Page No.1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment Reserved on : 27.06.2019
Judgment Delivered on : 22/08/2019
CR.A. No. 486 of 2014
1. Ganesh Sahu, S/o. Pardeshi Sahu, Aged About 39 Years,
2. Ganpat Sahu, S/o. Pardeshi Sahu, Aged About 55 Years
Both are R/o. Village -Majgaon, P.S. Kawardha, Distt. Kabirdham
C.G. Civil and Rev. Distt. Kabirdham, Chhattisgarh.
—- Appellants
Versus
State Of Chhattisgarh, Through : P.S.- Kawardha, District Kabirdham,
Chhattisgarh.
—–Respondent
For Appellants : Mr. Ajit Singh, Advocate
For Respondent/State : Mr. Arun Shukla, Govt. Advocate
Hon’ble Shri Justice Rajendra Chandra Singh Samant
C A V JUDGMENT
22/08/2019
1. This appeal has been preferred against the judgment of
conviction and order of sentence, passed by the learned Special
Sessions Judge, Kabirdham (Kawardha) (C.G.) in Special
Sessions Trial No.22/2013 on 30.04.2014, convicting the
appellants for the offence under Section 376 (g) of the Indian
Penal Code and sentencing them to undergo R.I. 10 years and
for the offence under Section 3 (1) (12) of Scheduled Castes
Page No.2
Scheduled Tribes (Prevention of Atrocities) Act, 1989 and
sentencing them to undergo R.I. for 2 years with default
stipulations.
2. Facts
of the case in brief is this that on 02.05.2013, when the
prosecutrix (P.W.-1) was alone in her house along with her
children, then at about 8 PM in the night, the appellants came to
her door asking for her husband. The prosecutrix replied that her
husband is not at home, thereafter, the appellants and one
another forcefully entered in her house and took her to the
bedroom and then the appellant No.1 had forceful sexual
intercourse without her consent and willingness. During the
incident, the appellant No.2 and one other were holding the
hands of the prosecutrix in assistance to the act done by the
main accused. The prosecutrix immediately informed about this
incident to her husband on mobile phone and also when he came
back to his house. The prosecutrix is a member of scheduled
caste. FIR (Ex.P-3) was lodged in the police station and on that
basis, the case has been investigated and on completion of
investigation, charge-sheet was filed.
3. The trial Court charged the appellants with offence under Section
450 and 376 (g) of the Indian Penal Code, Section 3 (1) (12) and
Section 3 (2) (5) of Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act. The appellants denied the charges
and prayed for trial. The prosecution examined as many as 13
witnesses on its behalf. On examining the appellants under
Page No.3
Section 313, they denied all the incriminating evidence against
them and pleaded innocence and false implication. In defence,
the appellant No.2 has examined himself before the Court and
two other witnesses were also examined in support of the
defence. On completion of trial, judgment has been delivered, in
which the appellants stand convicted and sentenced as
mentioned aforesaid.
4. It is submitted by the learned counsel appearing on behalf of the
appellants, that the trial Court has passed totally erroneous
judgment of conviction without there being any basis of reliable
and cogent evidence in support of the charge. The prosecution
has failed to prove the case against the appellants beyond all
reasonable doubts. The prosecutrix (P.W.-1) is an unreliable
witness, she had reason to falsely implicate the appellants. The
husband of the prosecutrix -Dharmendra Ratre (P.W.-2) was the
then Sarpanch of respective Gram Panchayat and a No
Confidence motion had been moved against him, regarding
which, voting meeting was scheduled on 04.05.2013. The
husband of the prosecutrix had threatened the appellants to
withdraw No Confidence motion and when they did not agree and
they did not succumbed to his threat, they have been falsely
implicated in this case so that these appellants and one another
may not be able to participate in the voting scheduled on
04.05.2013. Prosecutrix (P.W.-1) and her husband (P.W.-2) are
interested witnesses and in the background of the incident, it can
Page No.4
not be expected that they will make true statement. None of the
other witnesses have supported the prosecution case. The
medical examination report of the prosecutrix very clearly
mentions that no sign of injuries were found on the body and
private parts of the prosecutrix and no definite opinion was given
by the Dr. Usha Suryawanshi (P.W.-8) in her report Ex.P-30.
