Station Ajak

Jagdalpur, District Bastar (C.G.)

---- Respondent

For Appellant

:

Shri Rajnish Shrivastava, Advocate.

For State

:

Shri Sangarsh Pandey, Dy.Govt. Advocate

Hon'ble Shri Justice Goutam Bhaduri

Judgment on Board

07/08/2018

Heard.

1.

Instant appeal is against the judgment dated 13^th December, 2013

passed by the Sessions Judge (Atrocity) Bastar at Jagdalpur in Sessions

Case No.35/2013 whereby the appellant has been convicted under section

376(1) of IPC and under section 3(2)(V) of SC/ST Prevention of Atrocities Act

and he has been sentenced R.I. for 7 years and fine of Rs.1000/- and R.I. for

1 year and fine of Rs.1000/- respectively, in default of payment of fine amount

further R.I. for 6-6 months has been ordered.

2.

As per the prosecution case, the accused/appellant and the

prosecutrix her mother Nilabati and sister Urmila they belong to Schedule

Tribe and were living alongwith the appellant in their house for last 9-10

years. On 27/10/2012 the mother of the prosecutrix went to village

Lohandiguda and wife of the appellant went to Dantewada, therefore, on

30/10/2012 in the house appellant/accused was alone with the prosecutrix

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and her sister. At about 9 p.m. the prosecutrix was watching TV in the house

of the accused, sister of the prosecutrix had slept, at that time, the accused

caught hold of the prosecutrix dragged her to different room and told her that

after marriage what happens he will show her. Subsequently, the accused

took out the garments of the prosecutrix and despite her resistance

committed forceful sexual intercourse. The prosecutrix when raised alarm her

neighbour Shyambati came there, thereafter it was told the accused who is

maternal uncle has committed wrong with her and hearing so neighbour took

the prosecutrix away along-with her sister gave them shelter for the night and

when on the next day her mother came held meeting with them and

eventually report was made on 01/11/2012 by Ex.P-9. Subsequently, the

statement of the prosecutrix and the other witnesses were recorded and age

of the prosecutrix was also affirmed by the Radiologist and with respect to

caste, certificate was also seized and thereafter after recording statements

charge sheet was filed against the appellant and since victim belong to

Schedule Tribe, as such, offence under Section 376 of I.P.C. alongwith 3(1)

(xii) of Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act

was filed against the appellant. After committal of the case to the Special

Judge charges were framed against the appellant under Section 376 of I.P.C.

and Section 3 (2) (V) of the Scheduled Caste & Scheduled Tribes (Prevention

of Atrocities) Act.

3.

During the course of trial, the appellant abjured his guilt and claimed to

be tried and the prosecution on their behalf had examined 14 witnesses. The

trial Court after evaluating all the facts and evidence found offence to be

proved and convicted the appellant as aforesaid; hence this appeal.

4.

Learned counsel for the appellant would submit that the appellant has

been falsely implicated in this case and neighbours have not supported the

case. It is further contended that the age of the prosecutrix is also not proved

and she was consenting party as she was a major. He further submits that all

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the seizure witnesses have turned hostile, therefore, the prosecution has

failed to prove the case beyond reasonable doubt, as such, the judgment of

conviction may be set aside.

5.

Per contra, learned State counsel opposes the arg