Partly allowed

Ajay Kumar Sarthi v. State Of Chhattisgarh

Chhattisgarh HC7 Feb 2024CRA/277/2017

Case brief

AI extract

What is this about?

This High Court Criminal Appeal review the conviction of three appellants for rape, robbery, and attempt to murder. The court allowed appeals of two appellants based on benefit of doubt due to lack of unique identification evidence. The third appellant was partially acquitted, with his rape charge downgraded and sentence altered to life imprisonment under Section 376 IPC.

What did the court decide?

Appeal of Ajay Sarthi dismissed partially; conviction for rape altered to Section 376 IPC with life sentence. Appeals of Jay Sarthi and Anand Mahilane allowed; they are acquitted of all charges.

Ajay Kumar Sarthi Vs State Of Chhattisgarh — Chhattisgarh HC (2024) — LawSathi Research

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AFR

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(Cr.A. No. 277 of 2017)

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRIMINAL APPEAL NO. 277 OF 2017

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[Judgment reserved on : 18.01.2024] [Judgment delivered on : 08.02.2024]

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(Arising out of Judgment and Order dated 24.1.2017 passed in Sessions Trial No.138/2015 by Additional Sessions Judge, Fast Track Court, Raigarh)

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Ajay Kumar Sarthi, S/o Bahadur Sarthi, aged about 22 years, R/o Uraonpara, Gharghoda, Police Station Gharghoda, District Raigarh (C.G.)

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Jai Kumar Sarthi, S/o Bahadur Sarthi, aged about 30 years, R/o Uraonpara, Gharghoda, Police Station Gharghoda, District Raigarh (C.G.)

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Anand Kumar Mahilane, S/o Shyamlal, aged about 25 years, Village Farswani, P.S. Dabhra, District JanjgirChampa. Presently R/o Satnamipara Gharghoda, Police Station Gharghoda, District Raigarh (C.G.)

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... Appellant(s)

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Versus

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State of Chhattisgarh, through: Station House Officer, Police Station Gharghoda, District Raigarh (C.G.)

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... Respondent(s)

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:- For Appellant Mr. Shakti Raj Sinha, Advocate. For Respondent/State :- Ms. Nand Kumari Kashyap, Panel Lawyer. Amicus Curiae :- Mr. Ashish Tiwari, Advocate.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay S. Agrawal

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C A V Judgment

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(Cr.A. No. 277 of 2017)

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. Sanjay K. Agrawal, J

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Invoking criminal appellate jurisdiction of this Court, the present criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 ('CrPC') has been filed by the three Appellants herein calling in question the legality, validity and correctness of the judgment and order dated 24.1.2017 passed by Additional Sessions Judge, Fast Track Court, Raigarh, District Raigarh in Sessions Trial No.138/2015 whereby each of the Appellants, i.e., A-1 Ajay Sarthi, A-2 Jai Sarthi and A-3 Anand Mahilane, has been convicted for the offences punishable under Sections 458, 394, 397/34, 376D, 377, 307/34 of Indian Penal Code, 1860 ('IPC') and sentenced as under:-

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Conviction	Sentence
1.u/S 458 of IPC.	R.I. for 7 years and fine of Rs.1000/- and in default of payment of fine, to suffer additional R.I. for 3 months.
2.Though convicted u/S 394/34 of IPC but sentenced u/S 397/34 IPC.	R.I. for 10 years and fine of Rs.2000/- and in default of payment of fine, to suffer additional R.I. for 6 months.
3.u/S 376D of IPC.	Imprisonment for Life and and fine of Rs.5000/- and in default of payment of fine, to suffer further R.I. for 1 year.

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(Cr.A. No. 277 of 2017)

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4.u/S 377 of IPC.	R.I. for 10 years and fine of Rs.5000/- and in default of payment of fine, to suffer additional R.I. for 1year.
5.u/S 307/34 of IPC.	R.I. for 7 years and fine of Rs.2000/- and in default of payment of fine, to suffer
	additional R.I. for 6 months.
All sentences have been	directed to run concurrently.