5. It is further submitted that the story of the prosecution is highly
improbable, which had been proved by the appellants in defence
evidence. Ganpat Sahu (D.W.-1) has proved the documents that
a notice of No Confidence motion was given to SDO, Kawardha
on 12.04.2013 vide Ex.D-4 and notice was served upon the
husband of the prosecutrix similarly vide Ex.D-5. He has further
stated very clearly that between 29.04.2013 to 03.05.2013, the
appellant No.1 was not present in the place and his presence
was in Damoh (M.P.). Similarly Bharat Lal Ramteke (D.W.-2),
who is a Gram Kotwar of Village – Damoh, District – Balaghat
has made statement in favour of the appellant No.1. Therefore,
on this basis it had been successfully proved by the appellants
that the prosecution case is false.
6. Counsel for the appellants places reliance in the judgment of
Supreme Court in State of Karnataka Vs. F. Natraj, in Cr.A.
No.1439 of 2011 decided on 07.10.2015, in which it is held that
where the testimony of the prosecutrix is full of discrepancies and
does not inspire confidence and further the medical report is not
conclusive, the accused becomes entitled for benefit of doubt. On
Page No.5
similar principle reliance has been placed on the judgment of
Single Bench of Madhya Pradesh High Court in Raj Kumar
Another Vs. State of M.P., (2000) Cri.L.J. 1896. It is prayed that
the appellants were entitled for acquittal. Hence, they may be
acquitted of all the charges. It is prayed in the alternative that in
case, this Court is not inclined to allow this appeal and acquit the
appellants in that case, at least sentence imposed upon the
appellants, which appears to be too harsh, may be reduced
relying on the judgment of Orissa High Court in Ahiraj Saha
Anr. Vs. The State, (2003) Cr.L.J. 3114.
7. Counsel for the State opposes the grounds raised in appeal and
the submissions made in this respect. It is submitted that the
prosecution has proved its case beyond all reasonable doubts. It
is submitted that the trial Court has elaborately considered upon
the grounds of defence raised by the appellants/accused persons
and have rejected it. Therefore, there is no reason to interfere in
the finding of the Court below. It may be so that the appellants
and the husband of the prosecutrix had political rivalry, but there
is evidence present of the prosecution beyond reasonable doubt
against the appellants that they have committed the offence as
alleged. It is also submitted that the grounds of alibi has to be
proved beyond reasonable doubt, which has not been proved in
that manner, therefore, the appellants are neither entitled for
acquittal nor for reduction of sentence. Hence, the appeal be
dismissed.
Page No.6
8. I have heard the learned counsel for the parties and perused the
record of the Court below.
9. The point in issue in this appeal is whether the prosecution has
proved the charges against the appellants on the basis of the
evidence beyond reasonable doubt?
10. There is no dispute that the prosecutirx is a member of scheduled
caste. The prosecutrix (P.W.-1) has stated that on 02.05.2013 at
about 8 PM, she was in her house alone with her girl child, when
both the appellants and one unknown person came to her door
and asked for her husband, when she replied that her husband is
not at home, she was caught hold by appellant No.2 and one
another and was pinned down on the ground, thereafter, the
appellant No.1 committed rape with her. She has stated that
immediately thereafter, she informed her husband on mobile
phone and when her husband came back, she went to the police
station at Kawardha and lodged the FIR (Ex.P-3). In cross-
examination, she has admitted that she did not suffer any injuries
in the incident. In paragraph 16 of her deposition, she has denied
about knowledge of meeting for No Confidence motion that was
to be held on 04.05.2013. She has further denied that the
appellants and other had given intimation of No Confidence
motion to SDO because of which, she has lodged false FIR. She
has also denied that as her husband had threatened the
appellants to withdraw the no confidence motion to which they
did not agree, therefore, she has lodged false FIR, so that the
Page No.7
appellants and other could not be able to participate in the voting
for No Confidence motion on 04.05.2013. No material
discrepancies has been established in the cross-examination in
comparison to previous statement given by her in Ex.D-1 and D-
2. She has denied all the suggestions that appellant Ganesh was
not present at the time of incident. She has admitted that she had
insisted with the police to arrest the appellants and one another
on the same day. She also admitted that in case all the accused
persons would have been arrested, they would not have been
able to present themselves in the No Confidence motion voting.
