Anoop Tirki Vs State of Chhattisgarh

dated 19/05/2006 passed by learned Sessions Judge, Jashpur (C.G.) in Sessions Trial No. 71/2005 by which, the Appellant has been convicted for offence punishable under Section 376(1) of IPC and sentenced to undergo RI for 7 years.

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Case of the prosecution, in brief, is that on the morning of 31.03.2005, at around 6:00 AM, in the village of Ramsambha, the prosecutrix (PW-4) had gone alone to a nearby Kuilomra forest to collect Mahua. While she was collecting Mahua, the appellant arrived and, under the pretext of discussing Mahua collection, created an isolated atmosphere by ensuring there was no one around. Finding the prosecutrix alone, he grabbed her right hand and held her waist tightly. With wrongful intent, he dragged her towards a nearby pit. Despite her resistance, the accused did not relent. In the pit, he forcefully threw her on the ground and then raped her. During the struggle, her right bangle was also broken. After the incident, the prosecutrix returned home and informed her husband about the incident. The next morning, she went to Bagicha police station and lodged a First Information Report vide Exhibit P-7. Thereafter, the prosecutrix was medically examined. The medical examination of the prosecutrix was conducted by Dr. Shakuntala Nikunj (PW-6). Her medical report is Exhibit P-10. In her report (Exhibit P-10), Dr. Shakuntala

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Nikunj stated that the prosecutrix was habituated to sexual intercourse. Following the prosecutrix’s medical examination, her vaginal slides and swabs were seized. Additionally, the prosecutrix’s petticoat was also seized. A site map of the incident location was prepared vide Exhibit P-9. A site map (Ex.P-2) and Patwari Panchnama (Ex.P-3) was also prepared by Patwari Placidius Toppo (PW-2). The seized articles were sent for forensic examination (FSL), and after recording witness statements, arresting the appellant and upon completion of investigation, the charge sheet was filed.

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During the course of trial, in order to bring home the of f ence, the prosecution has examined as many as 9 witnesses and exhibited 17 documents. Statements of the appellant was recorded under Section 313 of Cr.P.C. in which he denied circumstances appearing against him in prosecution case, pleaded innocence and false implication.

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After hearing the parties, the trial court passed the impugned judgment of conviction and order of sentence. Hence, this appeal.

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Learned counsel for the appellant submits that the appellant has been wrongly convicted by the Trial Court. She further submits that there are material contradictions and omissions occurred in the statements of the

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prosecutrix (PW-4) and her husband (PW-1). The prosecutrix is not a credible witness and due to a dispute relating to collecting Mahua, a false report has been lodged by her against the appellant. The prosecution has failed to prove its case beyond doubt, therefore, the appellant may be acquitted of the charges leveled against him by setting aside the judgment of conviction and order of sentence.

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On the other hand, the learned counsel for the State submits that the conclusion given by the trial court regarding conviction and sentence of the appellant is based on sufficient and reliable evidence, which does not require any interference. Therefore, the contention made by the counsel for the appellant is not acceptable, hence, the appeal may be dismissed.

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Heard learned counsel for the parties and perused the record with utmost circumspection.

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In this case, the prosecutrix (PW-4) is a 30-year-old married woman. The incident is said to have taken place on 31/03/2005 at 06:00 a.m., the police report of which was filed on the next day, i.e. on 01/04/2005. It is an undisputed fact that the appellant's field is adjacent to the place of incident where Mahua tree is planted. After the police report, Dr. Shakuntala Nikunj (PW-6) conducted a

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medical examination of the prosecutrix (PW-4) and submitted a report (Exhibit P-10). According to which, no injury was found on the body of the prosecutrix (PW-4) and no definite opinion has been given by the doctor regarding whether she was raped. It is said that the slide prepared by the doctor and the prosecutrix's undergarment were sent for chemical examination, but no examination report is attached on record, the reason for which best known by the prosecution. Thus, apart from the oral evidence of the prosecutrix (PW-4), there is no corroborative evidence available on record.

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The judgment of the Hon’ble Supreme Court in the matter of Santosh Prasad @ Santosh Kumar v. State of Bihar, (2020) 3 SCC 443, the concept expressed by the Hon'ble Supreme Court regarding the assessment of the credibility of the statement of the sole prosecutrix is as follows in paragraphs No.-5.5 & 6:-

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“5.5 With the aforesaid decisions in mind, it is required to be considered, whether is it safe to convict the accused solely on the solitary evidence of the prosecutrix? Whether the evidence of the prosecutrix inspires confidence and appears to be absolutely trustworthy, unblemished and is of sterling quality?”

