1 CRA No. 1098 of 2004 2025:CGHC:36654 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1098 of 2004 Manoj Kumar Agrawal, S/o Shri Baijnath Agrawal, aged about 21 years R/o Baradwar, P.S. Baradwar Tahsil_Baradwar District Janjgir, Champa C.G. ... Appellant versus State Of Chhattisgarh, through P.S. Baradwar, Dist Janjgir Champa C.G. ... Respondent(s) (Cause title is taken from Case Information System) For Appellant : Mr. Rajeev Shrivastava, Senior Advocate along with Ms. Kajal Chandra and Mr. Amitesh Kumar Pandey, Advocate For Respondents/State : Mr. U.K.S. Chandel, Dy. A.G. Hon’ble Shri Bibhu Datta Guru, Judge Order on Board 28/07/2025 1. This criminal appeal preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order of sentence dated 27.11.2004 passed in Sessions Trial No.122/ 04 by the JYOTI SHARMA Digitally signed by JYOTI SHARMA Date: 2025.07.31 10:18:26 +0530 2 CRA No. 1098 of 2004 learned Additional Sessions Judge, Sakti whereby the appellant has been convicted and sentenced as under:- Conviction Sentence Under Section 376 (2) (g) of the IPC Imprisonment for 10 years and to pay a fine of Rs. 2000/- in default of payment of fine to further undergo SI for three months 2. Case of the prosecution in brief is that the Victim (PW1) lodged a report at Baradwar Police Station alleging therein that on 7.01.2003 at about 7.30 P.M. while she was going through a deserted street to the shop of one Purusotam for purchasing potatoes, she was stopped by accused/appellant and one Neeraj Kumar Agrawal; they took her to a nearby place in front of the house of Rambilas; and made her to lie down on floor. It was also alleged that the present appellant and the co-accused forcibly raped her while she was crying. It was alleged that her brother came searching for her and saw co-accused lying over the body of the Victim and the appellant holding her hands. The report further stated that on seeing brother of victim, both the accused ran away. It was also alleged that the accused threatened the prosecutrix that if she discloses the incident to any body her father and brother will be killed. 3. During the investigation, Spot Map was prepared. Subsequently, after completing the investigation, a charge-sheet was submitted before the Court. After framing the charges against the 3 CRA No. 1098 of 2004 accused/appellant, the charges were read out and explained to the appellant, he denied committing the crime and demanded trial. 4. In order to bring home the offence, the prosecution has examined 21 witnesses in its support. Statement of the accused/appellant under Section 313 Cr.P.C was recorded, wherein he has pleaded his innocence and false implication in the matter. 5. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 21.11.2004 convicted and sentenced the appellant as mentioned in paragraph one of this judgment and acquitted the co-accused. Hence, this appeal. 6. Learned counsel for the appellant submits that the F.I.R. was lodged by three days delay on 10-1-2003 whereas the incident had occurred on 7-01-2003 that too without explaining the delay by assigning sufficient and cogent reasons. He also referred to the F.IR. wherein it is stated that on 7-01-2003 at about 7.30 p.m. when the prosecutrix was going to purchase potatoes, on the way she was caught hold by the appellant and the other co-accused Neeraj Agarwal and she was forcibly taken to a vacant plot where she was thrown on the ground and the appellant caught hold of her hand and put a handkerchief in her mouth and thereafter other co-accused Neeraj Agarwal removed her knickers and committed rape. Learned counsel for the appellant contended that though the Victim had named the appellant and co-accused for committing the sexual intercourse, in the Court statement the prosecutrix has only named the present appellant as the person who had 4 CRA No. 1098 of 2004 committed intercourse upon her. So far as other person is concerned, she stated that she is not able to identify. Learned counsel while referring to the statement of P.W.1 prosecutrix (Paras 24, 28 and 31), P.W.2 mother of The prosecutrix (Para 2), P.W.5 father of the prosecutrix (Para 3) would submit that there are material contradictions and omissions in their statements. He also submitted that co-accused Neeraj Agarwal has already been acquitted by the Trial court. He would submit that from the evidence of the brother (PW9) of the Victim, it is manifest that the appellant has not committed rape with the victim and the allegations against him is that he caught hold of the hands of the Victim. He would submit that in the charge framing order, though the charge of rape is against the Neeraj, while delivering the judgment the trial Court held that the rape was committed by some unknown person and the present appellant. Learned Senior counsel further submits that at the time of incident there was no common intention of the appellant, as the person who has alleged to be committed the rape was unknown person (as per the impugned judgment). Whereas, as per the charge, the allegation of rape was on Neeraj who has been exonerated by the Trial Court saying that the other co-accused was an unknown person. Hence, the conviction of appellant herein is bad in law. According to the learned counsel, generally rule of consistency requires to be applied and further prays that the present appellant may also be acquitted. To buttress his contention, learned counsel would 5 CRA No. 1098 of 2004 place reliance upon the decision rendered by the Supreme Court in the matter of Darshan Singh v State of Uttar Pradesh (1953) 2 SCC 610, Ashok Kumar v State of Haryana (2003) 2 SCC 143 and Sonu @ Sunil v State of Madhya Pradesh 2022 (13) SCC 705. 