Chattisgarh High Court
Dileshwar Dhritlahare vs State Of Chhattisgarh on 8 January, 2025
1
2025:CGHC:1307
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1848 of 2024
Dileshwar Dhritlahare S/o Naindas Dhritlahare, Aged About 31 Years R/o
Satnam Nagar Ameri, Police Station Sakari, District-Bilaspur (C.G.)
(In jail)
... Appellant
versus
State Of Chhattisgarh Through Police Station- Sakari, Distt.-Bilaspur (C.G.)
... Respondent
For Appellant : Mr. N.K. Chatterjee, Advocate.
For Respondent : Mr. Vivek Sharma, Panel Lawyer.
(Hon'ble Mr. Justice Naresh Kumar Chandravanshi)
Judgment on Board
08/01/2025
1. This criminal appeal filed by the appellant-accused under Section 415
of Bhartiya Nagrik Suraksha Sanhita, 2023 (henceforth, "BNSS, 2023") is
directed against the impugned judgment of conviction and order of sentence
dated 18th September, 2024 passed by Special Judge, Scheduled Caste &
Scheduled Tribe (Prevention of Atrocities) Act, 1989 , additional Charge of
Additional Sessions Judge (F.T.C.), Bilaspur, District Bilaspur in Sessions
Trial No. 202/2001, whereby he has been convicted for the offence under
Section 376 of the IPC and sentenced to undergo rigorous imprisonment for
10 years with fine of Rs.2,000/-, in default of payment of fine, to further
undergo rigorous imprisonment for two months. Fine amount has already
been deposited.
2. Case of the prosecution, in brief, is that the victim / prosecutrix, who is
aged about 26 years, made a written report to the police station Sakri,
District Bilaspur alleging that in the night of 11.04.2021, at about 9.30 P.M.,
her husband had gone to deliver food to Life Care Hospital and the door of
the house opened, she was sleeping in her house, at that time, present
appellant came there and slept on her and kissed her and by removing her
clothes, committed rape on her, at the same time, her husband came in the
house and saw the victim/prosecutrix and appellant / accused in an
objectionable condition, thereafter, he dragged both of them out and
shouted, then when the neighbours came there, she narrated the entire
incident to the neighbours namely Kunjan Baghel, Narayan Banjare and
Mana Banjare and, thereafter, she went to the police station alongwith her
husband and lodged the report. Thereafter, FIR No. 142/2021 has been
registered against the appellant under Section 376 of the IPC. After usual
investigation, charge-sheet under Section 376 of the IPC has been filed
before the Judicial Magistrate First Class, Bilha, Bilapur, who, in turn
committed the case to the Sessions Judge, thereafter, the case was
transferred to the Special Judge (Atrocities), Additional Charge of Additional
Sessions Judge (F.T.C.), Bilaspur i.e. trial Court, for trial.
3. The trial Court framed charge under Section 376 of the IPC and the
same was read and explained to the appellant. He abjured his guilt and
entered into defence by submitting that he is innocent.
4. In order to establish the charge against the appellant, the prosecution
examined as many as 13 witnesses and exhibited 17 documents i.e. Ex.P-1
to Ex.P-17. The statement to the appellant under Section 313 of the CrPC
was also recorded in which he denied the material appearing against him
and stated that he is innocent and he has been falsely implicated in the
case. He has not examined any witness in support of his defence.
5. After appreciating the oral and documentary evidence available on
record, the learned trial Court has convicted the accused /appellant and
sentenced him as has been mentioned in opening paragraph of the
judgment. Being aggrieved and dissatisfied with the judgment convicting &
sentencing the accused/appellant for the aforesaid offence, instant criminal
appeal has been preferred questioning the same.
6. Learned counsel appearing for the appellant submits that appellant
has been convicted without any cogent evidence. He further submits that
contains of FIR and statement of victim/prosecutrix recorded under Section
164 of the Cr.P.C. itself show that it was a consensual relation, which is
being given colour of offence of rape only because husband of the
prosecutix (PW-2) caught red handed the victim/prosecutrix and the
appellant in an objectionable position. He further submits that except
Premlal Banjare (PW-2), who is husband of victim/prosecutrix, other
witnesses are hearsay witnesses and the only material against the appellant
is FSL report (Ex.P-17), which is chemical examination report of vaginal
slide & petticoat of the victim/prosecutrix and underwear of
appellant/accused, in which, male spermatozoa has been reported to be
found on the vaginal slide & petticoat of the prosecutrix, as also on the
underwear of appellant/accused, but Dr. Astha Bharat (PW-7), who has
allegedly collected vaginal slide and petticoat of victim / prosecutrix, herself
has not stated that after said collection, she had sealed the same, as such,
FSL report cannot be held reliable beyond reasonable doubt in fact situation
of the instant case. It is further contended that, it is not a case of rape,
rather it is a case of consensual physical relation and the prosecution has
failed to prove that it was fall in the category of offence of rape.
7. Per contra, learned counsel for the State while supporting the
impugned judgment would submit that impugned judgment is based on
cogent evidence, therefore, the appeal is liable to be rejected.
8. I have heard learned counsel for the parties and perused the record
of the trial court with utmost circumspection.
9. Perusal of contains of FIR and the statement of the victim / proscutrix
recorded under Section 164 of the Cr.P.C. would show that at the time of
incident i.e. at about 9.30 pm, when victim/prosecutrix was sleeping in her
house, which is house of only one room, at that time appellant/accused
came there and sexually exploited her, at the same time, husband of victim
reached there and he ousted both of them by dragging them, thereafter,
hearing hue & cry, neighbours namely Kunjan Baghel (PW-3), Mona
Banjare (PW-4) and Narayan Banjare (PW-13) reached there. Although,
aforesaid act has been stated as rape by victim / prosecutrix and after
lodging FIR, she was medically examined on very next date of incident i.e.
