Chattisgarh High Court
Rameshwar Yadav vs State Of Chhattisgarh on 3 August, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment Reserved on 24/07/2023
Judgment Delivered on 03/08/2023
CRA No.72 of 2003
Rameshwar Yadav S/o Ram Briksh Yadav, aged about 25 years,
resident of village Amdi, P.S. Dhaurpur, District Surguja (C.G.).
---- Appellant
Versus
State of Chhattisgarh, through P.S. Dhaurpur, District Surguja (C.G.).
---- Respondent
For Appellant : Mr. D.N. Prajapati, Advocate
For Respondent/State : Mr. Sanjay Pathak, P.L.
Hon'ble Shri Justice Sanjay Kumar Jaiswal
CAV Judgment
1. The present appeal arises out of the impugned judgment of conviction and order of sentence dated 10.10.2002 passed by 5 th Additional Sessions Judge, Ambikapur, Surguja (C.G.) in Sessions Trial No.413 of 2001 whereby, the learned trial Court convicted the appellant and sentenced him as under :-
Conviction Sentence
R.I. for 7 years and fine of Rs. 500/- in default of
U/s 376 of IPC payment of fine amount, additional R.I. for 6
months.
2. The facts of the case, are that, on 22.10.2001, at about 4.00 PM, the prosecutrix had gone to Ghutra forest to graze cattle, which is on Changori Border. The appellant along with his nephew was grazing cattle at some distance. The appellant asked his nephew to go from there and the appellant 2 reached to the prosecutrix. He caught hold of her hand and dragged her near the tree where without her consent, he committed sexual intercourse with her. The prosecutrix narrated the incident to her sister, namely Sumitra and Sumitra told the incident to one Sagram. Thereafter, the prosecutrix told the incident to her mother and father and went to her uncle's house, namely Ramchandra at village Barkol, where she narrated the incident to her uncle and aunt. In the next day, village Panchayat was convened, but the dispute was not amicably settled, hence, the prosecutrix went to the Police Station and lodged a written report. On the basis of the written report, the First Information Report (Ex.P/1) was registered before the Police Station Dhaurpur. Medical examination of the prosecutrix has been conducted and the clothes of the appellant as well as the prosecutrix were seized for its examination. Thereafter, medical examination of the appellant has also been conducted. After completion of the investigation, charge sheet was filed.
3. So as to hold the accused/appellant guilty, the prosecution has examined as many as 8 witnesses. The statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded innocence and false implication in the case. The appellant adduced two witnesses and produced one document in his defence.
4. After hearing the parties, vide impugned judgment of conviction and order of sentence dated 10.10.2002, learned trial Court has convicted and sentenced the accused/appellant as mentioned in para-1 of this judgment. Hence, the present appeal.
5. Learned counsel for the appellant submits that there is hardly any reliable evidence on records to warrant the conviction of the appellant under the aforementioned sections of the IPC and the prosecution has failed to 3 prove its case beyond reasonable doubt. He further submits that the trial Court has overlooked the material fact that in village Panchayat, which was held on the next day of the incident, the prosecutrix has never complained or narrated to anyone about the incident. It is contended that the learned trial Court has wrongly held the appellant guilty in the absence of corroboration and medical evidence in support of the charges levelled against the appellant. It is further contended that the learned trial Court has erred in convicting the appellant overlooking the fact that in the FSL report, no sperm was found in the slide prepared by the doctor. It is lastly argued that the impugned judgment of conviction and order of sentence passed by the trial Court is contrary to the facts and law, which deserves to be set aside and the appeal may be allowed.
6. Per contra, learned appearing counsel for the State, supporting the impugned judgment, opposed the arguments advanced on behalf of the appellant.
7. Heard learned counsel for the parties and perused the material on record including the impugned judgment.
8. The prosecutrix (PW-1) has admitted that she was married at village Khurli and she is living separately from her husband for one year. According to caste society, she has been separated from her husband, in lieu of which her husband gave her 20,000/- (twenty thousand rupees). She has also admitted that the reason for the leave was her Jhupna (>qiuk). Due to not being of sound mind, she starts Jhupna (>qiuk) and hence, she is separated from her husband. They are married to someone else in their community after leaving, but here is no talk of his second marriage yet.
9. Keeping in view the above facts, now looking at the statement made by the prosecutrix in her chief examination, she has told about the incident 4 that she had gone to the Changori forest to graze buffalo. The appellant's nephew (DW-1) Adesh Yadav was also there and the appellant was also grazing buffalo there. It was around 04.00 pm, in the evening that the appellant came near her and suddenly held her hand, on opposing the same and crying, then the appellant lifted her saree and committed sexual assault on her. After that, she went crying to the place where her buffalo was grazing. There was her sister Sumitra (PW-2) to whom she narrated the incident. Then after coming home with Sumitra, she narrated the incident to her mother Jivaso Bai (PW-3). Her mother narrated the incident to her father. Thereafter, she narrated the incident to her aunt, who narrated the incident to her uncle. The report of the incident could not lodged as it was late in the night. On the next day, went to the police station and lodged a report vide Ex.-P-1.
