Ramesh Netam Vs The State Of Chhattisgarh

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Page No.1 of 11 IN CRA-1370-2015

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2025:CGHC:15883-DB

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Digitally signed by SAIFAN SAIFAN KHAN KHAN Date:2025.04.08 14:28:45 +0530

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 1370 of 2015

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[Arising out of judgment dated 25.08.2015, passed in Sessions Case No.120 of 2014 (State of Chhattisgarh v. Ramesh Netam) by the Special Sessions Judge (POCSO Act), Kondagaon (CG)]

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Ramesh Netam S/o Mishrilal Netam Aged About 23 Years R/o Khaspara Singhanpur, Police Station Keshkal, District Kondagaon, (Chhattisgarh)

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... Appellant

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Versus

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The State Of Chhattisgarh Through Police Station Narayanpur, District Narayanpur (Chhattisgarh)

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... Respondent

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[Cause-title taken from Case Information System (CIS)]

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For Appellant : Mrs. Meena Shastri, Advocate For Respondent : Mr. Arvind Dubey, Govt. Advocate

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Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board (04.04.2025)

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Sanjay K. Agrawal, J

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(1) This criminal appeal filed by the accused-appellant under Section 374(2) of CrPC is directed against the impugned judgment of conviction and order of sentence dated 25.08.2015, passed in Sessions Case No.120 of 2014 (State of Chhattisgarh v. Ramesh Netam) by the Special Sessions Judge, constituted under the provisions of the Protection of Children From Sexual Offences Act,

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Page No.2 of 11 IN CRA-1370-2015

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2012 (for short the “POCSO Act”), Kondagaon (CG), whereby he has been convicted and sentenced as under:

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Conviction	Sent	ence
U/s. 366 of IPC	Rigorous imprisonm fine of Rs.5,000/- payment of fine, imprisonment for 06	ent fo and, additi mont	r 10 years with in default of onal rigorous hs.
U/s. 506 (Part-II) of IPC	Rigorous imprisonm fine of Rs.5,000/- payment of fine, imprisonment for 06	ent fo and, additi mont	r 02 years with in default of onal rigorous hs.
U/s. 04 of POCSO Act	Imprisonment for Rs.10,000/- and, in of fine, ad imprisonment for 01	life defa ditiona year.	with fine of ult of payment l rigorous

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[All the sentences are directed to run concurrently]

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(2) The case of the prosecution, in short, is that on 28.04.2014, at about 20:00 hours, at Village Singhanpur, which comes within the ambit of Police Station Keshkal, Kondagaon (CG), the accusedappellant herein firstly abducted minor victim (PW-02), aged below 18 years, from lawful guardianship of her father and, thereafter, committed sexual intercourse with her against her will and consent and further threatened her to kill, if she discloses about the same to anyone and, thereby, said to have committed the aforesaid offence.

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(3) The further case of the prosecution is that when victim (PW02) reported the matter to the police, FIR (Ex.P/03) was registered against the appellant and wheels of investigation started running, in which, nazari naksha was prepared vide Ex.P/13. Victim’s statement under Section 164 of CrPC was recorded vide Ex.P/09.

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Page No.3 of 11 IN CRA-1370-2015

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After obtaining necessary consent vide Ex.P/04, the victim (PW-02) was subjected to medical examination, which was conducted by Dr. Rita Gedam (PW-04) and, as per his MLC report (Ex.P/14), it has been opined that no opinion regarding recent intercourse can be given, however, victim’s vaginal slide was also prepared and handed over to the police for analysis alongwith her undergarment, which were seized vide Ex.P/01. Thereafter, the appellant was arrested vide Ex.P/18 and sent for medical examination. Appellants’ MLC report is Ex.P/14 and his undergarment was also seized vide Ex.P/02. Further, one knife has also been seized from the spot vide Ex.P/15. However, though the aforesaid seized articles were sent for chemical analysis vide Ex.P/24, but no FSL report has been brought on record for the reasons best known to the prosecution. In order to ascertain correct age of the victim (PW-02), her school admission register (Ex.P/27C) and progress report of the year 200809 (Ex.P/07) were also obtained/seized, wherein her date of birth has been recorded as 24.12.1998, meaning thereby, the victim (PW02) was minor aged about 15 years 04 months (i.e. less than 16 years) on the date of offence. Further, the victim was also subjected to radiological examination and, according to Radiology Report (Ex.P/14), the radiological age of the victim (PW-02) has been opined to be between 13 to 16 years. Thereafter, statements of witnesses were recorded and, after due investigation, the appellant was charge-sheeted for the aforesaid offences in the competent criminal

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Page No.4 of 11 IN CRA-1370-2015

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Court having jurisdiction, which was thereafter committed to the Court of Sessions for hearing and trial in accordance with law, in which, the appellant abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated.

