Chukeshwar Gayakwad @ Chutu Vs State of Chhattisgarh

conviction and order of sentence dated 30.10.2021 passed by the learned Session Judge, Balod in Session Trial No.19/2019, whereby the appellant has been convicted under Sections 342 & 376 of IPC and sentenced to undergo RI for 6 months and RI for 10 years, respectively, with default stipulations.

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The prosecution case, in brief, is that on 19.03.2019, the prosecutrix lodged a written report before the concerned police station alleging that on 19.03.2019, when she was taking her admit card at her college, the appellant came and snatched her admit card and mobile and when she chased his car, then the appellant and his two friends took her forcefully in their car and took her to their big mother’s house, whereby the appellant committed forcible sexual intercourse with her, thereafter a case was registered against the appellant and other co-accused persons. After completion of investigation, the charge sheet was filed before the Magistrate concerned.

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Learned counsel for the appellant submits that the judgment passed by the learned Trial Court is contrary to law and material available on record. The learned Trial Court did not appreciate the oral and documentary evidence properly and did not consider omissions and contradictions in the statements of the prosecution witnesses. The prosecutrix is the consenting party but later on she refused the relation between her and the appellant. The other co-accused persons have already been acquitted by the

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learned Trial Court, as such the finding recorded by the learned Trial Court is not sustainable and the appellant deserves to be acquitted.

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Per contra, learned State counsel supports the impugned judgment and submits that the learned Trial Court has minutely appreciated the evidence available on record and has rightly convicted the appellant, as such no interference is called for. Therefore, the appeal deserves to be dismissed.

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Heard learned counsel for the parties and perused the material available on record.

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It is clear from the record of the learned Trial Court that the learned Trial Court framed charges under Sections 342 & 376 of of IPC against the accused and against other co-accused persons framed charges under Section 365/34 and 376 (d) of IPC and after appreciation of oral and documentary evidence, the learned Trial Court acquitted the co-accused persons from the offence under Sections 365/34 & 376 (d) of IPC and the appellant was also acquitted from the offence under Section 365/34 of IPC, whereas he has been convicted under Sections 342 & 376 of IPC.

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As per prosecution, on the date of incident, the prosecutrix was aged about 19 years so as per prosecution case the prosecutrix was major on the date of incident. She went to her college for examination. In para 2, she stated that when she came outside,

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the accused took snatched admit card and mobile and kidnapped her and took away. She also stated that he committed sexual intercourse against her will on many times and in crossexamination, she denied this suggestion that she was in love affair with the accused and she also denied this suggestion that she never got her photographs clicked with the accused. In para 15 of her cross-examination, she admitted that she wrote letter (Ex-D/2) to the accused, but she herself stated that she wrote this letter on accused’s saying. She admitted in para 18 that it is true that the accused had told Panch and Sarpanch of the village that he has married her. She also admitted that Panch and Sarpanch had interrogated her and after interrogation, they called her grandmother and they had sent her with her grandmother. In para 19, she admitted that her uncle (chacha) and her grandmother had taken her to home. She denied that Article-D/2, D/3 & D/4 is her photographs.

¶31

The conduct of the prosecutrix clearly shows that she is the consenting party to the act. Dr. R. Prasanno (PW-6) examined the prosecutrix and she opined that hymen was rupture and the intercourse was done and she gave her report (Ex-P/12). In the cross-examination, she admitted that she did not find any internal injuries and she also admitted that the prosecutrix is a major lady. Smt. Kaushalya (PW-2), grandmother of prosecutrix stated that Panch and Sarpanch called her, but in cross-examination, she denied this suggestion that the prosecutrix had told them that she

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had come on her own will, but she admitted this suggestion that after interrogation, documentation was done. She also admitted that in Articles-D/2, D/3 & D/4 (Photographs), the girl shown therein is looking like prosecutrix. Tribhuvan Lal Chandrakar (PW-3) and Yuvraj Markande (PW-4) stated that when they told grandmother of the prosecutrix that she had gone to appellant’s house, then she and prosecutrix’s uncle went to appellant’s home and upon their asking, the prosecutrix told that she came with the accused on her own will. In the cross-examination, they admitted that the prosecutrix had told that she came on her own will and she also told that she loves accused.

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The learned Trial Court acquitted the co-accused persons on this ground that the prosecution has failed to prove its case against the co-accused persons, but it is also clear that the conduct of the prosecutrix, statement of her grandmother and PW-3 & PW-4 clearly shows that she is in love affair with the accused and she is the consenting party. The prosecutrix also admitted her letter (Ex-D/2). Her grandmother also admitted that in photographs Articles D/2, D/3 & D/4, the girl shown is looking like prosecutrix.

¶35

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

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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 appellantaccused 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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22 . 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

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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 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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32 . 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

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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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3 2 . 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 view of the discussions, in the present case, it is clear that as per the prosecution itself, the prosecutrix is the major lady. The medical report also does not support the prosecution case and Dr. Prasanna did not find any internal injury on the body of the prosecutrix and the statement of the prosecutrix is also not reliable, as such the finding recorded by the learned Trial Court is not sustainable.

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Consequently, the appeal is allowed. The impugned judgment of

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conviction and order of sentence is hereby set aside. The appellant is acquitted of the charges under Sections 342 & 376 of IPC.

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The appellant is in jail. He be released forthwith if he is not required to be detained in any other offence.

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

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Sd/Rajani Dubey Judge

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Nirala

Chukeshwar Gayakwad @ Chutu v. State of Chhattisgarh

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Chukeshwar Gayakwad @ Chutu v. State of Chhattisgarh

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