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“6. Having gone through and considered the deposition of the prosecutrix, we find that there are material contradictions. Not only there are material contradictions, but even the manner in which the alleged incident has taken place as per the version

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of the prosecutrix is not believable. In the examination-in-chief, the prosecutrix has stated that after jumping the fallen compound wall accused came inside and thereafter the accused committed rape. She has stated that she identified the accused from the light of the mobile. However, no mobile is recovered. Even nothing is on record that there was a broken compound wall. She has further stated that in the morning at 10 O’clock she went to the police station and gave oral complaint. However, according to the investigating officer a written complaint was given. It is also required to be noted that even the FIR is registered at 4:00 p.m. In her deposition, the prosecutrix has referred to the name of Shanti Devi, PW1 and others. However, Shanti Devi has not supported the case of the prosecution. Therefore, when we tested the version of PW5-prosecutrix, it is unfortunate that the said witness has failed to pass any of the tests of “sterling witness”. There is a variation in her version about giving the complaint. There is a delay in the FIR. The medical report does not support the case of the prosecution. FSL report also does not support the case of the prosecution. As admitted, there was an enmity/dispute between both the parties with respect to land. The manner in which the occurrence is stated to have occurred is not believable. Therefore, in the facts and circumstances of the case, we find that the solitary version of the prosecutrix-PW5 cannot be taken as a gospel truth at face value and in the absence of any other supporting evidence, there is no scope to sustain the conviction and sentence imposed on the appellant and accused is to be given the benefit of doubt.”

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Reverting to the case at hand, the prosecutrix (PW-4)

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has supported the report (Ex.P-7) lodged by her in her Court statement and stated that when she had gone to

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collect Mahua, the appellant forcefully raped her there. The prosecutrix (PW-4) has not stated that she had resisted or shouted at the time of the alleged incident and that as a result she or the appellant suffered any kind of injury. But the prosecutrix has admitted that the appellant's land adjoins the boundary of the trees from which she was collecting the fallen Mahua and she herself stated that it is government grass land. The prosecutrix (PW-4) and her husband (PW-1) have admitted that they did not inform anyone else in the village about the incident but went to the police and reported it in the next day because they did not have any means to go to the police station that day.

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In this case, according to the spot map (Exhibit P-9) prepared by Assistant Sub Inspector R.C. Ram (PW-8) as investigating officer and the map (Exhibit P-2) prepared by Patwari Placidius Toppo (PW-2) and Panchnama (Exhibit P- 3), the place of incident is an open place where there are two Mahua trees and the field of the appellant is said to be adjacent to it. In such a situation, if the appellant had forced himself upon her, then no such mark has been found on the body of the prosecutrix (PW-4). In the map (Exhibit P-2) prepared by the Patwari, it is mentioned that the Mahua which the prosecutrix had collected and later the appellant took it to his house. This map is said to have been prepared on the basis of the information given by the

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prosecutrix. But the fact that the Mahua bought by her was taken away by the appellant to his house was denied by the prosecutrix in the map and her husband (PW-1) has stated that he has no knowledge in this regard.

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There are other contradictions in the statements of the prosecutrix (PW-4) and her husband (PW-1) on the basis of which the statement of the prosecutrix cannot be trusted beyond doubt. During cross-examination on the suggestion of the appellant’s party, the prosecutrix has stated that her family has been boycotted by the village community, but the prosecutrix denied that the reason for boycott is this incident and said that they have been boycotted because their cattle had grazed the crops of the villagers. On the other hand, her husband (PW-1) has admitted in paragraph 11 of the cross-examination that the villagers have let them go after reporting this incident. When the husband (PW-1) was asked that the prosecutrix has filed a false report against the appellant regarding the dispute over Mahua, whereas no incident of rape took place, then her husband stated that he is stating what his wife told him. Whereas the prosecutrix has denied the fact that she got a false report of rape registered against the appellant due to the dispute over collecting Mahua. The husband (PW-1) has firstly stated in his statement that the prosecutrix (PW-1) had a dispute and scuffle with the appellant over collecting

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Mahua and the appellant had snatched the Mahua. A similar mention is also reflected in the map (exhibit P-2) that the appellant had taken away the Mahua collected by the prosecutrix. Later the husband (PW-1) has stated that the prosecutrix had informed him that the appellant had also raped her. In cross-examination the husband (PW-1) admitted that his and the appellant's fields are adjacent to the place of incident.

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In such a situation, the statement of the husband of the prosecutrix (PW-1) has come that there was a dispute and scuffle between the two parties over Mahua and the appellant had snatched the Mahua and the the map also mentions that Mahua was snatched and taken away by the appellant, about which the prosecutrix herself is not giving clear information and the statement of the prosecutrix (PW4) is not supported by any other evidence. Even the incident of rape in an open place has been told but no information was given by anyone in the village before or after the report. On the other hand, the husband has admitted that the family of the prosecutrix has been socially boycotted by the villagers due to this incident. Looking at the entire facts, situation and evidence, the prosecutrix is not found to be a reliable witness beyond doubt. Therefore, this Court finds that the conviction of the appellant is not based on clear, sufficient and reliable

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evidence, hence his conviction is not found to be upheld.

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Accordingly, the appeal is allowed. The impugned judgment is set aside and the appellant is acquitted of the charges levelled against him.

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It is reported that the Appellant is on bail. He need not to surrender in this case. His bail bonds shall remain in force for a period of six months in view of the provisions contained in Section 437-A of the Cr.P.C.

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Let a certif i ed copy of this judgment along with the original record be transmitted to the trial Court concerned forthwith for information and necessary action, if any.

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Sd/- (Sanjay Kumar Jaiswal) Judge

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Shubham

Anoop Tirki v. State of Chhattisgarh

Case brief

What is this about?

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Anoop Tirki v. State of Chhattisgarh

Case brief

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