1 2025:CGHC:2107 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 905 of 2006 Onkar Sahu, S/o Trilochan Sahu, aged about 35 years, R/o Village-Kulhadi, Police Station-Kurud, District Dhamtari (C.G.) ... Appellant versus State of Chhattisgarh through the District Magistrate, District Dhamtari (C.G.) ... Respondent For Appellant : Mr. Shivendu Pandya, Advocate For Respondent/State : Mr. HAPS Bhatia, Panel Lawyer Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (13.01.2025) 1. This appeal is directed against the impugned judgment dated 12/12/2006 passed by learned Additional Sessions Judge, Dhamtari (C.G.) in Session Trial No. 26/2006 by which, the Appellant has been convicted as under:- Conviction Sentence U/s. 376 (1) of IPC R.I. for 7 years with fine of Rs. 200/-, in default of payment of fine amount, additional RI for 1 month. Digitally signed by SHUBHAM SINGH RAGHUVANSHI Date: 2025.01.14 17:21:10 +0530 2 U/s 450 of IPC R.I. for 2 years with fine of Rs. 200/-, in default of payment of fine amount, additional RI for 1 month. 2. Case of the prosecution, in brief, is that On 13.01.2005, at around 11:30 PM, the prosecutrix, was sleeping at her residence in the village of Kulhadi. The accused/appellant entered her residence by climbing onto the roof and pulling the prosecutrix out of her house. He dragged her to a Aegle Marmelos tree under which he committed sexual intercourse with her. The prosecutrix informed her father- in-law and a man named Chhatrapal about the incident on the next day. However, due to the village panchayat elections being held that day, no village meeting could take place. On 16.01.2005, a meeting was held in the village, following which the incident was reported to the Kurud police station by the prosecutrix. An FIR was registered vide Ex.P-1. With the consent of the prosecutrix, her medical examination was conducted by Dr. (Mrs.) A. Tripathi (PW- 19), who submitted her report vide Exhibit P-17. A spot inspection was conducted, and a site map (Exhibit P-6) was prepared. After completion of investigation, charge sheet was filed. 3. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 19 3 witnesses and exhibited 18 documents. Statements of the appellant was recorded under Section 313 of Cr.P.C. in which he denied circumstances appearing against him in prosecution case, pleaded innocence and false implication. However, in his defence three documents were exhibited by him. 4. After hearing the parties, the trial court passed the impugned judgment of conviction and order of sentence. Hence, this appeal. 5. Learned counsel for the appellant submits that the appellant has been falsely implicated due to previous enmity. He further submits that the case is not supported with medical evidence. The prosecutrix is not a credible witness and she was a consenting party in the alleged act. The statements of prosecution witnesses are also doubtful. The prosecution has failed to prove its case, therefore, the appellant may be acquitted of the charges leveled against him by setting aside the judgment of conviction and order of sentence. 6. On the other hand, the learned counsel for the State submits that the conclusion given by the trial court regarding conviction and sentence of the appellant is based on sufficient and reliable evidence, which does not require 4 any interference. Therefore, the contention made by counsel for the appellant is not acceptable, hence, the appeal may be dismissed. 7. Heard learned counsel for the parties and perused the record with utmost circumspection. 8. The Prosecutrix (PW-1), who is a 36 year old widow, has supported the prosecution case in her court statement and stated that at about 11:00-12:00 in the night, when she was sleeping, the appellant came and dragged her by her hand to an Aegle Marmelos tree 50 feet away from the house, covered her mouth with a handkerchief and raped her forcefully. 9. This case has been said to be consensual and later due to dispute, a false report has been written. It is noteworthy that the incident has been said to have happened on 13/01/2005 at around 11.30 pm whereas the report has been registered with a delay of 03 days on 16/01/2005 by the prosecutrix (PW-1) herself . The reason given for the delay is that there was Sarpanch election on 15/01/2005, hence the report has been written after the election. After medical examination of the prosecutrix, while giving the reports Exhibit P-17 and P-18, Dr. A. Tripathi (PW-19) has stated that the prosecutrix had no external or internal injury in the body and since she had four children, 5 therefore, a definite opinion has not been given regarding rape. In this situation, when there is no definite opinion in the medical evidence, the chemical test report is not presented and the report has been written with a delay of 03 days. In such a situation, it becomes necessary to assess the credibility of evidence of the prosecutrix who stated that after the incident, she had informed other villagers and a panchayat meeting was also assembled in that matter. 