1 2025:CGHC:10948 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment reserved on: 10.12.2024 Judgment delivered on: 05.03.2025 CRA No. 265 of 2005 1 - Ejaj Khan, S/o Mahamaddin Khan, Aged about 41 years, Occupation- Agriculture, Caste- Musalman, R/o Village- Basta, O.P. Lodam, District- Jashpur (C.G.) … Appellant versus 1 – The State of Chhattisgarh, through P.S. Jashpur, District- Jashpur, C.G. ... Respondent For Appellant : Mr. Divyanand Patel, Advocate For Respondent/State : Ms. N.K. Kashyap, P.L. Hon’ble Smt. Justice Rajani Dubey C A V Judgment 1. The present appeal under Section 374(2) of Code of Criminal Procedure has been filed against the the judgment of conviction and order of sentence dated 15.03.2005 passed by Additional Sessions Judge, Jashpur, District- Jashpur (C.G.) in Sessions Trial No. 01/2005 whereby, the trial Court has convicted the appellant and sentenced him 2 as under:- Conviction Sentence U/s 376(1) of IPC R.I. for 7 years with fine of Rs.1,000/- and in default of payment of fine, additional imprisonment for 6 months U/s 506-B of IPC R.I. for 6 months with fine of Rs.1,000/- and in default of payment of fine, additional RI for 6 months U/s 341 of IPC S.I. for 1 month 2. Brief facts of the case, are that on 29/10/2004, at about 2:00 P.M., prosecutrix was going on foot to Lokhandi Bazar to buy rice. At about 2.30 pm, when she reached Bandhdipa Tongri, then suddenly the accused/appellant came out of Tongri and stopped her and forcibly took her to the forest and threw her down and committed rape upon her. The accused/appellant also threatened her if she discloses the incident to anyone then he would kill her. He kept her till 8.00 p.m. there and then left her near Jholanga. She stayed at the house of Imilia Kujur at night. Thereafter, on the next day, she told about the incident to Basu of the village and after her husband came, she narrated the whole incident to him. Subsequently, FIR (Ex.P/1) was lodged against the appellant for the offence under Section 341, 506 and 376 of IPC. After completion of usual investigation, charge-sheet was filed before the learned trial Court against the appellant for the offence punishable under Sections 341, 506 and 376 of IPC and learned trial Court framed the charges under Sections 341, 506 and 376(1) of IPC against the appellant, to 3 which the appellant abjured his guilt and prayed for trial. 3. So as to hold the accused/appellant guilty, the prosecution examined as many as 9 witnesses. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C. in which he denied the incriminating circumstances appearing against him and pleaded innocence and false implication in the case. However, in his defence, no evidence was adduced by him. 4. Learned trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 15.03.2005 finding evidence adduced by the prosecution trustworthy, convicted the the appellant and sentenced him as mentioned in para 1 of the judgment. Hence, this appeal. 5. Learned counsel for the appellant submits that the impugned judgment is contrary to the facts, law and circumstances of the case. The prosecution has been failed to prove the guilt of the appellant beyond all reasonable doubts. There are hardly any reliable evidence on record to warrant the conviction of the appellant. The statement of the prosecutrix is not reliable and suffers with many irregularities and material discrepancies. The incident took place on 29.10.2004 but the prosecutrix has lodged the report on a belated stage on 02.11.2004. Medical report also does not support the prosecution case. The learned trial Court further failed to consider the statement of Basu Ram (P. W.- 4) wherein he has specifically stated that the prosecutrix did not state anything about the offence committed by the appellant. The learned trial Court did not appreciate the oral and documentary evidence properly. Therefore, the impugned judgment is liable to be set aside 4 and the appellant deserves to be acquitted of the charge alleged against him. 6. Per contra, learned State counsel supports the impugned judgment and submits that the learned trial Court minutely appreciated the oral and documentary evidence and rightly convicted the appellant. Therefore, the impugned judgment passed by the trial Court is well merited and does not call for any interference by this Court. 7. Heard learned counsel for the parties and perused the material placed on record. 