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Prosecution case, in brief:-

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The Victim, 70 years of age, used to reside at Satnami Para, Ward No.4, Gharghoda, District Raigarh all alone as her two sons and one daughter were residing separately with their respective families. In the intervening night of 10/11.8.2015, the Victim was sleeping in her house after closing the door of her house from inside. In the late night between 12-01 a.m., A-2 Jai Sarthi is said to have broken open the tin door of her house and then A-1 Ajay Sarthi and A-3 Anand Mahilane entered into the house and they robbed her four silver bangles costing to Rs.1600/-, aluminum utensils (two cooking pots & one dripping pan) amounting to Rs.500/and cash of Rs.1200/-. On making hue and cry by the Victim, A-1 Ajay Sarthi is said to have pushed her down on the floor and committed sexual intercourse with her forcibly and also inserted torch in her vagina. Further,

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(Cr.A. No. 277 of 2017)

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with an intention to kill the Victim, A-1 Ajay Sarthi also is said to have caused injuries on her neck and right eye with knife. They also threatened the Victim not to disclose the incident to anyone otherwise they would kill her. Subsequently, the incident is said to have been narrated by the Victim to her neighbours, PW-3 Pushpa and her son PW-6 Shivnath, who informed to PW-2 Bhakulal and PW-4 Gorelal, son and grandson of the Victim respectively, who came and admitted the Victim at Community Health Centre, Gharghoda at 3:00 a.m., which was intimated to the Police Station, Gharghoda at 8:00 a.m. by Dr. A.K. Minj (PW-9) vide Exhibit P-28.

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On the report of the victim, Dehati Nalishi/Zero F.I.R. (Exhibit P-33) was recorded by the Investigating Officer, PW-12 D.L. Mishra on 11.8.2015 at 9:30 a.m. for the offence punishable under Sections 458, 394, 397, 376, 377, 307, 34 of IPC against the three Appellants and crime details were drawn up vide Exhibit P-4 at 9:45 am. Thereafter, a numbered F.I.R. (Crime No.250/2015) was registered at 10:05 a.m. on the same day against the Appellants for the aforesaid offences, vide Exhibit P-32. Dr. A.K. Minj (PW-9) conducted the MLC of the Victim on

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(Cr.A. No. 277 of 2017)

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11.8.2015 at 1:10 p.m. vide Exhibit P-23 in which (i) lacerated wound (2x2x0.5 cm in size) was found on her right eye (ii) contusion (4x3x1cm in size) was found on the right axillary line of her chest and (iii) stab would (2x1x1 cm in size) was also found on her left anterolateral aspect of neck, all of which were caused by hard and blunt object and her opthalmology test and X- ray tests were advised. Thereafter, the MLC of A-1 Ajay Sarthi was also conducted by Dr. Minj (PW-9) in the midnight at 12:15 a.m. on 12.8.2015 vide Exhibit P-22 in which smegma was found present on the glans of his penis and he was found to be capable of doing sexual intercourse with any age of women or girl and his two semen-slides were prepared for chemical examination. The victim was also medically examined by Dr. Ranjana Tirkey (PW-10) on 11.8.2015 at 1:45 p.m. vide Exhibit P-31 in which multiple tears (1x1cm, 1x2cm, 1x0.1cm, 2x0.1 & 1x1 cm in size) from which blood was oozing, were found on her vagina. Her hymen was missing. Uterus was intact. There was tenderness while insertion of two fingers and the vagina was bleeding. There were tears (0.1x0.1cm, 0.1x0.1cm in size) also found over her

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(Cr.A. No. 277 of 2017)

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cervix. In the opinion of Dr. Tirkey, forceful sexual intercourse was done with the Victim. Two vaginal-slides and two vaginal-swabs of the Victim were prepared and sent for chemical examination along with her seized petticoat and panty. A-2 Jay Sarthi was also examined by Dr. Ranjana Tirkey on 12.8.2015 at 1:30 pm vide Exhibit P-38 in which superficial abrasion on his right ankle joint anterior side (2x1x0.1 cm in size) and post side (1x1x0.1 cm in size) was found to be caused by blunt object.

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On 11.8.2015, the three Appellants were apprehended and their memorandum statements were recorded and recoveries were made. Vide Exhibit P-14, blood-soaked soil, plain soil and one white colour broken beads etc., were seized from the place of incident. Vide Exhibit P-15, underwear and baniyan of A-1 Ajay Sarthi were seized. Pursuant to the memorandum statement of A-1 Ajay Sarthi recorded at 2:00 p.m vide Exhibit P-5, one knife, cash of Rs.400/- and one torch were recovered at 3:00 p.m. vide Exhibit P-6. Similarly, silver bangles, matchbox and cash of Rs.400/- were recovered at 3:30 p.m. vide Exhibit P-10, pursuant to the memorandum

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(Cr.A. No. 277 of 2017)

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statement of A-2 Jay Sarthi recorded at 2:15 p.m. vide Exhibit P-9. Likewise, pursuant to the memorandum statement of A-3 Anand Mahilane recorded at 2:30 p.m. vide Exhibit P-7, two cooking pots (dekchi), one dripping pan (kadahi) and cash of Rs.400/- were recovered at 3:45 p.m. vide Exhibit P-8. The seized bangles were certified to be made of silver, weighing 58gram and costing to Rs.1656/-, as per query report (Exhibit P-21). 5. Subsequently, on 11.8.2015 itself in the afternoon, vide Exhibit P-43, a memo was sent by Police Station, Gharghoda to the Executive Magistrate, Gharghoda requesting him to record the dying declaration of the Victim, pursuant to which, statement of the Victim was recorded by the Executive Magistrate, PW-13 Amit Beck between 3:20 to 3:40 p.m. vide Exhibit P-54 in which the Victim has implicated A-1 Ajay Sarthi and A-3 Anand Mahilane in the commission of the crime.