The admissions made by her may have some implication which
shall be considered after appreciating all the evidence.
Therefore, it is found that the prosecutrix (P.W.-1) has remained
consistent in her statement given by her in examination-in-chief.
11. Dharmendra Ratre (P.W.-2) has stated that on 02.05.2013 at
about 8.00 PM, he was standing in front of betel shop, when he
received phone call from his wife, he went to his house along with
his friend Kailash and Ashok Vema. When he arrived at home, he
was informed about the incident by his wife prosecutrix (P.W.-1).
In cross-examination he has denied the suggestions that he had
threatened the Panchas of the Panchayat that he will implicate
them in false case in case they vote against him. He has
admitted that he had notice of no confidence motion. He has
denied about having knowledge that out of 11 panchas, 9 were
against him in that motion. He has denied that it was the
Page No.8
appellant No.2, who had initiated the no confidence motion. He
has further denied the suggestion that he had falsely implicated
the appellants by making use of his wife only to protect himself
from ousting from the post of Sarpanch. Some discrepancy has
been established in the statement before the Court and his
previous statement (Ex.D-3) made before the police, which can
not be said to be material in any sense. He has further denied all
the adverse suggestion given to him and remained consistent on
his statement that he was informed about the incident by his wife.
12. Kailash Pandey (P.W.-9) has stated that on the date of incident,
at about 8.30 in the night, he was present with Dharmendra Ratre
(P.W.-2), in a betel shop. He has stated that at that time,
Dharmendra Ratre (P.W.-2) has received phone call from his wife
and informed that some incident has happened. Then this
witness went along with Dharmendra Ratre (P.W.-2) to see his
wife at Village – Saigona, where Dharmendra Ratre (P.W.-2) after
talking to his wife, informed him that three persons had
committed the house trespass and raped his wife. Thereafter, he
went in company of Dharmenda Ratre (P.W.-2) and prosecutrix
(P.W.-1) for lodging of FIR. In cross-examination, he had
remained firm on his statement, which has not been rebutted.
13. Remaining witnesses examined by the prosecution are regarding
the investigative procedures. Dr. Usha Suryavanshi (P.W.-8)
examined the prosecutrix (P.W.-1) on 03.05.2013 and reported
that she did not find any injury on the body and the private parts
Page No.9
of the prosecutrix or any symptom regarding sexual intercourse,
she could not give any opinion vide her report Ex.P-30.
14. Ganpat Sahu (D.W.-1) has stated that Dharmendra Ratre (P.W.-
2) was Sarpanch of Gram Panchayat Majgaon and he himself
and other family members of the family were panchas. He stated
that on 12 April, 2013, a No Confidence motion was initiated and
notice was given to SDO, Kawardha. The Motion had signature of
9 panchas. Thereafter, the meeting was scheduled on
04.05.2013, in which the No Confidence motion was passed. He
has stated that on account of this no confidence motion, which
was to be held on 4th of May, 2013, the prosecutrix and her
husband Dharmendra Ratre (P.W.-2) have collaborated and
conspired to falsely implicate the appellants so that no
confidence motion should fail. He has made statement of alibi
that on 02.05.2013 at about 8.00 PM, he was present in village-
Majgaon, where a bore well was being dug and in cross-
examination, he has denied all the suggestion given by the
prosecutor on the basis of the statement given by the prosecutrix.
