Chattisgarh High Court
Gore Lal vs State Of Chhattisgarh on 14 September, 2022
Author: Parth Prateem Sahu
Bench: Parth Prateem Sahu
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 980 of 2002
Gorelal S/o Nanhiram, aged about 34 years, R/o. Village Chandan Nagar,
PS -Prem Nagar, Distrtict - Surguja, (CG).
---- Appellant
Versus
State of Chhattisgarh.
--- Respondent
For Appellant : Ms. Meenu Banarjee, Advocate.
For Respondent : Mr. Himanshu Sharma, PL.
Hon'ble Shri Justice Parth Prateem Sahu
Order on Board
14/09/2022
1. Challenge in this appeal is to the judgment dated 28.08.2002 passed in Session Trial No.401/2000 by learned 2nd Additional Sessions Judge, (FTC), Surajpur, whereby learned trial Court convicted the appellant for commission of offence punishable under Section 376(1) & 506 (II) of Indian Penal Code and sentenced him as below :-
Conviction Sentence
U/S 376(1) of IPC RI for 7 years and fine of Rs.500/- in default
RI for two months.
U/S 506 (II) of IPC RI for 1 year.
2. Facts relevant for disposal of this appeal are that on 18.08.2000, prosecutrix lodged report to the concerned Police Station mentioning therein that on 17.08.2000 at about 08:30 pm, when she went out to answer the nature call, appellant came there and caught hold of her, dragged her to nearby agriculture field, put her down to ground and made an attempt to establish physical relationship with her. When she objected, appellant assaulted him by means of hands and fist and on the point of knife, committed forceful sexual intercourse with her. Based upon 2 report, offence punishable under Section 376, 323 & 506 of IPC was registered against appellant.
3. After conclusion of investigation, Police submitted charge-sheet against appellant for offence defined under Sections 376, 323 & 506 of IPC before the Court of Competent Jurisdiction. Trial Court considering the material available in charge-sheet, framed charges against appellant for commission of offence under Section 376(1) & 506(II) of IPC to which he denied and was put to trial.
4. To prove the charge levelled against appellant, prosecution exhibited 14 documents alongwith Article -A ie FSL report and examined as many as 09 witnesses ie Manjhi Ram PW/1, Ravi Shankar PW/2, prosecutrix, PW/3, Dr. JK Jain PW/4, husband of prosecutrix, PW/5, Hari Singh PW/6, Somar Sai PW/7, Dr. SK Gupta PW/8 & Khuleshwar Sai Paikra as PW/9. Statement of appellant under Section 313 of Cr.PC was recorded before the trial Court in which he denied all the allegation levelled against him and pleaded innocence and false implication. Appellant examined one Ram Singh as DW-1. After conclusion of trial, learned trial Court upon appreciation of oral and documentary evidence brought on record by the prosecution, held the charges levelled against the appellant to be proved, convicted and sentenced him in the manner as mentioned in Para 1 of this judgment.
5. Ms. Meeru Banarjee, learned counsel for appellant would submit that appellant has been falsely implicated in this case, he has not committed any offence as alleged against him. Due to some political rivalry, appellant has been made accused. There are material contradiction and omission between contents of FIR (Ex.P/2) and deposition of PW- 3/prosecutrix. Report was not lodged immediately after happening of 3 incident though Police Station is only 6 km far from village of prosecutrix. There is an allegation of commission of forceful sexual intercourse, but PW-4/Dr. Pratibha Jain who examined the prosecutrix, in her report (Ex.P-4) has not mentioned any internal or external injuries over the person of prosecutrix. PW-4 in her evidence before Court also admitted that she did not found any internal or external injuries over person of prosecutrix and proved medical report (Ex.P-4).
6. Learned counsel further contended that PW-3/prosecutrix in her Court statement has very specifically stated that when appellant committed forceful sexual intercourse with her nobody was there but in her cross- examination she stated that when appellant was committing the offence one Jagdish came on spot and when he tried to intervene appellant run away from spot. She further stated that when she went out to answer nature call neither her in-laws nor her husband was in the house, but when she came back after happening of incident her husband Shriram was present in the house. PW-5/Shriram in his cross-examination admitted that when he returned to his house at night, his wife (prosecutrix) was present there. There are material contradictions in evidence of PW-3 and PW-5 as the story narrated by prosecutrix prima facie appears to be concocted. Her evidence in view of material contradiction and omission, improvement in her Court statement is not reliable. She further pointed out that PW-6/Hari Singh & PW-7/Somar Sai have not supported case of prosecution. Intervention of Jagdish is not forming part of FIR, nor he was examined as prosecution witnesses. Trial Court has not considered entire evidence in appropriate manner and erred in convicting the appellant for aforementioned offence. In support of her contention, she places her reliance upon the judgment passed by 4 the Hon'ble Supreme Court on 02.03.2020 in CRA No.374/2020 (Parvat Singh & Ors versus State of Madhya Pradesh), Ram Kumar Pande versus The State of Madhaya Pradesh reported in AIR 1975 SC 1026 and Lalliram & Anr versus State of Madhya Pradesh reported in 2008 (10) SCC 69.
