Chattisgarh High Court
Sanjay Singh And Others vs State Of Chhattisgarh on 10 February, 2025
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
Digitally signed
by BHOLA
NATH KHATAI
Date:
2025.02.17
10:44:58 +0530
2025:CGHC:7267-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1020 of 2019
1. Sanjay Singh S/o Vishwaranjan Gond Aged About 20
Years, Village : Koteya, Muslimpara, P.S. Darima District :
Surguja (Ambikapur), Chhattisgarh
2. Basant Kumar Alias Shakti S/o Kharkhai Ram Gond Aged
About 21 Years R/o Village Koteya Bagichapara, Police
Station Darima District Surguja Chhattisgarh.
3. Bhawan Vishwkarma S/o Vijay Vishwakarma Aged About
19 Years R/o Village Koteya Schoolpara, Near Atal Chowk
Police Station Darima District Surguja Chhattisgarh.
... Appellants
versus
State Of Chhattisgarh Through Arakshi Kendra Darima
District Surguja Chhattisgarh.
... Respondent
For Appellants : Mr. Rishi Rahul Soni, Advocate
For Respondent/State : Mr. Soumya Rai, Panel Lawyer
For Objector : Mr. Ashwell Franklin, Advocate, on
behalf of Mr. Samir Singh
(Division Bench)
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sanjay Kumar Jaiswal
Judgment On Board
(10.02.2025)
2
Sanjay Kumar Jaiswal, J.
1. This criminal appeal preferred by the appellants under
Section 374(2) of Cr.P.C. is directed against the impugned
judgment dated 15.05.2019, passed by learned Additional
Sessions Judge (FTC) Surguja (Ambikapur), District
Surguja, Chhattisgarh in Sessions Trial No.30/2018, by
which, the appellants herein has been convicted and
sentenced as under:
Conviction Sentence
u/s 341 of IPC S.I. for 1 month with fine of Rs.500/-, in
default of payment of fine, 1 week
additional S.I.
u/s 366 of IPC R.I. for 5 years and fine of Rs.500/-, in
default of payment of fine, 1 month
additional simple imprisonment.
u/s 376(D) of Life Imprisonment with fine of Rs.500/-,
in default of payment of fine, 1 month
IPC
additional simple imprisonment.
u/s 506 B of S.I. for 1 year and fine of Rs.500/-, in
IPC default of payment of fine, 1 month
additional simple imprisonment.
2. The case of prosecution, in brief, is that on 05.02.2018 at
about 6:00 p.m., when the prosecutrix (PW-4) was going
from her house to the wedding place of her sister-in-law
Haseena Begum carrying utensils and a brass pot for dowry,
the appellants herein along with the juvenile in conflict with
law stopped her, threatened to kill her, gagged her mouth
and took her near the mustard filed of Vishvaranjan where
appellant No.1 and juvenile accused forcibly committed
sexual intercourse with her. At that time, appellant Nos. 2
& 3 were keeping a watch so that no one could come. When
the accused persons left her, she went to the wedding place
and narrated the entire incident to her husband (PW-1) and
Nephew (PW-8). A written report ( Ex. P-1) in this regard was
lodged by the prosecutrix (PW-1) at PS Darima, on
06.02.2018, based on which, FIR was registered vide Ex.P-8.
The victim was subjected to medical examination by Dr.
Manorma Minj (PW-3) and her MLC report is Ex. P-6, in
which, no injury was found on her body. The vaginal slides
and undergarments of the prosecutrix were sent to FSL for
chemical examination. However, the FSL report has not
been exhibited. After completion of investigation, appellants
were charge-sheeted for the aforesaid offence before the
jurisdictional criminal court, which was ultimately
committed to the Court of Sessions for hearing and disposal
in accordance with law.
3. During the course of trial, in order to bring home the
offence, prosecution examined as many as 8 witnesses and
exhibited 29 documents in support of its case. The
statements of appellants / accused were recorded under
Section 313 of the CrPC in which they denied the
circumstances appearing against them in the evidence
brought on record by the prosecution, pleaded innocence
and false implication. However, the appellants in support of
their defence have examined one witness but have not
exhibited any document.
4. Learned trial Court after appreciating the oral and
documentary evidence available on record, convicted the
appellants for the offence as mentioned in the opening
paragraph of the judgment, against which this appeal has
been preferred by the appellants questioning the impugned
judgment of conviction and order of sentence.
