Bhatapara, Chhattisgarh v. For
Case Details
1 2025:CGHC:5692 NAFR VAIBHAV SINGH Digitally signed by VAIBHAV SINGH Date: 2025.03.20 11:30:11 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 424 of 2018 1 - Sumeet John S/o Shri Devnath John Aged About 19 Years R/o- Village- Mohtara, Thana - Gidhori, Tundra, Civil And Revenue District- Balodabazar- Bhatapara, Chhattisgarh. 2 - Uttam Kumar Dheerhi S/o Shri Chote Lal Dheerahi Aged About 19 Years R/o- Village- Koyda, Police Outpost Lawan, Thana- Kasdol Civil And Revenue District- Balodabazar - Bhatapara, Chhattisgarh., ... Appellants State Of Chhattisgarh Through- The District Magistrate Balodabazar, District- Balodabazar - Bhatapara, Chhattisgarh. ... Respondent versus For Appellant No.1. For Appellant No. 2. : : Mr. K.P. Sahu, Advocate. Mr. Ravipal Maheshwari on behalf of Mr. C.P. Lahre, Advocate For Respondent/State : Ms. Isha Jajodia, P.L. for the State. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 30/01/2025 1. This appeal has been filed under Section 374(2) of Criminal Procedure Code 1973, against the impugned judgment of conviction and sentenced dated 08.03.2018 passed by learned Special Judge , (FTC) Balodabazar in Special Criminal Case (POCSO) No.65 of 2016, 2 whereby the appellants have been convicted and sentenced in the following manner:- (For Appellant No. 1) Conviction Sentence Under Section 363 of IPC : R.I. for 3 years and fine of Rs.500/- in default of payment of fine amount additional R.I. for 1 month. Under Section 366-A of IPC : R.I. for 3 years and fine of Rs.500/- in default of payment of fine amount additional R. I. For 1 month. Under Section 6 of (POCSO : R.I. for 10 years and fine of Rs.500/- Act, 2012. in default of payment of fine amount (All the sentences were directed to run concurrently.) additional R.I. for 6 months. (For Appellant No. 2) Conviction Sentence Under Section 363 of IPC : R.I. for 1 year and fine of Rs.500/- in default of payment of fine amount additional R.I. for 1 month. Under Section 366-A of IPC : R.I. for 2 years and fine of Rs.500/- in default of payment of fine amount additional R.I. for 1 month. Under Section 6 of POCSO : R.I. for 10 years and fine of Act, 2012 Rs.500/- in default of payment of fine amount additional R.I. 6 months. (All the sentences were directed to run concurrently.) 2. The present appeal has been listed for consideration on I.A. No.4/2025, which is the application for suspension of sentence and grant of bail to the appellant No.2 Uttam Kumar Dheerhi.
Facts
With the consent of the parties the matter has been heard finally. 3. The brief facts of the case are that on 25.09.2016 a missing report 3 was lodged by the father of the victim PW-4 stating that his minor daughter is missing since 22.09.2016 and her whereabouts could not be found despite her search in various places and his relatives house. The FIR Ex.P/8 for the offence under Section 363 of IPC and Section 18 of POCSO Act have been registered by the police. During the investigation the victim PW-1 was recovered on 01.10.2016 from the house of the appellant No.1 and recovery punchanama Ex.P/1 was prepared in presence of the witnesses. The victim was sent for her medical examination to PHC, Lawan, where she was being medically examined by PW-10 Dr. Kiran Chauhan, who after her medical examination gave report Ex.P/24. During her medical examination the doctor has not noticed any external injuries on her body and opined that she was habitual to intercourse and no recent sign of intercourse. Two slides of vaginal swab were prepared, sealed and handed over to the police for its chemical examination. With respect to the age and date of birth of the victim, the police has seized the high school certificate and mark-sheet of the victim vide seizure memo Ex.P/4. Spot map Ex.P/9 prepared by the police and Ex.P/15 was prepared by the patwari. The appellant was arrested on 02.10.2016 and he too was sent for his medical examination to PHC, Barpali, where PW-6 Dr, B.P. Bhagel, has medically examined him and gave his report Ex.P/13. The Vaginal slides of the victim, her undergarments and the undergarment of the appellant were sent for chemical examination to State FSL, Raipur. The statement of the witnesses under Section 161 of Cr.P.C. have been recorded, the statement of under Section 164 of Cr.P.C of the victim has also been recorded and after completion of 4 usual investigation charge-sheet was filed before the learned trial Court for the offence under Section 363, 366, 376 and 34 of IPC and Section 4 and 18 of POCSO Act, against the present appellants. 4. The charge against the appellant Sumeet John has been framed for the offence under Section 363, 366-A & 376(1) of IPC and Section 6 of POCSO Act, whereas the charge against the co-accused Uttam Kumar Dheerhi has been framed for the offence under Section 363, 366A and Section 17 of the POCSO Act the accused persons denied the charges and claimed trial. 5. In order to prove the charge against the appellants the prosecution has examined as many as 10 witnesses. The statement of the accused persons under Section 313 of Cr.P.C. has also been recorded in which they denied the circumstances appears against them, plead innocence and have submitted that they have been falsely implicated in the offence. 6. After appreciation of the oral as well as documentary evidence led by the prosecution, the learned trial court has convicted and sentenced the appellants as mentioned in the earlier part of the judgment. Hence this appeal. 7.
