Sandeep Sahu Vs State of Chhattisgarh

This criminal appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 which has arisen out of the judgment of conviction and order of sentenced dated 18.11.2022 passed by learned Additional Sessions Judge, Second (FTC), Janjgir, District- Janjgir-Champa (C.G.) in Sessions Case No. 25/2021, whereby the appellant has been convicted for

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offences under Sections 450, 376 & 323 of Indian Penal Code and sentenced in the following manner with a direction to run all the sentences concurrently:-

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*Conviction*	*Sentenc*	e
Under Section 450 of IPC	R.I. for	05 years and fine of Rs.
	1,000/-, fine, to 10 days.	in default of payment of undergo additional R.I. for
Under Section 376 of IPC	R.I. for 5,000/, fine, to 50 days.	10 years and fine of Rs. in default of payment of undergo additional R.I. for
Under Section 323 of IPC	R.I. for 1,000/-, fine, to 10 days.	01 year and fine of Rs. in default of payment of undergo additional R.I. for

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Prosecution Story:-

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4. Brief facts of the case are that the complainant/victim (PW-3) lodged a written complaint (Ex. P/1) before the Police Station- Janjgir, against the appellant that on the date of incident, when she was outside her house for feeding the food to the street dogs, at that time, in drunken condition, the appellant came to her house and he asked for water, then she entered in the house and suddenly appellant came in the house and caught hold her hand and arm and thereby he attempted to commit rape with her and on hue and cry being raised, he shut her mouth by his hand and he put a scarf (gamcha) over her neck and throttled her, from which, she received injuries on her neck as well as her chest, as a result of which she became unconscious and then the appellant committed rape with her forcibly. After the commission of rape, appellant throttled her neck with a scarf ( gamcha ) and threatened her not to disclose the incident to anyone, otherwise, he will kill her. On the next day of

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incident, the complainant/victim (PW-3) narrated the whole incident to her family members and lodged the written complaint vide Ex. P/1 against the appellant. On the basis of said complaint, the Police of Police Station- Janjgir registered an FIR vide Ex. P/2 for offences punishable under Sections 450, 376, 506 and 323 of IPC against the appellant. After obtaining the consent letter (Ex. P/3) from the complainant/prosecutrix (PW-3), her medical examination was conducted by Dr. Suneeta Dewangan (PW-9) and she found that there is redness swelling in the private part of the complainant/victim and scratches on her neck. PW-9, opined that the scratches/wound would have been inflicted and there is possibility of attack on the complainant/prosecutrix (PW-3) and gave her report vide Ex. P/8. Thereafter, the vaginal slide of the complainant/victim (PW-3) was prepared and petticoat was seized as per Seizure memo (Ex.P/10). Spot map was prepared vide Ex. P/9, scarf ( gamcha ) was seized from the spot vide Ex. P/4 and statements of the witnesses were recorded and the appellant was arrested as per Ex. P/14. Medical examination of the accused person/appellant was also conducted and during the medical examination of him, underwear was seized vide Ex. P/13. Statement of the complainant/victim (PW-3) was recorded under Section 164 of Cr.P.C. and also before the Judicial Magistrate and before the Woman Police Officer. Thereafter, the vaginal slide, underwear of the complainant/victim (PW-3) and underwear of the appellant were seized and sent for chemical examination to Regional FSL, Bilaspur as per Ex. P/11 and from where, report was obtained vide Ex. P/13. The prosecution after conducting the due and necessary investigation, led the charge-sheet before the Court of Chief Judicial Magistrate- Janjgir, thereafter matter was committed to the Court of learned Additional Sessions Judge (F.T.C.), Janjgir, District- Janjgir-Champa (C.G.) and after registration of the Sessions Trial No.

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25/2021, the Trial Court framed charges for offence under Sections 450, 376, 506 and 323 of IPC against the accused/appellant.

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In order to establish the charges against the appellant, the prosecution has examined as many as 10 witnesses and statement of complainant/victim (PW-3) was also recorded. The statement under Section 313 of Cr.P.C. of the appellant has also been recorded, in which he denied the incriminating charges leveled against him and pleaded his innocence that he has been falsely implicated in this case. The appellant has examined 01 witness to substantiate its case.

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6 . After appreciation of oral as well as documentary evidence led by the prosecution, the learned Trial Court has convicted the appellant and sentenced him as mentioned in opening paragraph of this judgment. Hence, this appeal.