There is no denial that No Confidence motion had been initiated
before the date of incident and the meeting was due on
04.05.2013. Whether this circumstances alone can be held as
sufficient reason to hold that the prosecutrix may be making a
false statement needs consideration.
15. Bharat Ramtake (D.W.-2) has stated that he is a Kotwar of village
– Damoh, District – Balaghat (M.P.). He has stated that he was
Page No.10
acquainted with appellant No.1, who had been to village- Damoh
on 29.04.2013 and stayed in the house of Sarju Singh from
29.04.2013 to 03.05.2013, regarding which he had made an entry
in Musafiri Panji, which is produced as Ex.D-12. In cross-
examination, he has admitted that the Musafiri Panji is not
certified and not maintained properly. He has further denied the
suggestion given by the prosecutor that he is making a false
statement.
16. Bharat Lal Ramtake (D.W.-2) firstly has made only statement that
he is working as Kotwar of village- Damoh in District – Balaghat.
No identity papers were produced by him. Neither his identity has
been verified. Secondly the Musafiri Panji register is not certified
as is required under police regulations that Kotwar shall present
register to the police for timely verification. Apart from that a
Kotwar is not a public servant, therefore, any register maintained
by him does not have any presumptive value, hence for this
reason, it can not be said that the statement made by Bharatlal
Ramtake (D.W.-2) is proved beyond reasonable doubt to exempt
the appellant No.1 from his involvement in the commission of
offence as alleged.
17. It is vehemently argued by the counsel for the appellants, that it is
established, that there is strong reason to disbelieve the
statement of the prosecutrix. The case is based only on the basis
of the statement of prosecutrix, which is not a reliable evidence
for the reason that the husband of the prosecutrix Dharmendra
Page No.11
Ratre (P.W.-2) Sarpanch was facing No Confidence motion,
which was scheduled for voting on May, 2013, therefore, the
prosecutrix had interest in the failure of the said no confidence
motion. Secondly, there is no physical evidence present
regarding the commission of offence of forceful rape, therefore,
her statement should be disbelieved. Reliance of the appellant on
the judgment of Supreme Court in case of State of Karnataka Vs.
F. Nataraj (supra) and the judgment of the Madhya Pradesh High
Court in case of Raj Kumar anr. Vs. State of M.P.(supra) has no
relevance for the reason that the statement of the prosecutrix has
remained intact in her cross-examination. However, it is a special
case in which there is evidence present against the appellants
regarding commission of offence and also the evidence is
present in favour of defence, which make out strong
circumstances because of which the prosecutrix may make a
false statement to implicate the appellants in this case. The
Supreme Court in the case of Vijayee Singh Ors. Vs. State of
U.P., reported in (1990) 3 SCC 190 in paragraph 15 has held as
under :-
“15………..Just as there is evidence on behalf of the
prosecution so there may be evidence on behalf of
the prisoner which may cause a doubt as to his
guilt. ……”
18. In paragraph 17 of the same judgment the Hon’ble Supreme
Court has observed as under :-
Page No.12
“17……… In Dahyabhai Chhaganbhai Thakkar Vs.
State of Gujarat, AIR 1964 SC 1563 it is observed: –
It is fundamental principle of criminal jurisprudence
that an accused is presumed to be innocent and
therefore, the burden lies on the prosecution to prove
the guilt of the accused beyond reasonable doubt.
