Suresh Ku.Nishad Vs State of Chhattisgarh

This appeal under Section 374 (2) of Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) has been filed by the appellant, assailing the legality, validity and judicial propriety of conviction and order of sentence dated 04.05.2005 passed by the learned Court of Sessions Judge, Dhamtari Bench of Raipur (C.G.) (for short trial Court) in Session Trial No.281/2004 by which learned trial Court has held the appellant guilty of commission of offence and sentenced as described below -

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Conviction	Sentence Awarded
U/s 511 of Indian Penal Code.	R.I. for 5 years with fine of Rs. 100/-
	in default of payment to under go RI one month separately.

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The prosecution case in brief is that on 18.07.2004 at about 9:30 p.m., in village Katholi, the prosecutrix, aged about 12 years, was returning home after watching television. At that time, the accused/appellant was sitting in front of his house. He forcibly grabbed the prosecutrix forcibly, took her away from the house towards the roadside, and there committed rape upon her.

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An FIR vide Ex.P/1 was lodged at police Station – Kurud under Section 376 and 511 of IPC and investigation was set on motion. Prosecutrix and the accused appellant was examined and blue colour undergarment of prosecutrix was seized vide Ex. P/2. After completion of the investigation the charge-sheet was filed before ACJM Dhamtari who committed the case to the Sessions Court, Raipur from where the case was received by the trial Court on transfer.

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Appellant was charged under Section 376(1) and under section 511 of IPC who abjured the guilt and claimed to be tried.

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In order to prove its case, prosecution examined as many as 16 witnesses and exhibited 14 documents. The statement of the appellants under Section 313 CrPC was recorded in which, he claimed innocence and stated that he has been falsely implicated.

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Learned counsel for the appellant vehemently argued that the conviction of the appellant is erroneous, contrary to the evidence on record, and bad in law. He submits that the prosecutrix is not a witness who could be termed as a sterling witness. He further submits that though the initial report was lodged alleging commission of rape, on a careful reading of the entire statement of the prosecutrix, it is evident that she has given different versions of the incident, which ultimately resulted in the conviction of the appellant under Section 511 of the IPC. It is contended that once the serious allegation of rape was not

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proved, the appellant could not have been convicted under Section 511 of the IPC. Counsel further submits that the circumstances and evidence forming the basis of conviction under Section 511 of the IPC were not put to the appellant in his statement recorded under Section 313 of the CrPC, thereby causing serious prejudice to him. He submits that any circumstance which forms the basis of conviction, if not put to the accused under Section 313, CrPC, has to be discarded for the purpose of conviction. Learned counsel further argues that the medical evidence is not conclusive, inasmuch as the Doctor has not given any definite opinion regarding commission of the alleged offence. He also submits that the age of the prosecutrix has not been proved in accordance with law, and therefore, it cannot be said that she was a minor at the time of the incident. In the alternative, counsel submits that if the appeal is dismissed, considering that the appellant has already undergone incarceration for a period of 9 months and 11 days, and since the punishment prescribed under Section 511 IPC is only fine, coupled with the fact that the appellant is a young boy, the sentence already undergone may be treated as sufficient. Accordingly, he prays that the appeal be allowed and the conviction of the appellant be set aside.. To buttress his submission he placed reliance the judgment of Hon’ble Supreme Court in case of Maheshwar Tigga Vs. The State of Jharkhand reported in (2020) 8 SCC 57 wherein it has been observed in paragraph No. 9:

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“It stands well settled that circumstances not put to an accused under Section 313 Cr.P.C. cannot be used against him, and must be excluded from consideration. In a criminal trial, the importance of the questions put to an accused are basic to the principles of natural justice as it provides him the opportunity not only to furnish his defence, but also to explain the incriminating circumstances against him. A probable defence raised by an accused is sufficient to rebut the accusation without the requirement of proof beyond reasonable doubt. This Court, time and again, has emphasised the importance of putting all relevant questions to an accused under Section 313 Cr.P.C. In Naval Kishore Singh v. State of

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Bihar, (2004) 7 SCC 502, it was held to an essential part of a fair trial observing as follows :

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5……The questioning of the accused under Section 313 CrPC was done in the most unsatisfactory manner. Under Section 313 CrPC the accused should have been given opportunity to explain any of the circumstances appearing in the evidence against him. At least, the various items of evidence, which had been produced by the prosecution, should have been put to the accused in the form of questions and he should have been given opportunity to give his explanation. No such opportunity was given to the accused in the instant case. We deprecate the practice of putting the entire evidence against the accused put together in a single question and giving an opportunity to explain the same, as the accused may not be in a position to give a rational and intelligent explanation. The trial Judge should have kept in mind the importance of giving an opportunity to the accused to explain the adverse circumstances in the evidence and the Section 313 examination shall not be carried out as an empty formality. It is only after the entire evidence is unfurled the accused would be in a position to articulate his defence and to give explanation to the circumstances appearing in evidence against him. Such an opportunity being given to the accused is part of a fair trial and if it is done in a slipshod manner, it may result in imperfect appreciation of evidence…”

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Refuting the aforesaid submissions, learned counsel for the State supported the impugned judgment and submits that the prosecutrix, in her statement, has categorically deposed against the appellant, and therefore, she qualifies as a sterling witness. He further submits that the prosecutrix was a minor girl of about 12 years of age and was subjected to an attempt to commit rape. As regards the contention that the incriminating circumstances were not put to the appellant under Section 313 CrPC, it is submitted that no prejudice has been caused to him, as the original case of the prosecution was with regard to commission of rape itself. He contends that at best, it is an irregularity and not an illegality which would vitiate the judgment passed by the learned trial Court.

