1 Reserved on : 21/01/2025 Delivered on : 08/05/2025 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 69 of 2004 1 - Tulsi Ram S/o Bhola Ram Satnami, aged about 27 years, Resident of Baghmar, P.S. Kunda at present P.S. Mungeli, District – Bilaspur (CG) ... Appellant (s) versus 1 - State Of Chhattisgarh Through the District Magistrate, Bilaspur (CG) ... Respondent(s) For Appellant (s) : Shri Rajkumar Gupta, Advocate For Respondent / State : Shri Kishanlal Sahu, Dy.G.A. ({Hon’ble Shri Justice Sachin Singh Rajput}) C A V Judgment This appeal is arising out of impugned judgment of conviction and order of sentence dated 22/11/2003 passed by the learned 3rd Additional Sessions Judge (FTC) and Additional Sessions Judge, Mungeli (CG) in Sessions Trial No.416/2000 by which, learned trial Court held the appellant guilty of commission of offence and sentenced as described below - Conviction Sentence 1 U/s 450/34 of IPC R.I. for 10 years and fine of Rs.2000/-. (In default of payment of fine, additional R.I. for 6 2 months) 2. U/s 363/34 of IPC R.I. for 7 years and fine of Rs.1,000/- (In default of fine additional R.I. for 3 months 3 U/s 342/34 of IPC R.I. for 6 months 4 U/s 376 (2) (G) R.I. for 7 years and fine of Rs.1000/-. (In default of payment of fine, additional R.I. for 3 months) 2. The facts in short are that on 20/09/2000 at about 10AM when the prosecutrix (PW7) had gone to the village pond for taking bath, the accused appellant herein along with co-accused Raju came to her and made an enquiry as to where she used to sleep at home. She is said to have informed them that she slept in the verandah near the door step. Thereafter, in the same midnight both the accused persons went to her house and dragged her away by gagging her mouth, to the house of the present appellant. It is alleged that the present appellant dragged the victim to his house and detained her with accused Raju in a room against her will, where she was subjected to forcible sexual intercourse by him (accused Raju). The sexual intercourse with her was made four times by accused Raju and this went on for about four days. On resistance made by her, accused Raju told to keep her as his second wife. From the house of accused / appellant, the victim is said to have been taken to the house of accused Raju but as his wife objected thereto, she came back to her house and narrated the incident to her grandmother, and then the report was made in the concerned police station on 25/09/2000. It is relevant to note here that the incident is said to have taken place on 20/09/2000 whereas the report came to be lodged on the fifth day i.e. on 25/09/2000. During investigation, certain articles including the underwear of the victim were seized, the victim was 3 subjected to medical examination with the consent of her aunt and after the investigation ended, the charge sheet came to be filed against the accused / appellant under Section 376, 342/34 IPC. Charge however was framed against him under Section 450/34, 363/34, 342/34 and 376 (2) (g) of IPC. 3. It is worthwhile to mention here that another accused -Raju absconded and therefore after his arrest, he was prosecuted, tried but eventually came to be acquitted by the trial Court vide its judgment dated 20/12/2018 passed in Sessions Trial No. 416/2000. 4. The prosecution examined as many as 13 witnesses to support its case in respect of the present appellant. Statement of the accused / appellant under Section 313 CrPC was also recorded but he pleaded his innocence and false implication in the case. 5. Learned Court below by the judgment under challenge in this appeal has convicted and sentenced the accused /appellant as described above. Hence this appeal. 6. Learned counsel for the appellant submits that apart from the evidence of the prosecutrix, there is no other evidence on record to show that the accused / appellant committed the offence alleged against him. He further submits that if the evidence of the prosecutrix right from the beginning is taken into consideration, it carries number of contradictions and omissions in the same and thereby it cannot be made a sole basis for conviction of the accused / appellant. He further submits that though the prosecutrix was allegedly dragged by the accused persons after closing her mouth with a piece of cloth 4 but the medical evidence does not go to show any injury on her person. Even no injury was found on her private part, her hymen was irregularly ruptured and sexual intercourse is opined to have been done with her. According to the counsel for the appellant, there are number of discrepancies in the FIR, statement of the witnesses recorded under Section 161 CrPC and the Court statement which render the case of the prosecution as doubtful worth giving benefit of doubt to the appellant. 7. On the other hand learned State counsel supports the judgment impugned to be just and proper and based on due appreciation of evidence available on record. He submits that the prosecution is not supposed to look for any other evidence when the prosecutrix herself has put forth her ordeal in categorical terms. He submits that it is a settled position of law that the conviction can entail solely on the basis of statement of the prosecutrix and no other material to corroborate the same is called for. 8. A patient hearing has been given to counsel for both the parties and the evidence on record including the judgment impugned have been looked into minutely. 