Nafr High Court
Case Details
1 Digitally signed by BHOLA NATH KHATAI Date: 2025.02.20 10:32:54 +0530 2025:CGHC:7483-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1790 of 2019 Ramsingh Salam S/o Jaysingh Salam, Aged About 33 Years, R/o Kumhari, Present Address Santi Nagar, Narayanpur, Police Station And District Narayanpur, Chhattisgarh --- Appellant versus State Of Chhattisgarh Through Station House Officer, Police Station Jharaghati, District Narayanpur Chhattisgarh. --- Respondent CRA No. 1812 of 2019 Vijan Mandal S/o Vimal Mandal Aged About 50 Years R/o Village Selegaon P.S. Korar District North Bastar Kanker Chhattisgarh ---Appellant Versus State Of Chhattisgarh Through- Police Station- Jharaghati District Narayanpur, Chhattisgarh --- Respondent CRA No. 1722 of 2019 Mankumari Yadav W/o Late Itwari Sahu, Aged About 30 Years R/o Tahsilpara, Narayanpur, Police Station Naraynapur, District Narayanpur, Chhattisgarh ---Appellant 2 Versus State Of Chhattisgarh Through Station House Officer Of Police Station Jharaghati, District Narayanpur --- Respondent For Appellants : Mr. Rajesh Jain, Advocate Mr. P. K. Tulsyan, Advocate Ms. Katyayani Vishnupriya, Advocate, on behalf of Mr. Raza Ali, Advocate For Respondent/State : Mr. H. A. P. S. Bhatia, Panel Lawyer (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (12.02.2025) Sanjay Kumar Jaiswal , J. 1. Since these three criminal appeals, under Section 374(2) of CrPC, have arisen out of the same impugned judgment and the question of law and facts also being similar in these appeals, they have been clubbed together, heard together and are being disposed of by this common judgment. 2. In these criminal appeals, the judgment dated 07/11/2019 passed by learned Additional Sessions Judge (FTC), Kondagaon, District Kondagaon, Chhattisgarh, in POCSO
Legal Reasoning
Case No.08/2019 has been challenged by which the three Appellants herein have been convicted and sentenced as under: Appellants Conviction Sentence 3 Ramsing Salam u/s 493 of IPC RI for 7 years with fine of Rs.10,000, in default of payment of fine, additional RI for 1 year. u/s 6 of POCSO Act RI for 20 years with fine of Rs.50,000, in default of payment of fine, additional RI for 1 year. Vijan Mandal u/s 312 of IPC u/s 313 of IPC u/s 5(2)(3)(4) of the Medical Termination of Pregnancy Act, 1971 u/s 201 of IPC Mankumari Yadav RI for 3 years with fine of Rs.10,000, in default of payment of fine, additional RI for 1 year. RI for 10 years with fine of Rs.50,000, in default of payment of fine, additional RI for 1 year. RI for 5, 5, 5 years RI for 5 years with fine of Rs.10,000, in default of payment of fine, additional RI for 1 year. (All the sentences are directed to run concurrently) 3. The case of prosecution, in brief, is that complainant Dineshwari Yadav (PW-2) made a written complaint on 14/02/2019 at Narayanpur Police Station alleging that the victim who was below 18 years of age, had told her that her friend Anjali had introduced her to accused Ram Singh Salam at Narayanpur bus stand. Thereafter, Ram Singh used to come to her village Kaushalnar on the pretext that he likes her and will marry her. Appellant Ramsingh used to take her towards village Rakasnala and forcefully had physical relations with her on the pretext of marriage, due to which, she became pregnant. When she told appellant Ram Singh about her pregnancy, he took her to Bhanupratappur and got her abortion done in a private nursing home. On the basis of the written complaint, an unnumbered FIR was registered against accused Ramsingh Salam at Narayanpur Police Station vide Ex.P-8. Later on, numbered FIR was 4 registered at Jharaghati Police Station for offence under sections 493 and 376 of IPC and sections 4 and 6 of the Protection of Children from Sexual Offences Act 2012. 4. During investigation, Vijan Kumar Mandal, who performed the abortion, was taken into custody and upon interrogation, he confessed the crime. Hence, he was charged for offence under sections 312 and 313 of the IPC and section 5 (2) (3) (4) of the Medical Termination of Pregnancy Act 1971. The victim's aunt Mankumari Yadav, was also charged for offence under section 201 of the IPC for not reporting the sexual harassment of the victim despite knowing about it. 5. The statement of prosecutrix under section 164 of CrPC was recorded vide Ex.P-5. The blood sample of the victim and the sample of the dead fetus were collected on 25.04.2019 and the blood sample of appellant Ramsingh was collected on 26.04.2019. The said samples were sent by the Superintendent of Police, District-Narayanpur vide Ex.P-30 on 27/04/2019 to the State Forensic Science Laboratory (DNA Unit), Raipur for DNA testing, which were received on 30.04.2019. As per the DNA test report Ex.P-31, it has been opined that appellant Ramsingh and the victim are biological father and mother of the dead fetus. After completion of investigation, appellants were charge-sheeted for the aforesaid offence before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law. 6. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 14 witnesses and exhibited 34 documents. The statements of the appellants / 5 accused were recorded under Section 313 of the CrPC in which they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, appellants-accused in support of their defence have neither examined any witness nor exhibited any document. 7. Learned trial Court after appreciating the oral and documentary evidence available on record, convicted and sentenced the appellants for the offence as mentioned in the second paragraph of this judgment, against which this appeal has been preferred by the appellants questioning the impugned judgment of conviction and order of sentence.