7. On the other hand, learned counsel for the State opposed the submission of the appellant and submits that at para 7 of the statement of the prosecutrix she has named the present appellant and has identified him to be the person who has committed intercourse with her. He further submits that the delay in filing of the FIR has been duly explained, as such the conviction of the appellant is well merited which does not call for any interference. 8. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 9. The question for consideration is whether the trial Court is justified in convicting the appellant for the offences in question ? 10. PW1 the victim herself deposed in her court statement that on the date of the incident her mother told her to bring potatoes. When she was going to the shop of Puroshattam, the appellant with one another boy, whom she did not recognize, came and the appellant caught her; took her to the house of Ramvilas’s; and made her lay on the floor and removed her knickers and raped her. She further stated that first the other boy who was with Manoj raped her and 6 CRA No. 1098 of 2004 when she was screaming, the appellant put handkerchief in her mouth, and subsequently the appellant also raped her. She further stated that after some time her brother came at the place of incident and on seeing him, both the appellant and another boy ran away. She further stated that on the day of the incident her father was out of station and when he returned back they narrated the incident and lodged the report. In her cross examination, when a question was asked to her that while lodging the first Information Report and recording her statement before the police she has mentioned about rape being committed by the co-accused Neeraj Kumar, to which, she replied that while lodging the report and her statement before the police she has not mentioned name of Neeraj Kumar and neither Neeraj has committed rape with her and she also stated that she don’t know Neeraj either. 11. PW-2 mother of the victim stated in her examination-in-chief that she sent the victim to bring potatoes and when she didn’t returned for half an hour, she sent her son to look for her and when they both returned, the victim was crying and she told her about the incident. She further stated that the victim told her that the appellant and another boy took her near the house of Ramvillas and both the boys raped her. She also stated that on the day of the incident her husband was out of station and when he reached in the late night of 9-1-2003 they informed about the incident and lodged the report on 10-1-2003. She also stated that co-accused 7 CRA No. 1098 of 2004 Neeraj used to roam with present appellant so on the basis of doubt they had took the name of Neeraj also. 12. PW-5 father of the victim stated that on the date of the incident he was out of station and when he came back home, his wife, daughter and son told him about the incident. He further stated that his son told him that when he reached the spot the appellant was holding his daughter’s hand and the other boy was over her. He further stated that thereafter they lodged the report. 13. PW-9 brother of the victim stated that on the date of incident his sister has gone to buy potatoes and when after half an hour she didn’t return, his mother told him to look for her and when he was looking for his sister, he heard some voice and when he went to the place of incident, he saw the appellant was holding his sister hand and the other boy was doing bad things with her. He further stated that when he reached the spot both the boys fled away. 14. PW-10 Dr. Lalita Rajmala stated in her statement that on examination of the victim, some scratches were found on the neck and wrist. She further stated that on examination of private parts of the victim a 3.5 cm X 1.5 mm sized abrasion and 2.5 cm tear on the lower part was found, which was red and painful. Her report is Ex.P 9. She opined that in cross-examination, this witness had given opinion regarding rape committed with the victim. 15. If the testimony of the victim is trustworthy and totality of the circumstances appearing on the record of the case disclose that 8 CRA No. 1098 of 2004 the victim does not have a strong motive to falsely implicate the persons charged, the Court should ordinarily have no hesitation in accepting her/his evidence. 16. It has also become almost settled position of law that conviction can be based on the solitary statement of victim, provided same inspires confidence of the Court. In the case at hand, right from the beginning till the end i.e. at the time of lodging of FIR upto before the trial Court, the statement of the prosecutrix remains consistent throughout in respect of present appellant. This unwavering narrative across all stages of the criminal proceedings adds substantial credibility to her version of events. The consistency in her account reflects not only the reliability of her testimony but also supports the prosecution’s case by reinforcing the absence of material contradictions or embellishments. 17. The appellant by taking the advantage of acquittal of Neeraj cannot claim parity, as in respect of Neeraj the victim and her family members categorically stated that due to some confusion they took his name. PW9, brother of the victim at para 3 of his examination stated that while some unknown person laid over his sister, the present appellant caught hold her hand. Even, the Victim herself not named Neeraj. PW5, father of the Victim at para 13 of his deposition stated that since Neeraj used to roam with the appellant, therefore, his name was taken in the FIR. 18. In such heinous crime, a ‘sterling’ witness refers to a witness 9 CRA No. 1098 of 2004 whose testimony is of high quality on caliber to the extent that the Court can accept their version of events without requiring additional corroboration. The Supreme Court in ‘n’ numbers of cases, has observed that the testimony of a victim can be sufficient for conviction, if it is trustworthy and of sterling quality. 