Chattisgarh High Court
Santosh Soni vs State Of Chhattisgarh on 14 September, 2021
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 386 of 2001
Order reserved on : 08/07/2021
Order delivered on : 14/09/2021
Santosh Soni, S/o Saroo, Sweeper, Aged About 26 Years, R/o
Gurucharan Nagar, P.S. Ganj, Raipur, District- Raipur, C.G.
---- Appellant
Versus
State of Chhattisgarh, through- Police Station- Ganj, Raipur,
District- Raipur, C.G.
---- Respondent
For Appellant : Smt. Savita Tiwari, Advocate
For Respondent/State : Shri Sameer Sharma, Dy. G.A.
Hon'ble Smt. Justice Rajani Dubey
CAV Order
14.09.2021
1. Present appeal is preferred against the impugned judgment of
conviction and order of sentence dated 08.03.2001 passed by Special
Judge, Special Court, Scheduled Caste and Scheduled Tribe
(Prevention of Atrocities) Act, 1989 Raipur (C.G.) in Sessions Trial No.
106/2000 whereby, the trial court convicted the appellant is as under:-
S.No. Conviction Sentence
1. Under Rigorous Imprisonment for 3 years and to pay
Section 450 fine of Rs. 1,000/-
of IPC (in case of default in payment of fine
imprisonment for 1 month)
2. Under Rigorous Imprisonment for 7 years and to pay
Section 376 fine of Rs. 5,000/-
r/w 109 of (in case of default in payment of fine
IPC imprisonment for 5 months)
2. Brief facts of the case are that on 7.01.2000, at about 11.00 PM,
appellant along with the co-accused went to the house of the
prosecutrix and asked her to open the door by addressing her as
'Bhabhi' and when she refused to open the door, the appellant broke
the wall and entered the house of the prosecutrix. Thereafter, appellant
threatened her and committed forcible sexual intercourse with her and
fled away from spot. On the next day, prosecutrix informed about the
incident to D. Israil, Sarita Gupta and D. Sujata. On 8.1.2000, a written
complaint has been lodged by the prosecutrix against the appellant
and the co-accused person. Thereafter, an FIR (Ex.P/2) was registered
against the accused/appellants under Sections 452 & 376/4 of IPC.
Seizure of clothes of the prosecutrix was made vide Ex. P/3, Spot-map
(Ex.P/4) was prepared. Dr. Seema Soni (PW-7) has medically
examined the prosecutrix (PW-1) and gave her report vide Ex. P/7 and
Dr. M.P. Pujari (PW-6) examined the appellant (Santosh Soni) and has
given his report vide Ex. P/6. Thereafter, a vaginal slide was seized
vide seizure memo (Ex. P/8) and clothes of the appellant were also
seized vide seizure memo (Ex.P/9), Caste Certificate of the prosecutrix
was seized vide seizure memo (Ex. P/10). The seized clothes and
vaginal slide was sent to FSL, Raipur for medical examination by
Police Superintendent by his memo vide Ex. P/11 and FSL report vide
Ex. P/12. After investigation, charge-sheet was filed against the
appellant and the co-accused person and charges were framed under
Sections 450 & 376 of IPC and under Section 376 (2) of IPC
respectively.
3. So as to hold the accused/appellant guilty, the prosecution has
examined as many as 9 witnesses. Statement of the accused/appellant
was also recorded under Section 313 of the Cr.P.C. in which he denied
the charge leveled against him and pleaded innocence and false
implication in the case.
4. On the basis of oral and documentary evidence, trial court
convicted the appellant- Santosh Soni & co-accused- Manoj Kumar
under Sections 450 & 376 r/w Section 109 of IPC and convicted the
appellant as mentioned in para 1. Hence, this appeal filed by the
appellant.