The prosecution, therefore, in a case of homicide
shall prove beyond reasonable doubt that the
accused caused death with the requisite intention
described in Section 299 of the Penal Code. The
general burden never shifts and it always rests on the
prosecution. But, under Section 105 of the Evidence
Act the burden of proving the existence of
circumstances bringing the case within the exception
lies on the accused; and the Court shall presume the
absence of such circumstances. Under Section 105 of
the Evidence Act, read with the definition of “shall
presume” in Section 4 thereof, the Court shall regard
the absence of such circumstances as proved unless,
after considering the matters before it, it believes that
the said circumstances existed Or their existence was
so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the
supposition that they did exist. To put it in other
words, the accused will have to rebut the presumption
that such circumstances did not exist, by placing
material before the Court sufficient to make it consider
the existence of the said circumstances so-probable
that a prudent man would act upon them. The
accused has to satisfy the standard of a “prudent
man”. If the material placed before the Court such as,
oral and documentary evidence, presumptions,
admissions or even the prosecution evidence,
Page No.13
satisfied the test of “prudent man”, the accused will
have discharged his burden. The evidence so placed
may not be sufficient to discharge the burden under
Section 105 of the Evidence Act, but it may raise a
reasonable doubt in the mind of a Judge as regards
one or other of the necessary ingredients of the
offence itself. It may, for instance, raise a reasonable
doubt in the mind of the Judge whether the accused
had the requisite intention laid down in Section 299 of
the Penal Code……….”
“…….The practical result of the three propositions
stated above is that an accused’s plea or an
exception may reach one of three not sharply
demarcated stages, one succeeding the other,
depending upon the effect of the whole evidence in
the case judged by the standard of a prudent man
weighing or balancing probabilities carefully. These
stages are; firstly, a lifting of the initial obligatory
presumption given at the end of Sec. 105 of the Act;
secondly the creation of a reasonable doubt about the
existence of an ingredient of the offence; and thirdly, a
complete proof of the exception by “a preponderance
of probability”, which covers even a slight tilt of the
balance of probability in favour of the accused’s plea.
The accused is not entitled to an acquittal if his plea
does not get beyond the first stage. At the second
stage, he becomes entitled to acquittal by obtaining a
bare benefit of doubt. At the third stage, he is
undoubtedly entitled to an acquittal. This, in my
opinion, is the effect of the majority view in Parbhoo’s
case which directly relates to first two stages only.
The Supreme Court decisions have considered the
last two stages so far, but the first stage has not yet
Page No.14
been dealt with directly or separately there in any
case brought to our notice…….”
19. In the judgment of Bharwada Bhoginbhai Hirjibhai Vs. State of
Gujarat, reported in AIR 1983 SC 753, at para-7 of the judgment,
the Hon’ble Supreme Court has held as under :-
“7. It is now time to tackle the pivotal issue as
regards the need for insisting on corroboration to the
testimony of the prosecutrix in sex-offences. This
Court, in Rameshwar v. The State of Rajasthan,(1)
has declared that corroboration is not the sine que-
non for a conviction in a rape case. The utterance of
the Court in Rameshwar may be replayed, across the
time-gap of three decades which have whistled past,
in the inimitable voice of Vivian Bose, J. who spoke
for the Court The rule, which according to the cases
has hardened into one of law, is not that corroboration
is essential before there can be a conviction but that
the necessity of corroboration, as a matter of
prudence, except where the circumstances make it
safe to dispense with it, must be present to the mind
of the judge …….
The only rule of law is that this rule of prudence must
be present to the mind of the Judge or the jury as the
case may be and be understood and appreciated by
him or them. There is no rule of practice that there
must, in every case, be corroboration before a
conviction can be allowed to stand.”
20. Similarly in the judgment of Dola Ors. Vs. The State of
Odisha, reported in AIR 2018 SC 4020, the Hon’ble Supreme
Court has held at paragraph 5, 7 8, which reads as under :-
Page No.15
“5. It is well settled law that if the version of the
prosecutrix is believed, basic truth in her evidence is
ascertainable and if it is found to be credible and
consistent, the same would form the basis of
conviction. Corroboration is not a sine qua non for a
conviction in a rape case. The evidence of a victim of
sexual assault stands at par with the evidence of an
injured witness and is entitled to great weight,
absence of corroboration notwithstanding. If the
evidence of the victim does not suffer from any basic
infirmity and the “probabilities factor” does not render
it unworthy of credence, as a general rule, there is no
reason to insist on corroboration, except from medical
evidence, where, having regard to the circumstances
of the case, medical evidence can be expected to be
forthcoming. When a grown up and married woman
gives evidence on oath in Court that she was raped, it
is not the proper judicial approach to disbelieve her
outright.