5. Mr. Rishi Rahul Soni, learned counsel for the appellant,
would submit that the prosecutrix (PW-4) is a 35-year-old
married woman whose statement is not reliable. The report
was made with a delay of about 20 hours. The statement of
the prosecutrix (PW-4) is not corroborated by medical
evidence. According to the FSL report, semen and human
sperm have been found in her undergarment and vaginal
slide but DNA test has not been done to prove that the same
belong to any of the appellants. The prosecutrix (PW-4)
being a married woman also had the opportunity of having
physical relation with her husband. In such a situation, it
has not been proved that the semen or human sperm
belongs to any of the appellants. The FSL report has not
even been exhibited and no question has been asked in this
regard to the accused persons in their statement recorded
under Section 313 of the Code of Criminal Procedure so
that they have had the opportunity to give their explanation.
In such a situation, the statement of the prosecutrix (PW-4)
is not supported by the said FSL report. In support of his
argument, counsel for the appellants relied upon the
judgments of the Hon'ble Supreme Court in the matters of
Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC
130 and Chotkau v. State of Uttar Pradesh, (2023) 6 SCC
742. Learned counsel for the appellants also argues that the
appellants had a land dispute with the husband of the
prosecutrix Rasid Mohammad (PW-1). Due to this, a false
report has been lodged against them. In this regard,
Gopichand Singh (DW-1) has given a clear statement. The
nephew of the husband of the prosecutrix Mohammad
Tashrif (PW-8) has admitted the fact of enmity regarding
land dispute in his cross-examination. As per the site map
(Exhibit P-3), the appellants are said to have dragged the
prosecutrix (PW-4) for about 400 meters and then raped
her. But no injury was found on the body of the prosecutrix
(PW-4). There is no sign of any kind of resistance by her.
The prosecutrix has stated that she went back to the
marriage house despite the gang rape, which is not a
natural behavior. She has stated that she signed the report
on the instructions of her husband. He submits that the
entire case of the prosecution has been prepared due to
enmity. The prosecutrix is not a reliable witness and the
prosecution has failed to prove its case beyond doubt. As
such, the impugned judgment is not worth sustaining and
deserves to be set aside and the appellants are entitled for
acquittal on the basis of benefit of doubt. Hence, prayed for
allowing the appeal.
6. Mr. Soumya Rai, learned State counsel and Mr. Ashwell
Franklin, learned counsel for the Objector, would support
the impugned judgment and submit that the prosecution
has been able to bring home the offence beyond reasonable
doubt and the trial Court has rightly convicted the
appellants for the aforesaid offence. As such, the appeal
deserves to be dismissed.
7. We have heard learned counsel for the parties, considered
their rival submissions made herein-above and gone
through the records with utmost circumspection.
8. The prosecutrix (PW-4) in her Court statement confirming
the prosecution case and the written report given to the
Police (Exhibit P-1) has stated that in the night of the
incident, she along with her family had gone to attend the
marriage of her brother-in-law's daughter. Her husband
asked her to bring a Gundi (pot) from home as dowry. When
she was going towards her house at around 6-6.30 in the
evening, four people came from behind, caught her,
threatened her and said that they would kill her if she made
any noise. Appellant Sanjay and the juvenile accused took
off her clothes and committed rape on her. Appellants
Basant and Bhawan were standing there and keeping watch
so that no one could come. After the incident, she went to
her brother-in-law's house where the marriage was taking
place and told the incident to her husband and brother-in-
law's son. Due to fear of defamation, she did not tell other
guests who had come to the house. Then she went to the
Police Station with her husband and brother-in-law's son at
around 10:00 pm to lodge a report, where instead of writing
a report, she was called at 8:00 am in the morning. Next
day, she told the incident to her sister. Then she went to the
Police Station with her husband and brother-in-law's son
and made a written report vide Exhibit P-1. Thereafter, the
police conducted her medical examination and initiated
investigation proceedings.
9. The incident is said to have taken place on 05/02/2018 at
about 06.00 p.m. and the written report (Ex.P-1) was
registered on 06/02/2018 at about 02.50 pm, i.e. after
about 20 hours. Regarding this delay, the prosecution has
explained that they had gone to lodge the report at night
but, the police personnel did not lodge the report, telling
them to go home and come in the morning. But there is no
satisfactory evidence in this regard on record.