5. Learned counsel for the appellant submits that the conviction
and sentence of the appellant is bad, illegal, improper and against the
established principle of law. The complaint was lodged by the
prosecutrix on the next day and the delay in lodging the FIR clearly
shows that the story has been built up to implicate the appellant in the
crime in question. The learned court below should have seen that it is a
case which could be of a consent as there was no injury found on the
body of prosecutrix which clearly shows that prosecutrix was not
subjected to forcible sexual intercourse. The witnesses were unable to
establish the ingredients of the alleged offence under Sections 452,
376/34 of the IPC and the trial court without any sufficient ground has
held the appellant guilty. The evidence of prosecutrix was not duly
corroborated by her daughter Surbhi (PW-2), the Investigating Officer
V.K. Pandey (PW-9) and other witnesses, and the same was also not
supported by the medical evidence and the conviction of the appellant
against the rule of prudence and deserves to be set aside. Learned
trial court has failed to see that the complainant was having some
political enmity with the appellant, therefore, conviction and sentence
against the appellant is liable to be set aside.
6. On the other hand, learned counsel for the State supports the
impugned judgment passed by the trial court.
7. Heard learned counsel for the parties and perused the material
available on record including the impugned judgment.
8. Prosecutrix (PW-1) has stated in Para 3 of her cross-
examination that appellant- Santosh Soni committed rape on her. She
has stated in para 23 of her cross-examination that appellant
committed rape on her in standing posture and she did not resist him
and remained silent as she was scared. Her daughter Surbhi (PW-2)
has stated in para 3 of her cross-examination that "eukst esjh eEeh dks Vksiyk
fy;k FkkA lk{kh ls Vksiyk fy;s tkus dk vFkZ iwaNus ij mlus vius nksuksa gkaFkksa dks tksM+dj
vkfyaxu dh eqnzk crkbZA nksuksa vkjksfi;ksa ds ikl mls ystkdj iwaNus ij fd bu yksxksa esa ls
rqEgkjh eEeh dks fdlus Vksiyk;k Fkk] lk{kh us vkjksih larks"k lksuh dks Nwdj crk;k fd mlus
mldh eEeh dks Vksiyk fy;k FkkA"
09. Appellant has denied all the allegations levelled against him and
stated that he is a worker of BJP and the prosecutrix was working with
congress party and due to some political enmity between the appellant
and other members of Mahila Mandal, a false and fabricated FIR was
registered by the Prosecutrix (PW-1) against him.
10. D. Sujata (PW-4) and Mrs. Sarita Gupta (PW-5) have admitted
this version of appellant that they went with Prosecutrix (PW-1) to
lodge an FIR against him and they also admitted that during elections,
there was enmity between them.
11. In rape cases, evidence of the prosecutrix is sufficient for rape, it
has been held by Hon'ble the Apex Court in the matter of Bharwada
Bhoginbhai Hirjibhai v. State of Gujarat reported in (1983) 3 SCC 217
in para 11 as under:-
"If the evidence of the victim does not suffer
from any basic infirmity, and the
'probabilities factor' does not render it
unworthy of credence, as a general rule,
corroboration cannot be insisted upon,
except from the medical evidence, where,
having regard to the circumstances of the
case, medical evidence can be expected to
be forthcoming. This rule is subject to the
qualification that corroboration may be
insisted upon when a woman having
attained majority is found in a
compromising position and there is a
likelihood of her having levelled such an
accusation on account of the instant of self-
preservation; or when the 'probabilities
factor' is found to be out of tune."
