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2023 Supreme(Chh) 257

IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
GOUTAM BHADURI, SANJAY S. AGRAWAL, JJ.
Saurabh Bhakta S/o Shri Amos Kumar Bhakta – Appellant
Versus
State of Chhattisgarh – Respondent
CRA No. 56 of 2020, CRA No. 132 of 2020, CRA No. 1969 of 2019
Decided on : 01-09-2023

Advocates:
Advocate Appeared:
For the Appellant :Mr. Prafull Bharat Sr. Advocate with Mr. Utsav Maheshwar and Ms. Shailaja Shukla, Mr. Ashutosh Shukla, Mr. Goutam Khetrapal, adv
For the Respondent: Mr. Vikram Sharma

Headnote:

Indian Penal Code, 1860 – Section 376(2)(b), (d), 3(Da), 506-B and 315 – Criminal Procedure Code, 1973 – Section 164, 161 - Evidence Act, 1872 - Section 32 - Offence of Rape - Appeal against conviction - Appeals are being heard together as they arise out of a common order whereby appellants after trial were convicted - Held, There has been inconsistency in evidence of prosecution to allow theory of proximity with any accused - Despite mobile was seized from accused, no video or contents were shown to be produced - Though statements might have been made by victim about commission of sexual assault and abortion, but those facts cannot be accepted with aid of section 32 of Act which is an exception to general rule of exclusion of hearsay evidence - Appellants were not tried for abetment of suicide - In case of homicidal death, statement made by deceased is admissible only to extent of proving cause of circumstances of his or her death - Conviction of appellants cannot be allowed to sustain - Consequently they are acquitted of charges - Appeals are allowed.

JUDGMENT :

Goutam Bhaduri, J

1. All the appeals are being heard together as they arise out of a common order dated 20.11.2019 passed by the Court of learned V Additional Sessions Judge, Durg in S.T. No.57/2015 whereby the appellants after trial were convicted and sentenced to undergo the life imprisonment for the offence u/s 376(2)(b), 376(d) & 376 3(Da) respectively. They were also convicted and sentenced to undergo RI for 3 for years 506-B and 315 of IPC, The details of conviction and sentence which the trial Court imposed against appellants are as follows :

Accused Saurabh Bhakta (A-1)

Conviction

Sentence

Fine

Default stipulation

Under section 376(2) (b) IPC & 376(d) IPC

R.I., for life each

Rs.20,000 Rs.20,000

RI for one month

u/s 506-B IPC

R.I. for 3 years

Rs. 500/-

RI for one month

u/s 315 IPC

R.I. for 3 years

Rs. 500/-

RI for one month

Accused Chandra Prakash Pandey (A-2)

Conviction

Sentence

Fine

Default stipulation

Under section 376(2) (b) IPC and 376(d) IPC

R.I., for life each

Rs.20,000 Rs.20,000

R.I., for one month

u/s 506-B IPC

R.I. for 3 years

Rs. 500/-

R.I. for one month

Accused Dr. Gautam Pandit (A-3)

Conviction

Sentence

Fine

Default stipulation

Under section 376(2)(M) IPC and 376(d) IPC

R.I., for life each

Rs.20,000 Rs.20,000

R.I., for one month

u/s 506-B IPC

R.I. for 3 years

Rs. 500/-

R.I. for one month

2. The case of the prosecution is that on 07.01.2015, the prosecutrix (since deceased) lodged a report stating that when she was admitted in Supela Hospital at Bhilai, 3 accused Saurabh Bhakta (A-1), constable Chandra Prakash Pandey(A-2) and Dr. Goutam Pandit (A-3) came to her at 12.30 a.m., in the night and said that an injection was to be administered on her. The victim stated that she would get help of nurse, but the accused said that nurse has left and thereafter she was taken to a room wherein she was administered an injection thereby she felt dizzy and lost her consciousness and during such time, all they committed rape upon her. Further it was stated that if she discloses the fact to any one, her video of sexual intercourse would be uploaded in the internet. Subsequently she did not disclose it to any one and got her discharged on 20th July, from hospital. Thereafter, on 10th October, at 5.30 a.m. in the morning, she was again taken in an Indigo Car by A-1 and A-2 and they committed rape on her. On 20th October, she came to know that she is pregnant, therefore, she made a call to Saurabh on 20th December, on his mobile which was received by his mother and the victim disclosed the fact to her that she was pregnant. Thereafter A-1 gave a pill on 24th December to terminate the pregnancy. She took the pill and thereafter the pregnancy was terminated. Subsequently, the victim disclosed the entire fact on 7th January 2015 to her parents and made a report in Police Station, on the basis of which, FIR was lodged. Subsequently, the case was transferred to the Police Station having jurisdiction i.e., P.S. Supela and the FIR was registered as Crime No.10/2015 vide Ex.P-28. After the FIR, the victim was medically examined. The site map was also prepared by Ex.P-3 and accused were arrested. According to prosecution, from accused Saurabh Bhakta, one mobile of Micromax Company was seized by Ex.P-20. From Chandra Prakash Pandey a mobile of L.G. Company was seized vide Ex.P-21 and from victim, one tablet Ex.P-22 was seized. The bed-head ticket from hospital was also seized vide Ex.P-5 and admission & discharge register as also the attendance register of doctors and staff were also seized vide Ex.P-13C, 14-C, 15-C &P-16-C The I.O., further recorded the statement and videography of the victim and her mother and in continuation statement u/s 164 of CrPC was recorded. Further the call details of the accused

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