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(4) The prosecution in order to prove its case examined as many as 11 witnesses and exhibited 28 documents, whereas the appellant in support of his defence neither examined witness nor exhibited any document.

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(5) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant for offences punishable under Sections 366, 506 (Part-II) of IPC and also under Section 04 of the POCSO Act, 2012 and sentenced him as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence.

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(6) Mrs. Meena Shastri, learned counsel for the appellant would submit that the learned trial Court is absolutely unjustified in convicting the appellant for the aforesaid offences. She vehemently argued that the victim (PW-02) herself has not supported the case of the prosecution at all in her Court statement. Neither the forensic evidence nor the medical evidence is available in the present case. There is a delay of about 15 days in lodging the FIR (Ex.P/03). Only on the basis of statement of the victim (PW-02) recorded under

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Page No.5 of 11 IN CRA-1370-2015

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Section 164 of CrPC vide Ex.P/09, the appellant has been convicted for the offences in question, which is totally unsustainable and bad in law. As such, the appellant is entitled for acquittal from all the charges and, the present appeal deserves to be allowed in toto.

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(7) Per-contra , Mr. Arvind Dubey, learned State counsel would submit that prosecution has been able to prove the offences beyond reasonable doubt by leading evidence of clinching nature. It is further submitted that in view of statement of the victim (PW-02), wherein he has clearly narrated the incident and implicated appellant herein to be the author of the crime in question coupled with other evidence available on record, the trial Court has rightly convicted the appellant for the offences mentioned herein-above and, therefore, the appeal is liable to be dismissed.

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(8) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

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(9) In the case at hand, it is the case of the prosecution that the appellant herein firstly abducted minor victim (PW-02) and, thereafter committed sexual intercourse with her. However, in the present case, the date of incident is 28.04.2014, whereas the FIR (Ex.P/07) has been lodged by the victim (PW-02) on 12.05.2014 i.e. after about 15 days from the date of incident. Furthermore, the victim has been examined as PW-02 before the learned trial Court. A careful perusal of her court’s statement would show that she has

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Page No.6 of 11 IN CRA-1370-2015

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not supported the case of the prosecution at all, indeed, she clearly stated that the on account of pressure exerted by her aunt (stepmother), she reported the matter to the police, as her aunt (stepmother) had wrongly understood the facts and situation. The victim (PW-02) has only admitted her signature on her statement recorded under Section 164 of CrPC vide Ex.P/09 and submitted that on the instruction of her aunt (mousi maa) she has made statement under Section 164 of CrPC (Ex.P/09) as also her police statement (Ex.P/10). As such, the victim has not at all supported the case of the prosecution. Moreover, as per victim’s MLC report (Ex.P/14), it has also been opined that no opinion regarding recent intercourse can be given, which is duly supported by Dr. Rita Gedam (PW-04), who medically examined the victim (PW-02) and gave report (Ex.P/14). Since vaginal slide were prepared and handed-over to the police alongwith her undergarment for chemical analysis vide Ex.P/01 and same were sent to FSL, Raipur for examination alongwith undergarment of the appellant, but no FSL report has been brought on record by the prosecution for the reasons best known to the prosecution. Consequently, the medical evidence and forensic evidence is also not available in the present case. Yet, the learned trial Court proceeded to convict the appellant on the basis of statement of the victim recorded under Section 164 of CrPC vide Ex.P/09, to which, the victim (PW-02) has not supported and clearly stated that on account of pressure exerted by her mousi maa (step

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Page No.7 of 11 IN CRA-1370-2015

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mother), she reported the matter to the police and gave statement under Section 164 of CrPC.

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(10) It is well settled law that the statement made under Section 164 of CrPC cannot be used as a substantive piece of evidence. In Brijbhusan Singh v. Emperor 1 , the Privy Council has observed that a statement made under Section 164 of 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 of CrPC is true

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(11) Similarly, in Mamand and others v. Emperor 2 , it has been observed by the Privy Council that the statement of a witness made under Section 164 of 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.

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(12) In the matter of Ram Kishan Singh v. Harmit Kaur & Anr. 3 , with regard to the value to be given to a statement under Section 164 of 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.”

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1 AIR 1946 38

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2 AIR 1946 45

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3 AIR 1972 SC 202

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Page No.8 of 11 IN CRA-1370-2015

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(13) The Supreme Court, in the matter of Sunil Kumar and others v. State of Madhya Pradesh 4 , has held that statement recorded under Section 164 of CrPC can be used for corroboration or contradiction.

