Chattisgarh High Court
The State Of Chhattisgarh vs Dinesh @ Dinu Dhruv on 11 July, 2025
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Digitally
signed by
AKHILESH
AKHILESH BEOHAR
BEOHAR Date:
2025.07.11
17:23:26
+0530
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
ACQA No. 265 of 2017
Judgment Reserved on 03.07.2025
Judgment Delivered on 11.07.2025
• The State of Chhattisgarh, Through- District Magistrate, District Raipur,
Chhattisgarh.
...Appellant
versus
1. Dinesh @ Dinu Dhruv, S/o Late Madan @ Santosh Dhruv, aged about 23
Years, R/o Near Pandri Talab, Nayapara, Raipur, Police Station Devendra
Nagar, Raipur, Chhattisgarh.
2. Jitendra Pathak @ Chhotu, S/o Late Sunder Lal Pathak, aged about 25
Years, R/o Pandri Talab Raipur, Police Station- Devendra Nagar, Raipur,
District Raipur, Chhattisgarh.
... Respondents
For Appellant : Ms. Pragya Pandey, Deputy Government
Advocate.
For Respondents : Mr. Roop Ram Naik, Advocate.
Hon'ble Shri Justice Sanjay S. Agrawal &
Hon'ble Shri Justice Radhakishan Agrawal
CAV Judgment
Per Radhakishan Agrawal, J.
1. This acquittal appeal filed by the appellant/State arises out of the judgment
dated 03.01.2017 passed by the Additional Sessions Judge, Fast Track
Court, Raipur, C.G. in Sessions Trial No.27/2016, whereby the learned trial
Court acquitted the accused persons/respondents herein of the charge
under Sections 450, 328, 323 read with 34 and 376 (?k) of Indian Penal
Code (for short, ‘IPC‘).
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2. Case of the prosecution, in brief, is that on 20.06.2015, victim (PW-1), aged
about 48 years, lodged a Dehati Nalisi (Ex.P-2) stating therein that she was
working as a Nurse at Maternity Home Pandri, Raipur. On 19.06.2015, she
was on duty from 8:00 pm onwards along with two other female staff
members and after locking the main door of the hospital, they all went to
sleep at around 10:00 pm as there were no patients. It is alleged further
that while she was sleeping, at around 2:00 am, she woke up upon hearing
some noise and saw two unknown persons, aged about 30-35 years,
wearing masks and gloves, searching the cupboard in her room. When she
started shouting, one of them caught hold of her, pushed her on the bed,
forcibly put three tablets into her mouth, gagged her mouth with a piece of
cloth and tied her with a Dupatta. Thereafter, both the accused persons
committed sexual intercourse with her one by one and after committing the
offence, they searched the drawers to get valuable items and fled away
from there. At about 6:15 am, sister-in-charge entered the room, found her
in that condition and removed the cloth from her mouth and after that, she
informed the incident to her. On the basis of Dehati Nalisi (Ex.P-2), FIR
(Ex.P-23) has been registered against the two unknown persons.
3. During investigation, spot map was prepared vide Ex.P-11, consent letter
(Ex.P-3) of prosecutrix was obtained and she was sent for medical
examination where Dr. S.N. (PW-11) examined the prosecutrix and did not
give any definite opinion regarding recent forcible sexual intercourse nor
did find any sign of injury over the body of the prosecutrix either internally
or externally and gave her MLC report vide Ex.P-21. Vide Ex.P-1, night
dress and undergarment of prosecutrix were seized. From the spot, two
beds, one dupatta, one saree and other articles were seized vide Ex.P-8.
Seized articles were sent to FSL for chemical examination and as per FSL
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report (Ex.P-39), although seminal spots and human spermatozoa have
been found on the underwear & slide of prosecutrix, but the subsequent
DNA examination report (Ex.P-50) did not find any male DNA profile.
Accused persons/respondents were taken into custody on 16.10.2015 vide
Exs.P-30 & 31 and after more than three months of the incident, their
memorandum statements were recorded vide Exs.P-12 & 13 respectively,
pursuant to which, three notes of Rs.100/-, one Bermuda and T-shirt were
seized from the respondent No.2 and from respondent No.1, two notes of
Rs.100/-, T-shirt and jeans were seized vide Ex.P-15. Statements of the
witnesses were recorded and after completing investigation, charge-sheet
was filed against the accused persons/respondents before the concerned
trial Court under Sections 450, 328, 323 read with 34 and 376(?k) of IPC.