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The FSL report received is Exhibit C/1 in which blood was found on the petticoat (‘A’), panty (‘B’), slide (‘C’), slide (‘D’) and blouse (‘I’) of the Victim and on the knife (‘J’) and baniyan (‘N’) seized from A-1 Ajay Sarthi. Further, on examination to ascertain the types of blood,

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(Cr.A. No. 277 of 2017)

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human blood was found on the petticoat (‘A’), panty (‘B’), and blouse (‘I’) of the Victim and on the knife (‘J’) and baniyan (‘N’) seized from A-1 Ajay Sarthi. However, no blood/human was found the torch (‘K’) and underwear (‘L’) seized from him. Furthermore, on classification of bloodstains, ‘A’ blood group was found on the petticoat (‘A’) and blouse (‘I’) of the Victim. In addition, in semen test, no stain of semen and human sperms were found on Exhibits ‘A’, ‘B’, ‘C’, ‘D’, ‘E’, ‘F’, ‘K’ & ‘L’.

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After completion of the investigation, the appellants were charge-sheeted for the offences punishable under Sections 458, 394, 397/34, 376D, 377, 307/34 of IPC before the concerned jurisdictional Criminal Court from where the case was committed to the Sessions Court, Raigarh and the matter thereafter was received by the Court of Additional Sessions Judge, Fast Track Court, Raigarh for trial and its disposal in accordance with law, in which the Appellants abjured their guilt, took a plea of false implication and entreated for trial.

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During the course of trial, in order to bring home the offences, the prosecution has examined as many as 13 witnesses as PW-1 to P-13 and exhibited 54 documents

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(Cr.A. No. 277 of 2017)

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from Exhibits P-1 to P-54. Statements of the Appellants were recorded under Section 313 of 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, in their defence, neither any witness has been examined nor any document has been exhibited by them.

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After conclusion of the trial, the Trial Court, by impugned judgment and order dated 24.1.2017, on appreciation of oral and documentary evidence available on record, reached to the conclusion that the prosecution has been able to bring home the offences beyond reasonable doubt and accordingly convicted all the three Appellants for the offences punishable under Sections 458, 394, 397/34, 376D, 377, 307/34 of IPC and sentenced each of them in the manner as mentioned at the table shown in the opening paragraph of this judgement, which led to the filing of the present Criminal Appeal by the three Appellants.

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:Submissions of learned Counsels for parties

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Mr. Shakti Raj Sinha, learned Counsel appearing for the Appellants, would submit that on the basis of

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(Cr.A. No. 277 of 2017)

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circumstantial evidence, the charges have not been proved against the Appellants beyond reasonable doubt. He would submit that since the Victim died after one month from the incident by committing suicide and therefore, on account of non-examination of the Victim and merely on the basis of her MLC (Exhibit P-31), the Appellants cannot be convicted for the offence of rape. He would further submit that the alleged dying declaration given by the Victim is not useful to the prosecution as she remained alive for one month after the date of incident and died on account of committing suicide, in light of the decision of the Supreme Court in the matter of Sudhakar & Anr. v. State of Maharashtra 1 . Similarly, for the reason that the Victim had died, Test Identification Parade could not be conducted and the Appellants have not been identified in a duly conducted Test Identification Parade, therefore, their presence on the date and time of the offence is also doubtful. The FSL report also does not prove presence of any blood either on the clothes of the accused persons or the knife allegedly seized and the other articles including the bangles and the cooking utensils have also not been

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1 (2000) 6 SCC 671

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(Cr.A. No. 277 of 2017)

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identified. As such, the Appellants are entitled to be acquitted on the basis of benefit of doubt and the appeal deserves to be allowed.