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I have heard learned counsel for the parties, considered their rival submissions and perused the records with utmost circumspection.

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The core of the prosecution case rests upon the statement of the prosecutrix (PW-1). According to her, she had gone to the house of the accused to watch television, and thereafter he forcibly restrained her and attempted to commit sexual acts. However, a close scrutiny of her deposition reveals material inconsistencies, omissions, and circumstances which do not inspire confidence.

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The prosecutrix PW- 1 herself has admitted that after the alleged incident, when she returned home, her parents, grandparents, paternal aunt and uncle were all present in the house. Yet, she chose not to disclose the occurrence to any of them on that night and went to sleep. She further admitted that on the following day, she disclosed the incident to her “badi maa,” whose name she does not even know. Only thereafter was the information gradually conveyed to her mother and then to her father in the evening. This belated disclosure spanning more than one day, coupled with the fact that the FIR was lodged after about three days of the alleged occurrence, casts a serious doubt on the credibility of the prosecutrix.

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The law in this regard is well settled that conviction can sustain on the solitary statement of the prosecutrix if she is found to be credible, impeccable and free from any shadow of doubt and passed the test of sterling witness.

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What is the meaning sterling witness has been laid down by the Hon’ble Supreme Court in case of Rai Sandeep @ Deepu vs State Of Nct Of Delhi, (2012) 08 SCC 21 in paragraph 22 is observed as under:-

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“ 22 . In our considered opinion, the "sterling witness" should be of a very high quality and caliber 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

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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 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 "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of 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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Similar view has been reiterated by the Hon’ble Supreme Court in case of Ganesan v. State, (2020) 10 SCC 573 , State (NCT of Delhi) v. Pankaj Chaudhary, (2019) 11 SCC 575 and Sham Singh v. State of Haryana, (2018) 18 SCC 34 .

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Distinction between ‘Preparation’ and ‘Attempt’ to commit rape

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It is a settled preposition of Criminal Jurisprudence that in every crime, there is first, Mens Rea (intention to commit), secondly, preparation to commit it, and thirdly, attempt to commit it. If the third stage, that is, ‘attempt’ is successful, then the crime is complete. If the attempt fails, the crime is not complete, but law still punishes the person for attempting the said act. ‘Attempt’ is punishable because even an unsuccessful commission of offence is preceded by mens rea, moral guilt, and its depraving impact on the societal values is no less than the actual commission.

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There is a visible distinction between ‘preparation’ and ‘attempt’ to commit an offence and it all depends on the statutory edict coupled with the nature of evidence produced in a case. The stage of ‘preparation’ consists of deliberation, devising or arranging the means or measures, which would be necessary for the commission of the offence. Whereas, an ‘attempt’ to commit the offence, starts immediately after the completion of preparation. ‘Attempt’ is the execution of mens rea after preparation. Attempt’ starts where preparation’ comes to an end, though it falls short of actual commission of the crime. Please see; State of Madhya Pradesh Vs. Mahendra alias Golu reported in (2022) 12 SCC 442.

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In the present case, the medical examination Ex. P/9 was conducted by PW-11 Dr. Aasha Tripathi categorically rules out any injury, either external or internal, on the person of the prosecutrix, and the hymen was found intact. No definite opinion regarding sexual assault could be given. Even the FSL report regarding the undergarments is inconclusive. Thus, the medical evidence does not lend support to the version of the prosecutrix.

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The delay of three days in lodging the FIR remains unexplained and further erodes the credibility of the prosecution case. The contradictions in the testimony of the prosecutrix with regard to disclosure of the incident and the unnatural conduct shown by her in not informing her parents or close family members immediately, make it difficult for this Court to accept her statement as wholly reliable. Apart from this initially the prosecutrix alleged commission of forcible sexual intercourse, but subsequently changed her version to one of mere attempt. However, no specific question with regard to the alleged attempt was put to the appellant, thereby depriving him of an opportunity to explain the circumstances and the evidence relied upon by the prosecution against him. Considering the totality of the evidence, facts and circumstances, it would not be safe to place reliance solely on the statement of the prosecutrix to sustain the conviction.

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In light of the aforesaid circumstances, this Court is of the considered opinion that the prosecution has failed to prove the charge of attempt to commit rape under Section 511 IPC beyond reasonable doubt. The benefit of doubt, therefore, must go to the appellant.

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However, the testimony of the prosecutrix does indicate that some altercation and use of force took place. The possibility of wrongful restraint or use of criminal force cannot be entirely ruled out. At best, as the incident caused both mental and physical pain to the prosecutrix, though not amounting to an attempt to rape, therefore, the act may constitute a offence punishable under Section 354 of IPC.

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Accordingly, the appeal is partly allowed. The conviction of the appellant under Section 511 IPC is set aside. Instead, he is convicted under Section 354 of IPC. Considering the fact that the appellant was a young boy at the time of

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the occurrence and has already undergone incarceration for a period of more than 9 months, this Court deems it appropriate to reduce the sentence to the period already undergone, while maintaining the fine imposed by the trial Court while the fine imposed by the trial Court along with the default clause shall remain intact.

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Sd/-

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Digitally signed HIFZURRAHMANANSARI byHIFZURRAHMANANSARI Date: 2025.09.25 11:50:46 +0530

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(Sachin Singh Rajput)

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JUDGE

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H.Ansari

Suresh Ku.Nishad v. State of Chhattisgarh

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Suresh Ku.Nishad v. State of Chhattisgarh

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