7. In Sadashiv Ramrao Hadbe Vs. State of
Maharashtra, [(2006) 10 SCC 92], this Court
reiterated that the sole testimony of the prosecutrix
could be relied upon if it inspires the confidence of the
Court:
“9. It is true that in a rape case the accused
could be convicted on the sole testimony of
the prosecutrix, if it is capable of inspiring
confidence in the mind of the court. If the
version given by the prosecutrix is
unsupported by any medical evidence or the
whole surrounding circumstances are highly
improbable and belie the case set up by the
prosecutrix, the court shall not act on the
Page No.16solitary evidence of the prosecutrix. The
courts shall be extremely careful in accepting
the sole testimony of the prosecutrix when the
entire case is improbable and unlikely to
happen.”
8. However, as is also evident from the
observations above, such reliance may be placed
only if the testimony of the prosecutrix appears to be
worthy of credence. In this regard, it is also relevant
to note the following observations of this Court in the
case of Raju v. State of Madhya Pradesh, [(2008) 15
SCC 133], which read thus:
……….11. It cannot be lost sight of that rape
causes the greatest distress and humiliation to
the victim but at the same time a false
allegation of rape can cause equal distress,
humiliation and damage to the accused as
well. The accused must also be protected
against the possibility of false implication,
particularly where a large number of accused
are involved. It must, further, be borne in mind
that the broad principle is that an injured
witness was present at the time when the
incident happened and that ordinarily such a
witness would not tell a lie as to the actual
assailants, but there is no presumption or any
basis for assuming that the statement of such
a witness is always correct or without any
embellishment or exaggeration…….”.
21. Further it was held in paragraph -21 of the same judgment, which
is as under :-
Page No.17
“21. In the matter on hand, on going through the
entire material on record, we are of the clear
opinion that the prosecutrix apparently had motive
to seek revenge against the accused persons…….”
22. The Hon’ble Supreme Court in case of Rajoo Ors. Vs. State
of M.P., reported in AIR 2009 SC 858, made similar observation
in paragraph 9, 15 16, which reads as under :-
“9. The aforesaid judgments lay down the basic
principle that ordinarily the evidence of a prosecutrix
should not be suspected and should be believed, the
more so as her statement has to be evaluated at par
with that of an injured witness and if the evidence is
reliable, no corroboration is necessary. Undoubtedly,
the aforesaid observations must carry the greatest
weight and we respectfully agree with them, but at the
same time they cannot be universally and
mechanically applied to the facts of every case of
sexual assault which comes before the Court. It
cannot be lost sight of that rape causes the greatest
distress and humiliation to the victim but at the same
time a false allegation of rape can cause equal
distress, humiliation and damage to the accused as
well. The accused must also be protected against the
possibility of false implication……..”
15. On an examination of the entire evidence, we
are of the opinion that it would be difficult to
conclusively show the involvement of each of the
accused beyond reasonable doubt. To our mind the
truth and falsehood are so inextricably intertwined,
that it is impossible to discern where one ends and
the other begins.
Page No.18
16. As already noted above Raju, son of M. Billya
did not file an appeal in this court. In the light of the
fact that we have found the prosecution story to be
doubtful, Raju too must be given the benefit of doubt
in the light of the judgments in Raja Ram Ors. Vs.
State of M.P. (1994) 2 SCC 568, Arokia Thomas vs.
State of T.N. (2006) 10 SCC 542 and Suresh
Chaudhary etc. vs. State of Bihar (2003) 4 SCC 128.
We, accordingly allow the appeals and acquit the
present appellants, as also Raju son of M. Billya.”