Accused persons/respondents abjured their guilt and prayed for trial.
4. The prosecution, in order to bring home the offence, examined as many as
11 witnesses in support of its case and exhibited 51 documents connecting
the respondents/accused persons to the crime in question. However, in
their defence, respondents/accused persons have examined none and not
exhibited any document.
5. The trial Court, after hearing counsel for the parties and appreciating the
evidence on record, by the impugned judgment acquitted the accused
persons/respondents herein of said charges leveled against them.
6. Learned counsel for the appellant/State would submit that the trial Court is
unjustified in acquitting the accused persons / respondents herein of said
charges by recording perverse findings. She would further submit that there
is sufficient evidence available on record to show that respondents are the
perpetrators of the crime in question. She would also submit that
respondents made extra-judicial confession before PW-5 Shiv Prasad Patel
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and PW-6 Sharad Pandey, admitting that on the date of incident, they had
committed sexual intercourse with the prosecutrix and despite such crucial
evidence, the learned trial Court has committed grave error in acquitting
the accused persons/respondents without appreciating the evidence on
record in its correct perspective. Thus, the impugned judgment of acquittal
suffers from perversity and illegality, therefore, the same is liable to be set
aside.
7. On the other hand, learned counsel for the respondents would support the
impugned judgment and submit that an extra-judicial confession is a very
weak piece of evidence and the same has also not been proved by the
prosecution beyond reasonable doubt. It is further contended that on the
date of incident, the respondents were talking to each other in an
intoxicated condition under Mowa over-bridge with respect to commission
of theft and rape in the yellow coloured building, but during the said
discussion, they have not disclosed specifically about the identity or status
of the victim nor revealed the date and time of the incident and the same
was not voluntarily disclosed before PW-5 Shiv Prasad Patel. Therefore,
such a casual discussion between the respondents does not come under
the category of extra-judicial confession. He would further submit that as
per the medical evidence, there was no injury mark either externally or
internally over the person of the victim and the doctor who examined the
victim did not give any definite opinion regarding recent forcible sexual
intercourse with the prosecutrix. Therefore, the present appeal filed by the
appellant/State be dismissed.
8. We have heard learned counsel for the parties and perused the material
available on record.
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9. The Supreme Court in the matter of Jafarudheen and others vs. State of
Kerala reported in (2022) 8 SCC 440 has considered the scope of
interference in Appeal against acquittal, which reads as under:-
25. While dealing with an appeal against acquittal by invoking
Section 378 CrPC, the appellate court has to consider whether the
trial court’s view can be terms as a possible one, particularly when
evidence on record has been analysed. The reason is that an
order of acquittal adds up to the presumption of innocence in
favour of the accused. Thus, the appellate court has to be
relatively slow in reversing the order of the trial court rendering
acquittal. Therefore, the presumption in favour of the accused
does not get weakened but only strengthened. Such a double
presumption that enures in favour of the accused has to be
disturbed only by thorough scrutiny on the accepted legal
parameters.”
10. Now the question would be whether the respondents are the author of the
crime in question?
11. PW-1 prosecutrix has stated in her deposition that on the date of incident,
faces of both the assailants were covered and they were wearing gloves
and black coloured clothes. She has also stated that she does not know the
persons present in the Court nor does she know whether she had seen
them before or whether they had committed such offence. Thus, she was
unable to identify the accused persons and is not sure whether the offence
was committed by the persons present in the Court or not. This apart, no
test identification parade has been conducted by the prosecution either to
identify the accused persons or to establish the seizure of the clothes from
the accused persons.
Furthermore, PW-5 Shiv Prasad Patel has stated that on the date of
incident, at about 5:00 to 6:00 pm, he was standing along with his friend
and having tea under Mowa overbridge, at that time, accused
persons/respondents came there in an inebriated condition, sat nearby and
started consuming ganja and discussed each other about the commission
of theft and rape in a yellow coloured building, but, during this
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conversation, the respondents have not specifically stated about the
identity of the victim nor disclosed the date and time of the alleged incident
and they were discussing each other in an intoxicated condition and such
discussion was not stated to be voluntarily before the PW-5 Shiv Prasad
Patel.
