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Lalit Mandal vs State Of Chhattisgarh 60 … on 23 August, 2018

NAFR
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).
—- Appellant
Versus
• State of Chhattisgarh through Police Station Bande, Dist. Uttar
Bastar, Kanker.
—- Respondent

———————————————————————————————

For Appellant :` Mr. Parag Kotecha, Advocate.

For Respondent/State : Ms. K. Tripti Rao, PL.

———————————————————————————————

Judgment on Board
(23-08-2018)

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

default stipulations.

2. As per prosecution case, prosecutrix was sitting nearby pond in

village PV 52 to ease herself and at the same time appellant
2

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
appellant.

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
offence.

iv) Finding of the trial Court is contradictory to the
settled principles of law and the same is not
sustainable.

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

impugned judgment submits that the finding of the trial Court is
3

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
4

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
5

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

the IPC.

Sd/-

(Ram Prasanna Sharma)
JUDGE

Raju

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