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Doulat Ram vs State Of Chhattisgarh 23 … on 21 August, 2018

NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
(SB: Hon’ble Mr. Justice Ram Prasanna Sharma)
CRA No. 967 of 2012
• Doulat Ram S/o Milau Ram Satnami Aged About 16 Years R/o
Village Kutela Mouharbhata Tahsil – Sarangarh Distt. Raigarh
C.G. , Chhattisgarh
—- Appellant.
Versus
• State of Chhattisgarh Through – District Magistrate , Raigarh ,
Distt. Raigarh C.G. , Chhattisgarh
—- Respondent
———————————————————————————————

For Appellant :` Mrs. Indira Tripathi, Advocate.

For Respondent/State : Mr. Suryakant Mishra, PL.

———————————————————————————————

Judgment on Board
(21-08-2018)

1. This appeal is preferred against the judgment of conviction and

order of sentence dated 12-10-2011 passed by Additional

Sessions Judge, Sarangarh, District Raigarh (CG) in Sessions

Trial No. 30 of 2011 wherein the said Court convicted the

accused/appellant for commission of offence under Section 376

of the IPC 1860 and sentenced him to undergo RI for ten years

and fine of Rs.10,000/- with default stipulations.

2. As per prosecution case, mother of the prosecutrix lodged first

information report stating that they are residents of village

Neelupara, Raigarh and on 23-6-2011 at about 2.00 – 3.00 pm

prosecutrix who is daughter of the complainant was playing with

her son Amar Deep and at the same time, appellant reached
2

there and took both the children to his home and thereafter he

sent Amardeep outside the house and committed rape on her.

3. The matter was investigated and the appellant was charge-

sheeted. After completion of trial, the trial Court convicted the

appellant as mentioned above.

4. Learned counsel for the appellant submits as under:

i) the prosecutrix has appeared before the trial
court, but the court did not record her evidence
sating that she is not competent witness.

ii) The case of the prosecution is based on the
statement of Smt. Seema Bai (PW/5), Amardeep
(PW/3), Naakaram (PW/2), Nandram (PW/6) and
other corroborative piece of evidence, but the
commission of offence is not proved by direct
evidence.

iii) Corroborative piece of evidence is not sufficient
to bring home the guilt against the present
appellant.

5. On the other hand, learned State counsel supporting the

impugned judgment submits that the finding of the trial Court is

based on proper marshaling of evidence and the same is not

liable to be disturbed.

6. I have heard learned counsel for the State, perused the

judgment impugned and record of the trial court.
3

7. Dr. Smt. Kiran Rohleda (PW/1) examined the prosecutrix on 25-

6-2011 and recording finding that intercourse is committed with

the prosecutrix. PW/12 Dr. M.K. Manhar conducted examination

of the appellant and found that he is capable to perform

intercourse. PW/13 Jehru Ram Bhagat is constable who assisted

during investigation. PW/11 Sub-Inspector R.M. Paraste is the

Investigating Officer. PW/10 Constable Jainifer Penna (PW/10)

assisted during investigation. PW/9 Khem Raj Patel, is the

person who prepared the spot map. PW/8 Revlal Satiya is a

person who took the seized articles to FSL, Raipur for chemical

examination.

8. PW/5 Smt. Seema Bai deposed that her daughter informed her

that the appellant committed intercourse with her. Nandram

(PW/6) deposed that he received information about the incident

through Smt Seema Bai (PW/5). Amar Deep (PW/3) deposed

that Doutlat Ram sent him out of the house and prosecutrix was

in the house of the appellant and when he again returned to the

house of the appellant, prosecutrix was not present there.

9. The trial Court found the prosecutrix to be incompetent witness

to depose under Section 118 of the Indian Evidence Act, 1872.

The other witnesses namely PW/5 Smt. Seema Bai and PW/6

Nandram Yadav have deposed that on the basis of what others

have informed them. As per statement of Seema Bai (p
4

PW/5), she has been informed about the incident by her

daughter/prosecutrix. All the witnesses are hearsay witnesses.

10. Now the point for consideration of this court is whether hearsay

evidence is admissible in evidence and can be acted upon.

11. In Kalyan Kumar Gagoi 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 under personal
responsibility, i.e., every witness must give his
testimony, under such circumstance, 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
repetition and

(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”.

12. As the hearsay evidence is inadmissible in evidence, it cannot be

acted upon. If hearsay evidence is excluded from the entire

evidence, there is nothing on record to connect the appellant

with the crime in question. Though the medical evidence

supported the factum of intercourse with the prosecutrix but the
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expert opinion is not substantive piece of evidence for answering

the crime in question. It can be used in support of substantial

evidence but independently it cannot be used to link the

appellant for commission of offence. It is settled principle of law

that “graver the offence, stricter the proof”. It is also settled that

long mental distance “may be true and must be true”. Therefore

in absence of strict evidence against the present appellant,

charge under Section 376 of the IPC is not established. The

finding arrived at by the trial Court is not sustainable and the

same is liable to be set aside.

13. Accordingly, the appeal is allowed. Conviction and sentence

imposed upon the appellant by the trial Court is hereby set aside.

The appellant is acquitted of the charge under Section 376 of the

IPC. The appellant is reported to be in custody. He be released

forthwith, if not required in any other case.

Sd/-

(Ram Prasanna Sharma)
JUDGE

Raju

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