10. According to report Ex.-P-1, two other people were present at the spot, one was Adesh Yadav (DW-1), nephew of the appellant himself and the other was Sagaram alias Sangram (DW-2), the neighbour of the parties. It is noteworthy that both of them have been prosecution witnesses, but their statement has not been made on behalf of the prosecution, rather their statement has been made by the appellant in his defence. Since, in the First Information Report, he has been described as a witness near the place of occurrence, therefore he is an important witness. According to the report Ex.- P-1, it does not appear that Sumitra (PW-2) was already present there. Rather, according to the report, Sumitra was coming there and it has been admitted by the prosecutrix herself in her cross-examination that Sumitra was not already present there but she was coming there to see the prosecutrix. Thus Sumitra is not a spot witness.
11. Dr. (Smt.) S.L. Kujur (PW-6) has done medical examination of the prosecutrix and gave her report vide Ex.-P-2. According to this, there were no 5 external injury marks on the body of the prosecutrix. There were no injury marks on her private part and thigh as well. Her pubic hair was fully developed and was not stained with any kind of blood or semen. According to the medical examination, the membrane of her hymen was chronically torn and she was addicted to sexual intercourse. In this way, no definite opinion has been given regarding instant sex. In cross-examination, the doctor has accepted the suggestion of the defence that if a woman is raped by forcibly throwing her on the ground, it may cause bodily injury. The doctor himself said that it will also depend on the situation of the place, and how is the land there. Thus, it is clear that no external or internal injury has been found on the prosecutrix. There is no medical opinion in this regard that there has been immediate sexual intercourse with her.
12. The sister of prosecutrix Sumitra (PW-2) and mother Jivaso Bai (PW-
3) are the witnesses who were later informed about the incident by the prosecutrix herself. Both these witnesses have stated on the basis of the statement of the prosecutrix that the appellant had forcibly raped the prosecutrix. The credibility of the statements of these witnesses along with the prosecutrix is being assessed later. For disposal of the appeal, it would be appropriate to first see what has been the defence of the appellant and what has been the statement of the defence witnesses.
13. During the cross-examination of the prosecution witnesses, the defence of the appellant has been of the same nature as stated by him in his own examination under Section 313 of Cr.P.C. In the examination under Section 313 Cr.P.C., the appellant denied the statements of the prosecution witnesses and said that the prosecutrix suffers from fits of insanity in which she starts Jhupna (>qiuk). The same happened with the prosecutrix while grazing buffaloes, to inform about which he had sent his nephew Adesh Yadav (DW-1) to the house of the prosecutrix. But later the Station House 6 Officer pressurized Sagaram alias Sangram (DW-2) that the police case would be ruined if he got the Jhupna (>qiuk) of prosecutrix written, and then a false case was prepared against him.
14. In this context, Adesh Yadav (DW-1), nephew of the appellant has stated that at the time of grazing the buffalo, he went to the spot after hearing the cry of the prosecutrix and saw that the prosecutrix was bending down and pouring mud and flowers on her head. Then called his uncle, the appellant and Sagaram alias Sangram (DW-2). The appellant asked them to see the prosecutrix and the cattle; he himself would go to the house of the prosecutrix to inform them. After half an hour, the appellant and Sumitra came to the spot and took away the prosecutrix. Thus, Adesh Yadav (DW-1), who is the nephew of the appellant, who was present near the place of occurrence, has not corroborated the statement of the prosecutrix as per the prosecution case. Rather, the defence of the appellant that the prosecutrix is suffering from mental illness has been confirmed.
15. Sagaram alias Sangram (DW-2) has also stated in his court statement that his own house is about 200 meters away from the house of the prosecutrix and the appellant. On Sunday they were grazing their cattle. Adesh Yadav (DW-1) shouted that look at the prosecutrix, so he went closer and saw that the prosecutrix was bending over, putting leaves and flowers on her head and pelting stones. Then the appellant said to inform her house. Then he and Adesh Yadav (DW-1) continued to look after the cattle and the prosecutrix, and the appellant informed the house of the prosecutrix. Thus, Sagaram alias Sangram (DW-2) can be called an independent witness. He has stated that the appellant had not done anything with the prosecutrix, rather the prosecutrix is of unsound mind and behaves in a semi-conscious manner. Further, he also stated in his re-examination that the police inspector had told him that when he had given the same statement to the inspector, the 7 inspector had said that the case would go bad. So he told the false statement to which he did not agree. Then he did not know what statement had been written by the inspector. Thus, even the defence witness Sagaram alias Sangram, who was present near the place of occurrence, has not corroborated the prosecution case but has corroborated the defence of the appellant.
