HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Apgeai No.360f2009 CRIMINAL APPEAL U/S 374 i2) OF THE CODE OF CRIMINAL PROCUDERE (a? Appearance: Smt. Fouzia Mirza, counsel for th€ appellant. Shli Vinod’Shlivastava, Government Advocate for the State. Divi5ion Bench:- Hon’ble Shri T.P. sharma 65 Hon’ble Shri R.L.Jhanwar,JJ ORAL JUDGMENT (20.4.2011) Per T.P.Sharma, J. Challenge 1'11 this appeal is to the judgment of conviction and ,order of sentence dated 31.3.2009, passed by the 9th l Additional Sessions Judge (FTC), Raipur (CG) in S.T.No, 185/ 2008, whereby and where under the learned Additional Sessions Judge, after holding the appellant guilty for commission of rape with Ku. inky Sahu, his own daughter, convicted the appellant under Section 376 of the IPC and sentenced for life imprisonment and nne of Rs.SOO/—, in default of payment of fine to further undergo RI. for 2O days. The conviction is impugned on the ground that without there being any iota of evidence sudicient for conviction of the appellant, '2. P APPELLANT Basant Sahu s/o Raruwa Sahu, {in Jail) aged about 35 yams, R/o Villaga Kagdehi, P.S. Arang District Raipur(CG) VERSUS RESPONDENT Stats of Chhattisgarh Through Station House, O$ccn Police Station: Arang, Distn‘ct Raipur (CG) the Earned Additioxial Sessions Judge has convicted and sentenced the appellant as aforementioned and thereby committed illegality. 3. As per case of prosecution, prosecutn'x PW—S (name not mentioned) aged about 17 years was residing with her father i.e. Ba‘sant Sahu at village Kagdehi, RS. Arang District Raipur. On 6.9.2008 and even prior to 6.9.2008, present appellant have been dominant position upon his daughter PW—S —prosecutrix and committed intercoume with her several times, as a result of such intercourse, she conceived and finally she lodged FIR vide Ex. P/4 on 11.9.2008. Spot map was prepared vide EX. P/6. She was examined by Dr. Parmeshwan' Lal (PW—18) vide Ex. Pf21A and found that she was habitual of intercourse. She was also examined by another Doctor (PW-11) Rajesh Kumar Singh vide Ex. P/ 13, who conducted ulna sound Sonography and has not opined about ‘ her pregnancy. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short the Code) . 4. After completion of investigation, charge sheet was filed before the Judicial Magistrate First Class Raipur, who in turn, committed the case to the Court of Sessions, Raipur, from where the learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the accused/appellant, prosecution examined as many as 19 witnesses. Accused was examined under Section 313 of the Code, in which, he denied the circumstances appearing against him, innocence and false implication in crime in question was claimed. 6. After aifording opportunity of hearing to the parties, the learned Additional Sessions Judge convicted and sentenced the appellant as aforesaid mentioned. @ 7, We havs heard Smt. Fouzia Mirza, learned counsel for the appellant and Shri (Vinod Shrivastava, learned Government Advocate for the State, peruseci me judgment impugned and record of the trial Court. 8. Learned counsel for the appellant vehemently argued that in the present case, prosecutrix PW-5 (name not mentioned) has not supported the case of prosecution. She has specifically deposed that her father has not committed intercourse or rape with her and she has lodged the FIR and prosecuted her father at the instance of one Virendra, therefore, in absence of any prima facie evidence of involvement of the appellant, conviction of the appellant under section 376 of the IPC is not sustainable under the law. She further argued that Courts are required to be guided by substantive legal evidence and considered the legal evidence available on record and are not expected to decide the case on the basis of morality and sentiments. 9. On the other hand, learned counsel for the State vehemently opposed these arguments and submitted that although prosecutrix PW— has turned hostile and has not supported the case of prosecution, but other circumstances are suiiicient to prove the evidence against the appellant and after appreciating the evidence available on record, the learned Additional Sessions Judge has rightly convicted and sentenced the appellant as aforesaid mentioned. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 11. In the present case, report of rape has been lodged by the prosecutrix —PW-'5 vide Ex. P/4. She has been examined by Dr. Parmeshawari Lal (PW-18). In her Court evidence, the prosecutrix has specifically deposed that her father i.e. present appellant has («x 5 i ‘ not committmi rape with her and she has falsely implicated her father at the instance of Virendra axld 2-3 othey persons on the ground that her father used to beat her. She has been declared hostile. In cross examination also she has specifically deposed that her father has not committed intercourse or rape with her. As per evidence of Purshottam Lal (PW—8) and Chhabiram Sahu (PW—9) prosecutrix has narrated the incident to them in front of the Villagers then they advised her to lodge the report. As per FIR Ex. P/ 4, prosecutn'x was having pregnancy of about 3 months, which does not find support from the medical evidence of Dr. Rajesh Kumar Singh (PW-11) and Sonography report Ex. P/ 13 and report L of Dr. Parmeshawaxi Lal (PW-18) Ex. P/21A . Even on the date of evidence of the prosecutrix i.e. on '7. 1.2009, her pregnancy would be of more than 6 months, but neither she has deposed anything relating to her pregnancy nor the Court has observed or the prosecution has suggested anything. In order to convict the appellant for the onence punishable under Section 376 of the IPC, prosecution was under obligation to prove the essential ingredients of'the offence by adducing cogent evidence beyond all shadow of doubts. In the present case, prosecution has virtually not adduced any evidence relating to commission of intercourse or rape by the appellant with her own daughter prosecutrix PW-S. Therefore, in the absence of any legal evidence, conviction of the appellant under Section 76 of the IPC is not sustainable under the law. 12. For the foregoing reasons, appeal deserves to be allowed and it is hereby allowed. Conviction and sentence of the appellant - Basant Sahu under Section 376 of the IPC are hereby set aside. He be set at liberty at once. He be released forthwith, if not 3 required in any other case. Sd/— 3d,_ T.P. SHARMA \\ R.L. Jhanwar Judge Judge i Wi W W‘