Allowed

Sanesh Dehari v. the State of Chhattisgarh

Chhattisgarh HC24 Jun 2024CRA/189/2023

Case brief

AI extract

What is this about?

In this criminal appeal, the High Court of Chhattisgarh allowed the appellant's appeal against conviction for rape and kidnapping. The court set aside the lower court's verdict due to material contradictions in the prosecutrix's testimony and a lack of medical evidence supporting the alleged sexual intercourse, applying the test of 'sterling quality' of evidence.

What did the court decide?

The impugned judgment was set aside, the appellant was set free forthwith, and directed to furnish a personal bond of Rs. 25,000/- with two sureties.

Sanesh Dehari Vs the State of Chhattisgarh — Child Sexual Offences (POCSO) | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 189 of 2023

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1 - Sanesh Dehari S/o Sampat Dehari Aged About 27 Years R/o Deharipara, Kolar, Thana Ravghat, District Uttar Baster Kanker Chhattisgarh. ---- Appellant

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Versus

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1 - The State Of Chhattisgarh Through Police Station Ravghat, District Uttar Baster Kanker, Chhattisgarh. --- Respondent

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--- Respondent

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For Appellant Mr. Mukesh Shrivastava, Advocate For State - Mr. Sanghrash Pandey, GA

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Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Sachin Singh Rajput, Judge

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Order on Board

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Per Ramesh Sinha, Chief Justice

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25.06.2024

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What is under assail in this appeal is the judgment dated 02.1.2023 passed by Learned Special Judge (Protection of Children From Sexual Offence Act 2012) Bhanupratappur, CG in Special Criminal Case No. 04/2021 by which the accused/appellant has been held guilty under Sections 363, 366 and 376 (3) IPC with section 4 of the POCSO Act, and sentenced to undergo RI for 5 years with fine of Rs. 500/- u/s 363; RI for 07 years with fine of Rs. 500/- u/s 366 and RI for 20 years with fine of Rs. 10,000/- u/s 376 (3) of IPC , plus default stipulations.

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Facts of the case in brief are that on 14.12.2020 father of the prosecutrix lodged a report in the concerned police station that on 13.12.2020 when he was preparing food in a marriage ceremony in the house of one Bhairav Yadav, one Ku. Kamini told him that the accused/appellant had taken his daughter (victim) away by hand. Thereafter, he started searching of the victim but she was not found anywhere. Sometime thereafter the victim came near the house where marriage function was going on and told him that the

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accused/appellant had taken her away to the toilet of a middle school and made physical relations with her. On the basis of said written report lodged by the father of the victim, offence under Sections 363, 376 IPC and section 4 of the POCSO Act was registered against the accused/appellant. During investigation, statement of the victim was recorded by the Mahila police officer and after completion of necessary investigation related formalities, charge sheet was filed against the accused/appellant under sections 363, 366, 376, 376(iii) IPC and section 4 of the POCSO Act followed by framing of charge accordingly.

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Prosecution examined as many as 18 witnesses in order to prove its case. Statement of the accused/appellant under Section 313 CrPC was also recorded in which he denied the allegations made against him, and claimed trial.

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Learned trial Court after hearing the parties and going through the evidence adduced before it convicted and sentenced the accused/appellant as described above. Hence this appeal.

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Learned counsel for the accused/appellant submits that the appellant is innocent and has been roped in a false case. He submits that there are number of contradictions and omissions in the deposition of the prosecutrix and other witnesses, and being so conviction of the appellant cannot be based thereon. He submits that considering the overall facts and circumstances of the case and the evidence of the witnesses, the conviction of the appellant as described above is liable to be set aside by allowing the appeal.

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On the other hand, learned State counsel strenuously opposed the arguments advanced by counsel for the appellant and submitted that looking to the categorical statement made by the prosecutrix regarding the act of the accused of taking her away and then committing forcible sexual intercourse with her, duly supported by the testimony of other witnesses including the

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complainant, the findings recorded by the trial Court cannot be said to be perverse and illegal, warranting interference with the same in this appeal.

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State counsel submits that the notice was issued to the father of the victim but as he was not found in the house, the notice was served on the mother of the victim who has been examined by the trial Court as (PW-3).

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Heard counsel for the parties and perused the material available on record with great care and caution.

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The victim (PW-1) has stated that on the date of incident when she along with her friend Kamini (PW-4) was going to the house where marriage ceremony was going on, a motorcycle came over there and after it passed by them, they moved forward and then the accused/appellant who was standing by the side of the road, started dragging her by hand. On this, her friend Kamini parted the ways. She has stated that the accused/appellant then took her away to an under construction school, started touching her body parts (breasts) made her lie on the ground, undressed her and also himself, and then forced his penis into her private part. She however pushed her away and rushed towards the house where the marriage function was going on and disclosed the incident to her father who was preparing food there over. Though her father is stated to have tried to catch hold of the accused, he was not found. She was then medically examined and her statements under Sections 161 and 164 of CrPC was recorded. She has further stated that the ground where the incident took place was uneven with rough surface yet no injury was caused to her. The father of the victim (PW-2) has stated that the prosecutrix came home weeping and informed her mother about the forcible sexual intercourse committed with her by the accused/appellant. Mother of the victim (PW-3) has also stated that the prosecutrix had informed her about the forcible sexual intercourse committed with her by the accused/appellant.