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(14) Similarly, in the matter of George and others v. State of Kerala and another5 , their Lordships of the Supreme Court have considered the issue as to whether the statement recorded under Section 164 of CrPC constitutes substantial evidence and held that a statement of a witness recorded under Section 164 of CrPC cannot be used as substantive evidence and can be used only for the purpose of contradicting or corroborating the maker of such statement.

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(15) Furthermore, in the matter of R. Shaji v. State of Kerala 6 , similar proposition of law has been laid down by their Lordships of the Supreme Court, which state as under :-

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“27. So far as the statement of witnesses recorded under Section 164 is concerned, the object is twofold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement; and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in court should be discarded, is not at all warranted. (Vide Jogendra Nahak v. State of Orissa, (2000) 1 SCC 272, and CCE v. Duncan Agro Industries Ltd., (2000) 7 SCC 53)

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4 AIR 1997 SC 940

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5 (1998) 4 SCC 605

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6 (2013) 14 SCC 266

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Page No.9 of 11 IN CRA-1370-2015

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28. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 CrPC can be relied upon for the purpose of corroborating statements made by witnesses in the committal court or even to contradict the same. As the defence had no opportunity to cross-examine the witnesses whose statements are recorded under Section 164 CrPC, such statements cannot be treated as substantive evidence. ”

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(16) Finally, in the matter of Somasundaram alias Somu v. State represented by the Deputy Commissioner of Police7 , a three judge bench of the Supreme Court considered the purport and value of Section 164 of CrPC. In paragraph 81 of the report following question was framed by their Lordships :-

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“81. Section 164 CrPC enables the recording of the statement or confession before the Magistrate. Is such statement substantive evidence? What is the purpose of recording the statement of confession under Section 164? What would be the position if the person giving the statement resiles from the same completely when he is examined as a witness? These questions are not res integra. Ordinarily, the prosecution which is conducted through the State and the police machinery would have custody of the person. Though, Section 164 does provide for safeguards to ensure that the statement or a confession is a voluntary affair it may turn out to be otherwise. We may advert to statements of law enunciated by this Court over time. ”

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(17) Thereafter, considering the decisions rendered in the matters

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of George (supra) and R. Shaji (supra), their Lordships held in paragraph 84 as under :-

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7 (2000) 1 SCC 272

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Page No.10 of 11 IN CRA-1370-2015

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“84. Thus, in a case where a witness, in his statement under Section 164 CrPC, makes culpability of the accused beyond doubt but when he is put on the witness stand in the trial, he does a complete somersault, as the statement under Section 164 is not substantial evidence then what would be the position? The substantive evidence is the evidence rendered in the court. Should there be no other evidence against the accused, it would be impermissible to convict the accused on the basis of the statement under Section 164. ”

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(18) From the aforesaid principle of law laid down by their Lordships of the Supreme Court in the aforesaid judgments qua statement under Section 164 of CrPC, it is quite vivid that the statement under Section 164 of CrPC is not an evidence much less substantial evidence within the meaning of Section 3 of the Indian Evidence Act, 1872 and it can be used only for the purpose of corroboration or contradiction. In absence of any other legally admissible evidence corroborating the evidence under Section 164 of CrPC, no conviction can be recorded. As such, in view of the aforesaid judgments of Hon'ble Supreme Court, Section 164 CrPC statement is not substantive piece of evidence and on the basis of Section 164 CrPC statement, conviction cannot be made.

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(19) In view of foregoing analysis, since the prosecution case has neither been supported by the medical evidence nor forensic evidence. Even the victim (PW-02) herself has not supported the case of the prosecution and, her statement recorded under Section 164 of CrPC vide Ex.P/09 is not a substantive piece of evidence and

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Page No.11 of 11 IN CRA-1370-2015

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only on that basis, the conviction cannot be recorded that too when victim (PW-02) has also not supported the same in her Court’s statement, the appellant herein is liable to acquitted of all the charges on the basis of benefit of doubt.

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(20) In view of the aforesaid discussion, the conviction and their respective sentences of the appellant for offence punishable under Sections 366 & 506 (Part-II) of IPC as also under Section 04 of the POCSO Act, as awarded by the learned trial Court, are hereby set aside. The appellant is acquitted of the said charges on the basis of benefit of doubt. Since the appellant is reported to be on bail, he need not to surrender, however, his bail bonds shall remain in force for a further period of six months in view of provision contained under Section 437-A of CrPC.

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(21) This criminal appeal is allowed to the extent indicated hereinabove.

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(22) Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action, if any.

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Sd/Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge

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s@if

Ramesh Netam v. The State Of Chhattisgarh

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Ramesh Netam v. The State Of Chhattisgarh

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