1 2025:CGHC:42120 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 379 of 2007 Judgement reserved on : 11.06.2025 Judgement delivered on : 20.08.2025 Dilbodh S/o Shri Rohidas Khairwar, aged about 19 years, Occupation- Agriculturist, R/o Village- Bulgaon, P.S. Ramanujganj, District- Surguja (C.G.) ... Appellant versus State of Chhattisgarh through Police Station- Ramanujganj, District- Surguja (C.G.) … Respondent/State _____________________________________________________________ For Appellant : Mr. Shreshta Gupta, Advocate. For State : Mr. Ajay Pandey, G.A. _____________________________________________________________ Hon'ble Smt. Justice Rajani Dubey C A V Judgement 1. This appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment dated 14.03.2007 passed by Second Additional Sessions Judge (Fast Track Court), Ramanujganj District- Surguja (C.G.) in Sessions Trial No. 399/2006, wherein the said Court convicted the appellant and sentenced him as under:- Conviction Sentence Under Section 450 of IPC R. I. for 10 years and fine amount of Digitally signed by AMIT PATEL 2 Rs. 1000, in default of payment of fine, to undergo additional R.I. for 03 months. Under Section 376 (2) (g) of IPC R.I. for 10 years and fine amount of Rs. 1000, in default of payment of fine, to undergo additional R.I. for 03 months. (Both sentences are directed to run concurrently) 2. Brief facts of the case are that on the date of incident i.e. 28.03.2006 at about 7.30 pm, when the prosecutrix (PW- 7) was with her younger brother in her home, at that time her mother visited Tatapani Market. At this juncture of time, co-accused (Juvenile) and the present appellant entered the house of prosecutrix, caught hold her hand, gagged her mouth and took her near the banyan (peepal) tree. When the prosecutrix tried to raise hue and cry, he threatened her to death and took along the shore of the wheat’s field to the house of the appellant, the co-accused (juvenile) pelted stone to the house of the appellant to confirm whether anyone is present at his house or not and woke up the son of Rohidas, who is said to be the appellant and the co-accused (Juvenile) committed rape upon the prosecutrix at that time the present appellant is said to be the present at the outside the door of room to ensure that no one comes there. It is said that after committing the said criminal act, the prosecutrix was left by the appellant to her house and also threatened her to cause death, if she discloses the said fateful incident. The said story was conveyed by prosecutrix to her mother, maternal grandmother and maternal uncle. Thereafter, the report lodged on 29.03.2006 before the Police Station- Ramanujganj as Ex. P/9. Underwear was seized of the prosecutrix as per Ex. P/8. After obtaining the consent letter from the mother of the prosecutrix, her 3 medical examination was conducted as per Ex.P/1 and medical examination of the said article was conducted as per Ex. P/2. Underwear of the co-accused (Juvenile) was seized as per Ex. P/3 and as per Ex. P/4 and Ex. P/7, the spot map was prepared. Medical examination of the co-accused (Juvenile) was conducted as per Ex.P/16 and also the medical examination of the seized article was conducted. To ascertain the age of the prosecutrix, radiological test was conducted by the Radiologist as per Ex. P/18. After completion of due, necessary investigation, he was charge-sheeted before the Court of concerned Jurisdictional Magistrate, who, in turn, committed the case for trial. In this case co-accused was juvenile, therefore, he charge- sheeted before the Juvenile Justice Board, Ambikapur. On the basis of the material contained in the charge-sheet, learned trial Court framed charges against the present appellant for alleged commission of offence under Sections 450 & 376 (2) (g) of IPC. 56The appellant/accused has abjured guilt was subjected to trial. 3. In order to establish the charges against the accused person, the prosecution has examined as many as 14 witnesses. The statement under Section 313 of Cr.P.C. of the appellant has been recorded, in which he denied the incriminating charges leveled against him and pleaded his innocence that he has been falsely implicated in this case. However, no witness examined by him in his defence. 4. After appreciation of oral as well as documentary evidence led by the prosecution, learned Trial Court has convicted the appellant and sentenced him as mentioned in inaugural paragraph of this judgment. Hence, this appeal. 5. Learned counsel for the appellant would submit that the impugned judgment of conviction and order of sentence passed by learned Trial Court is bad-in-law as well as facts available on record. The 4 presence of the appellant at the place of occurrence is in doubt as at the first instance he is said to be present and trespass the house of prosecutrix at the other hand, it is said that the son of Rohidas, who is said to be the appellant came out of his house after stone was pelted. Learned trial Court did not consider this fact that the way prosecutrix was taken to the house of the appellant on the way throughout she had ample opportunity to raise shout, alarm for help from the nearby neighbour on this point, as there were so many inhabitants in her residence area and PW-8 who is the brother of the prosecutrix said to be present at the very place of occurrence, also had so much opportunity to call, shout raise alarm for help from any neighbour, however, he is the eye witness and who met first to his mother, maternal grandmother and maternal uncle, but he did not inform immediately to these people about the incident. The conduct of these witnesses show sufficient light that this appellant had been badly for no reasonable