Nafr High Court
Case Details
1 2025:CGHC:13895 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No.1365 of 2023 Judgment reserved on : 23.01.2025 Judgment delivered on : 22.03.2025 RAMAKANT NIRALA Digitally signed by RAMAKANT NIRALA Date: 2025.03.22 16:56:18 +0530 1 - Harishchand @ Harichand S/o Late Moh arsaye Aged About 50 Years Caste- Panika, R/o Village Nawapara, Patna, Police Station Patna, District : Koriya, Chhattisgarh versus Appellant 1 - State Of Chhattisgarh Through Police Station Patna, District Koriya,Chhattisgarh Respondent For Appellant : Mr. Ashok Kumar Shukla and Ms. Prakrati Deo, For Respondent
Legal Reasoning
: Mr. Devesh Kela, PL Advocates Hon’ble Smt. Justice Rajani Dubey C A V Judgment 1. The present appeal is directed against the judgment of conviction and order of sentence dated 28.06.2023 passed by the learned Additional Session Judge (FTC), Baikunthpur, District Koriya (C.G.) in ST No.99/2021, whereby the appellant has been convicted and sentenced in the following manner:- 2 Sr.No. Conviction Sentence 1. u/S 354 of IPC and in default of payment of fine RI for 3 years with fine of Rs.1,000/- amount, additional RI for 15 days. 2. u/S 376 (1) of IPC RI for 10 years with fine of Rs.1,000/- and in default of payment of fine amount, additional RI for 15 days. Both the sentences shall run concurrently. 2. The prosecution case, in brief, is that on 13.06.2021, prosecutrix lodged a written report before Police station concerned against the appellant stating that on 29.05.2021, when she was not well, parents of prosecutrix took her to appellant's home for getting some medicine. The appellant took the Victim-A near Railway police under a tree and asked her to take off her cloths and when she denied, the appellant started pressing her private parts but the victim A somehow managed to run away. It is further alleged that few days back also i.e. on 29.04.2021, when victim's elder sister Victim- B was not feeling well and was taken to the appellant’s home for treatment, the appellant had committed rape with her on 12.04.2021, but in public fear she did not tell anything to her family member, thereafter a case was registered against the appellant and the charge sheet was filed before the Magistrate concerned. On the basis of the evidence adduced by the prosecution and material available on record, learned trial court convicted the accused/appellant, as mentioned in para 1 of 3 the judgment. 3. Learned counsel for the appellant submits that the judgment passed by the learned Trial Court is contrary to law and material available on record. There are material omissions and contradictions in the statements of the prosecution witnesses. The learned Court below ought to have seen that there was no eye witness and therefore, the whole conviction is based on circumstantial evidence. P.W-01 has admitted in her cross- examination that there is a land dispute between the family of the victim and appellant. The learned Trial Court ought to have seen that there is delay of 2 months. The Victim-A (P.W-01) has admitted that even though she resides with her elder sister, she asked her elder sister about incident after 14 days. In her cross- examination she had admitted that she used to visit the appellant along with her sister. The learned Trial Court ought to have considerered the statement of the father of victim, because he himself has admitted that if appellant leaves the share of his elder father Ramsaye, then there will be no fight between them. Therefore, the appeal deserves to be allowed. Reliance has been placed on the judgments rendered by the Hon’ble Supreme Court in the matter of Rajesh Patel vs State of Jharkhand, reported in (2013) 3 SCC 791, Mohd. Ali @ Guddu vs State of Uttar Pradesh, reported in (2015) 7 SCC 272, Dola @ Dolagobinda Pradhan and another vs State of Odisha, reported in (2018) 18 SCC 695. 4 4. Per contra, learned State counsel supports the impugned judgment and submits that the learned Trial Court has minutely appreciated the evidence available on record and has rightly convicted the appellant. Therefore, the appeal deserves to be dismissed. 5. Heard learned counsel for the parties and perused the material available on record. 6. It is an admitted position in this case that as per FIR (Ex-P/2), the date of incident is 13.04.2021 and the FIR was lodged by the victims on 13.06.2021 and reason for delay is stated to be ‘parijano ko ghatna ki jankari aur loklaj ke dar se’. PW-1 victim, aged about 22 years, stated that the accused is the relative/grand father (baba) of her and on 29.05.2021, she fell ill and her father took her for exorcism (jhadphoonk) to him. She further stated that the accused told her to undress which she denied, upon which she tried to catch hold of her, but she escaped and ran away and came to her home, but she did not disclose the same to anyone because of fear and defamation. Subsequently, when she asked her elder sister, who is also victim-B, then she stated that the accused had committed rape with her, but she also did not disclose the same because of defamation. Thereafter they disclosed the same to their parents, upon which written report was lodged to the police station concerned vide Ex-P/1 and on the basis of the same, FIR (Ex-P/2) was registered. PW-2 Victim-B stated that on 5 