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Ms. Nand Kumari Kashyap, learned State Counsel, per contra, would support the impugned judgment and order and submit that the Appellants have been charged for committing brutal rape of the Victim, aged about 70 years, and thereafter they also committed unnatural act by inserting torch in her vagina causing vaginal tears and also assaulted her with deadly weapon with an intention to cause her death. Learned State Counsel would further submit that the Victim at the time when she was injured and admitted in the hospital, had given her dying declaration which was duly recorded by the Executive Magistrate who has proved the incident. The cooking utensils, silver bangles and cash belonging to the Victim were also recovered on the basis of the memorandum statements of the accused persons. She would further submit that later on, a criminal case was also registered against the Appellants on the allegation of abetting suicide committed by the Victim because of the heinous offence committed by the Appellants against her

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(Cr.A. No. 277 of 2017)

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and in that criminal case also the present Appellants stands convicted on the basis of the suicidal note. As such, the Trial Court has rightly convicted the Appellants for the offences in question and the appeal is liable to be dismissed.

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We have heard learned counsels for parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection. :-

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Discussion & Analysis

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It is apparent on the face of record that the incident had occurred in the intervening night of 10/11.8.2015 between 12-01 a.m. in the night and the Victim is said to have committed suicide after one month from the date of incident, therefore, she could not be examined as a prosecution witness before the Court below to support its case and the case of the prosecution and the conviction of the Appellants is solely based on the circumstantial evidence.

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In order to convict the Appellants, the Trial Court has culled out certain incriminating circumstances in paragraph-41 of the impugned judgment, which are:-

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(Cr.A. No. 277 of 2017)

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1- izdj.k ds lqlaxr le; ,oa LFkku ij 70 o”khZ; ihfM+rk ds lkFk cyiwoZd laHkksx dkfjr gksuk eqykfgtk izfrosnu izn’kZ ih&31 ls izekf.kr gqvk gSA lkFk gh ostkbuy ijh{k.k esa Vh;lZ ,oa [kajksp dh ekStwnxh ;g Hkh bafxr djrk gS fd ihfM+rk ds lkFk u dsoy cyiwoZd laHkksx fd;k x;k oju mDr pksaVsa cyiwoZd laHkksx ds brj fdlh ySafxd vijk/k ds ?kfVr gksus dk ifjn`’; Hkh mriUu djrk gSA

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2- mDr brj ySafxd vijk/k ds laca/k esa ihfM+rk ds e`R;qdkfyd dFku leFkZudkjh gS ftlesa ihfM+rk us ;g cryk;k gS fd vkjksih vTk; lkjFkh ds }kjk mlds xqIrkax esa VkWpZ Mky nh x;h FkhA

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3- foospuk ds }kjk vfHk;qDr vt; lkjFkh dks fdlh Hkh mez ds efgyk ds lkFk laHkksx esa l{ke ik;k x;kA

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4- ihfM+rk ds csM gsM fVfdV esa mYysf[kr vuqlkj fnukad 11-08-2015 dks ihfM+rk dks izkr% bykt gsrq lkeqnkf;d LokLF; dsUnz ?kj?kksM+k mlds fj’rsnkj }kjk yk;k x;k Fkk ftldh tkudkjh iqfyl dks izn’kZ ih&28 ds ek/;e ls gksus ij izdj.k foospuk vUrxZr fy;k x;kA

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5- izdj.k esa ihfM+rk ds ekSf[kd ,oa fyf[kr ej.kklUu dFku vfHk;kstu ds dFkkud dk fgLlk jgsa gSaA ;|fi ihfM+rk ds fj’rsnkjksa us mDr ekSf[kd dFkuksa ds laca/k esa i{knzksgh lk{; izLrqr dh gS fdUrq rglhynkj vfer csd ds }kjk ys[kc) ej.kklUu dFku izn’kZ ih&54] ihfM+rk dh lwpuk ij ntZ nsgkrh ukfylh iz0ih0&33 rFkk ihfM+rk dk iqfyl dFku izdj.k ds fyf[kr ej.kklUu dFku gS ftUgsa foospuk vf/kdkjh Mh0,y0 feJk ,oa

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(Cr.A. No. 277 of 2017)

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rglhynkj vfer csd }kjk izekf.kr fd;k x;k gS ,oa v[kf.Mr jgdj crkrsa gSa fd ihfM+rk ml le; c;ku nsus esa l{ke FkhA

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6- blds vfrfjDr vkjksihx.k ds eseksjs.Me ,oa rnkuqlkj tIr’kqnk lkexzh ds laca/k esa foospuk vf/kdkjh dh lk{; v[kf.Mr jgh gS] ftlds vuqlkj tIr’kqnk lkefxz;ksa esa ihM+hrk ds gkFk ls fudkyh x;h pkanh dh pwfM+;k] uxnh jde 1]200@& :i;s rFkk Msdph ,oa dM+kgh dk vkjksihx.k ds vkf/kiR; ls cjken gksuk Hkh vfHk;qDrx.k ds fo:) esa fo| eku J`a[kyk dks iw.kZ djrk gSA

