Raj Kumar Rawani And Another vs State Of Chhattisgarh
2022 Latest Caselaw 5299 Chatt

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                                                                NAFR

           HIGH COURT OF CHHATTISGARH, BILASPUR

                 Criminal Revision No.652 of 2010

  1.

Raj Kumar Rawani S/o Late Mohan Ram, aged about 40 years

2. Ghumri Bai W/o Late Mohan Ram, aged about 60 years,

(both by caste- Kahar, R/o Village- Katangkhar, Thana & Tahsil- Kansabail, District- Jashpur, C.G.)

---- Applicants

Versus

 State of Chhattisgarh, through : District Magistrate, Jashpur, District- Jashpur, C.G.

---- Non-applicant

For Applicants - Mr. Neeraj Mehta, Advocate.

For State - Ms. Pushplata Khalkho, Panel Lawyer.

S.B.:- Hon'ble Shri Justice Rakesh Mohan Pandey Order On Board

23-08-2022

Heard.

1. This Criminal Revision has been filed under Section 397 read with

Section 401 of Cr.P.C. challenging therein the judgment of

conviction and sentence recorded by the learned Sessions Judge,

Jashpur in Criminal Appeal No.10 of 2010, whereby the Criminal

Appeal preferred by the applicants has been dismissed and the

judgment passed by the learned trial Court in Criminal Case

No.516 of 2008 dated 26.02.2010 has been affirmed.

2. The learned trial Court convicted the applicant No.1 for offence

punishable under Section 354 and sentenced him to serve

rigorous imprisonment for 04 months and fine of Rs.1,000/-.

Whereas applicant No.2 was convicted under Section 294 of I.P.C.

and sentenced to pay fine of Rs.500/-.

3. The case of the prosecution is that on 11.11.1999, the prosecutrix

lodged a written complaint Ex.P/1 to the effect that on 10.11.1999,

at about 7:00 P.M., while she was going to attend the call of

nature, the present applicant reached there and tried to drag her.

When she made hue and cry, Laxmi Bai who was present there

came on spot, the prosecutrix informed her that the present

applicant has torn out her blouse. She further stated in the written

complaint that applicant No.02, the mother of the applicant No.01,

used filthy & abusive language against her and the incident was

witnessed by Bharat Ram (P.W.-07) and Semvant @ Chutan

(P.W.-5). On the basis of such complaint, F.I.R. Ex.P/2 was

registered by the police for offence punishable under Section 354

& 294 of I.P.C. on 11.11.1999. The police vide Ex.P/3 seized

blouse of the prosecutrix, site plan was prepared by the police vide

Ex.P/4. The police recorded statements of witnesses under

Section 161 of Cr.P.C. and thereafter, charge-sheet was filed.

4. The learned trial Court framed charges under Section 354 of I.P.C.

against the applicant No.1 and under Section 294 of I.P.C. against

the applicant No.2. The applicants abjured the charges and

pleaded not guilty. The prosecution examined total 07 witnesses to

prove the guilt of the applicants and exhibited total 05 documents,

whereas the applicants examined total 03 defence witnesses. The

learned trial Court after appreciation of evidence and going

through the documents exhibited by the prosecution, convicted the

applicants as mentioned in the opening paragraph. The applicants

preferred appeal before the learned Sessions Court against the

judgment of conviction and sentence recorded by the learned trial

Court and in turn, the learned lower appellate Court dismissed the

appeal preferred by the applicants and affirmed the judgment of

conviction and sentence.

5. Learned counsel for the applicants submits that it is a case of false

implication. Many persons were present on the spot, therefore, it

was not possible for the applicant No.1 to act in the manner as

alleged. The prosecution witness particularly, Semvant @ Chutam

(P.W.-5), who is a prosecution witness as well as independent

witness, though he has not being declared hostile by the

prosecution, but he has not supported the prosecution case, he

has narrated the correct story in his deposition. According to his

statement, there was some quarrel between the applicant No.2

and the prosecutrix and same was intervened by the applicant

No.1 and no such incident as alleged had taken place on that date.

He further submits that Bharat Ram (P.W.-5), who has been

declared hostile, he has supported the case of the defence and he

has narrated the correct story in his statement. The defense

witnesses have also deposed in favour of the applicants. The

applicant No.1 is practicing advocate and due to enmity, he has

falsely been implicated in the case.

6. Reliance has been placed up on the judgment passed by the

Supreme Court in the case of Javed Masood and Another Vs.

State of Rajasthan reported in AIR 2010 Supreme Court 979.

7. Per contra, learned counsel for the State opposes the arguments

advanced by learned counsel for the applicants and submits that

the evidence of the Smt. Sunita Devi (P.W.-1) is sufficient for

conviction of the applicant No.1 and the same is corroborated by

the evidence of other witnesses and seizure of the torn blouse.