16. In this case, the petticoat of the prosecutrix, the slide prepared after examination by the doctor, and the underwear of the appellant were seized and tested by the doctor who advised chemical tests. However, no investigation report of the laboratory has been produced by the prosecution. Thus, there is no chemical test report produced in this regard to corroborate the allegations of the prosecutrix.
17. It is clear from the evidence that the statement of rape alleged by the prosecutrix is not corroborated by the medical evidence. Her sister Sumitra (PW-2) and mother Jivaso Bai (PW-3) are hearsay witnesses. The witnesses of the spot who have been mentioned in the First Information Report have not corroborated the statement of the prosecutrix but have corroborated the defence of the appellant as defence witnesses.
18. The judgment of the Hon'ble Supreme Court in the matter of Santosh Prasad @ Santosh Kumar v. State of Bihar, (2020) 3 SCC 443, in which reliance has been placed by the counsel for the appellant, the concept expressed by the Hon'ble Supreme Court regarding the assessment of the credibility of the statement of the sole prosecutrix is as follows in paragraphs No.-5.5 & 6:-
"5.5 With the aforesaid decisions in mind, it is required to be considered, whether is it safe to convict the accused solely on the solitary evidence of the prosecutrix? Whether the evidence of the prosecutrix inspires confidence and appears to be absolutely 8 trustworthy, unblemished and is of sterling quality?"
"6. Having gone through and considered the deposition of the prosecutrix, we find that there are material contradictions. Not only there are material contradictions, but even the manner in which the alleged incident has taken place as per the version of the prosecutrix is not believable. In the examination-in-chief, the prosecutrix has stated that after jumping the fallen compound wall accused came inside and thereafter the accused committed rape. She has stated that she identified the accused from the light of the mobile. However, no mobile is recovered. Even nothing is on record that there was a broken compound wall. She has further stated that in the morning at 10 O'clock she went to the police station and gave oral complaint. However, according to the investigating officer a written complaint was given. It is also required to be noted that even the FIR is registered at 4:00 p.m. In her deposition, the prosecutrix has referred to the name of Shanti Devi, PW1 and others. However, Shanti Devi has not supported the case of the prosecution. Therefore, when we tested the version of PW5-prosecutrix, it is unfortunate that the said witness has failed to pass any of the tests of "sterling witness". There is a variation in her version about giving the complaint. There is a delay in the FIR. The medical report does not support the case of the prosecution. FSL report also does not support the case of the prosecution. As admitted, there was an enmity/dispute between both the parties with respect to land. The manner in which the occurrence is stated to have occurred is not believable. Therefore, in the facts and circumstances of the case, we find that the solitary version of the prosecutrix-PW5 cannot be taken as a gospel truth at face value and in the absence of any other supporting evidence, there is no scope to sustain the conviction and sentence imposed on the appellant and accused is to be given the benefit of doubt."
19. To test the credibility of the statements of the prosecutrix in the light of the above judgment, if we look at the facts stated in evidence by the prosecutrix herself and her mother and sister, it clearly emerges that there is a dispute between the parties regarding the land, the alleged Panchayat was held after the incident, when the prosecutrix told the mother and father, they did not take any interest in reporting, on which the prosecutrix went to her 9 uncle and the prosecutrix is suffering from a sleeping disorder due to which she was left by her husband. All these facts corroborate the defence of the appellant, which is further seen in the statement of the prosecutrix herself.
20. The prosecutrix (PW-1) has stated in her cross-examination that she remains more ill after coming from her in-law's house. He has admitted that a Panchayat was held in the village after the alleged incident. This suggestion has been denied that they had talked about a settlement in the Panchayat demanding Rs.50,000/- (Rupees fifty thousand) from the appellant. She further stated that the appellant used to threaten her, so the Panchayat was called to understand him in the Panchayat. She has also admitted that neither she nor her father had narrated the incident of alleged rape in the said panchayat, while the panchayat sat on the second day of the alleged incident. At this stage, when no mention of such a big incident was made in the Panchayat, then it cannot be assumed that the Panchayat was sitting for this incident. The manner in which the prosecutrix has admitted that the panchayat was called to understand the appellant. It appears that there was some other dispute between the parties and hence the Panchayat was convened.
21. The prosecutrix herself has further admitted that her house is surrounded by the land of the appellant. When they used to demand the way from the appellant for commuting, then the appellant used to say not to give, on which the dispute was going on for many days. She has admitted that her father did not go to report so she went to her uncle's house. She has also admitted that when his mother narrated the incident to her father, her father became silent and did not say anything. She has denied the suggestion of the defence that his cattle had grazed the field of the appellant to avoid which she got the false report written. She has also admitted that after the alleged incident, her neighbour Narayan Pathak (Pandit ji) asked her father the 10 reason for the shouting and bending down of the prosecutrix. It is reflected from all these facts that there was a dispute between the prosecutrix and the appellant regarding the land and the way. The prosecutrix was suffering from illness and used to lie down. The people of the whole village knew this thing. A panchayat was also held on the second day of the alleged incident in which the issue was not about rape but the subject matter of the panchayat was about some other dispute between the parties.
