Chattisgarh High Court
Ravi Yadav vs State Of Chhattisgarh on 27 June, 2024
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
Neutral Citation
2024:CGHC:22587-DB
Page 1 of 10
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No.522 of 2018
Ravi Yadav S/o Ghanshyam Yadav, Aged About 32
Years, R/o Bandha Talab, Near Roshan Shop, Police
Station- Durg, District- Durg, Chhattisgarh.
---- Appellant (In Jail)
Versus
State Of Chhattisgarh, Through Police Station-
Kotwali, District- Durg Chhattisgarh.
---- Respondent
For Appellant : Mr. G.V.K. Rao, Advocate.
For Respondent/State : Mr. Rahul Tamaskar, G.A.
Hon'ble Shri Justice Sanjay K. Agrawal and
Hon'ble Shri Justice Sanjay S. Agrawal
Judgment on Board
(27/06/2024)
Per Sanjay S. Agrawal, J.
1. This appeal has been preferred by the accused under
Section 374(2) of Code of Criminal Procedure, 1973
(hereinafter referred to as the 'Cr.P.C.'), questioning
the legality and propriety of the judgment of conviction
and order of sentence dated 23/09/2017 passed by
the learned 5th/Special Additional Sessions Judge
(F.T.C.), Durg , District Durg (C.G.) in Special Criminal
Case No.113/2016, whereby, the appellant, who is the
father of the prosecutrix, has been convicted and
sentenced as under :-
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Conviction Sentence
Under Section 376 IPC Imprisonment for life and
fine of Rs.1,000/-, in default
of payment of fine additional
imprisonment for three
months.
Under Section 5(<) and Imprisonment for life and
6 of POCSO Act, 2012 fine of Rs.1,000/-, in default
of payment of fine additional
imprisonment for three
months.
(All the sentences were
ordered to run concurrently)
2. Case of the prosecution is that on 12/06/2016, the
mother of the prosecutrix lodged a report at Police
Station, Durg, alleging inter alia, that around 2 to 3
PM, her husband, the appellant herein, came in a
drunken condition and has tried to commit sexual
harassment with her younger daughter. It is alleged
that at the relevant time, she was at home along with
her said daughter and son and has gone to the field in
order to answer the call of nature, but, when she
returned, the door of the house was found to be
closed, she, therefore, pushed and opened it, where
she has seen her husband trying to commit the alleged
act with her younger daughter, who was shouting by
saying that "ikik gVuk", then she pushed him, else he
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would commit the sexual intercourse with her. Based
upon the said information, an FIR (Ex.P-3) was
registered in connection with Crime No.449/2016 by
the concerned Police Station against the appellant for
the offence punishable under Section 376 IPC and also
under Section 5(<) and 6 of Prevention of Children
from Sexual Offences, Act, 2012 (hereinafter referred
to as "the POCSO Act"). During the course of
investigation, the progress report as well leggings of
yellow colour of the prosecutrix was seized vide Ex.P-6
and Ex.P-7 respectively from her mother on
12/06/2016 and thereafter, the undergarment of the
appellant was recovered from him on 13/06/2016 vide
seizure memo Ex.P-8, while the slide of vaginal semen
and undergarment of the prosecutrix were seized on
13/06/2016 vide Ex.P-12. Dakhil Kharij Register was
recovered from the Head Master of her school on
22/08/2016 vide Ex.P-13 in order to ascertain her
age, which revealing the date of birth of the
prosecutrix to be 02/03/2008, who was thus, found to
be 8 years old at the relevant point of time. The alleged
articles, i.e. the vaginal slide, leggings of the
prosecutrix, while the undergarment of the appellant,
were sent for chemical examination, where human
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sperm was not found as per FSL report (Ex.P-28). The
statement of the prosecutrix was recorded under
Section 164 of Cr.P.C. and after completion of the
usual investigation, the charge sheet was submitted
before the Court of Judicial Magistrate First Class,
Durg, who in turn, committed the case to the Court of
learned 5th/Special Additional Sessions Judge (F.T.C.)
Durg, District Durg for its trial.
3. The charges under Section 376 IPC and Sections 5(<)
and 6 of POCSO Act, were framed against the
appellant, who denied the same and claim to be tried.
4. In order to bring home the guilt of the appellant, the
prosecution has examined as many as 6 witnesses and
produced 28 documents, Ex.P-1 to P-28, while none
was examined by the appellant in his defence.
5. The trial Court, after considering the evidence led by
the prosecution, arrived at a conclusion that the
prosecutrix was a minor girl and that by placing
reliance upon her statement as well as of her mother,
the appellant, who was the father of the prosecutrix,
has been held guilty for the commission of alleged
crime. In consequence, he has been convicted and
sentenced as mentioned hereinabove.
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6. Being aggrieved with the aforesaid judgment of
conviction and order of sentence, the appellant has
preferred this appeal.
7. Learned counsel appearing for the appellant submits
that the finding of the Court below holding the
appellant guilty for the commission of the alleged
crime is apparently contrary to law, inasmuch as, it
did not appreciate the evidence in its proper
perspective and thereby erred in convicting him as
such. While inviting attention to the statements of the
prosecutrix and her mother, it is contended that none
of them have, in fact, supported the prosecution story,
yet by placing reliance upon their testimonies, the
Court below has committed an illegality in convicting
the appellant as such. The conviction of the appellant
is, therefore, liable to be set aside.