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7- blds vfrfjDr vkjksih t; lkjFkh ds eseksjs.Me esa mYysf[kr vuqlkj mlds iSj esa pksaV izekf.kr gksuk Hkh egRoiw.kZ rF; gSA

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Before entering into the merits of the matter, it would be relevant to notice the most celebrated judgement of the Supreme Court rendered in the matter of Sharad Birhichand Sarda v. State of Maharashtra 2 in which

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the five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence, have been catalogued in para153 which reads thus:-

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“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

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2 (1984) 4 SCC 116

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(Cr.A. No. 277 of 2017)

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(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra³ , where the following observations were made:

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Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

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(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

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(3) the circumstances should be of a conclusive nature and tendency,

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(4) they should exclude every possible hypothesis except the one to be proved, and

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(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. ”

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3 (1973) 2 SCC 793

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(Cr.A. No. 277 of 2017)

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In light of the aforesaid legal position and also in view of the incriminating circumstances culled out by the Trial Court in paragraph-41 of the impugned judgment, we will consider the case of the Appellants who have been convicted for the aforesaid offences.

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It is apparent on the face of the record that since the Victim had committed suicide after one month from the date of incident, she could not be examined by the prosecution as its witness and that against the Appellants herein, a Sessions Case No.135/2015 was also registered for the offence punishable under Section 306/34 of IPC for abetting suicide of the Victim and they have been convicted therein and thereafter enlarged on bail by the Appellate Court.

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It has been contended on behalf of the Appellants that since the Victim could not be examined, in absence of her examination to prove penetration, the Appellants could not have been convicted by the Trial Court for the offence punishable under Section 376D of IPC as to prove penetration, the Victim was the best witness who could have stated before the Court and in that event, the Appellants could have cross-examined her and only

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(Cr.A. No. 277 of 2017)

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thereafter, the Appellants could have been convicted for the offence punishable under Section 376D of IPC, if found proved beyond reasonable doubt.

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Admittedly, in the instant case, the Victim could not be examined before the Court below as she had died after one month from the date of incident. The issue of the non-examination of the victim who died and was not available for examination came before the Supreme Court in the matter of State of Karnataka v. Mahabaleshwar Gourya Naik 4 in which the accused was charged with the offences punishable under Sections 376/511 & 323 of IPC and he was convicted by the Trial Court and affirmed by the High Court giving him the benefit of doubt citing the reason of nonavailability of the victim for examination. In the said matter, their Lordships of the Supreme Court considered the question whether the case of the prosecution should be thrown overboard because of the non-availability of the victim for examination on account of her death and answered the issue holding that where the victim is dead and consequently could not be examined can never be a ground to acquit an accused if there is evidence 4 1992 Supp (3) SCC 179

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otherwise available proving the criminal act of the accused concerned. In that case, the accused was convicted for the offence punishable under Section 376/511 of IPC. As such, it is quite well settled that mere fact of non-availability of the victim for examination cannot be fatal for the prosecution case and the Court should decide the case on the basis of available evidence.

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Now, so far as the incriminating circumstance which have been pointed out by the prosecution and accepted by the Trial Court, in the medico-legal examination of the Victim conducted vide Exhibit P-31, tears and scratches have been found on her vagina and that implicates the Appellants. The said examination of the Victim was conducted and proved by PW-10 Dr. Ranjana Tirkey who found multiple tears (1x1cm, 1x2cm, 1x0.1cm, 2x0.1 & 1x1 cm in size) on the vagina of the Victim and from which blood was oozing. The blood was also found to be coming out from her vagina. In the cervix of the Victim also there were tears (0.1x0.1cm, 0.1x0.1cm in size) and internal scratches found. On her external examination also, a bleeding lacerated wound

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(Cr.A. No. 277 of 2017)

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(2x2x0.5 cm in size) was found on her right eye, a lacerated wound (2x1x0.5 cm in size) was found on her left neck and a contusion (4x3x1cm in size) was found on the right axillary line of her chest.

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At this stage, it would be appropriate to consider the medical report of the Appellants. The MLC of A-1 Ajay Sarthi was conducted by Dr. A.K. Minj (PW-9) at 12:15 a.m. on 12.8.2015 vide Exhibit P-22 in which smegma was found present on the glans of his penis and he was found to be capable of doing sexual intercourse with any age of women or girl. A-2 Jay Sarthi was also medically examined by Dr. Ranjana Tirkey (PW-10) on 12.8.2015 at 1:30 pm vide Exhibit P-38 in which superficial abrasions on his right ankle joint anterior side (2x1x0.1 cm in size) and post side (1x1x0.1 cm in size) were found to be caused by blunt object. There seems to be no MLC in respect to A-3 Anand Mahilane, if any conducted, has been brought on record by the prosecution for the reasons best known to them.