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Submissions of the parties:-

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7 . Learned counsel for the appellant would submit that the judgment of conviction and order of sentence passed by learned Trial Court is bad-in-law as well as facts available on record. The prosecution has failed to establish its case beyond reasonable doubt, learned trial Court has failed to appreciate that the prosecution has not proved the case by independent and reliable witnesses, also failed to appreciate that the complainant/victim (PW-3) is a major lady. Learned trial Court has also failed to appreciate that the story of the prosecution has not been supported by any medical evidence and it is clear that the statement of complainant/victim (PW-3) is not reliable, therefore, there is lacuna in the case of prosecution, yet the learned Trial Court has convicted the appellant and therefore appellant is entitled for acquittal.

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8. Ex adverso , learned counsel for the State opposes the submissions of learned counsel for the appellant and has submitted that the prosecution has proved its case beyond reasonable doubt and the learned trial Court minutely appreciated the oral and documentary evidence and rightly convicted the appellant for the alleged offences and the impugned judgment of conviction and order of sentence needs no interference by this Court.

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9 . I have heard learned counsel for the parties and perused the material available on record including the impugned judgment.

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Discussion and Analysis:-

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10. It is clear from record of learned Trial Court that it framed charges against the appellant for offence under Sections 450, 376, 506-II and 323 of IPC. Learned Trial Court after minutely appreciating the oral and documentary evidence acquitted the appellant of the offence under Section 506-II of IPC and thereby convicted the appellant for offence punishable under Sections 450, 376 and 323 of IPC.

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11. The complainant/victim (PW-03) has stated in her examination-in-chief that on the date of incident i.e. 12.01.2020, at about 8:00 pm, when she opened the door of her house for feeding the food to the street dogs, at that time, the appellant came to her house and he asked for water, then she entered in the house for taking the water and at the time, the accused sat on the sofa and suddenly appellant came in the house and caught hold her hand and arm, then she asked what are you doing?, the appellant said that he is under the influence of liquor and thereby he attempted to commit rape with her and on hue and cry being raised, he throttled her mouth and neck due to which she became unconscious and then the appellant fled from the spot, however she did not know what happened with her by the appellant. On the next day of morning, she narrated the whole incident to her daughter and

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son-in-law (PW-2), thereafter she filed the written complaint vide Ex. P/1 at Police Station- Janjgir and also lodged the F.I.R. vide Ex. P/2. The prosecution declared her hostile and cross-examined her, but she stated that she did not know that whether the appellant committed rape or not, because at the time of incident, she became unconscious. When the written report (Ex.P/1) was read out to the complainant/victim, then she agreed that she lodged the report to the Police as aforementioned. In her cross-examination of para 7, she admitted this fact that her first marriage was solemnized with one Vinod Sao and second marriage was solemnized with one Ramkishore, the mother of the accused/appellant is sister-in-law of her. In para 9, she denied the suggestion that she was having love affair with the appellant’s father. In para 16, she admitted this fact that Mahesh Sahu and village’s people had convened the village meeting and she also admitted this fact that she went to Bilaspur with her son-in-law to consult with an Advocate.

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12. Mohan Mukesh Sahu (PW-1) has stated in his examination-in-chief that on 13.01.2021, the complainant’s relatives came to his house and told the whole incident to him and as per information given by her relatives, he has written the application. In his cross-examination, he admitted this fact he had prepared the written application by believing the version of complainant’s family, however, he did not verify the same from the complainant and also from the village.

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13. Nilesh Kumar Sahu (PW-2), who is the son-in-law of the complainant/victim (PW-3) has stated in examination-in-chief that on 12.01.2020, his mother-in-law (complainant/victim) had informed him over the phone that the accused/appellant committed rape with her. In his crossexamination, he admitted this fact that the complainant’s marriage was solemnized in the family of accused/appellant and also admitted this fact that

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after separation from the appellant’s family, she got married for the second time. In para 8 of his cross-examination, he admitted this fact that at the time of hearing of the bail application, they filed compromise application. He also admitted this fact that they wanted to settle the dispute peacefully in a community meeting, so that they can arrive at compromise.

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14. Dr. Sangeeta Dewangan (PW-9) who examined the complainant/victim (PW-3) stated that she found scratch marks on her neck and tenderness in her private part, she opined that blunt injury over neck and sweep of sexual assault. She prepared vaginal slide and sent the same for its chemical examination and as per FSL report , semen was found in vaginal slide of the complainant.