cause dragged in the case, because of unknown animus in their mind. He further submits that the presence of the accused at the house while the co-accused (juvenile) committed rape, it is only a probability under which learned trial Court has arrived at a conclusion that he was watching and sitting on the door of his house, to this extent none of the prosecution witnesses other than the prosecutrix (PW-7) and PW-8 deposed where as they are closely related to each other, therefore, there is lacuna in the case of prosecution, yet the learned Trial Court has convicted the appellant and therefore appellant is entitled for acquittal. In support of his contention, he relied upon the judgments of this Court in the matter of Bhagirathi alias Bhagi vs. State of C.G., passed in CRA No.750 of 2011 and Rengtu @ Love Kumar and another vs. State of C.G., passed in CRA No. 854 of 5 2005 & Judgment of Hon’ble Madhya Pradesh High Court in the matter of Gabbu vs. The State of M.P. passed in CRA No. 1466 of 1999. 6. Ex adverso, learned counsel for the State opposes the submissions of learned counsel for the appellant and has submitted that the prosecution has proved its case beyond reasonable doubt, however, learned trial Court minutely appreciated the oral and documentary evidence, thereby rightly convicted the appellant for the alleged offence and the impugned judgment of conviction and order of sentence needs no interference by this Court. 7. I have heard learned counsel for the parties and perused the material available on record including the impugned judgment. 8. It is evident from record of learned Trial Court that it framed charges against the appellant for offence under Sections 450, 376 (2) (g) and 506-II of IPC and after appreciation of oral and documentary evidence, learned trial Court convicted the appellant for offence under Sections 450 & 376 (2) (g) of IPC and sentenced as mentioned in inaugural para of this judgment. Hence, this present appeal. 9. The Prosecutrix (PW-7) stated in her examination-in-chief that on the date of incident at about 8-9 pm, when she was sitting in the veranda of the house along with her younger brother, at that time her mother and maternal uncle went to Tatapani Market. At this juncture of time, co- accused (Juvenile) and the present appellant came there, caught hold her hand, gagged her mouth forcibly and took her on foot in the house of the appellant situated at village- Bulgaon, where the co-accused (Juvenile) were present and the appellant locked the door from the outside and he was sitting outside the house, at that time the co- accused committed forcible sexual intercourse with her. After committing the forcible sexual intercourse with her, the appellant and 6 the co-accused (Juvenile) left her at her home at night 3-4 am, while she shouted, then her mother and maternal uncle came outside of the house and she narrated the whole incident to them and on the next day she along with her mother lodged the report as per Ex. P/1, wherein she admitted her signature on A to A part. During the investigation, the police seized her underwear as per seizure memo (Ex. P/8) and she gave her consent for internal medical examination as per Ex. P/10, she admitted her signature in both the documents. She also admitted her signature on spot map (Ex. P/7) and also on the spot map (Ex.P/4), which was prepared by Patwari in B to B part. In para 12 of her cross- examination, she admitted this fact that she has not been taken by any vehicle, but on foot to the place of incident. She denied the suggestion that she did not resist him while going with the co-accused (Juvenile) and further admitted this fact that nobody from her neighborhood came, when she screamed for help. In para 18 and 19 of her cross- examination, she admitted this fact that she stayed in the room of the said house for 2-3 hours and also admitted this fact that there are four to five houses situated near the vicinity of the appellant, moreover, she herself stated that though she screamed for help, yet no one heard as it was already night. 10. PW-8, who is the brother of the prosecutrix stated that when he was sitting along with his sister (prosecutrix) in the veranda (baramde) of the house, at that time, the accused came near the house, gagged the mouth of her sister and took their own home and he screamed for help and told the said incident to her mother. He further stated that he along with his mother, maternal uncle and other persons went for searching his sister to the co-accused (Juvenile) house at night, but she was not found there. At night 3 am, the accused persons left his sister near his house and went away. In cross-examination, he stated that there are 7 houses of Rahul and Nirmal near his house, but he immediately did not tell about the said incident to anyone. He himself stated that first he told the said incident to his mother and maternal uncle. He admitted this fact that he did not scream for any help by calling his maternal grandmother and maternal aunt. 11. PW-9 Nirmal Kumar Bala stated that the prosecutrix’s maternal aunt came to call me and said that that we have to go co-accused (Juvenile) house. Thereafter, he along with Rahul Rai, prosecutrix’s mother and prosecutrix’s brother went to the house of co-accused situated at village- Bulgaon, where we asked to the father of the co-accused as where his son is? Then his father stated that he is not in the house. Thereafter, he came to the house and slept and on the next day of morning he went to Balrampur, and in the village, he heard gossips about the co-accused that he did wrong thing with the prosecutrix. Prosecution declared him hostile and cross-examined him, then he denied his police statement (Ex. P/11) and in Para 7 of his cross- examination, he stated that he never heard any sound for screaming by anyone. 