HIGH COURT OF CHHATTISGARH, BILASPUR
(SB: Hon’ble Mr. Justice Ram Prasanna Sharma)
CRA No. 7 of 2010
• Lalit Mandal aged about 25 years, S/o Mani Mandal R/o PV 52,
Thana Bande, Kanker (CG).
• State of Chhattisgarh through Police Station Bande, Dist. Uttar
For Appellant :` Mr. Parag Kotecha, Advocate.
For Respondent/State : Ms. K. Tripti Rao, PL.
Judgment on Board
1. This appeal is preferred under Section 374 (2) of Code of
Criminal Procedure, 1973 against the judgment of conviction and
order of sentence dated 30-11-2009 passed by Additional
Sessions Judge (FTC), Bhanupratappur, Sessions Division North
Bastar, Kanker (CG) in Sessions Trial No. 23 of 2009 wherein
the said Court convicted the accused/appellant for commission of
offence under Section 376 (1) of the IPC 1860 and sentenced
him to undergo RI for seven years and fine of Rs.1000/- with
2. As per prosecution case, prosecutrix was sitting nearby pond in
village PV 52 to ease herself and at the same time appellant
caught hold of her hand and dragged her nearby the field 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) Version of the prosecutrix is wholly unreliable as
she did not depose in her examination-in-chief
against the appellant and narrated the story upon
leading questions put-forth by the prosecution
side, but in her cross examination she again
denied that any offence was committed by the
ii) Version of other witnesses are hearsay in
nature which is inadmissible in evidence.
iii) Medical evidence in the case is not supportive
to the prosecution and that part is also not
implicating the appellant for commission of
iv) Finding of the trial Court is contradictory to the
settled principles of law and the same is not
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.
7. Offence of rape is committed in secrecy, therefore, prosecutrix is
the main witness to the incident. In the present case, PW/3
Prakash Haldhar, is hearsay witness. PW/4 Kailash deposed that
he is not having any knowledge regarding commission of rape.
PW/5 Sanku Ram deposed on same line. PW/6 Ramen
Majumdar is hearsay witness. PW/7 Shivpad Sarkar, Assistant
Sub-inspector and PW/10 Shiv Kumar Mandavi are witnesses of
investigation. (PW/8) Dr. Nisha Nouratan is medical expert who
examined the prosecutrix. Dr.D.S. Nareti (PW/9) is a person who
examined the appellant.
8. Prosecutrix (PW/2) deposed in her cross-examination that when
the appellant caught hold of her hand, she became unconscious
and after half an hour when she regained conscious, appellant
was not present there. From her examination-in-chief, it is not
established that the appellant committed any act against her
body. This witness has been subjected to leading questions by
Additional Public Prosecutor and on his suggestion she
answered affirmatively regarding commission of rape. Version of
the witness in leading questions is not her own version, but it is
version of the prosecution side.
9. As per Section 141 of the Indian Evidence Act, 1872, any
question suggesting the answer which the person putting it
wishes or expects to receive, is called a leading question. In the
present case, prosecution side suggested the answer and the
same was given by the prosecutrix in affirmative which is not her
independent version. All the suggestions put-forth by the
prosecution side with a view to receive the answer in their favour
cannot be termed as independent version of the prosecutrix.
Again when the prosecutrix was subjected to cross examine she
deposed what she has stated in examination-in-chief. She again
deposed that when the appellant caught hold her, she became
unconscious. She further deposed that she does not know as to
what happened with her thereafter.
10. Looking to the entire version of the prosecutrix it appears that
she is not stable regarding commission of offence. As per
Section 134 of the Indian Evidence Ace, 1872, quality of the
evidence has to be weighed and when a witness is affirmed on
he/her statement, from the date of investigation till the date of
he/her examination before the court, then only he/she can be
treated as reliable witness. If a person states differently at
different stages, he cannot be termed as reliable witness. It is
settled principle of law that “graver the offence, stricter the
proof”. It is also settled that there is long mental distance
between “may be true and must be true”. The prosecution is
under obligation to bring its case in the category of must be true.
In the present case, since version of the prosecutrix is not a
sterling quality, it is not safe to conclude that offence of rape was
committed against her. Therefore in absence of strict evidence
against the present appellant, charge under Section 376 (1) 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.
11. 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 (1) of
(Ram Prasanna Sharma)