12.04.2021, when her parents took her to accused’s home for sorcery, then the accused took her to the farm of Bacchu Singh and committed forcible sexual intercourse with her and told her not to tell the same to anybody, but when she came to know that he also committed wrong with her younger sister, then she disclosed the same to her parents. The father of the prosecutrix (PW-3), brother of the prosecutrix (PW-4), mother of the prosecutrix (PW-5) all stated that when both the victims told them about the incident, then they lodged the report at the concerned police station. Dr. Barkha Jaiswal (PW-7) examined the victim-A on 13.06.2021 and gave her report (Ex-P/2) and as per her report, she did not find any external injuries on her body. She also examined victim-B on 13.06.2021 itself and found old ruptured hymen and victim-B told her that on 12.04.2021 forcible sexual intercourse was committed by the accused with her and gave her report (Ex-P/3). In the cross-examination, she stated that upon examination, she did not find forcible sexual intercourse and the pain in vagina was written by her upon victim-B’s saying. Victim-A (PW-1) admitted in the cross- examination that it is true that report of the incident was lodged after 1 month. It is also true that even after 14 days of the incident, she did not enquire anything from her sister. She also admitted that there is property dispute between her father and the accused. Victim-B (PW-2) also admitted in the cross- examination that she did not tell anything about the incident of 6 12.04.2021. She admitted that she and her sister were living in the same house, but she did not tell her sister about the same. She also admitted that there is property disputed between the accused and her father. PW-3 father of the victim also admitted in the cross-examination that there is property dispute between the accused and him and in the cross-examination, he also admitted that if accused leaves Ramsahay’s portion, then the matter can be reconciled. He self stated that he is and will be in his grandfather’s property. The father of the victims (PW-3), brother of victims (PW-4) and mother of the victims (PW-5) admitted that they are not the eye witnesses and both victims did not tell them about the incident for 2 months. They also admitted that there is property dispute between them and the accused. 7. The Hon’ble Apex Court in the matter of Rajesh Patel (supra) held in para 16 as under:- “11. Further, there is an inordinate delay of nearly 11 days in lodging the FIR with the jurisdictional police. The explanation given by the prosecutrix in not lodging the complaint within the reasonable period after the alleged offence committed by the appellant is that she went to her house and narrated the offence committed by the appellant to her mother and on assurance of Purnendu Babu – PW3, the mother remained silent for two to four days on the assurance that he will take action in the matter. Further, the explanation given by the prosecutrix regarding the delay is that at the time of commission of offence the appellant had threatened her that in case she lodges any complaint against him, she would be killed. The said explanation is once again not a tenable explanation. Further, the reason assigned by the High Court regarding not lodging the complaint immediately or within a reasonable period, it has observed that in case of rape, the victim girl hardly dares to go to the 7 police station and make the matter open to all out of fear of stigma which will be attached with the girls who are ravished. Also, the reason assigned by the trial court which justifies the explanation offered by the prosecution regarding the delay in lodging the complaint against the appellant has been erroneously accepted by the High Court in the impugned judgment. In addition to that, further observation made by the High Court regarding the delay is that the prosecutrix as well as her mother tried to get justice by interference of PW3, who is a common friend of both of them and PW4, the Doctor with whom the prosecutrix was working as a Nurse. When the same did not materialize, after lapse of 11 days, FIR was lodged with the jurisdictional police for the offence said to have been committed by the appellant. Further, the High Court has also proceeded to record the reason that prosecutrix had every opportunity to give different date of occurrence instead of 14.2.93 but she did not do it which reason is not tenable in law. Further, the High Court accepted the observation made by the learned trial Judge wherein the explanation given by the prosecutrix in her evidence about being terrorized to be killed by the appellant in case of reporting the matter to the police, is wholly untenable in law. The same is not only unnatural but also improbable. Therefore, the inordinate delay of 11 days in lodging the FIR against the appellant is fatal to the prosecution case. This vital aspect regarding inordinate delay in lodging the FIR not only makes the prosecution case improbable to accept but the reasons and observations made by the trial court as well as the High Court in the impugned judgments are wholly untenable in law and the same cannot be accepted. Therefore, the findings and observations made by the courts below in accepting delay in lodging the FIR by assigning