12. PW-4, who is the maternal uncle of the prosecutrix stated that his brother of the prosecutrix told the said incident that accused persons caught the prosecutrix and took along with them, then they went for searching her in the village, but she was not found and they returned at home. He further stated at about 2 am, accused persons left her niece at the courtyard of the house and went away. Then, they asked to the prosecutrix what happened with her, then she by weeping stated that the co-accused (Juvenile) committed forcible sexual intercourse with her. In cross-examination, he admitted this fact that he himself did not see the incident and also admitted that he stated as told by the 8 prosecutrix to him. 13. PW-5, who is the maternal grandmother of the prosecutrix has also stated that the prosecutrix’s brother told her that the accused persons caught her and took along with them. In cross-examination, she was not aware of the said incident at night, when her daughter came, then she got aware of the said incident. 14. PW-6, who is the mother of the prosecutrix stated that her son told the said incident that two boys caught her sister (prosecutrix) and took along with them. Thereafter, they searched in the night, but she could not find, therefore, they came to back house and slept due to night. At the same night, accused persons left her daughter (prosecutrix) in the house and went away. 15. Dr. Sarita Singh (PW-1) examined the Prosecutrix (PW-7) on 30.03.2006. After examination, she opined that she did not find any external injuries upon her body, however, she found ruptured hymen and there is redness and tenderness in the private part of the prosecutrix and opined that sexual intercourse was committed with her within 48 hours. She gave her report vide Ex. P-1. 16. The prosecution did not file any documentary proof regarding the age of the prosecutrix and as per Dr. M. K. Jain (PW-14), who conducted the radiological test on 31.03.2006 to ascertain the age of the prosecutrix (PW-7) and as per his report (Ex. P/18), prosecutrix is aged about 19 years. 17. On the basis of aforesaid discussion, it appears that at the time of incident, prosecutrix was aged about 18 years and co-accused (Juvenile) was below 18 years of age. Prosecutrix (PW-7) clearly stated that the accused/appellant was only standing outside of his own house 9 and he did not commit forcible sexual intercourse with her. Prosecutrix (PW-7) has also admitted this fact that when she was sitting in the veranda of her home with her younger brother, at that time the appellant- Dilbodh and co-accused (Juvenile) caught hold her hand, gagged her mouth and took her on foot in the house of the Dilbodh/appellant. 18. Mother of the prosecutrix (PW-6), maternal uncle of the prosecutrix (PW-4) and neighbour have stated that they searched the prosecutrix and after that due to night, they slept at their home and did not lodge report anywhere. 19. It has been held by Hon’ble Apex Court in the matter of Ganesan vs. State Represented By Its Inspector of Police 1 in para 10.3 as under:- 10.3 Who can be said to be a “sterling witness”, has been dealt with and considered by this Court in Rai Sandeep alias Deepu v. State (NCT of Delhi), (2012) 8 SCC 21. In paragraph 22, it is observed and held as under: “22. In our considered opinion, the “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of 1 (2020) 10 SCC 573 10 the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross−examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co−relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all 12 other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.” 11 20. Applying the above principles to the present case, It is evident from the statement of all the witnesses and It is evident from evidence of prosecutrix (PW-7) that she is not sterling witness as prosecutrix (PW- 7) did not raise any hue and cry when she went on her foot along with the appellant, though there were many inhabitants on their way and both the accused left her at her home. Thus, the conduct of the prosecutrix (PW-7) clearly shows that she is the consenting party. Dr. Sarita Singh (PW-1) did not find any external injuries upon her body and as per Ex. P/18, the prosecutrix was aged about 19 years at the time of incident and the main allegation is against the co-accused (Juvenile), who committed sexual intercourse with her and not against the present appellant. So, looking to the conduct and statement of the prosecutrix, it is apparent that prosecution has failed to prove this fact that the accused/appellant is found guilty of gang rape under Section 376 (2)(g) of IPC and Section 450 of IPC, but the trial Court has not examined and assessed the evidence properly and has wrongly convicted and sentenced the appellant. Therefore, the conviction and sentence of appellant under Sections 450 and 376 (2) (g) are not sustainable. 21. Ex consequenti, the appeal is allowed and the impugned judgment dated 14.03.2007 of the learned trial Court is hereby set aside. The appellant is acquitted of the charges leveled against him. 22. The appellant is reported to be on bail. However, keeping in view the provisions of Section 481 of BNSS, 2023 the appellant is also directed to furnish a personal bond for a sum of Rs. 25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellants on receipt of notice thereon shall 12 appear before the Hon'ble Supreme Court. 23. The Trial Court record along with a copy of this judgment be sent back immediately to the Trial Court concerned for compliance and necessary action. Sd/- (Rajani Dubey) JUDGE AMIT PATEL