7. Mr. Himanshu Sharma, learned State Counsel opposing the submissions of counsel for appellant would submit that prosecutrix immediately after returning to her house from agriculture field, narrated the incident to her husband PW-5, and thereafter lodged report on the very next date of incident in which she made specific allegation of committing forceful sexual intercourse with her against appellant. Learned counsel further contended that as per seizure memo, clothe seized from possession of prosecutrix was found with some white spot like semen. Merely on account of some minor contradiction or omission, the entire story of prosecution cannot be disbelieved. The testimony of prosecutrix is to be appreciated in the background of the entire case. The judgment passed by learned trial Court is on appreciation of oral and documentary evidence available on record which does not call for any interference. In support of his contention, he places reliance upon the judgment passed by the Hon'ble Supreme Court on 01.12.2021 in CRA No.1520/2021 (Phool Singh versus The State of Madhya Pradesh), Sham Singh versus State of Haryana reported in 2018 (18) SCC 34 and State of Punjab versus Gurmit Sigh & Ors reported in 1996 (2) SCC 384.
8. Heard counsel for the parties and perused the record of trial Court.
9. So far as submission of counsel for appellant that appellant has been falsely implicated in this case is concerned, perusal of record would show 5 that copy of FIR is placed on record as Ex.P-2 wherein date of incident is mentioned as 17.08.2000 at about 08:30 pm, report was lodged on 18.08.2000 at about 10:00 am, distance of Police Station mentioned as 6 km from village of prosecutrix. In FIR, prosecutrix made allegation that when she was crossing kotha (stable) of Jagdish, appellant came there, caught hold of her and dragged her to nearby agriculture field, smashed her on the ground and tried to establish physical relationship. Upon her objection, he assaulted her by means of hands and fist, due to which, she became afraid and thereafter appellant committed rape upon her. Prosecutrix also narrated that during that time two persons on bicycle were crossing nearby road and listening to their voice, appellant ran away from spot. Thereafter, she came back to her house and narrated entire incident to her husband, lodged report.
10.PW-3/prosecutrix in Para 1 of her Court Statement, stated that when she sat to answer the nature call, appellant came there, caught hold of her and assaulted her by means hands and fist, took out a knife and threatened her. After assault, appellant has not committed anything further with her but at the same time in Para 2, she stated that appellant committed forceful sexual intercourse with her and thereafter ran away from spot. Nobody travelled on road at that time. In para 8 of her cross- examination, she admitted that at the time of incident two persons on bicycle crossed the place of incident but she did not know them. In para 19 of her cross-examination, she stated that listening upon her scream, one Jagdish came on spot and when appellant assaulted her it is jagdish who intervened. Intervention of Jagdish is not mentioned in FIR. Jagdish is sole eye-witness of incident but he was not examined as prosecution witness. In charge-sheet also, Jagdish was not enlisted as witness. 6 There are material contradiction and omission in the story narrated by prosecutrix and in her evidence before trial Court and therefore, evidence of prosecutrix is not inspiring confidence, more so when alleged eye- witness Jagdish was not examined as prosecution witness.
11. PW-5/husband of prosecutrix in para 1 of his evidence, stated that at about 08:30 pm when he came to his house, her wife (prosecutrix) was present there and narrated him entire story of commission of rape by appellant. In para 2 of his cross-examination, he stated that when he return back to house at night, his wife (prosecutrix) was present there, whereas, prosecutrix in para 4 of her Court statement stated that when she reached her house after incident, her husband was present there. There is material contradiction between evidence of PW-3 & PW-5.
12.PW-6/Hari Singh did not support the case of prosecution. PW-7/Somar Sai also not supported the case of prosecution to the extent that appellant committed forceful sexual intercourse with prosecutrix, he only stated that husband of prosecutrix (PW-5) came to his house in night and made allegation of outraging modesty of her wife (PW-3) against appellant. PW- 4/Dr. Pratibha Jain who examined prosecutrix opined that no specific opinion of recent sexual intercourse can be given, she did not find any injures over the person of prosecutrix. PW/4 in her Court statement proved MLC report (Ex.P-4). PW-8/ Dr. SK Gupta, who examined the appellant in his evidence stated that he found that Smegma over private part of appellant. He did not found any injuries over body of appellant and opined that spot found in underwear of appellant might be of urine. PW- 9/Khuleshwar Sai Paikra (IO) in his Court statement, stated that clothe of prosecutrix seized vide Ex.P-1, was having mud spot, he proved contents of FIR to be recorded as stated by the prosecutrix. In para 21 of her 7 cross-examination, prosecutrix admitted that earlier to 10-12 days of incident one another person namely Ram also made an attempt of outraging her modesty which was reported to the concerned Police Station but no action was taken against him. She further admitted that there was party dispute in the village, appellant and one Ram belong to other party and the complainant/prosecutrix and her husband PW/5 belong to other party.