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From Exhibit P-22, which is the MLC of A-1 Ajay Sarthi, it clearly reveals that his medical examination was conducted in the midnight at 12:15 a.m. on 12.8.2015

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and similarly, from the MLC (Exhibit-38) of A-2 Jay Sarthi also it is reflected that his medical examination was conducted at 1:30 a.m. on 12.8.2015, i.e., after 24 hours from the time of incident that had occurred between 12-01 a.m. on 11.8.2015. The presence of smegma is inconsistent with a recent intercourse and that it would take about 24 hours to accumulate if the smegma is rubbed during intercourse [See: Mahabaleshwar Gourya Naik (supra)]. Since A-1 Ajay Sarthi was examined after 24 years from the incident, the smegma found on the glans of his penis was inconsistent. It is well-known in the medical world that the examination of smegma loses all importance after 24 hours of the performance of the sexual intercourse (See: Dr. S.P. Kohli v. High Court of Punjab and Haryana5 ). In that view of the matter, the presence of the smegma found on the glans of penis of A-1 Ajay Sarthi vide his MLC (Exhibit P-22), would have no importance to the arguments raised by the defence in this regard.

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5 (1979) 1 SCC 212

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(Cr.A. No. 277 of 2017)

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However, in the FSL report (Exhibit C/1), though no blood/human blood was found on the torch (‘K’) and underwear (‘L’) seized from A-1 Ajay Sarthi but human blood was found on the knife (‘J’) and baniyan (‘N’) seized from him. Further, in semen test, no stain of semen and human sperms were found on the petticoat (‘A’), panty (‘B’), slide (‘C’), slide (‘D’) swab (‘E’), swab (‘F’) of the Victim as well as on torch (‘K’) and underwear (‘L’) seized from A-1 Ajay Sarthi.

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The next circumstance that the prosecution has projected and the Trial Court has found proved is the dying declaration of the Victim (Exhibit P-54) recorded by the Executive Magistrate, PW-13 Amit Beck at 3:15 p.m. on 11.8.2015. In this regard, it has been contended on behalf of the Appellants that the Victim survived for one month after the incident and thereafter died by committing suicide and though in a separate trial for the offence punishable under Section 306/34 of IPC for abetting suicide of the Victim, the order of conviction has been passed against the Appellants herein but for the reason that the Victim had died after

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one month from date of incident, her statement (Exhibit P-54) could not be taken as a dying declaration and could not have been used by the prosecution against the Appellants, relying upon the decision of the Supreme Court in Sudhakar & Anr. (supra). It is for the prosecution to prove that at the time of making of statement, there was indication by the deceased that on account of humiliation suffered by her due to rape and loot, suggesting that a person who makes such a statement would under normal circumstances commit suicide after lapse of some time. Therefore, the statement made by the Victim vide Exhibit P-54 would not constitute a dying declaration. For ready reference, paragraphs 11 to 13 of the decision rendered in Sudhakar & Anr. (supra) are being reproduced herein under:-

¶124

"11. There is no legal evidence on record that the prosecutrix at or about the time of making the statement had disclosed her mind for committing suicide allegedly on account of the humiliation to which she was subjected to on account of rape committed on her person. The prosecution evidence does not even disclose the cause of death of the deceased. The circumstances stated in Exhibit P-59 do not suggest that a person making such a statement

¶125

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would, under the normal circumstances, commit suicide after more than five and a half months. The High Court was, therefore, not justified in relying upon Exhibit P-59 as a dying declaration holding it that the said statement was in series of circumstances of the transaction which resulted in the death of the deceased on 21.12.1994. The conviction of the persons accused of offences cannot be based upon conjunctions and suspicions. Statement Exhibit P-59 if not treated as a dying declaration, there is no cogent and reliable evidence which can connect the accused with the commission of the crime. In that event the other arguments advanced on behalf of the appellants assume importance. Other circumstances such as delay in lodging the FIR, medical examination of the prosecutrix, the non examination of material witnesses and turning hostile of witnesses including the Dnyaeshwar Mujmul and Dnyaneshwar Adhav are also required to be taken note of. It has also to be kept in mind that after the incident on 9th July, 1994, the prosecutrix is shown to have attended the school on 10th and 11th July, 1994 as well. Her mother in cross-examination also stated that Ms.Rakhi had told her about the incident only on 12th July, 1994 at about 5.00 p.m. PW3, the father of the prosecutrix deposed in the court that:

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"Rakhi did not tell me on 17th, 18th, 19th July, 1994 that she wanted to file a complaint. I did not ask Rakhi whatever she wanted to file a criminal complaint. I did not disclose before the police on 20.7.1994 that Rakhi told me that she wanted to file criminal complaint."

