NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR

ACQA No. 281 of 2010

State of Chhattisgarh through Police Station Arjunda District Durg
(C.G.)

— APPELLANT

Versus

Parmendra @ Mannu, Aged about 26 years, S/o. Radhelal, R/o.
Parastarai, P.S. Arjunda, District Durg (C.G.).

—- RESPONDENT

For the Appellant :- Mr. Bhaskar Payashi, Panel Lawyer
For the Respondent :- Mr. N.S. Dhurandhar, Advocate

Hon’ble Shri Justice Prashant Kumar Mishra
Hon’ble Shri Justice Ram Prasanna Sharma

Judgement on Board
Per Ram Prasanna Sharma, J.

27. 02. 2018

1. This acquittal appeal is directed against the judgment dated

03.05.2006 passed by the Second Additional Sessions Judge,

Session Division Durg, in Session Trial No. 208/2005, wherein

the said Court has acquitted the respondent for commission of

attempt to commit rape under Sections 376 read with Section

511 of the IPC 1860.

2. As per the prosecution case, on 16.07.2005 the prosecutrix

informed her mother that there is some wound on her private

part and her mother found some swelling on the private part of

the prosecutrix. The prosecutrix informed the incident to her
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mother on 16.07.2005 and the report was lodged at Police

Station Arjunda by mother of the prosecutrix on 21.07.2005,

wherein it is stated that on 14-07-2005 the respondent by

catching her hands took the prosecutrix to his house and made

her lie down on the ground and thereafter removed her

undergarments and tried to commit sexual intercourse with

her. After completion of investigation, charge sheet was filed

against the respondent. Respondent pleaded innocence,

therefore, the trial was conducted. After examination of all the

witnesses, statement of the respondent was recorded under

Section 313 of the CrPC. After hearing the parties, the trial

Court acquitted the respondent as aforementioned.

3. Learned counsel for the State submits as under;-

(I) That the age of the prosecutrix is 5 years and as per definition

of rape the question of consent does not arise in the present

case.

(ii) That on the basis of witnesses adduced by the prosecution it is

established that the respondent tried to commit sexual

intercourse with the prosecutrix but the trial court disbelieved

them without assigning any cogent reason.

(iii) That the finding arrived at by the trial Court is an error of fact

as well as error of law and same is liable to be set aside.

4. On the other hand, learned counsel for the respondent submits

that the finding arrived at by the trial Court is based on proper

marshaling of the evidence adduced by the prosecution and

same is not liable to be disturbed or modified while invoking
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jurisdiction of the appeal.

5. We have heard learned counsel for both the parties and

perused the record of the trial Court.

6. Prosecutrix (PW-7) though deposed in her examination-in-chief

that when she was playing, the respondent caught hold her

hands and took her to his house and made her lie down on the

ground and thereafter removed her undergarments. But in

cross-examination she contradicted her version. As per her

cross-examination she deposed on the basis of tutoring by her

mother. In this way, this witness has rebutted her version as

stated in examination-in-chief.

7. Kumari Bai (PW-1) is the mother of the prosecutrix (PW-7) as

per her version she has stated whatever is informed by her

daughter. Dev Kumar (PW-8) is the father of the prosecutrix

and he has deposed what is stated to him by his wife. Dwarika

Prasad Deshmukh (PW-10) deposed on the same line by stating

that the incident was informed by Kumari Bai (PW-1). Debulal

Gajendra (PW-11) has also deposed on the same line and

stated on the basis of what was informed to him by Kumari Bai

(PW-1). Rest of the witnesses have assisted during

investigation after registration of FIR. Dr. Subrat Nandi (PW-9)

examined respondent.

8. Kumari Bai (PW-1), Dev Kumar (PW-8), Dwarika Prasad (PW-10)

and Debulal (PW-11) are the hearsay witnesses. Now, the

point for consideration is whether hearsay evidence is

admissible evidence and whether the findings can be recorded
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on the basis of hearsay evidence. In matter of Kalyan Kumar

Gogoi 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 uner personal
responsibility, i.e., every witness must give
his testimony, under such circumstances, 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.

As hearsay evidence of these witnesses is inadmissible,

the same is not to be used against the respondent.

9. From the version of the prosecutrix nothing has happened with

her. She deposed that she has stated on the basis of whatever

tutored by her mother. True, it is that the age of the prosecutrix

is 5 years but commission of attempt to rape has to be

established by the prosecution but no foundational fact has

been established by the prosecution, therefore, version of the
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defence witnesses that it is a case of false implication not

liable to be brushed aside and possibility of false implication

cannot be ruled out.

10. On overall assessment of evidence, we are of the view that the

finding arrived at by the trial Court is not perverse. It can not

be said that the trial Court has considered irrelevant and

extraneous material and it would not be just and proper for us

to reverse the finding of acquittal.

11. For the foregoing, the acquittal appeal fails and is hereby

dismissed.

Sd/- Sd/-

Judge Judge
Prashant Kumar Mishra Ram Prasanna Sharma

santosh