Legal Reasoning
8. Mr. Rajesh Jain, Mr. P. K. Tulsyan & Ms. Katyayani Vishnupriya, learned counsel appearing for the appellants submit that the learned trial Court is absolutely unjustified in convicting the appellants for the said offence, as the victim (PW-1) herself, her father (PW-3) and brother (PW-5) have not supported the case of prosecution and have turned hostile. They submit that the trial Court has erred in convicting the appellants on the basis of the victim's statement recorded under Section 164 of CrPC and the DNA test report (Ex.P-31) as the statement under Section 164 of Cr.P.C. is not a substantial evidence within the meaning of Section 3 of the Evidence Act and there are various discrepancies in collecting and depositing the blood samples of appellant Ramsingh, the victim and the sample of dead fetus. As such, merely on the basis of DNA report (Ex.P/31) appellant Ramsingh cannot be convicted in light of recent decision rendered by the Supreme Court in the matter of 6 Rahul v. State of Delhi, Ministry of Home Affairs and another1. Hence, the present appeal deserves to be allowed. 9. Per-contra, Mr. H. A. P. S. Bhatia, learned State counsel would support the impugned judgment of conviction and order of sentence and submit that the prosecution has been able to prove the offence beyond reasonable doubt by leading evidence of clinching nature. He submits that as per DNA report (Ex.P/31), it is clear that appellant Ramsingh and the victim were biological father and mother of the dead fetus. Therefore, the learned trial Court has rightly convicted the appellants for the said offence and the present appeal deserves to be dismissed. 10. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 11. In this case, the victim (PW-1) has turned hostile and has not confirmed the prosecution case against the appellants. She has even stated that she was about 20 years of age at the time of incident. Similarly, her father (PW-3) and brother (PW-5) have also turned hostile and they have denied having any knowledge about the incident. After their turning hostile, the trial Court has convicted the accused on the basis of the victim's statement recorded under Section 164 of CrPC, DNA report and statements of other prosecution witnesses. 12. Smt. Sachi Dewangan (PW-6) is one of the other witnesses examined by the prosecution who was working as a counselor in the Women and Child Development 1 (2023) 1 SCC 83 7 Department, Narayanpur. According to her, the victim (PW- 1) was brought to Sakhi Centre, Narayanpur by her aunt and her statement was recorded. The trial Court has also relied upon the statement of this witness. But the notable fact is that Smt. Sachi Devangan is a hearsay witness and the statement of a hearsay witness is not admissible in evidence. In this situation, the conviction based on the statement of other witness is not found to be proper because the statement of a hearsay witness is not admissible in evidence. 13. The victim (PW-1) has refused to identify any of the appellants in the court. Similarly, the victim's father (PW-3) and brother (PW-5) have also denied having any knowledge about the incident and have refused to identify the appellant party. The father (PW-3) has even stated in cross- examination that the age of the victim was about 20 years and when he had admitted the victim in the school, he had got the date of birth written by guess and no certificate was demanded. The entry made in the Dakhil Kharij register Ex. P-19 has been proved by the assistant teacher Khemlal Kashyap (PW-11). The father (PW-3) has denied having registered that entry as a guardian. 14. The next ground which has been made basis for conviction of the appellants is the statement of the victim (PW-1) recorded under Section 164 of the Code of Criminal Procedure. 15. However, the question that arises for consideration herein is, whether the statement of the victim (PW-1) recorded under Section 164 of Cr.P.C. would come within the meaning of evidence under Section 3 of the Evidence Act, 1872 ? 16. In the matter of Brijbhusan Singh v. Emperor2, the Privy 8 Council has observed that a statement made under Section 164 CrPC cannot be used as a substantive piece of evidence and it can be used to cross-examine the person who made it, and the result may be to show that the evidence of the witness is false. But that does not establish that what he stated out of Court under Section 164 CrPC is true. Similarly, in Mamand and others v. Emperor3, it has been observed by the Privy Council that the statement of a witness made under Section 164 CrPC can be used only to discredit the evidence given by him in Court, and not for any other purpose. Such a statement cannot be treated as substantive evidence of the facts stated. 17. In the matter of Ram Kishan Singh v. Harmit Kaur and another4, with regard to the value to be given to a statement under Section 164 CrPC, the Supreme Court has held that “a statement under Section 164 of the Code of Criminal Procedure is not substantive evidence. It can be used to corroborate the statement of a witness. It can be used to contradict a witness.” 18. The Supreme Court, in the matter of Sunil Kumar and others v. State of Madhya Pradesh5, has held that statement recorded under Section 164 of CrPC can be used for corroboration or contradiction. 19. Similarly, in the matter of George and others v. State of Kerala and another6, their Lordships of the Supreme Court have considered the issue as to whether the statement 2 AIR 1946 38 3 AIR 1946 45 4 AIR 1972 SC 202