¶129

We are, therefore, of the opinion that prosecution has failed to prove, beyond reasonable doubt, that the appellants had committed forcible sexual intercourse with Ms.Rakhi on 9.7.1994 under the circumstances as narrated in Exhibit P-59 and relied upon by

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the courts below. The appellants cannot be convicted and sentenced merely on suspicion.

¶133

In the absence of the charge being proved under Section 376 IPC, the prosecution could not have asked for conviction of the appellants under Section 306 of the IPC as according to the prosecution it was the commission of the rape on her person which resulted in the suicide of Ms.Rakhi, allegedly on the abetment of the appellants. If the cause for committing suicide is not legally proved, the appellants cannot be held responsible for the abetment of the ultimate offence of suicide. "

¶134

In the present case also, the prosecution did not disclose

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the cause of death of the Victim who died after one month from the date of incident if it appeared to be suicidal for which the present Appellants have been tried separately for the offence punishable under Section 306/34 of IPC and the statement of the Victim, Exhibit P-54, does not suggest that a person who had made such a statement would under normal circumstances commit suicide after few months. In that view of the matter, reliance cannot be placed upon Exhibit P-54 as dying declaration.

¶136

Similarly, Dehati Nalishi/Zero FIR (Exhibit P-33) has also been considered as an incriminating circumstance. The Dehati Nalishi (Exhibit P-33) was recorded by the Investigating Officer, PW-12 D.L. Mishra on 11.8.2015 at

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9:30 a.m. and the F.I.R. (Exhibit P-32) was registered at 10:05 a.m. on the same day promptly and in which all the three Appellants have been named. The Victim in the Dehati Nalishi (Exhibit P-33) has stated that in the intervening night of 10/11.8.2015 when she was sleeping in her house after closing the door of her house from inside, in the late night between 12-01 a.m., A-2 Jai Sarthi broke open the tin door of her house and A-1 Ajay Sarthi and A-3 Anand Mahilane entered into the house and A-1 Ajay Sarthi snatched the silver bangles worn by the Victim and also looted cash amount of Rs.1200/- kept in a tin-box in the room and when she made hue and cry, A-1 Ajay Sarthi pushed her down on the floor and committed sexual intercourse with her forcibly and also inserted torch in her vagina and also took away her two aluminum cooking pots (dekchi) and one dripping pan (kadahi). Further, with an intention to kill the Victim, A-1 Ajay Sarthi caused injuries on her neck and right eye with knife and threatened her not to disclose the incident to anyone otherwise she would be killed. Thereafter, the Victim informed about the incident to her neighbours, PW-3 Pushpa and her son PW-6

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Shivnath, who then informed to her son PW-2 Bhakulal and grandson PW-4 Gorelal who admitted her at Community Health Centre, Gharghoda and Dr. A.K. Minj (PW-9) intimated the matter to the Police Station.

¶143

Thus, in view of the aforesaid discussion of evidence and principles of law laid down by the Supreme Court, so far as the appeal of A-1 Ajay Sarthi is concerned, in Dehati Nalishi/Zero FIR (Exhibit P-33) and in the FIR (Exhibit P-32), A-1 Ajay Sarthi has been clearly named by the Victim of his entering into her house, committing sexual intercourse with her as well as unnatural act of inserting torch in her vagina and further of causing injuries to her with knife with an intention to cause her death. In his MLC (Exhibit P-22), he was found competent of doing sexual intercourse by Dr. A.K. Minj (PW-9). The recovery of the knife pursuant to his memorandum statement (Exhibit P-5) has also been found proved and in the FSL report (Exhibit C/1), human blood was found on the knife (‘J’) recovered from him and in light of the decision v. of the Supreme Court in the matter of Balwan Singh State of Chhattisgarh & Anr. 6 if recovery is proved beyond reasonable doubt and weapon of offence is found 6 (2019) 7 SCC 781

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established with human blood on it then the recovery may be used against the accused person. A torch was also recovered from the possession of A-1 Ajay Sarthi, though no blood/human blood has been found on it in the FSL report. The recovery of cash amount of Rs.400/however would be insufficient to implicate him in the crime. As such, except for the offences punishable under Sections 394 & 397 of IPC, there is sufficient material available against A-1 Ajay Sarthi for commission of the offences punishable under Sections 458, 376, 377 & 307 of IPC.