10. The judgment of the Hon’ble Supreme Court in the matter of Santosh Prasad @ Santosh Kumar v. State of Bihar, (2020) 3 SCC 443, in which reliance has been placed by the counsel for the appellant, the concept expressed by the Hon'ble Supreme Court regarding the assessment of the credibility of the statement of the sole prosecutrix is as follows in paragraphs No.-5.5 & 6:- “5.5 With the aforesaid decisions in mind, it is required to be considered, whether is it safe to convict the accused solely on the solitary evidence of the prosecutrix? Whether the evidence of the prosecutrix inspires confidence and appears to be absolutely trustworthy, unblemished and is of sterling quality?” “6. Having gone through and considered the deposition of the prosecutrix, we find that there are material contradictions. Not only there are material contradictions, but even the manner in which the alleged incident has taken place as per the version of the prosecutrix is not believable. In the examination-in-chief, the prosecutrix has 6 stated that after jumping the fallen compound wall accused came inside and thereafter the accused committed rape. She has stated that she identified the accused from the light of the mobile. However, no mobile is recovered. Even nothing is on record that there was a broken compound wall. She has further stated that in the morning at 10 O’clock she went to the police station and gave oral complaint. However, according to the investigating officer a written complaint was given. It is also required to be noted that even the FIR is registered at 4:00 p.m. In her deposition, the prosecutrix has referred to the name of Shanti Devi, PW1 and others. However, Shanti Devi has not supported the case of the prosecution. Therefore, when we tested the version of PW5-prosecutrix, it is unfortunate that the said witness has failed to pass any of the tests of “sterling witness”. There is a variation in her version about giving the complaint. There is a delay in the FIR. The medical report does not support the case of the prosecution. FSL report also does not support the case of the prosecution. As admitted, there was an enmity/dispute between both the parties with respect to land. The manner in which the occurrence is stated to have occurred is not believable. Therefore, in the facts and circumstances of the case, we find that the solitary version of the prosecutrix-PW5 cannot be taken as a gospel truth at face value and in the absence of any other supporting evidence, there is no scope to sustain the conviction and sentence imposed on the appellant and accused is to be given the benefit of doubt.” 11. Reverting to the case in hand, According to the report written by the prosecutrix, Exhibit P-1, at the time of the incident, her 15-year-old daughter (PW-6) was sleeping beside her and her two children were sleeping on the other 7 bed. But it is not reflected in the statement of the prosecutrix herself that she called them for help or called anyone in the neighbourhood for help. 12. The daughter (PW-6) has stated in her examination-in- chief that she had heard about the incident when her mother (PW-1) was informing Chhatrapal about the incident. After being declared hostile, on suggestive question, she stated that when the appellant came inside her house, she woke up and in front of her, the appellant dragged her mother out. Since she was scared, she did not tell anyone and the appellant also threatened to kill her. But not only this witness but even in the report written by the prosecutrix herself, Exhibit P-1, there is no mention of threatening to kill them and there is contradiction in the statement of the daughter of the prosecutrix (PW-6) on the point whether she had seen the incident herself at night or she came to know about it the next day when Chhatrapal informed her. In such a situation, the statement of 15-year- old daughter (PW-6) becomes doubtful, on the basis of which statement of the prosecutrix (PW-1) cannot be considered credible beyond doubt on the point that the appellant had raped her forcibly. 13. The husband of the prosecutrix (PW-1) has passed away and the mother of the prosecutrix (PW-18) has been examined. She herself lives separately from the prosecutrix. 8 The mother-in-law of the prosecutrix (PW-18) has stated that the prosecutrix came to her at 10.00 pm and informed her about the incident. But at the same time, this witness admits in cross-examination that despite having the above information, she did not tell anyone else in the village. She has also admitted that the prosecutrix used to go to the house of the appellant to work and the appellant used to visit the house of the prosecutrix. Thus, it is clear from the statement of the mother-in-law of the prosecutrix (PW-18) that the appellant and the prosecutrix used to visit each other's house. 