23. Further in the case of Rajinder Vs. State of H.P., reported in AIR
2009 SC 3022, the Hon’ble Supreme Court has observed in
paragraph 14, which is as under :-
“14. In Sadashiv Ramrao Hadbe, this Court while
reiterating that in a rape case, the accused could be
convicted on the sole testimony of prosecutrix if it is
capable of inspiring the confidence in the mind of the
Court, put a word of caution that the Court should be
extremely careful while accepting the testimony when
the entire case is improbable and unlikely to have
happened. This is what has been stated:
“9. It is true that in a rape case the
accused could be convicted on the sole
testimony of the prosecutrix, if it is capable of
inspiring confidence in the mind of the court. If
the version given by the prosecutrix is
unsupported by any medical evidence or the
whole surrounding circumstances are highly
improbable and belie the case set up by the
prosecutrix, the court shall not act on the
solitary evidence of the prosecutrix. The
Page No.19courts shall be extremely careful in accepting
the sole testimony of the prosecutrix when the
entire case is improbable and unlikely to
happen.”
24. Thus it would seem that the principle in believing the unrebutted
statements of the prosecutrix is not a cardinal principle and there
are expectations, when her statements can be disbelieved.
Firstly, there has to be a ground in defence to show that the
prosecutrix has a motive and an interest in the prosecution and
conviction of the person concerned. In presence of such
substance, the rule of prudence would be applicable and if that
theory has some support from the evidence present in the
prosecution case as well as in the defence case, that can be
taken into consideration before drawing conclusion of guilt of the
accused person. Particularly, in this case, there are admissions
in the cross-examination made by the prosecutrix herself that her
husband was the Sarpanch of the Gram Panchayat, whereas,
the appellants were Upsarpanch and members of Panchayat.
Although she has denied regarding knowledge of No Confidence
motion against her husband, but she has admitted that her
husband was removed from the post of Sarpanch after the No
Confidence motion. She has further admitted that her husband
needed three votes for his success in No Confidence motion.
She has further admitted the suggestions of the defence that she
had herself requested the police to arrest the three members of
Panchayat immediately on the same day. Although she denied
Page No.20
that she made such a request so that it would lead the No
Confidence motion to a failure. No Confidence motion against
Dharmendra Ratre (P.W.-2), which was to be voted open on
04.05.2013, is admitted by him in his evidence and it is
supported by the evidence of Ganpat Sahu (D.W.-1) and Babulal
Dhruve (D.W.-2), therefore, there are reasons to believe that the
prosecutrix (P.W.-1) was interested to save the position of her
husband as Sarpanch of Gram Panchayat. Some of her
admissions and particularly, the request made by her to the
police officer for arresting the appellants on the same day further
clarifies her interest on the same. The post of Dharmendra Ratre
(P.W.-2) could not be saved, because the voting on No
Confidence motion took place on 04.05.2013 and Dharmendra
Ratre (P.W.-2) was removed from the post of Sarpanch, even
then it can not be said that the matter ended, therefore the
reason that the grievance had continued because the appellants
had casted vote against Dharmendra Ratre (P.W.-2) for his
removal from the post of Sarpanch. Hence, these are the
peculiar circumstances in this case on the basis of which it can
be said that the doubt theory raised by the appellants side has
substance, which can not be ignored in any manner. Therefore,
on one hand, there is statement of the prosecutrix implicating the
appellants in this case and on the other hand it is shown that the
prosecutrix (P.W.-1) had an interest to prosecute and persecute
the appellants in this case, so that the No Confidence motion
Page No.21
against her husband fails. Hence, it is such a case where two
views are possible in that case, the principle is very clear that the
view which is in favour of the accused persons has to be
followed.
25. Hence, after a close scrutiny of the evidence brought from both
the sides and all the material present in the record I am of this
view that the prosecution has failed to prove its case against the
appellants beyond all reasonable doubts. Hence, on the basis of
these findings, the appeal is allowed. The appellants are
acquitted of the charges under Section 376 (g) of the Indian
Penal Code and for the offence under Section 3 (1) (12) of
Scheduled Castes Scheduled Tribes (Prevention of Atrocities)
Act, 1989. The appellants are reported to be in jail. They be set
at liberty forthwith, if not required in any other case.
Sd/-
(Rajendra Chandra Singh Samant)
Judge
Balram/
Nirmala