12.04.2021 by Dr. Astha Bharat (PW-7), but as per her deposition, she did
not found any injury over the body of the victim and she has shown her
inability to give firm opinion that rape was committed with the victim or not.
10. Premlal Banjare (PW-2) is husband of victim-prosecutrix whereas
Kunjan Baghel (PW-3), Mona Banjare (PW-4) and Naryan Banjare (PW-5)
are the neighbours of victim / prosecutrix. They have stated in their
deposition that they went to the spot only after hearing hue & cry / dispute.
They have not stated that they heard screaming of the victim / prosecutrix.
Thus, as per these witnesses, they went on the spot listening hue & cry /
dispute between the appellant and husband of victim/proscutrix. Thereafter,
they were informed by the husband of the victim and others that appellant
has committed rape with her. Being hearsay witnesses, their deposition is
not helpful to the prosecution.
11. As per deposition of victim / prosecutrix (PW-1) when appellant /
accused was sexually exploiting her, at that time, she screamed a lot but
due to the cooler fan running in the room, no-one could hear her voice. But,
this fact has neither been disclosed by her in F.I.R. (Ex.P-2) nor in her
statement recorded under Section 164 of Cr.P.C. (Ex.D-1) or in her police
statement recorded under Section 161 of the Cr.P.C., that she had
screamed when the appellant was sexuality exploiting her. If she would
have raised alarm /screamed, then, of-course some of the neighbours
would have come there because as per spot map (Ex.P-5) prepared by
Patwari Dhirendra Singh (PW-5), houses of the neighbours are just in front
of the house of the victim / prosecutrix. Even police or patwari have not
shown any cooler in spot map (Exs. P-4) & (Ex.P-5) in the house of victim /
prosecutrix and such cooler has also not been seized, therefore, statement
of victim / prosecutrix that she screamed a lot at the time of incident, but
due to the cooler fan running in the house, her voice could not be heard by
any persons, is not found to be reliable.
12. Victim / prosecutrix (PW-1) has stated in paragraph 7 of her
deposition that at the time of incident, her three children were also sleeping
in the room, but neither in FIR (Ex.P-2), police statement recorded under
Section 161 of the Cr.P.C. or statement recorded under section 164 of the
Cr.P.C. nor in the deposition recorded in the Court, she has stated that on
being screamed by her whether her children were wake up or not.
Omission of this fact further creates doubt upon the aforesaid statement of
the victim / prosecutrix that she had raised alarm / screamed at the time of
incident.
13. Although, as per FSL report (Ex.P-17), semen stains and human
sperm have been reported to be found in vaginal slide ("A") and petticoat
("B") of victim and as also Chaddi ("C") of appellant, but from the evidence
available on record it is not established beyond reasonable doubt that
appellant had forcefully sexually exploited the victim / prosecutrix, rather it
seems that the victim / prosecutrix is consenting party to the act of the
appellant/accused, but when the husband of victim came there and found
them in an objectionable position, then only the same was given the colour
of offence of rape. In such circumstances, merely on the fact that FSL report
(Ex.P-17) is positive, it cannot be held that appellant / accused had
forcefully sexually exploited the victim/prosecutrix. This fact also does not
inspire confidence of the Court because Dr. Astha Bharat (PW-7), who had
medically examined the victim/prosecutrix, has not proved in her statement
that after preparing vaginal slide of victim/prosecutrix and recovering her
petticoat, she had sealed those articles, thereafter, she had handed over the
same to the concerned constable for chemical examination.
14. Upon minute scrutiny of the evidence brought by the prosecution to
substantiate the charges alleged against the appellant, it does not establish
beyond reasonable doubt that appellant had raped the victim / prosecutrix,
rather it seems that it was a consensual relation between victim/prosecutrix
and the appellant/accused and since they were caught red handed by the
husband of the victim / prosecutrix, then only the FIR (Ex.P-2) was lodged
by the victim/prosecutrix against the appellant/accused.
15. In view of the foregoing discussion, it is found that learned trial Court
without appreciating deposition of victim/prosecutrix and other oral &
documentary evidence in its true perspective in accordance with law, has
relied upon same for convicting the accused/appellant, which is found to be
perverse and illegal, as it is settled proposition of law that by only making
statement about a fact, any offence cannot be held proved until and unless,
the same is proved by cogent and clinching evidence. In the instant case,
the prosecution has utterly failed to prove the offence of rape against the
appellant / accused beyond reasonable doubt. Therefore, offence under
Section 376 of the IPC is not made out against the appellant.
16. Accordingly, the criminal appeal is allowed and the impugned
judgment of conviction and order of sentence dated 18 th September, 2024
is set aside. The appellant stands acquitted of the offence under Section
376 of the IPC. The appellant is reported to be in jail since 18.09.2024. He
be released forthwith, if not required in any other case.
17. Keeping in view of the provisions contained in Section 481 of the
Bhartiya Nagrik Suraksha Sanhita, 2023, the appellant is directed to furnish
a personal bond for a sum of Rs.25,000/- with one surety in the like amount
before the concerned trial Court, which shall be effective for a period of six
months alongwith an undertaking that in the event of filing of special leave
petition against the instant judgment or for grant of leave, the aforesaid
appellant on receipt of notice thereon shall appear before the Hon'ble
Supreme Court.
18. The trial Court record alongwith the copy of this judgment be sent
back immediately to the concerned trial Court for compliance and
necessary action.
Sd/-
(Naresh Kumar Chandravanshi)
Judge
Amit
AMIT by AMIT
KUMAR DUBEY
KUMAR Date:
DUBEY 2025.01.10
18:11:03 +0530