14. Chhatrapal (PW-2), the first person whom the prosecutrix (PW-1) has narratted the incident, has confirmed in his statement that on the night of 13/01/2005, the prosecutrix came and told him that the incident was committed by the appellant. This witness also stated that on 15/01/2005 there was an election of Sarpanch and after that on 16/01/2005 a meeting was held in which the appellant denied the crime. Then on the advice of the Panchayat, the prosecutrix got a report written. This witness Chhatrapal has also admitted in cross-examination that the prosecutrix has been coming to work in his field for 10 days and before that the prosecutrix and her daughter have been working in his field. In this situation, Chhatrapal appears to be interested witness on 9 behalf of the prosecutrix who had only told what he had heard. Thus, he is a hearsay witness. 15. If we evaluate the statement of the prosecutrix (PW-1), she herself has admitted in cross-examination that on 15/01/2005 there was election of Sarpanch in the village, therefore, she did not inform the people of the village about the incident and on 16/01/2005 she told about the incident, then a Panchayat was called in which she was advised to report the matter, then she went to Kurud police station with Kotwar Patel to get the matter reported. In her cross-examination, it has come to light that in her police statement and report, it is not mentioned that the appellant had covered her mouth with a handkerchief and was threatening to kill her. In such a situation, there is a contradiction in the police report and her Court statement. In paragraph 11 of the cross-examination, she herself has admitted that at the time of the incident, she did not shout because the accused had threatened her. Whereas there is no mention of threatening even in the report (Exhibit P-1). Thus, when the three children of the prosecutrix (PW-1) were present in her house itself and there were houses of other people in the neighbourhood, then the fact that the prosecutrix did not call, shout or screamed for help from anyone shows that she was the consenting party. 16. Qutub Ali (PW-8) who is a resident of the same village 10 has also stated that the prosecutrix (PW-1) had told the villagers about the rape committed by the appellant 2-3 days later. The appellant denied it and was advised to report. This witness stated in cross-examination that there is a school adjacent to the prosecutrix’s house where the election officials were staying. Vishwanath and Pardeshi's house is near the prosecutrix’s house. Due to the Panchayat elections, there was a lot of activity in the village at night. The prosecutrix (PW-1) used to go to the appellant's house to work as a labourer and her son also used to go there to work. There is a street in front of the appellant's house and the main square of the village is in front of the house. The appellant used to visit the prosecutrix’s house at odd hours as they had a family relationship. In the meeting, the appellant had stated that he had not committed any mistake, rather the prosecutrix herself had called him, and now she is implicating him later. Then the villagers had stated that they cannot settle the matter, after which the report was written. This witness has also stated that in the meeting, the prosecutrix was also told why she did not tell about the incident earlier and why she did not hold the meeting earlier. This witness has also accepted that after the incident date i.e. 13/01/2005, on 14/01/2005, the prosecutrix was roaming in the village for election campaign. 11 17. Thus, it is clear from the entire prosecution evidence that the house of the prosecutrix is not only adjacent to the school but a panchayat was also held in the village and there are houses of many people around her house, even then she did not call out to anyone for help. There is contradiction in her Court statement and the report written by her, Exhibit P-1. The incident is not supported with medical evidence. No FSL report is corroborative. The report has been written with a delay of three days. In all these circumstances, in light of above cited judgment, the sole prosecutrix is not found to be reliable beyond doubt and the benefit of doubt goes to the appellant. 18. Consequently, the appeal is allowed. The impugned judgment of conviction and sentence is set aside. The Appellant is acquitted on the basis of benefit of doubt. 19. The Appellant is reported to be on bail. His bail bonds shall continue for a further period of 6 months in light of Section 437A of the Code of Criminal Procedure. Thereafter, the said bonds shall stand discharged. 20. Record of the Trial Court be sent back along with a copy of this judgment forthwith for information and necessary compliance, if any. Sd/- (Sanjay Kumar Jaiswal) Judge Shubham