unsatisfactory reasons cannot be accepted by this Court as the findings and reasons are erroneous in law.” 8. In Dola @ Dolagobinda Pradhan (supra), the Hon’ble Apex Court held in para 6 as under:- “6. It is well settled law that if the version of the prosecutrix is believed, basic truth in her evidence is ascertainable and if it is found to be credible and consistent, the same would form the basis of conviction. Corroboration is not a sine qua non for a 8 conviction in a rape case. The evidence of a victim of sexual assault stands at par with the evidence of an injured witness and is entitled to great weight, absence of corroboration notwithstanding. If the evidence of the victim does not suffer from any basic infirmity and the “probabilities factor” does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration, except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. When a grown up and married woman gives evidence on oath in Court that she was raped, it is not the proper judicial approach to disbelieve her outright.” 9. In Mohd Ali @ Guddu (supra), the Hon’ble Apex Court held in paras 27 & 29 as under:- “27. Be it clearly stated here delay in lodging FIR in cases under Section 376 IPC would depend upon facts of each case and this Court has given immense allowance to such delay, regard being had to the trauma suffered by the prosecutrix and various other factors, but a significant one, in the present case, it has to be appreciated from a different perspective. The prosecutrix was missing from home. In such a situation, it was a normal expectation that either the mother or the brother would have lodged a missing report at the police station. The same was not done. This action of PW-2 really throws a great challenge to common sense. No explanation has been offered for such delay. The learned trial Judge has adverted to this facet on an unacceptable backdrop by referring to the principle that prosecutrix suffered from trauma and the constraint of the social stigma. The prosecutrix at that time was nowhere on the scene. It is the mother who was required to inform the police about missing of her grown up daughter. In the absence of any explanation, it gives rise to a sense of doubt. 29. Be it noted, there can be no iota of doubt that on the basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based. In the case at hand, the learned trial Judge as well as the High Court have persuaded themselves away with this principle without appreciating the acceptability and reliability of the testimony of the witness. In fact, it would not be 9 inappropriate to say that whatever the analysis in the impugned judgment, it would only indicate an impropriety of approach. The prosecutrix has deposed that she was taken from one place to the other and remained at various houses for almost two months. The only explanation given by her is that she was threatened by the accused persons. It is not in her testimony that she was confined to one place. In fact, it has been borne out from the material on record that she had travelled from place to place and she was these ravished number circumstances, evidence gains significance, the examining doctor has categorically deposed that there are no injuries on the private parts. The delay in FIR, the non- examination of the witnesses, the testimony of the prosecutrix, the associated circumstances and the medical evidence, leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon.” the medical Under times. for of 10. In light of the above, in the present case, it is clear that the FIR was lodged by the victims after 2 months of the incident and all the witnesses including the victims admitted this fact that there is property dispute between her father and the accused. PW-3 father of the victims clearly admitted that if the accused leaves Ramsahay’s portion, then the matter can be reconciled. No independent witness was examined by the prosecution and the medical report also does not support the prosecution case. Dr. Barkha Jaiswal (PW-7) found old hymen ruptured of the victim-B, but the same is not supported by the prosecution case. The incident was of prior to 2 months. The statement of both the victims and conduct of the victims and their family members are highly suspicious but the learned Trial Court did not appreciate all 10 these aspects of the matter. The delay was not sufficiently explained by the prosecution and the victims. The statement of both the victims are not reliable, as such it is clear that the prosecution has failed to prove its case beyond reasonable doubt against the appellant.
Decision
11. Consequently the appeal is allowed. The impugned judgment of conviction and order of sentence is hereby set aside. The appellant is acquitted of the charges under Section 354 & 376 (1) of IPC. 12. The appellant is in jail. He be released forthwith if he is not required to be detained in any other offence. 13. Keeping in view the provisions of section 481 of BNSS 2023, the appellant is directed to furnish a personal bond for a sum of Rs.25,000/- before the court concerned forthwith, which shall be effective for a period of six 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, shall appear before the Hon’ble Supreme Court. 14. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Nirala Sd/- Rajani Dubey Judge