8. On the other hand, learned counsel appearing for the
respondent/State, while inviting attention to the
statements of the prosecutrix recorded under Section
164 Cr.P.C., vis-a-vis her MLC report (Ex.P-29), duly
proved by Dr. Manju Rathore (PW-6) which revealing
the fact that the alleged act was done by her father
and the Court below has, therefore, not committed any
illegality in convicting the appellant as such.
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9. We have heard learned counsel appearing for the
parties and perused the entire record carefully.
10. The question, which arises for determination in this
appeal is, as to whether the finding of the Court below
holding the appellant guilty for the commission of the
alleged crime is based upon due and proper
appreciation of the evidence led by the prosecution?
11. In order to ascertain the answer of the aforesaid
question, it is necessary to examine the evidence led
by the prosecution, particularly, the statement of the
prosecutrix and her mother, based upon which, the
appellant has been held to be the author of the alleged
crime.
12. The prosecutrix was examined as PW-1 and according
to her testimony, it reveals that nothing wrong was, in
fact, done by her father and appears further that since
a quarrel took place between her mother and father,
the alleged report was, therefore, lodged by her
mother. It appears further that when a specific
question was put to her by the Court as to why the
alleged quarrel was being done, it was answered that
since her father was a habitual drinker, therefore, her
mother was quarreling with him. It appears further
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that after holding her hostile, she was confronted with
her statement (Ex.P-1) recorded under Section 164
Cr.P.C. by the prosecution and her version as made
therein regarding the alleged ill act of her father was
narrated, but, in her cross-examination, she was
found to be deviated from her alleged version, as it
was admitted that she made such a statement (Ex.P-1)
at the instance of her mother. She, thus, appears to be
a tutor witness, as she has deposed all that as per the
instruction of her mother. Therefore, no reliance could
be placed upon her testimony.
13. The mother of the prosecutrix was examined as PW-2
and, it appears from her testimony that the alleged
report/FIR (Ex.P-3) was made in order to put her
husband in fear and admitted that it is a false one.
14. What is, therefore, reflected from the aforesaid
evidence of the prosecutrix and her mother that the
act, alleged to have been done by the appellant, was in
fact, not found to be proved. Now, in so far as the
statement of the prosecutrix, recorded under Section
164 Cr.P.C., is concerned, although the same was
stated to be made by her in her examination-in-chief,
but in cross-examination, as observed hereinabove,
she was not found to be stuck, as it was admitted by
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her that the alleged statement was made as per the
instructions of her mother. In such circumstances, it
is difficult to accept her said version as well.
15. Be that as it may, it is settled principles of law that
merely on the basis of the statement recorded under
Section 164 Cr.P.C., the accused cannot be held liable,
unless and until the same is proved by cogent and
reliable evidence. At this juncture, the principles laid
down by the Supreme Court in the matter of Baij
Nath Sah V. State of Bihar, reported in (2010) 6
SCC 736, are to be seen, where, in this aspect, it was
held at para 6, which is relevant for the purpose,
reads as under :-
"6. We have heard the learned counsel for the
parties and have gone through the record. We
see from the judgments of the Courts below
that the only material that has been used
against the appellant is the statement under
Sec.164 of the Cr.P.C. This Court in Ram
Kishan Singh vs. Harmit Kaur and Another
(1972) 3 SCC 280) has held that a statement
under Section 164 Cr.P.C. is not substantive
evidence and can be utilized only to
corroborate or contradict the witness vis-a-vis.
statement made in Court. In other words, it
can be only utilized only as a previous
statement and nothing more."
16. Recently, the Co-ordinate Bench of this Court in the
matter of Prince @ Pinju & Another Vs. State of
Chhattisgarh, reported in 2023 SCC Online Chh
4542, while placing reliance upon the various verdicts
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of the Supreme Court, has observed the effect of the
statement recorded under Section 164 Cr.P.C. at
paragraph 23, as under :-
"23. From the aforesaid principles of law laid
down by their Lordships of the Supreme
Court in the aforesaid judgments, it is quite
vivid that statement of a person/witness
under Section 164 of Cr.P.C. is not an
evidence, much less, substantial evidence
within the meaning of Section 3 of the
Evidence Act and it can be used only for the
purpose of corroboration or contradiction. In
absence of any other legally admissible
evidence corroborating the evidence under
Section 164 of Cr.P.C., no conviction can be
recorded on the basis of statement under
Section 164 of Cr.P.C."
17. Considering the facts and circumstances of the case,
as observed hereinabove, particularly, by taking into
consideration the statement of the prosecutrix and her
mother, in the light of the principles laid down in the
above-referred matters, the conviction of the appellant
cannot be held to be sustainable in the eye of law.
18. Consequently, the appeal is allowed and the impugned
judgment of conviction and order of sentence dated
23/09/2017 passed by the learned 5 th/Special
Additional Sessions Judge (F.T.C.) Durg, District Durg
(C.G.) in Special Criminal Case No.113/2016 is
hereby quashed and conviction of the appellant for
the commission of offence under Section 376 IPC and
under Section 5(<) and 6 of POCSO Act as well as,
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sentences imposed thereupon by the learned trial
Court is hereby set aside. He is entitled to be
acquitted of the charges levelled against him and he
shall be released from jail forthwith, if not required in
connection with any other case.
19. Let a certified copy of this judgment along with the
original record be transmitted to the concerned trial
Court for necessary information and action, if any. A
certified copy of the judgment may also be sent to the
concerned Jail Superintendent forthwith wherein the
appellant is suffering the jail sentence.
SD/- SD/- SD/--
SD/- (Sanjay K. Agrawal) (Sanjay S. Agrawal)
Judge Judge
Tumane