Legal Reasoning
“22 In our considered opinion, the “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under 10 no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.” 15. From the evidence of the victim as well as her 164 Cr.P.C. statement and further in view of her conduct in the entire period till her recovery goes to show that she was the consenting party in making the physical relation with the appellant and she voluntarily goes in the house of appellant Sumit John. 16. PW-4, who is father of the victim, have stated that when he could not found victim in his house he lodged the missing report Ex.P/8 and during the investigation she was found in the house of the appellant Sumit John. She disclosed the entire incident to him. In cross- examination he too have denied the suggestion that his daughter was having love affair with the appellant Sumit John, he also denied that she insisted him for marriage with Sumit John but he refused for the 11 same. PW-5 is the witness who has proved the recovery panchnama Ex.P/1 and stated that when they came to know that the victim was in the house of the appellant, they had gone there along with the police person and recovered the victim from his house. Since the victim was not found to be minor and it is found that she herself went there on her own will, staying in the house of the appellant Sumit John no presumption can be drawn that she was being abducted or kidnapped by the appellants and kept away from her lawful guardianship. 17. The version of the victim commands great respect and acceptability, but if there are some circumstances which cost some doubt in the mind of the Court on the veracity of the victim evidence, then it will not be safe to rely on the said version of the victim. The law is well-settled that in a case of rape, conviction can be maintained even on the basis of sole testimony of the victim. However, there is an important caveat which is that the testimony of the victim must inspire confidence. Even though the testimony of the victim is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to being home the charges leveled against the appellant beyond reasonable doubt, which the prosecution has failed in the instant case. This Court is conscious of the sensitivity with which heinous offence under Section 376 I.P.C. has to be treated but in the present case the circumstances taken as a whole create doubt about the correctness of the prosecution version. 18. Considering the above mentioned facts and circumstances of the case as well as the evidence available on record this Court is the view that there is no cogent and clinching evidence against the appellants to 12 convict them in the offence in question and the impugned judgment and sentence suffers from material illegality. 19.
Arguments
Learned counsel for the appellants would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses, which can not be made basis for their conviction in the alleged offences. He would further submit that there is no evidence on record with respect to the age of the victim that on the date of incident she was minor. Although the prosecution has seized the High school certificate of the victim vide seizure memo Ex.P/4, the said certificate 5 has not been got exhibited during the trial and the prosecution has not relied upon this document i.e. the high school certificate as well as the school record. Except the seizure memo Ex.P/4, no other documents available on record in the case to prove the age of the victim. He would further submit that there are material contradictions in the 164 Cr.P.C. statement of the victim with that of her Court evidence. Entirely a different story have been leveled in her Court statement, therefore, her evidence does not inspires confidence and without there being any corroboration conviction cannot be sustained. He would further submit that no injuries have been found on the body of the victim even there is no FSL report produced by the prosecution to support the allegation made by the victim. The victim is alleged to be abducted on 22.09.2016 and she recovered on 01.10.2016. In between that period, she has not made any allegation and has not raised any alarm for her rescue. She being a major girl and had love affairs with the appellant Sumit John and she herself eloped with him and resided for a considerable period without making any complaint or raising any objection. Therefore, no offences under the IPC or under the POCSO Act are made out and appellants are entitled for acquittal. 8. On the other hand learned counsel for the State opposes and have submitted that the prosecution has proved its case beyond reasonable doubt. But for minor omissions and contradictions the evidence of prosecution witnesses are reliable and corroborative. Though, the high school certificate and school record could not have been exhibited by the prosecution during the trial but from the seizure memo Ex.P/4 the date of birth of the victim has been proved in which it is mentioned that her high school certificate has been seized. The 6 victim has duly supported her case during her evidence. In her 164 statement Ex.P/5, the allegation against the both the appellants have been leveled by the victim though the allegation was not in the same fashion but it is alleged that both the accused persons have involved in the commission of the offence, therefore, the minor discrepancies can be ignored looking to the entirety of her evidence. She would further submit that even if no injuries have been found on the body of the victim, that itself would not sufficient to hold that she was not subjected to rape as there is no necessity that in every case the victim should have receive injuries on her body but it depends upon the facts of each case. The victim who as a minor girl and was kidnapped by the appellants, they kept her away from her lawful guardianship for a considerable period and committed rape upon her, the appellants have been convicted and sentenced by the learned trial Court, which is not required to be interfered with. 9. I have heard learned counsel for the parties and perused the material available on record. 