9. The case put forth by the prosecution is that the present appellant along with the absconding accused had first met the victim in the village pond and made an enquiry from her as to where she used to sleep in her house and on coming to know about the place where she slept i.e. in the verandah at the door step, they both visited her house in the dead night and dragged her away, took her to the house of the present appellant where she was made captive along 5 with the absconding accused where they both lived for 3 to 4 days, and during this period she was subjected to forcible sexual intercourse by him. Further case of the prosecution is that after she was taken by the absconding accused to his house, but as his wife did not permit her to stay there, she got back home and narrated the incident to her grand mother, and thereafter, the report was lodged and investigation moved ahead. If this aspect of the prosecution case is tested on the touch stone of the evidence collected by the prosecution including the evidence of the victim herself, an altogether different picture is portrayed and therefore, it becomes an uphill task for this Court to arrive at a correct conclusion. If the victim’s conduct during investigation as also during trial is taken a look at, at the time of trial of the present appellant, she has made a categorical statement that it is the absconding accused who played a pivotal role in playing with the chastity for 3–4 days in the house of the accused appellant. While deposing before the Court about the manner which at the first blush appears to be quite unnatural, she has stated that the absconding accused did physically exploit her 3-4 times a day which went on for 4-5 long days. She has also stated about the manner in which the accused appellant made sex with her. According to her, she was then taken by the absconding accused to his house on the promise of being kept as his second wife but the same did not materialise as his wife strongly objected to that and also resorted to beating her, she returned home and made a disclosure about all what had happened with her to her grandmother and then the criminal law was set in motion by lodging the FIR. 10. True that the conviction can rest on the testimony of the victim alone but 6 for doing that her version has to be fully trustworthy and of sterling quality. If this Court ventures into an exercise of testing the veracity of her deposition, it has to be read in the light of other evidence available on record. The second important witness for that purpose appears to be the deposition of Umend Das (PW2) to whom the grand mother of the prosecutrix (PW8) had approached and allegedly informed about the victim not being present in the house. This witness has stated that the grandmother of the victim had come to him and informed that the victim was not at home and she was in the house of the present appellant, and therefore, requested him to accompany her to the police station for lodging the report which he did accordingly, but if the version of the grandmother (PW8) is seen, it becomes manifest that the victim was missing from home and had returned after 4–5 days therefrom. According to her, after she returned home the disclosure about her being sexually exploited by the absconding accused was made. She has further stated that she had not gone to the police station and only the victim had gone there for lodgment of the report. Thus, if the evidence of the victim is read in the light of evidence of PW2 and PW8, it appears to be replete of contradictions and omissions even on the material particulars and thus not worthwhile to be implicitly acted upon. 11. Another important piece of evidence happens to be the evidence of the doctor (PW4) who medically examined the victim and gave her report (Ex.P/10). According to this witness, all the secondary sexual characters of the victim were fully developed, no external or internal injury was present on her person, her hymen was irregularly torn and as per the opinion given by her, she had had sexual intercourse. The vaginal slides prepared by this witness and the 7 underwear containing semen like stains seized by the police were sent for chemical examination and the report received from the forensic science laboratory (Ex.P/21-B) indicates the presence of sperm thereon but the semen found on the under wear was not sufficient for the serological examination. 12. When the victim was examined by the prosecution at the time of trial of the present appellant, she has slapped all the allegations on the absconding accused and did not make even a whisper against the present appellant. Some of the relevant portion of her statement is reproduced as under - “The incident happened about two years ago. At that time my parents and mother were in jail. I was living in the house with my grandmother Phulkan Bai and my younger brother Rajendra. When I went to take a bath, accused Tulsi Das and accused Raju met me and asked me where I sleep and when I said no, they said they would kill me. Then I told them that I sleep in front of the door. After that I came back home. That day at 10 pm, both Raju and Tulsi came to my house and entered the house after removing the latch. Then accused Tulsi pressed my mouth, tied my mouth with a cloth and both the accused together dragged me to Tulsi's house. Both the accused made me lie down on cot. The accused removed all the clothes from my body. After that they did bad things to me. First Raju did bad things to me, then Tulsi did bad things to me. At that time there was a cloth in my mouth that is why I could not scream. That night the accused did bad things to me three to four times. I stayed with the accused for four to five days. In those four to five days also the accused did bad things to me. I had also told that Tulsi had done bad things to me three or four times. If the above things are not written