but in this case date of incident is 07.01.2000 at 11:00 PM and date of
FIR is 08.01.2000 at 17:50 PM in column 8 it is written that there is
delay in lodging the FIR due to threat given by the appellant, but
prosecutrix did not mention any such threat in her cross-examination,
she has admitted in para 21 & 22 of her cross-examination that so
many people reside near her house and she has stated in para 25 that
she did not call for help. She stated that after the incident, she
remained in her house. On the next day, when she went to attend
nature's call, she did not mention anything about the incident to
anyone. At about 8:00 AM, she met father of D. Sujata and at 11:00
AM, she informed him about the incident, from there she went to Police
Station to lodge the FIR. In para 30, she admitted that "lgh gS fd eSMe yksxksa
ls iqfyl us dgk Fkk fd lR;orh dh fjiksVZ ij ls cykRdkj dk dksbZ ekeyk vkjksihx.k ds fo:)
ugha cu jgk gSA fQj ckn esa ,slk iqfyl us dgk fd rqe yksx fjiksVZ fy[kdj ykvks] fQj
ns[ksaxsA ;s ckr lgh gS fd iz-ih-&1 dks lfjrk xqIrk us Fkkus esa mlds ckn fy[kdj fn;k] tc
iqfyl us dgk fd esjh fjiksVZ ij dksbZ ekeyk ugha curkA iz-ih-&1 dks Hkh eq>s i<+dj ugha lquk;k
x;kA lqtkrk nhnh vkSj xqIrk eSMe us dgk fd nLr[kr dj nks rks eSaus nLr[kr dj nh Fkh] iz-ih-
&1 esa D;k fy[kk gS] eSa ugha tkurh] D;ksafd eSa i<+h&fy[kh ugha gwaA"
12. It is clear from the statement of prosecutrix that when they first
went to police station, they said that it is not a matter of rape and she
should write the complaint again, after that Sarita Gupta wrote the
complaint vide Ex.P/1 and on the basis of which, FIR (Ex.P/2) was
registered against the appellant.
13. The behaviour of the prosecutrix, her version and involvement of
party workers, create suspicion in the prosecution story. It has been
held by Hon'ble the Apex Court in the matter of Dola Alias Dolagobinda
Pradhan & Anr. v. State of Odisha reported in (2018) 18 SCC 695 in
para 9 as under:-
"However, as is also evident from the observations above, such
reliance may be placed only if the testimony of the prosecutrix appears
to be worthy of credence. In this regard, it is also relevant to note the
following observations of this Court in Raju v. State of M.P. 4 which read
thus: (SCC P. 141, paras 10-11)
"10. The aforesaid judgments lay down the basic
principle that ordinarily the evidence of a prosecutrix
should not be suspected and should be believed, more
so as her statement has to be evaluated on a par with
that of an injured witness and if the evidence is reliable,
no corroboration is necessary. Undoubtedly, the
aforesaid observations must carry the greatest weight
and we respectfully agree with them, but at the same
time they cannot be universally agree with them, but at
the same time they cannot be universally and
mechanically applied to the facts of every case of
sexual assault which comes before the Court.
11. It cannot be lost sight of that rape causes the
greatest distress and humiliation to the victim but at
the same time a false allegation of rape can cause
equal distress, humiliation and damage to the accused
as well. The accused must also be protected against
the possibility of false implication, particularly where a
large number of accused are involved. It must, further,
be borne in mind that the broad principle is that an
injured witness was present at the time when the
incident happened and that ordinarily such a witness
would not tell a lie as to the actual assailants, but there
is no presumption or any basis for assuming that the
statement of such a witness is always correct or
without any embellishment or exaggeration."
14. Dr. Seema Soni (PW-8) has opined that she did not find any
external or internal injury on the body of prosecutrix and no definite
opinion can be given about rape.
15. D. Sujata (PW-4) has stated in para 25 of her cross-examination
that "Lor% dgk fd vkjksih larks"k pkgrk gS fd lR;orh dks og viuh nwljh iRuh cuk, vkSj
bl laca/k esa eSa vkSj larks"k dh iRuh lR;orh ds ikl ckr djus ds fy, x, Fks fd lR;orh]
larks"k dh iRuh cu tk,A"
16. Minute observation of statement of the witnesses does not prove
prosecution case beyond reasonable doubt and instead of their version
makes appellant's defence probable.
17. In view of forgoing discussion, this Court is of the considered
opinion that the prosecution has failed to prove its case beyond
reasonable doubt and, therefore, benefit of doubt must go to the
accused/appellant. The court below was not able to appreciate the
evidence of the witnesses in its proper perspective and that being so,
the impugned judgment being unjustified.
18. Accordingly, the appeal is allowed. Conviction and sentence
imposed upon the appellant is set aside.
19. Appellant is on bail, no order with regard to his surrender etc. is
required. His bail bonds stand discharged.
Sd/-
(Rajani Dubey)
JUDGE
R/-