19. The Supreme Court in the matter of Rai Sandeep alias Deenu v. State (NCT of Delhi), 2012 (8) SCC 21 held as under:- “22. In our considered opinion, the ‘sterling witness’ should be of a very high quality and caliber 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 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 10 CRA No. 1098 of 2004 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 everyone 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 other similar such tests to be applied, it can 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 recise, 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.” 20. It is worthwhile to mention here that in the context of Indian culture, 11 CRA No. 1098 of 2004 a woman-victim of sexual aggression-would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the courts must always keep in mind that no self-respecting woman would put her honour at stake by falsely alleging commission of rape on her and therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for. But for high improbability in the prosecution case, the conviction in the case of sex crime may be based on the sole testimony of the prosecutrix. It has been rightly said that corroborative evidence is not an imperative component of judicial credence in every case of rape nor the absence of injuries on the private parts of the victim can be construed as evidence of consent. 21. Rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely assault, it is often destructive of the whole personality of the victim. The murderer destroys the physical body of his victim. Rapist degrades the very soul of the helpless female. 22. Applying the well settled principles of law laid down by the Hon’ble Supreme Court in the above stated judgment and after perusing the evidence available on record, it stands established on record beyond reasonable doubt that the accused, caught hold of her and 12 CRA No. 1098 of 2004 the another boy committed the offence of rape knowing that it to be likely that they will thereby committed heinous crime. Victim/PW-1 has categorically assigned role to the accused in commission of said offence against her. Hence, it cannot be stated that there was no common intention between the appellant herein and other co- accused (unknown person). 23. The Hon’ble Supreme Court in the matter of Om Prakash Vs. State Of Haryana reported in (2011) 14 SCC 309 has held that if rape has been committed even by one of the accused, all will be guilty. The Supreme Court held thus at paras 21, 22 and 27. “21. A plain reading of Section 376(2)(g) with Explanation 1 thereto shows that where a woman is raped by one or more of a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of Section 376(2)(g) IPC. In other words, the act of gang rape has to be in furtherance of their common intention before the deeming fiction of law can be enforced against the accused. 22. This Court in Ashok Kumar v. State of Haryana had occasion to dwell on Explanation 1 to Section 376(2)(g) IPC while examining whether the appellant Ashok Kumar could be convicted under the same because at the crucial time, he happened to be in the house of the co-accused Anil Kumar in whose case the judgment of conviction 13 CRA No. 1098 of 2004 under Section 376(2)(g) had attained finality. The Court observed that the prosecution must adduce evidence to show that more than one accused has acted in concert and in such an event, if rape had been committed by even one of the accused all will be guilty irrespective of the fact that she has not been raped by all of them. Therefore, it may not be necessary for the prosecution to adduce evidence of a completed act of rape by each one of the accused. The provision embodies a principle of joint liability and the essence of that liability is in existence of common intention. That common intention presupposes prior concert as there must be meeting of minds, which may be determined from the conduct of the offenders which is revealed during the course of action.” 24. Therefore, having aforesaid materials on record, compels this Court to hold that prosecution has proved on record beyond reasonable doubt, that on the date of incident, the accused knowingly sexually assaulted the victim, intending to commit rape upon her without her consent. Hence the trial Court has rightly appreciated the entire facts of the case and convicted the accused under Section 376 (2) (g) of the IPC. 25. Considering the entire facts and circumstances of the case and upon cumulative analysis of the evidence available on record, this Court comes to the conclusion that the prosecution has succeeded in proving its case beyond all reasonable doubts 14 CRA No. 1098 of 2004 against the appellant. The conviction and sentence as awarded by the trial Court is hereby upheld. The appeal lacks merit and is accordingly dismissed. 26. The appellant is reported to be on bail. His bail bond is cancelled and sureties discharged. He shall surrender forthwith before the concerned trial Court forthwith serving remaining sentence as awarded by the trial Court, failing which he shall be taken into custody by the trial Court. 27. The appellant be informed by the concerned trial Court/concerned jail authorities that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon'ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 28. Let a copy of this judgment and the original record be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Bibhu Datta Guru) Judge Gowri/ Jyoti