10. The nephew of husband of the prosecutrix (PW-8) has
admitted in paragraph-5 of his cross-examination that the
field of the appellants is adjacent to the field of the husband
of the prosecutrix and there has been a dispute between
them since long. Gopichand Singh, a resident of the same
village Koteya, as a defence witness, has also stated that the
husband of the prosecutrix Rasid Mohammad (PW-1) not
only goes to the Police Station repeatedly to file report but
also keeps on visiting the Police Station and earlier also he
had filed a report for offence under section-354 of the Indian
Penal Code against the juvenile accused through the
prosecutrix (PW-4) in which, later on, a compromise had
taken place. This defence witness has also stated that by
using the prosecutrix as a medium, her husband (PW-1) has
filed a false report against the appellants. The husband of
the prosecutrix is a controversial person in the village. He is
a leader and keeps threatening to implicate the appellants
and their family members in false cases due to land dispute.
Keeping these facts in view, it would be appropriate to
consider the statement of the prosecutrix (PW-4) minutely.
11. In the matter of Santosh Prasad @ Santosh Kumar v. State
of Bihar, (2020) 3 SCC 443, the principle of law laid down
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:-
"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?"
"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 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."
12. In the light of above cited judgment, it is pertinent to assess
the credibility of the prosecutrix (PW-4). Doctor Manorama
Minj (PW-3) has stated that she medically examined the
prosecutrix on 06/02/2018 at 06.45 pm and her report is
Exhibit P-6. According to which, there was no external
injury mark anywhere on her entire body. Since the
prosecutrix is a married woman, it is possible that any
injury would not have been caused to her body due to mere
sexual intercourse. But in this case, it is stated that more
than one person committed rape on her. According to the
statement of the prosecutrix, they caught her from the road,
took her to the field, threw her on the ground and forcibly
committed rape on her. In that situation, there is a
possibility of some normal injuries naturally but, no such
injuries have been found on the body of the prosecutrix.
13. In the matter of Lalliram and another v. State of Madhya
Pradesh, (2008) 10 SCC 69 Hon'ble Apex Court, in para-11
has held as under:
11. It is true that injury is not a sine qua non for
deciding whether rape has been committed. But it
has to be decided on the factual matrix of each
case. As was observed by this Court in Ratap
Misra and Ors. v. State of Orissa 1977 (3) SCC
41) where allegation is of rape by many persons
and several times but no injury is noticed that
certainly is an important factor if the prosecutrix's
version is credible, then no corroboration is
necessary. But if the prosecutrix's version is not
credible then there would be need for
corroboration. (See Aman Kumar & Ors. v. State
of Haryana (2004 (4) SCC 379).
14. The Investigating Officer V. K. Awasthi (PW-5) has stated
that he has prepared the spot map (Ex.P-3) of the incident
as per the indication of the prosecutrix (PW-4). According to
which, the prosecutrix was raped after being caught and
dragged about 400 meters inside the road towards the field.
It is not possible that the prosecutrix did not resist while
being dragged for 400 meters. However, no injury much less
simple injury has been found on the body of the prosecutrix.
Therefore, in the light of above judgment, the statement of
the prosecutrix cannot be relied upon to base conviction.
15. The report of the State Forensic Science Laboratory
produced in the case has also been considered as evidence
by the Trial Court. But that report is not marked as an
exhibit. No question has been asked in this regard while
recording the statements of the appellants under Section
313 of the Code of Criminal Procedure. As such, the
appellants have not got an opportunity to give clarification
on this piece of evidence considered by the Trial Court.
Therefore, that report cannot be made basis for conviction of
the appellants for the said offence.
16. As per the FSL report, stains of semen and human sperms
has been found in the underwear of appellant Sanjay. Since
appellant Sanjay is a young man, it is normal to find semen
stains and human sperms in his underwear. Semen and
human sperms have also been found on the vaginal slide
and undergarment of the prosecutrix (PW-4). But, no DNA
test has been conducted by the prosecution to find out
whose it is.
17. In the matter of Chotkau v. State of Uttar Pradesh, (2023)
6 SCC 742, Hon'ble Apex Court, in para-80 has observed as
under:
80. After saying that Section 53A is not
mandatory, this Court found in paragraph 54 of
the said decision that the failure of the
prosecution to produce DNA evidence, warranted
an adverse inference to be drawn. Paragraph 54
reads as follows: (Rajendra Pralhadrao Wasnik v.
