NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

(SB: Hon’ble Mr. Justice Ram Prasanna Sharma)

Reserved on 3-10-2018
Delivered on 29-10-2018

CRA No. 178 of 2010

• Radhekrishna Jaiswal @ Radheshyam s/o. Kanti Prasad Jaiswal,
aged 38 years r/o. Village Bhaiswar, PS Sonhat, District Koria
(CG).
—- Appellant.
Versus
• State of Chhattisgarh Through -Police Station Sonhat, District
Koria (CG).
—- Respondent
———————————————————————————————

For Appellant :` Mr. D.N. Prapati, Advocate.

For Respondent/State : Mr. Vinod Tekam, PL.

———————————————————————————————

CAV Judgment

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

order of sentence dated 6-3-2010 passed by the Sessions

Judge, Koria (Baikunthpur) (CG) in Sessions Trial No. 108 of

2007 wherein the said Court convicted the accused/appellant for

commission of offence under Sections 376, 506 (1) and 342 of

IPC 1860 and sentenced him to undergo RI for seven years and

fine of Rs.500, RI for one year and RI for one year with default

stipulations.

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2. As per prosecution case, on 21-8-2007 at about 6.15 pm the

prosecutrix lodged a report alleging that at about 3.00 pm, she

went to the shop of the appellant for purchasing oil, soap, and

other things along with one Raj Kumari Pando. It is alleged that

the appellant took her forcibly to his house and committed rape

on her. The matter was investigated and the appellant was

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

the appellant as mentioned above.

3. Learned counsel for the appellant submits as under:

i) FIR is lodged for commission of offence under
sections 342 and 354 of the IPC which is signed
by the prosecutrix in which it is nowhere
mentioned that rape has been committed against
her.

ii) After consultation, she improved her version
after two days in her statement recorded before
the Investigating Officer in which she has stated
that rape has been committed against her by the
appellant.

iii) The trial Court has not considered the evidence
of PW/4, Smt. Rajkumari, PW/5, Lagansayi,
PW/6 Mahendra Singh, PW/7 Balkaran Rajwade,
PW/9 Mangal Sai and PW/11 Jhawar Dhan Kujur
who turned hostile and have not supported the
prosecution case.

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4. 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.

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

judgment impugned and record of the trial court.

6. To substantiate the charge, prosecution examined as many as

17 witnesses. In the present case, prosecutrix is PW/1 who is

aged about 25 years. Though she deposed in examination-in-

chief that rape was committed on her, but she admitted in her

cross examination (para 3) while reporting the matter to Police

Station that she did not narrate the story of rape. From FIR

(Ex.P/1), it appears that report was lodged under Sections 342

and 354 of IPC for outraging modesty of the prosecutrix. In this

way, she improved her version and narrated different story.

Other witnesses namely Manmati (PW/2), Fulmatiya (PW/3 and

Balkaran (PW/8) are hearsay witnesses who received

information about the incident.

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

evidence is admissible in evidence and can be acted upon. In

Kalyan Kumar Gagoi vs. Ashutosh Agnihotri
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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”.

8. The only evidence which is legally admissible evidence is the

statement of the prosecutrix, but her statement is not of sterling

quality. On the date of reporting of the matter she did not narrate

about the commission of rape whereas before the trial Court she

narrated different story. When story of rape is not narrated just

after the incident, the other story can be accepted only when it is

explained that earlier version was stated due to convincing

reason, but from her statement it is not clear as to why she did

not narrate the story of rape. She plainly says that due to threat

of the appellant she did not narrate story of rape. She was fearful
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of threat but it is clear that when the fear is removed from her

mind, therefore, story of fear cannot be acted upon. The other

witnesses are hearsay witnesses. 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 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 there is long

mental distance between “may be true and must be true”. The

prosecution has to establish is case in the category of must be

true for criminal liability. The prosecution has not established its

case on the touchstone of strict proof. Looking to unstability of

the prosecutrix, her version cannot be acted upon, therefore,

charges under Sections 376, 506 Part 1 and 342 of IPC are not

established. The finding arrived at by the trial Court is not

sustainable and the same is liable to be set aside.

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

imposed upon the appellant by the trial Court is hereby set aside.
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The appellant is acquitted of the charge under Sections 376, 506

Part 1 and 342 of the IPC. The appellant is reported to be on

bail. His bail bonds shall continue for further period of six months

in view of Section 437-A of Cr.P.C.

Sd/-

(Ram Prasanna Sharma)
JUDGE

Raju