HIGH COURT OF CHHATTISGARH, BILASPUR
ACQA No. 281 of 2010
State of Chhattisgarh through Police Station Arjunda District Durg
Parmendra @ Mannu, Aged about 26 years, S/o. Radhelal, R/o.
Parastarai, P.S. Arjunda, District Durg (C.G.).
For the Appellant :- Mr. Bhaskar Payashi, Panel Lawyer
For the Respondent :- Mr. N.S. Dhurandhar, Advocate
Hon’ble Shri Justice Prashant Kumar Mishra
Hon’ble Shri Justice Ram Prasanna Sharma
Judgement on Board
Per Ram Prasanna Sharma, J.
27. 02. 2018
1. This acquittal appeal is directed against the judgment dated
03.05.2006 passed by the Second Additional Sessions Judge,
Session Division Durg, in Session Trial No. 208/2005, wherein
the said Court has acquitted the respondent for commission of
attempt to commit rape under Sections 376 read with Section
511 of the IPC 1860.
2. As per the prosecution case, on 16.07.2005 the prosecutrix
informed her mother that there is some wound on her private
part and her mother found some swelling on the private part of
the prosecutrix. The prosecutrix informed the incident to her
mother on 16.07.2005 and the report was lodged at Police
Station Arjunda by mother of the prosecutrix on 21.07.2005,
wherein it is stated that on 14-07-2005 the respondent by
catching her hands took the prosecutrix to his house and made
her lie down on the ground and thereafter removed her
undergarments and tried to commit sexual intercourse with
her. After completion of investigation, charge sheet was filed
against the respondent. Respondent pleaded innocence,
therefore, the trial was conducted. After examination of all the
witnesses, statement of the respondent was recorded under
Court acquitted the respondent as aforementioned.
3. Learned counsel for the State submits as under;-
(I) That the age of the prosecutrix is 5 years and as per definition
of rape the question of consent does not arise in the present
(ii) That on the basis of witnesses adduced by the prosecution it is
established that the respondent tried to commit sexual
intercourse with the prosecutrix but the trial court disbelieved
them without assigning any cogent reason.
(iii) That the finding arrived at by the trial Court is an error of fact
as well as error of law and same is liable to be set aside.
4. On the other hand, learned counsel for the respondent submits
that the finding arrived at by the trial Court is based on proper
marshaling of the evidence adduced by the prosecution and
same is not liable to be disturbed or modified while invoking
jurisdiction of the appeal.
5. We have heard learned counsel for both the parties and
perused the record of the trial Court.
6. Prosecutrix (PW-7) though deposed in her examination-in-chief
that when she was playing, the respondent caught hold her
hands and took her to his house and made her lie down on the
ground and thereafter removed her undergarments. But in
cross-examination she contradicted her version. As per her
cross-examination she deposed on the basis of tutoring by her
mother. In this way, this witness has rebutted her version as
stated in examination-in-chief.
7. Kumari Bai (PW-1) is the mother of the prosecutrix (PW-7) as
per her version she has stated whatever is informed by her
daughter. Dev Kumar (PW-8) is the father of the prosecutrix
and he has deposed what is stated to him by his wife. Dwarika
Prasad Deshmukh (PW-10) deposed on the same line by stating
that the incident was informed by Kumari Bai (PW-1). Debulal
Gajendra (PW-11) has also deposed on the same line and
stated on the basis of what was informed to him by Kumari Bai
(PW-1). Rest of the witnesses have assisted during
investigation after registration of FIR. Dr. Subrat Nandi (PW-9)
8. Kumari Bai (PW-1), Dev Kumar (PW-8), Dwarika Prasad (PW-10)
and Debulal (PW-11) are the hearsay witnesses. Now, the
point for consideration is whether hearsay evidence is
admissible evidence and whether the findings can be recorded
on the basis of hearsay evidence. In matter of Kalyan Kumar
Gogoi vs. Ashutosh Agnihotri reported in (2011) 2 SCC
532, Hon’ble the Supreme Court has held as under;-
“(a) the person giving such evidence does not
feel any responsibility. The law requires all
evidence to be given uner personal
responsibility, i.e., every witness must give
his testimony, under such circumstances, as
expose him to all the penalties of falsehood. If
the person giving hearsay evidence is
cornered, he has a line of escape by saying” I
do not know, but so and so told me”.
(b) truth is diluted and diminished with each
(c) if permitted, gives ample scope for playing
fraud by saying “someone told me
that…………..”. It would be attaching
importance to false rumour flying from one
foul lip to another. Thus statement of
witnesses based on information received from
others is inadmissible.
As hearsay evidence of these witnesses is inadmissible,
the same is not to be used against the respondent.
9. From the version of the prosecutrix nothing has happened with
her. She deposed that she has stated on the basis of whatever
tutored by her mother. True, it is that the age of the prosecutrix
is 5 years but commission of attempt to rape has to be
established by the prosecution but no foundational fact has
been established by the prosecution, therefore, version of the
defence witnesses that it is a case of false implication not
liable to be brushed aside and possibility of false implication
cannot be ruled out.
10. On overall assessment of evidence, we are of the view that the
finding arrived at by the trial Court is not perverse. It can not
be said that the trial Court has considered irrelevant and
extraneous material and it would not be just and proper for us
to reverse the finding of acquittal.
11. For the foregoing, the acquittal appeal fails and is hereby
Prashant Kumar Mishra Ram Prasanna Sharma