State of Maharashtra, (2019) 12 SCC 460 SCC
p.485)
"54. For the prosecution to decline to produce
DNA evidence would be a little unfortunate
particularly when the facility of DNA profiling is
available in the country. The prosecution would
be well advised to take advantage of this,
particularly in view of the provisions of Section
53A and Section 164A CrPC. We are not going to
the extent of suggesting that if there is no DNA
profiling, the prosecution case cannot be proved
but we are certainly of the view that where DNA
profiling has not been done or it is held back
from the trial court, an adverse consequence
would follow for the prosecution."
18. In the case of Krishan Kumar Malik v. State of Haryana,
(2011) 7 SCC 130, Hon'ble Apex Court in para-44 has held
as under:
44. Now, after the incorporation of Section 53 (A) in
the Criminal Procedure Code, w.e.f. 23.06.2006,
brought to our notice by learned counsel for the
Respondent-State, it has become necessary for the
prosecution to go in for DNA test in such type of cases,
facilitating the prosecution to prove its case against
the accused. Prior to 2006, even without the aforesaid
specific provision in the Cr.P.C. the prosecution could
have still resorted to this procedure of getting the DNA
test or analysis and matching of semen of the
Appellant with that found on the undergarments of the
prosecutrix to make it a fool proof case, but they did
not do so, thus they must face the consequences.
19. In the light of the above cited judgments, in the absence of
DNA test to ascertain whose semen and sperm were found
in the vaginal slide and undergarments of the prosecutrix
(PW-4), it could not be established that it was of the
appellants, as such it goes against the prosecution. Another
important point is that the prosecutrix is a married woman
and it was possible that she was in contact with her
husband at the time of the alleged incident and the report.
Since it is not proved whose semen was found in the vaginal
slide and undergarment of the prosecutrix (PW-4), the case
against appellant Sanjay becomes doubtful.
20. From the above evidence discussion, it is clear that the land
of husband of the prosecutrix (PW-1) and the land of
appellants are adjacent to each other and there was a
dispute between them regarding the land. This fact is also
confirmed by the statement of defence witness Gopichand
Singh (DW-1) who has stated that the husband of the
prosecutrix (PW-1) had earlier also got a report registered
against the juvenile accused under section 354 of the Indian
Penal Code, which was later compromised. The prosecutrix
(PW-4) herself has admitted in cross-examination that she
had signed the First Information Report (Exhibit P-8) on the
behest of her husband and the police had told her that they
would make a good case, your husband has signed it and
you should also sign it. She has admitted that the written
complaint (Exhibit P-1) was written by her husband and she
has given her statement in the Court as told by her
husband. She has also admitted that her husband keeps
visiting the Police Station and he is a legally knowledgeable
person and has already come to the Court to give statement.
She has also admitted that her husband had told her to
report against the appellants to get them punished. The
husband of the prosecutrix (PW-1) has admitted in his
cross-examination that when he came to the Police Station
at night, he did not go inside the police station. He has
stated that the villagers (including him) had complained
against Vishwaranjan, Sukhranjan and appellant Sanjay
regarding Anganwadi. In this situation, it is clear that he
had an old dispute and animosity with appellant Sanjay. As
such, it becomes clear from the evidence of the prosecutrix
(PW-4) herself that she was under the influence of her
husband (PW-1).
21. Thus, from the evidence available on record and the above
discussion, it is found that the prosecutrix has lodged the
report under the influence of her husband (PW-1), which is
delayed by almost 20 hours, for which no satisfactory
explanation has been given. The alleged incident of rape has
not been proved by medical evidence or chemical test report.
There has been a situation of enmity between the parties.
The alleged place of incident is said to be an open field, but
no sign of forced rape has been found. In the light of the
above evidence, we find that the prosecutrix is not a reliable
witness beyond doubt. There is a lack of clear, reliable and
sufficient evidence for conviction of the appellants. In such a
situation, the impugned judgment is not found to be
sustainable.
22. Accordingly, the conviction of the appellants for offence
punishable under Sections 341, 366, 376 (D) & 506 B of IPC
is hereby set-aside and they are acquitted of the said
charges.
23. This criminal appeal, accordingly, stands allowed.
24. The appellants are reported to be in jail. They be released
from jail forthwith, if their detention is not required in
connection with any other offence.
25. Let a certified copy of this judgment along with the original
record be transmitted forthwith to the concerned trial Court
for necessary information & action, if any. A copy of the
judgment may also be sent to the concerned Jail
Superintendent wherein the appellants are suffering the jail
sentence.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal)
Khatai Judge Judge