13.As per allegation, date of incident is 17.08.2000. Prosecutrix in her Court statement stated that when appellant was committing the alleged offence it was raining, but clothe of prosecutrix seized vide Ex.P-1 only mentions that back side of blouse was having mud sign. It is not a case of prosecution that clothe of prosecutrix seized immediately on the next date was slutched, when there is an allegation that she was smashed on the agriculture field, paddy crops was sown in agriculture field, at the time of incident it was raining, but from the evidence of prosecutrix and appearance of clothe seized from prosecutrix which as per her statement she continuously weared till it was seized by the Police, was not completely sludged. FSL report is also available on record as Article -A wherein it is reported that clothe of prosecutrix (blouse) Ex.A, veginal smiyar slides Ex.B & underwear of prosecutrix Ex.C. Upon examination spot of semen was not found.
14. In the aforementioned facts and evidence now, it is to be considered whether version put-forth by prosecutrix is reliable and inspire confidence of the Court to convict the appellant based upon her sole testimony. As discussed above, in the evidence of prosecutrix, there is an improvement of stating that at the time of incident when appellant was assaulting the prosecutrix one Jagdish resident of same village came on spot and 8 intervened and thereafter appellant ran away from the spot.
15. Upon minute assessment of evidence of prosecutrix would show that act of assault and threat was prior to commission of rape upon prosecutrix and therefore if evidence of prosecutrix is taken into consideration before committing sexual intercourse, one Jagdish came on spot, why Jagdish was not examined as prosecution witness, nor prosecutrix took his name while lodging FIR that Jagdish came on spot at the time of commission of offence by appellant. The omission of not mentioning name of Jagdish in FIR, is major.
16. In the opinion of this Court in the fact of the case, there are material omission and only to improve the case against the appellant further presence of Jagdish is also stated in Court statement by prosecutrix, there are material contradiction between evidence of PW-3/prosecutrix and her husband/PW-5. In evidence of prosecutrix, she stated that when she went out to answer the nature call neither her in-laws nor her husband was in the house, but when she came back after alleged incident her husband was present in house. Whereas PW/5 in his evidence stated that when he reached to his house he found prosecutrix present in house.
17.The Hon'ble Supreme Court in case of Sham Singh (supra) acquitted the appellant therein from the charges under Section 376 of IPC observed that evidence of prosecution witnesses bristles with contradictions and is full of improbabilities and held thus :-
"23. The evidence of the victim/prosecutrix and the aunt PW10 are unreliable, untrustworthy inasmuch as they are not credible witnesses. Their evidence bristles with contradictions and is full of improbabilities. We cannot resist ourselves to place on record that the prosecution has tried to rope in the appellant merely on assumptions, surmises and conjectures. The story of the prosecution is built on the materials placed on record, which seems to be neither the truth, nor wholly the truth.9
The findings of the court below, though concurrent, do not desire the merit of acceptance or approval in our hands with regard to the glaring infirmities and illegalities vitiating them, and the patent errors apparent on the face of record resulting in serious and grave miscarriage of justice to the appellant."
18. In case of Lalliram & Ors (supra), the Hon'ble Supreme Court while considering the appeal against conviction under Section 376 (2)(g) of IPC observed that whether testimony of prosecutrix found to be self contradictory and also inconsistent with the testimony of other prosecution witnesses as well as medical evidence accused cannot be convicted on the basis of he r alone version, the conviction of appellant recorded by the High Court was set aside.
19. Hon'ble Supreme Court in case of Ram Kumar Pande (supra) held that omission of important facts in FIR recorded under Section 154 of Cr.PC affecting the probabilities of the case are relevant and held thus :-
"9. No doubt, an F.I.R. is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, so far as they were, known up to 9.15 p.m. on 23-3-1970, were bound to have been communicated. If his daughters had seen the appellant inflicting a blow on Harbinder Singh, the father would certainly have mentioned it in the F.I.R. We think that or missions of such important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case."
20. No doubt the conviction in cases where the allegation of forceful sexual intercourse can be made only on the basis of sole evidence of prosecutrix, but the said evidence must inspire confidence.
21.Considering entire facts and circumstances of the case, submissions of counsel for the parties, exhibited documents, evidence available on 10 record, particularly evidence of PW-3 and PW-5, the fact that material witness Jagdish who as per evidence of prosecutrix came to intervene at the time of incident was not examined before the trial Court as prosecution witness, further facts of case are tested in light of law enunciated by Hon'ble Supreme Court in aforementioned judgments, I am of the considered view that there are material contradiction and omission, improvement in evidence of prosecutrix. Prosecution failed to prove the charges levelled against appellant beyond reasonable doubt.
22.For the foregoing discussions, impugned judgment of conviction dated 28.08.2002 passed by learned 2nd Additional Sessions Judge, (FTC), Surajpur, is not sustainable and it is hereby set aside. Appellant is on bail therefore, the bail bond submitted by him stands discharged.
23.In result, appeal is allowed, appellant is acquitted from the charges under Section 376 (1) and 506 (II) of IPC.
Sd/-
(Parth Prateem Sahu) Judge J/-