10. The first and foremost question arises for consideration would be the age of the victim as to whether on the date of incident the victim was minor or not. 11. The prosecution though has seized the high school certificate of the victim vide seizure memo Ex.P/4 but the same neither being relied upon by the prosecution nor they have examined any witness from the school. Except from the seizure memo Ex.P/4, no other document has been relied upon by the prosecution in support of her age. Therefore, even if it is seized vide seizure memo Ex.P/4, in absence of any 7 evidence the contents of the seizure memo cannot be taken into consideration that the victim was less than 18 years of age. 12. So far as the allegation of abduction and rape are concerned the victim PW-1 have stated in her evidence that she knew the appellants. Since 5-6 months back, when she had gone to answer the call of nature near canal, both the accused persons came there and they poured certain material upon her by which she lost her consciousness. When she regain her consciousness she found herself at Kashdol in the house of one relative of the appellants. The appellant Sumit John kept her there at Kashdol for about 9 day and in between that period he regularly beaten her, abused and threatened her. He regularly made physical relation with her in between that period when she stayed at Kashdol. After about 9 days, her family members came there and took her back. Thereafter, the police proceeding has been started. In cross-examination she admitted that she and appellant Sumit John were the student of same school. She denied the suggestion given by the defence that she was having love affair with Sumit John which came into knowledge of her parents and they objected in their relation she also denied the suggestion that she wanted to marry with Sumit John but her father has objected. She admitted in her cross-examination that the place where she was stayed along with Sumit John, his brother, sister-in-law, maternal aunt and children were also residing there. She admitted that the place where she had gone to answering the call of nature, is situated in dense locality and adjuring to the vicinity and various persons are used to pass through there. She stated in her evidence that pouring certain material upon her by the appellant Sumit John, both the 8 accused persons came to her house and when she lost her consciousness she was being taken by the accused persons and she regained her consciousness at Kashdol, Sumit John has kept her for 9 days in his house and regularly beaten her and abused her and made physical relation with her have not been disclosed by her in her police statement as well as 164 Cr.P.C. statement. When she was being asked then she disclosed in her police statement that she was having love affair with Sumit John since 2-3 months back then she answered that she did not recall what she stated there. She voluntarily stated that she was scared and has not tried to fled from the house of the appellant. She admitted that she has not given any nail scratch mark or teeth bite on the body of the appellant while making physical relation by him with her. 13. From the perusal of 164 Cr.P.C. statement Ex.P/5 it appear that she stated in 164 Cr.P.C. statement that Sumit John has given her a mobile phone and since she does not want to keep the same, she asked him to take his mobile back. The appellant Sumit John send his friend Uttam Kumar Dheerhi to take the mobile back and then Uttam Kumar Dheerhi asked her that she herself may return the mobile phone to him. He will left her at the same place. Uttam Kumar Dheerhi took her in his motorcycle to Kashdol in the house of Amit Jangde, where the present appellant Sumit John was also there. Thereafter, the appellant Sumit John has kept her for about 10 days and made physical relation with her regularly. After about 10 days her parents came there and took her back. The first part of her evidence about reaching to Kashdol to Mohtara is entirely different story with that of her evidence made before the Court. From the material discrepancy in 9 both two places in the statement of the victim and her conduct would dragged this Court towards the fact that she herself has made consensual physical relation with the appellant Sumit John as she has not raised any alarm and has not made any complaint to anyone while taking to village Kashdol from Mohtara and even during her stay for about 9 days in the house of appellant Sumit John, she had not made any complaint to anyone. No injuries have been found on her body on her medical examination by Dr. Kiran Chaudhari PW-10. Further there is no FSL report produced by the prosecution to prove that she was subjected to sexual intercourse by the appellant. 14. The Hon’ble Supreme Court in the matter of Santosh Prasad @ Santosh Kumar Vs. State of Bihar reported in (2020) 3 SCC 443 has held in para 5.4.2 which reads as under:- “5.4.2. In the case of Rai Sandeep alias Deepu (supra), this Court had an occasion to consider who can be said to be a “sterling witness”. In paragraph 22, it is observed and held as under:
Decision
In the result the appeal filed by both the appellants are allowed. The impugned judgment of conviction and sentences is hereby set aside. The appellants are acquitted from the alleged offences. The appellant Sumit John is reported to be in jail since 16.12.2016, and the appellant Uttam Kumar Dheerhi is reported to be in jail since 15.01.2025 they be released forthwith if not required in any other case. 20. Keeping in view, the provisions of Section 481 of B.N.S.S., the appellant is directed to furnish a personal bond for sum of Rs.25,000/- before the Court concerned which shall be effective for a period of 6 months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant, on receipt of notice thereof she appeared before the Hon’ble Supreme Court. 21. The trial Court record along with a copy of this judgment be sent back to the trial Court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) JUDGE Vaibhav