8. It is clear from the record of learned trial Court that the learned trial Court framed the charges under Sections 341, 506 and 376 (1) of IPC & convicted and sentenced him as mentioned above. 9. Prosecutrix (P.W.-1) stated that on the date of incident at about 2:00 P.M., she was going to Lokhandi. At that time, accused came out of Bhadra's house and grabbed her hair and dragged her to the forest and committed rape on her there. Thereafter, he took her to his house. After reaching her house, the prosecutrix narrated the whole incident to her husband and other people and thereafter, she lodged the FIR (Ex.P/1) against the appellant. In her cross-examination, she admitted that she told the police that the accused/appellant had said that he would keep her till 8 o'clock and had taken her out of the forest and raped her. If the said fact was not mentioned in the FIR and Ex.D/1 then she did not know the reason. 10. Husband of the prosecutrix (P.W.-2) stated that his wife (prosecutrix) told him that on the date of incident, when she was going to buy rice, at 5 that time the appellant was hiding near Lokhandi and caught her and took her with him and committed rape on her there. From there, he took the prosecutrix to his house and there, the son of the appellant slapped her wife (prosecutrix). In para 11 of his cross-examination, he admitted that when the accused/appellant came to his house to borrow some money, at that time, he pulled his wife’s saree and then he was beaten up by his daughter and son-in-law. 11. Son-in-law of the prosecutrix, Basu Ram (P.W.-4), stated that the prosecutrix told him that when she was going to buy rice, at that time, quarrel took place between her and the appellant. She did not tell him about the incident. In his cross-examination, he admitted that he, Girdhari and Ramprasad sat together and held a panchayat and thereafter filed a report against the accused/appellant. 12. Dr. Smt. P. Karketta (P.W.-9) medically examined the prosecutrix on 04.11.2004 and no sign of struggle was found all over her body. She opined that the prosecutrix was habitual to sexual intercourse and gave her report vide Ex. P/18 in this regard. In her cross-examination, she admitted that as she did not find any sign of struggle over the body of the prosecutrix, therefore, no definite opinion about recent sexual intercourse can be given. 13. Upon perusal of the record, it transpires that the incident took place on 29.10.2004 and FIR was lodged on 02.11.2004. In the FIR, it was mentioned that as husband of the prosecutrix was out of the village, 6 therefore, delay in lodging the FIR was occurred. It also transpires from the statement of the Basu Ram (P.W.-4) that they held a panchayat and thereafter filed a report against the accused/appellant. 14. It has been held by Hon’ble the Apex Court in the matter of Rai Sandeep Alias Deepu Vs. State (NCT OF DELHI) and other connected matter reported in (2012) 8 SCC 21 in para 22 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 7 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 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 8 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.” 15. Applying the above principle to the present case, it is evident that the statement of the prosecutrix is not reliable as well as her conduct is also highly suspicious. The other witnesses did not support the case of the prosecution and medical evidence also does not support the version of the prosecution. Looking to the facts and circumstances of the case; the version of the prosecutrix cannot be taken as a gospel truth at the face value and it appears to be suspicious. Hence, there is no scope to sustain the conviction and sentence imposed on the appellant. He deserves to be acquitted of the said charge by giving him benefit of doubt. 16. For the foregoing reasons, the conviction and sentence of the appellant 9 under Sections 376(1), 506-B and 341 of IPC cannot be legally sustained. The appeal is accordingly allowed. The impugned judgment dated 15.03.2005 is set aside. Consequently, the appellant is acquitted of the charges levelled against him. 17. The accused/appellant is reported to be on bail, therefore, his bail bond shall remain in operation for a period of six months from today in view of provisions of Section 437-A of CrPC. 18. The record of the trial Court along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- (Rajani Dubey) JUDGE Ruchi RUCHI YADAV Digitally signed by RUCHI YADAV