in my statement Exhibit D-1 and Exhibit P-13, then I cannot tell the reason." However, when the same witness was examined on 10/10/2017 in 8 connection with the trial of the absconding accused, she has taken a complete somersault and stated completely contrary to what was stated by her initially. This time she has given absolutely a clean chit to the absconding accused and had poured down on the present appellant and acting upon her statement the absconding accused has been acquitted of all the charges leveled against him. Relevant portion of her statement dated 10/10/2017 is quoted as below - “Question - In your examination-in-chief you stated that on the night of the incident at 10 o'clock, Raju and Tulsi both came to my house and entered the house by removing the faika (door), and both the accused together dragged me to Tulsi's house and made me lie on the cot, first Raju did the bad thing to me and then Tulsi did the bad thing? Answer-I did not get the name of accused Raju written. Question: You had also stated in your main examination that at that time a cloth was tied over my mouth so I could not scream, on that night the accused did bad things to me 3-4 times, I stayed with the accused for 4-5 days and during those 4-5 days also the accused did bad things to me, did you tell the name of the accused present in the court along with the accused i.e. accused Tulsi? Answer: I had only told the name of Tulsi, I had not told the name of accused Raju. The witness was allowed to read out the things stated by her in his main examination statement paragraph 04 and when she was asked that you had told the above things, that accused Raju, who was present in the court along with accused Tulsi, had done bad things to you, the witness said that I had given statement against accused Tulsi. Question. Accused Tulsi and accused Raju have committed the crime together with you, but today to save accused Raju, you are saying that you do not recognize him and he did not commit the crime? Answer. I am telling the truth today that the accused Raju present in the 9 court has not done anything to me." In these circumstances, it becomes extremely difficult to act upon the testimony of the victim because she has changed her statement time and again and remained absolutely inconsistent while making the statement, whether at the time of investigation or trial. So is the position with PW2 and PW8 whose testimony if put in juxtaposition does not tally with each other on material particulars. Further though the human sperms, according to the FSL report, were confirmed on the vaginal slides and the underwear seized by the prosecution yet it remains inconclusive as to whether that semen was of the present appellant because due to insufficiency of the same, the serological examination could not be carried out. 13. Thus, having tested the entire testimony particularly of the victim, the act attributed to the accused appellant cannot be conclusively determined because right from the beginning the victim went stray while giving statement either before the police or before the Court on material particulars. If her testimony given initially is taken into consideration, the entire blame goes to the absconding accused but when she was again required to get her statement recorded before the Court below in connection with the trial of the absconding accused, she has made all the allegations either of being taken away or that of house trespass or of being subjected to sexual intercourse, at the present appellant. Which of the two of her versions is correct, cannot be deciphered. This apart, the other witnesses examined in support of the case of the prosecution too did not remain in conformity with the story put forth by the victim. More importantly, since the absconding accused has been given clean chit by the trial Court, the conviction of the accused/ appellant under Section 10 376 (2) (g) IPC cannot hold the field. The legal requirement according to several pronouncements of the Supreme Court one being in the case of Rai Sandeep alias Deepu v. State (NCT of Delhi), (2012) 8 SCC 21 for holding the accused / appellant guilty solely on the basis of statement of the prosecutrix i.e. of being consistent all throughout giving the statement of a sterling quality are entirely missing in this case. In the said case, it has been enunciated that the version of the victim apart from being of sterling and of a very high quality and caliber has to be unassailable. 14. Since the act alleged by the victim to the appellant itself appears to be doubtful, the factum of age of the victim which according to the State counsel was in the bracket of minority, does not appear to be relevant in this case. 15. In aforesaid view of the factual and legal position, this Court has no hesitation to hold that the prosecution has not been able to prove its case beyond reasonable doubt and therefore, the benefit of doubt has to go to the accused / appellant. So also the Court below too does not appear to have appreciated the evidence collected by the prosecution in its proper perspective, which makes the judgment impugned liable for being set aside. 16. In the result, the appeal is allowed, the judgment impugned is set aside and the accused /appellant stands acquitted of all the charges leveled against him. As the appellant is already on bail, no order to set him free is required to be passed. His bail bonds shall continue for a further period of 6 months under Section 481 of BNSS, 2023 and thereafter, the same shall stand discharged. Sd/- ({Sachin Singh Rajput}) JUDGE Jyotishi / Deepti DEEPTI HARIKUMAR Digitally signed by DEEPTI HARIKUMAR Date: 2025.05.09 16:38:46 +0530