The State Of C.g. Vs Santosh Sen and Ors.

The present appeal has been filed by the appellant challenging the judgment dated 13.12.2010 passed by the learned Second Additional Sessions Judge, FTC, Korba (C.G.) in Sessions Trial No. 126/2009 whereby the learned trial Court acquitted the respondents/accused of the charges under Sections 109, 376, and 342 of the IPC.

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The prosecution case, in brief, is that on the date of the incident, the prosecutrix had gone to the barber shop of Santosh at Parsabhata, and thereafter accompanied Tularam Sen who is father of Santosh to their residence. She slept in the TV room along with her sister-in-law Kunti and the children. At about 5:30 a.m., Tularam was quarrelling with his family members and was uttering filthy and abusive language, which was objected by the prosecutrix. The objection so raised by the prosecutrix enraged Tularam (since deceased), who in turn instigated the present respondents to ravish the prosecutrix as she claims herself to be very decent. Upon the abatement and instigation given by the deceased the present respondents dragged the prosecutrix into a separate room and committed forcible sexual intercourse with her. When the prosecutrix began to scream, the accused persons gagged her, locked her inside the room and left. Thereafter, wife

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of the accused Santosh opened the door, enabling the prosecutrix to leave. The prosecutrix then boarded a bus to Bilaspur, informed her cousin Ajay about the incident and subsequently lodged a report.

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Upon investigation, the accused were found prima facie liable for offences punishable under Sections 376, 109, and 342 of the Indian Penal Code. Accordingly, a charge-sheet was filed before the Court of the Judicial Magistrate First Class on 26.10.2009. As the said Court lacked jurisdiction to try offences under Sections 376, 109 and 342 of the IPC, the Judicial Magistrate First Class committed the accused to the Court of the learned Sessions Judge, Korba, on 10.11.2009. The learned Sessions Court, Korba, thereafter transferred the case to this Court for proper disposal on 05.04.2010. Learned trial Court framed charges against the respondents/accused for the offence punishable under Sections 376, 109 and 342 of IPC, to which the accused abjured their guilt and claimed to be tried.

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So as to hold the accused/respondent guilty, the prosecution examined 9 witnesses. Statements of the accused/respondents were also recorded under Section 313 of Cr.P.C. in which they denied the incriminating circumstances appearing against them and pleaded innocence and false implication in the case. Respondents/accused did not adduce any evidence in defence.

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After appreciating the oral and documentary evidence, the learned trial Court acquitted the respondents of the charges under

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Sections 109, 376 and 342 of the IPC. Hence, this acquittal appeal.

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Learned counsel for the appellant submits that the learned trial Court has erred in acquitting the respondents of the offences charged. It is contended that the learned trial Court was not justified in suspecting the prosecution case merely on the ground of delay in lodging the FIR, which in the present case was only about 17 hours. It is further submitted that the learned trial Court failed to appreciate the evidence in its proper perspective and has instead succumbed to surmises and conjectures. The prosecutrix (P.W.-3) has clearly and specifically narrated the act of crime committed upon her by the respondents and her testimony finds support from the evidence of Dr. S. Shrivastava (P.W.-9). It is also urged that the learned trial Judge was not justified in doubting the version of the prosecutrix particularly in the backdrop of the previous enmity between the families of both sides.

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It is further submitted that the prosecutrix is a Government servant rendering her duties in the Home Guard Department and in such circumstances, the possibility of falsely implicating innocent persons stands absolutely ruled out as doing so would amount to putting her honour at stake. The learned counsel contends that the learned trial Court has also erred in holding that the place of occurrence being situated in a dance locality casts doubt on the version of the prosecutrix merely because she did not disclose the incident to anyone in that area. It is further

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submitted that the learned trial Court was not justified in placing undue reliance on the defence version. In view of the foregoing submissions, it is urged that the order of acquittal is improper, unjust and illegal, and therefore liable to be set aside.

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On the other hand, learned counsel for the accused/respondents submits that the learned trial Court has rightly appreciated the evidence on record and has correctly acquitted them. The delay of 17 hours in lodging the FIR is significant and creates doubt about the prosecution case. The alleged previous enmity between the parties further strengthens the possibility of false implication. The prosecutrix’s conduct, including her failure to disclose the incident to anyone at the place of occurrence, makes the prosecution story unnatural and improbable. The defence version was rightly accepted by the trial Court and no ground is made out to interfere with a well-reasoned judgment of acquittal.

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Heard counsel for the parties and perused the material placed on record including the impugned judgment.

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From the record of the learned trial Court, it is evident that the respondents/accused were charged under Sections 109, 376 and 342 of the IPC and after due appreciation of oral and documentary evidence, the learned trial Court acquitted them of all the charges.

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In her examination-in-chief, the prosecutrix (P.W.-3) narrated the incident and supported the version stated in her report. During cross-examination, she admitted that a criminal case was pending against her brother in which the complainant is the sister of the

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respondents. She further admitted that in the said criminal case, her brother had been convicted and sentenced to seven years’ imprisonment. She also stated that a maintenance case was pending against her brother. She stated that after the incident, instead of going to the Balco Police Station, she travelled to Bilaspur by bus.

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In para 6 of her cross-examination, she further admitted that at the Bilaspur bus stand she had told her brother that she had been misbehaved and not raped.

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Dr. S. Shrivastava (P.W.-9) who examined the prosecutrix, stated that she did not find any internal injuries, nor were there any injuries on the legs or thighs of the prosecutrix.

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11.The independent witnesses did not support the prosecution case. Upon a meticulous appreciation of the oral and documentary evidence, the learned trial Court found the statements of the prosecutrix to be unreliable. It also noted that she herself was working as a Nagar Sena Volunteer and had not lodged the report immediately after the incident.

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The Hon’ble Apex Court in its latest judgment dated 12.02.2024 (Criminal Appeal No 1162 of 2011) passed in Mallappa and Ors. Versus State of Karnataka, has held in para 36 as under:-

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36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be

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summarized as:-

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“(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive-inclusive of all evidence, oral and documentary;

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(ii Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;

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(iii If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;

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(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;

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(v) If the appellate Court is inclined to reverse the acquittal in appeal on a reappreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;

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(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or

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fact in the decision of the Trial Court.”

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Having regard to the aforesaid legal position and upon due consideration of the oral and documentary evidence available on record including the admitted fact of previous enmity between the prosecutrix and the respondents as well as the unreliable nature of her statements and her suspicious conduct, this Court finds that the medical evidence also does not support the prosecution case. The findings recorded by the learned trial Court acquitting the respondents of the offences punishable under Sections 109, 376 and 342 of the IPC are based on a proper and judicious appreciation of the facts and circumstances of the case and are strictly in accordance with law. Further it is also well settled if based on the evidence on record there are two views, one favouring the accused and the another against him, the Court should adopt the view favouring the accused. In the present case, as observed above and discussed by the learned trial Court, the prosecution has utterly failed in proving its case beyond all reasonable doubt. Being so, this Court finds no good reason to interfere with the finding of acquittal recorded by the learned trial Court.

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Accordingly, the acquittal appeal is hereby dismissed .

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Sd/Sd/-

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(Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge

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Ruchi RUCHI YADAV Digitally signed byRUCHI YADAV

The State Of C.g. v. Santosh Sen and Ors.

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The State Of C.g. v. Santosh Sen and Ors.

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