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15. Before the learned trial Court, the complainant/victim (PW-3) has stated that accused/appellant came to her house and asked for water and throttled her neck due to which she became unconscious and when she regained her consciousness, then she closed the door and fell asleep. When prosecution declared her hostile and cross-examined her, then she again stated that she did not know whether the appellant has committed rape with her or not as she was unconscious. She also stated that she signed in written report (Ex. P/1), however, she stated that someone else’s signture was there in place of hers. Then, again she stated that in Ex. P/1, she admitted her signature on A to B part.

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16. The complainant/victim (PW-3) has also admitted this fact the she did not disclose the incident to Village’s people, however, she told about the said incident to her son-in-law (PW-2) and daughter and she also admitted this fact that she engaged an advocate on her behalf. Nilesh Kumar Sahu (PW-2) has also admitted this fact that first they consulted with an Advocate (PW-1) and then they filed a written report (Ex. P/1). The conduct and statements of

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the complainant/victim (PW-3) are highly suspicious and she has not supported the written report (Ex. P/1) and FIR (Ex. P/2), when prosecution declared her hostile, then she admitted this fact in Ex. P/1, her signature is present on A to B part. Prosecution did not examine any neighbour of complainant and complainant herself admitted this fact that she did not disclose the said incident to village’s people and on the next day of morning, she disclose the said incident to her son-in-law and her daughter.

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17. It has been held by Hon’ble the Apex Court in the matter of Rai Sandeep Alias Deepu Vs. State (NCT OF DELHI) and other connected matter reported in 2012 (8) SCC 21, held in paras 21, 22 & 32 which reads as under:-

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“ 21. The other discrepancies which are to be mentioned are the categorical statement of the prosecutrix (PW 4) herself that after the alleged forcible sexual intercourse by both the accused, she wiped off her private parts with a red-coloured sock which was lying in the house, though at another place it was stated that both the accused used the red-coloured sock to wipe off their private parts after the commission of the offence Assuming both the versions to be true, we find that the red -coloured sock sent for chemical examination revealed that it did not contain any semblance of semen in it as per the FSL report, Exhibit PW- 14/N. It was also pointed out that while according to her the sock was handed over to the police in the hospital when the petticoat and the sock were seized from her, according to the seizure memo the sock was recovered from the place of occurrence. She was a married woman and except for the semen found on the petticoat, there is no other reliable evidence for implicating the appellant-accused to the crime alleged against them. In this background, when we refer to the oral version of the prosecutrix (PW 4), as pointed out by the learned counsel for the appellant, very many facts which were not found in her original statement were revealed for the first time before the court.

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In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should

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consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "starting witness whose version can be heated by the be called as a starting witneion and based on which the witness can be court without any corroprecise, the version of the said witness on the Coreshed to be on the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.

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In the decision in Krishan Kumar Malik v. State of Haryanas in respect of the offence of gang rape under Section 376(2)(g) IPC, it has been held as under in paras 31 and 32: (SCC p. 138).

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"31 . No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, which have already been projected hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the appellant guilty of the said offences.

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32. Indeed there are several significant variations in material facts in her Section 164 statement, Section 161 statement (CrPC), FIR and deposition in court. Thus, it was necessary to get her evidence corroborated independently, which they could have done either by examination of Ritu, her sister or Bimla Devi, who were present in the house at the time of her alleged abduction. The record shows that Bimla Devi though cited as a witness was not examined and later given up by the Public Prosecutor on the ground that she has been won over by the appellant. ’’

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In the light of above judgment, in the present case also, it is clear that there are material contradictions in the statement of complainant/ victim (PW-3). It is clear from evidence of complainant/victim (PW-3) that she is not sterling witness and applying the guidelines of the Hon’ble Apex Court, the solitary version in the examination in chief of the complainant/victim (PW-3) cannot be taken gospel truth on its face value, but the learned trial Court did not appreciate this fact while recording the finding of conviction. It is clear that prosecution has utterly failed to prove its case beyond all reasonable doubt. Thus, findings recorded by learned Trial Court being perverse are not sustainable in the eye of law.

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In the result, the appeal is allowed , the impugned judgment of conviction and sentence is set aside. The appellant is acquitted of all the charges levelled against him. He is still in jail, therefore, he be set free forthwith, if not required in any other case.

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Keeping in view the provision of Section 481 of BNSS, 2023., the appellant is directed to furnish the personal bond a sum of Rs. 25,000/- before the Court concerned which shall be effective for a period of six months along with an 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 thereof, shall appear before the Hon’ble Supreme Court.

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

Sd/-

(Rajani Dubey)

JUDGE

AMIT PATEL

Sandeep Sahu v. State of Chhattisgarh

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Sandeep Sahu v. State of Chhattisgarh

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