22. Sumitra (PW-2), sister of the prosecutrix, has stated in her cross- examination that Adesh Yadav (DW-1) had come and told that the prosecutrix was crying and then accompanied her to the spot, where the prosecutrix was found on the way. There was also Sagaram alias Sangram (DW-2) and he was asked why he had come here. Apart from this, there was no talk with Sagaram alias Sangram. Sumitra has further stated that when the prosecutrix came back home, her mother Jivaso Bai (PW-3) scolded the prosecutrix, due to which the prosecutrix went to her uncle's house in anger. Mother scolded saying that she wanders here and there alone, we will not report. This witness has also admitted that there is a land dispute going on between the appellant and her family. She has also admitted that she or the prosecutrix did not tell her about the incident to her mother or the village. Thus, from the statement made by the sister of the prosecutrix, it is not only evident that there is a dispute between the parties regarding the land, but it is also found that the prosecutrix herself has not been trusted by her parents and they were not even ready for the report.
23. Jivaso Bai (PW-3), the mother of the prosecutrix, stated that Adesh Yadav (PW-1) came and told her that the prosecutrix was crying then she came home. When the prosecutrix had alleged to commit rape by the appellant, at that time the father of the prosecutrix was not at home and when the father came, the incident was told to him. Then the prosecutrix 11 went to her uncle's house and said that her father would not report the matter which is why she came to her uncle's house.
24. Jivaso Bai, the mother of the prosecutrix, also stated in the cross- examination that she did not trust the version of the prosecutrix, so she would not report it. She further stated that she had told in the police statement that her husband had started scolding the prosecutrix. In paragraph 7, she admits that she did not report when the prosecutrix said that nothing happened to her, they had not lodged the report.
25. For the above-stated discussions, in the light of the judgment relied by counsel for the appellant and the defence taken by the appellant from the statements of the prosecutrix herself (PW-1), her sister Sumitra (PW-2) and mother Jivaso Bai (PW-3), the statements being made by the witnesses affirmed that the prosecutrix had a Jhupna (>qiuk) disorder. The earlier statement of the prosecutrix that the incident of rape was witnessed by her sister Sumitra (PW-2) is not found to be correct. Rather, it appears that Adesh Yadav (DW.-1), who is the nephew of the appellant in relation, had gone to the house of the prosecutrix and informed her sister and mother that the prosecutrix was crying. Then Sumitra came from the house to the spot where the animals were grazing. It has also been established that there was a dispute between the parties regarding the land. It has also been reflected that the panchayat was held on the second day of the alleged incident and in that panchayat neither the complainant gave any information regarding the incident of alleged rape nor that subject was kept in the panchayat. Rather, the Panchayat was called regarding other disputes between the parties. It is also clear that the parents of the prosecutrix themselves were not ready to report the alleged incident and the prosecutrix went to her uncle, after which, on the second day after consultation with the uncle, the alleged incident was reported. The statement of the prosecutrix is also not corroborated by the 12 medical evidence. In the report Ex.-P-1 written by the prosecutrix, the appellant's nephew Adesh Yadav (DW-1) and the neighbour of the parties Sagaram alias Sangram (Dw-2) were present near the spot, who are also witnesses in the prosecution case. But he has not been examined on behalf of the prosecution rather he has made statements in defence on behalf of the appellant and has affirmed the defence of the appellant. Due to this, the statement of the prosecutrix has not been affirmed, but the statement of the prosecutrix and her family members has become completely doubtful. In the instant case, the prosecutrix is not found to be a reliable witness. Considering the entire evidence, it is found that the prosecution has failed to establish the offence of rape against the appellant. At this stage, the judgment of the trial court regarding the conviction and sentence in question is not maintainable.
26. Accordingly, the appeal is allowed. The judgment of conviction and order of sentence in question is set aside. Giving the benefit of the doubt, the appellant is acquitted of the charge under Section 376 of the IPC. The appellant is stated to be on bail. Under Section 437/A of the Code of Criminal Procedure, his bail bond will be effective for another 6 months. If there is no need to appear in the Higher Court, his bail bond shall stand discharged. The fine amount paid by the appellant, if any, be refunded to the appellant.
27. As above, the appeal is disposed of.
28. The record of the trial court along with the copy of this judgment be sent to the trial Court immediately for necessary action and compliance.
Sd/-
(Sanjay Kumar Jaiswal) Judge H.L. Sahu