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The doctor (PW-14) who medically examined the victim says that she did not notice any external or internal injury on the person of the prosecutrix including the private part. This witness has also stated that the hymen of the prosecutrix was intact and she did not find any sign of commission of rape with her. While giving the answer to a query, this witness has reiterated that on internal and external examination she did not notice any sign of rape on the prosecutrix. Not only this, even the FSL report is negative as regard the vegenal slide of the victim. Even the sperm found on the underwear of the accused though is of no consequence to arrived at any conclusion in such cases, has been found to be insufficient for being subjected to chemical examination.

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Before drawing any conclusion this Court again feels it apposite to find out the compatibility between the narration given by the victim, that of her parents, that of Kamini (PW-4), that of the uncle of the victim (PW-7) and that of the medical evidence. In addition to what has already been stated by the victim as discussed in the preceding paragraphs, she has described her tell tale stating that her uncle was at the relevant time posted in Narayanpur Police Station and that she had gone to lodge the report with him. On a specific query whether the report was written by her uncle, she expressed her ignorance. The evidence of another witness (PW-4) who had been with the victim at the time of being taken away by the accused goes to show that when the accused/appellant started dragging the victim, she did not raise any hue and cry because (PW-4) has categorically denied to have heard anything like this from the victim. She has stated that the uncle of the victim (PW-7) had asked about lodgment of report against the accused. This witness has again stated that she has given statement to the police as was told to her by the uncle of the victim. According to this witness, uncle of the victim had also told her as to how she was to state the things before the Court, and acting upon his say and also the say of other police people, she had stated accord-

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ingly. Now let us turn to the medical evidence. As has already been discussed, the doctor (PW-14) who medically examined the victim has categorically stated that on internal examination he did not notice any sign of sexual intercourse with her. This opinion given by the doctor also gets fortified by the negative FSL report. Even in the query report (Ex.P-22) she has stated that there was no sign of rape at the time of examination. She has further stated the hymen to be intact. On a query whether as a result of penile penetration the hymen could remain intact, he has answered the same in negative. This opinion if applied in this case makes it clear that there was no penetration with the victim. Further on a query as to how her opinion “All sign of examination and FSL report no sign of rape at the time of examination” has been given, this witness has stated that on internal and external examination of the victim, she did not notice any injury or sign of rape.

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The detailed discussion of the evidence of the victim and other important witnesses including the medical one goes to show that the victim was not subjected to rape and further the possibility of false implication of the accused cannot be ruled out.

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True it is that the conviction in the cases of like nature can be based solely on the testimony of the prosecutrix provided it is trustworthy, unblemished, of sterling quality and worthy of credence, but in the case in hand there is a huge gap between the things narrated by the victim and the medical opinion given by the doctor and therefore the benefit of doubt should go to the accused.

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In case of Santosh Prasad @ Santosh Kumar Vs. State of Bihar reported in (2020) 3 SCC 443 , the Supreme Court observed as under:-

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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

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prosecutrix inspires confidence and appears to be absolutely trustworthy, unblemished and is of sterling quality?

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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”.

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In the light of above factual and legal discussion, this Court is of the considered opinion that the accused/appellant cannot be convicted on the testimony of the prosecutrix alone for the reason that it is replete of contradictions, omissions and improvements which render the same absolutely untrustworthy to be acted upon and also that it does not pass the test of being of “sterling quality” as held in case of Santosh Prasad (Supra).

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This Court thus arrive at the conclusion that the prosecution has utterly failed to prove its case beyond all reasonable doubts and therefore the findings so recorded being not based on the just and proper appreciation of

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the evidence adduced by the prosecution cannot be made to exist. Being that, this Court is of the opinion that the conviction of the accused/appellant as mentioned above cannot be allowed to stand and therefore, the judgment impugned is hereby set aside and the appeal stands allowed.

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As the appellant is in jail, he is directed to be set free forthwith, if not needed in any other case.

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Keeping in view of the provisions of Section 437-A CrPC, the appellant is directed to furnish a personal bonds in terms of from No. 45 prescribed in the Code of Criminal Procedure of sum of Rs. 25,000/- with 2 reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months along with 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 thereon shall appear before the Hon’ble Supreme Court.

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The Trial Court record along-with the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.

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Sd/Sd/-

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(Sachin Singh Rajput) (Ramesh Sinha) Judge Chief Justice

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Jyotishi / pawan

Sanesh Dehari v. the State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Sanesh Dehari v. the State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

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