12. In the matter of Sahadevan vs. State of Tamil Nadu1, their Lordships of
the Supreme Court further considered the earlier decisions including
Balwinder Singh v. State of Punjab2 and pertinently laid down the
principle in paragraphs 15.1, 15.8 and 16 as under :
“15.1. In Balwinder Singh (supra), this Court stated the principle
that: (SCC p. 265, para 10)“10. An extrajudicial confession by its very nature is rather a
weak type of evidence and requires appreciation with a
great deal of care and caution. Where an extrajudicial
confession is surrounded by suspicious circumstances, its
credibility becomes doubtful and it loses its importance.”
15.8. Extrajudicial confession must be established to be true and
made voluntarily and in a fit state of mind. The words of the
witnesses must be clear, unambigous and should clearly convey
that the accused is the perpetrator of the crime. The extrajudicial
confession can be accepted and can be the basis of conviction, if
it passes the test of credibility. The extrajudicial confession should
inspire confidence and the court should find out whether there are
other cogent circumstances on record to support it. [Ref. Sk. Yusuf
v. State of W.B., (2011) 11 SCC 754 and Pancho v. State of
Haryana, (2011) 10 SCC 165]
The principles
16. Upon a proper analysis of the abovereferred judgments of this
Court, it will be appropriate to state the principles which would make
an extrajudicial confession an admissible piece of evidence capable
of forming the basis of conviction of an accused. These percepts
would guide the judicial mind while dealing with the veracity of cases
where the prosecution heavily relies upon an extrajudicial confession
alleged to have been made by the accused :
(i) The extrajudicial confession is a weak evidence by itself. It has
to be examined by the court with greater care and caution.
1(2012) 6 SCC 403
2 1995 Supp (4) SCC 259
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(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence.
(iv) An extrajudicial confession attains greater credibility and
evidentiary value if it is supported by a chain of cogent
circumstances and is further corroborated by other prosecution
evidence.
(v) For an extrajudicial confession to be the basis of conviction, it
should not suffer from any material discrepancies and inherent
improbabilities.
(vi) Such statement essentially has to be proved like any other fact
and in accordance with law.
13. Reverting to the facts of the present case in light of the principles of law
laid down by the Supreme Court in the aforesaid cases, it appears from the
record that on the date of incident, respondents, in an intoxicated condition,
were talking to each other under Mowa over-bridge. However, it also
appears that respondents have not specifically stated about the identity of
the victim, commission of offence with the victim nor disclosed the date and
time of the incident and they were merely discussing each other in an
intoxicated condition and such discussion was not stated to be voluntarily
before the PW-5 Shiv Prasad Patel. Therefore, the such casual discussion
between the respondents cannot be said to be extra-judicial confession. In
view of above, the prosecution has miserably failed to prove the alleged
discussion made between the respondents to be extra-judicial confession.
Furthermore, the confessional memorandum statements recorded by the
Police from the accused persons are inadmissible in evidence in terms of
Section 26 of the Evidence Act, 1872. Moreover, the seizure which was
effected three months after the incident does not establish any connection
with the respondents and the prosecution has also failed to prove the
same. This apart, Dr. S.N. (PW-11) who examined the prosecutrix did not
find any sign of injury over the body of the prosecutrix either internally or
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externally nor did give any definite opinion regarding recent forcible sexual
intercourse.
14. The learned trial Court has elaborately discussed the evidence led by the
prosecution and after analyzing the entire evidence led by the prosecution
come to the conclusion that there is no cogent and clinching evidence on
record to show that accused persons/respondents are the perpetrators of
the crime in question and further held that the prosecution has failed to
prove its case beyond reasonable doubt and as such, acquitted the
accused persons / respondents of the said charges.
15. After considering the material available on record as well as the elaborate
judgment impugned passed by the trial Court, we are of considered opinion
that the judgment impugned acquitting the accused persons / respondents
herein of the said charges is just and proper and does not call for any
interference.
16. Accordingly, this appeal by the appellant/State against the acquittal of the
accused persons / respondents herein of the aforesaid charges is hereby
dismissed.
Sd/- Sd/-
(Sanjay S. Agrawal) (Radhakishan Agrawal)
Judge Judge
Akhilesh