8. I have considered the submissions made by the rival counsel and

perused the record.

9. As per the charge-sheet, written complaint was lodged on

11.11.1999 at about 12:35 P.M., whereas the incident had taken

place on 10.11.1999 at about 7:00 P.M. P.W.-1, the prosecutrix has

stated in the paragraph 1 of the written complaint that on the date

of the incident, the present applicant caught hold her hand and

dragged her and told her to commit sex, at the same time, Laxmi

Bai (P.W.-2), reached on the spot but upto that period her blouse

was already torn by applicant. Semvant @ Chutan (P.W.-5) as well

as Bharat (P.W.-7) were present near the spot. In the cross-

examination paragraph 9, she has admitted the fact that when

there was scuffle between the prosecutrix and the present

applicants, first of all, Laxmi Bai (P.W.-2) reached there and

thereafter Semvant @ Chutan (P.W.-5) and Bharat (P.W.-7) came

on the spot.

10.Laxmi Bai (P.W.-2) has supported the statement of prosecutrix

(P.W.-1) and in the cross-examination, there is nothing in favour of

the applicants. Khageshwar Kashyap (P.W.-3) is the husband of

the prosecutrix and he is a hearsay witness. Rameshwar (P.W.-4)

is the seizure witness.

11. Semvant @ Chutan (P.W.-5) is the prosecution and independent

witness and in his chief, he has categorically stated that at about

7:00 P.M., on the date of incident, the applicant No.2 focused the

light of torch over the eyes of the prosecutrix and on this issue, they

started quarrelling. While they were abusing each other, the

applicant No.1 came on the spot and advised her mother to leave

the issue. The prosecution has not declared this witness hostile. He

is the prosecution witness and independent witness and he has not

supported the case of the prosecution and he has narrated the

genuine story before the learned trial Court.

12. Christopher (P.W.-6) is the Head Constable, who is the

investigating officer in this case. Bharat (P.W.-7), who is also an

independent witness and prosecution witness has stated in his chief

that dispute between the applicant No.2 and prosecutrix arose as

the applicant No.2 focused light of the torch over the eyes of the

prosecutrix and both started abusing each other and at the same

time, applicant No.1 reached there and told her mother to leave the

place to avoid any further dispute. This witness has been declared

hostile.

13. The case which has been cited by learned counsel for the

applicants is relevant for the decision of this case because in the

present case, the prosecution witness Semvant @ Bharat (P.W.-5)

has not supported the case of prosecution and he has not been

declared hostile. The Hon'ble Supreme Court was dealing with the

identical issue in the case of Javed Masood Vs. State of Rajasthan

(Supra). In paragraph 13, Hon'ble Supreme Court has held as

under:-

13. In the present case the prosecution never declared PWs 6,18, 29 and 30 "hostile". Their evidence did not support the prosecution. Instead, it supported the defence. There is nothing in law that precludes the defence to rely on their evidence. This court in Mukhtiar Ahmed Ansari vs. State (NCT of Delhi) observed:

"30. A similar question came up for consideration before this Court in Raja Ram v. State of Rajasthan, (2005) 5 SCC 272. In that case, the evidence of the Doctor who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she might have to face prosecution. The Doctor was not declared "hostile". The High Court, however, convicted the accused. This Court held that it was open to the defence to rely on the evidence of the Doctor and it was binding on the prosecution.

31. In the present case, evidence of PW1 Ved Prakash Goel destroyed the genesis of the prosecution that he had given his Maruti car to police in which police had gone to Bahai Temple and apprehended the accused. When Goel did not support that case, accused can rely on that evidence."

14. Considering the entire facts and circumstances, particularly,

considering the evidence of Semvant @ Chutan (P.W.-5) and the

evidence of Bharat (P.W.-7), in the light of the judgment of Hon'ble

Supreme Court, where it is held that if the evidence of the

prosecution did not support the case of prosecution instead they

support the case of defence there is nothing in law that precludes

the defence to rely on their evidence. It is further held that it is open

to the defence to rely on evidence of such witness and it would be

binding on the prosecution.

15. Fallout of consequence of these facts, circumstances and the law

laid down by the Supreme Court, I am of the considered view that

prosecution could not prove the guilt of the applicant No.1 beyond

reasonable doubt as its own witnesses have not supported the

case of prosecution, therefore, the applicant No.1 is acquitted from

the charges of Section 354 of Indian Penal Code and the bail bond

furnished by the applicant No.1 are discharged. The conviction of

the applicant No.2 for offence punishable under Section 294 of

Indian Penal Code is affirmed. As there is ample evidence against

her in this regard. Therefore, this Criminal Revision is allowed in

part.

16. Consequently, this Criminal Revision stands disposed of.

Sd/-

                                            (Rakesh Mohan Pandey)
Monika                                            Judge