¶147

Accordingly, we set-aside the conviction of A-1 Ajay Sarthi for the offences punishable under Sections 394 & 397 of IPC and affirm his conviction for the offences punishable under Sections 458, 377 & 307 of IPC. However, instead of Section 376D of IPC, we convict him for the offence punishable under Section 376 of IPC and considering the manner in which he had injured the Victim by inserting torch in her private part leading to severe vaginal tears and bleeding and committed sexual intercourse with the Victim who was aged about 70 years and was residing all alone separately from her

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sons and daughter, award him the maximum punishment of imprisonment of life prescribed in Section 376 of IPC.

¶151

Appeal of A-2 Jay Sarthi and A-3 Anand Mahilane

¶152

As regards the appeal of A-2 Jay Sarthi, though he has been named in the Dehati Nalishi/Zero FIR (Exhibit P-33) and in the FIR (Exhibit P-32) to have broken open the tin-door of her house, but he has not been named by the Victim to have committed any offence in question. There is no supporting evidence that he had entered into the house and also participated in the commission of the crime. Though in his MLC (Exhibit P-38), a superficial abrasion was found on his right ankle but that would not implicate him in the commission of the crime. Similarly, though pursuant to his memorandum statement, silver bangles, matchbox containing matchsticks and cash of Rs.400/- were seized but the seized bangles is not of any unique craftsmanship or a special jewel that could not be easily available in the local market, in view of the decision of the Supreme Court rendered in the matter of Digamber Vaishnav

¶153

and Another v. State of Chhattisgarh 7 . Similarly, the

¶154

7 (2019) 4 SCC 522

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recovery of cash and matchbox would also not implicate A-2 Jay Sarthi for commission of the offence in question. The seized articles could not have been examined or identified by the Victim since she had died. Accordingly, the conviction of A-2 Jay Sarthi for the offences punishable under Sections 458, 394, 397/34, 376D, 377, 307/34 of IPC deserves to be and is hereby setaside and he is acquitted of the said charges on the basis of benefit of doubt.

¶158

Now, so far as the appeal of A-3 Anand Mahilane is concerned, pursuant to the memorandum statement of A-3 Anand Mahilane, only two cooking pots (dekchi), a dripping pan (kadahi) and cash of Rs.400/- are said to have been recovered from him. Again, the said cooking utensils could not have been identified by the Victim and the said utensils were not of such a unique quality or make which are not easily available in the local market, therefore, in light of Digamber Vaishnav (supra) recovery of the said articles would not implicate A-3 Anand Mahilane for the offences charged with. Furthermore, though he has been named by the Victim in the Dehati Nalishi (Exhibit P-33) and FIR (Exhibit

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P-32) but there is no supporting evidence that he has also participated in the commission of the crime. No MLC, if any conducted, in respect of A-3 Anand Mahilane is available on record. We, accordingly, setaside the conviction of A-3 Anand Mahilane also for the offences punishable under Sections 458, 394, 397/34, 376D, 377, 307/34 of IPC and acquit him of the said charges on the basis of benefit of doubt.

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Conclusion:-

¶163

31. Consequently,

¶164

(i) The conviction and sentence of A-1 Ajay Sarthi for the offences punishable under Sections 394 & 397 of IPC are set-aside. However, his conviction and sentence for the offences punishable under Sections 458, 377 & 307 of IPC are maintained including the fine clause. Further, his conviction is altered from Section 376D to Section 376 of IPC and he is sentenced to undergo Imprisonment for Life under Section 376 of IPC, maintaining the fine clause.

¶165

(ii) The conviction and sentence of A-2 Jay Sarthi and A-3 Anand Mahilane for the offences punishable under Sections 458, 394, 397/34, 376D, 377, 307/34 of IPC

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are hereby set-aside and they are acquitted of the said charges on the basis of benefit of doubt. A-2 Jay Sarthi and A-3 Anand Mahilane are reported to be in jail since 11.8.2015. We direct that they be released from jail forthwith, if their detention is not required in connection with any other offence.

¶169

In the result, the appeal of A-2 Jay Sarthi and A-3 Anand Mahilane is allowed and the appeal of A-1 Ajay Sarthi is dismissed to the extent indicated herein-above.

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Let a certified copy of this judgment along with the original record be transmitted forthwith to the Trial Court and also to the concerned Jail Superintendent for information and necessary action at the earliest.

¶171

Before parting with the record, we express our unreserved and uninhibited appreciation for the valuable assistance rendered by Mr. Ashish Tiwari, Amicus Curiae, in this appeal.

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Sd/Sd/(Sanjay K. Agrawal) (Sanjay S. Agrawal) Judge Judge

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sharad

Ajay Kumar Sarthi v. State Of Chhattisgarh

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Ajay Kumar Sarthi v. State Of Chhattisgarh

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