1 / 10 CRA No. 939 of 2004 2025:CGHC:37075 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 939 of 2004 Chandramani Nayak (Dead) through LR : Shashi Bhushan Naik, S/o-Chandramani Naik, Aged about 54 years, R/o- Village-Kondatarai, Tehsil-Pussore, District-Raigarh (C.G.) ... Appellant versus The State Of Chhattisgarh, through the District Magistrate, Raigarh (C.G.) ... Respondent (Cause title is taken from Case Information System) For Appellant : Mr. Pawan Shrivastava Advocate For Respondent/State : Mr. U.K.S. Chandel, Dy. Advocate General Hon’ble Shri Justice Bibhu Datta Guru Judgment on Board 29/07/2025 Since the sole appellant in this case has died on 01/08/2023, now the appeal is being pressed by his legal heir (son) namely; Shashi Bhusan Naik. For the sake of convenience, the original appellant/ accused would be hereinafter referred as ‘the accused/appellant’. SOURABH BHILWAR Digitally signed by SOURABH BHILWAR Date: 2025.08.01 10:59:54 +0530 2 / 10 CRA No. 939 of 2004 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 29.10.2004 passed in Sessions Case No. 28/2004 by the learned Second Additional Sessions Judge, Raigarh, C.G., whereby the appellant has been convicted and sentenced as under:- Conviction Sentence U/s 376(1) of the IPC R.I. for 07 year and fine of Rs. 5,000/-, with default stipulation. 2. Case of the prosecution, in brief, is that the victim lodged a report in the Pussore Police Station to the effect that on 19.5.2003, the accused at about 8.00 p.m. came to her home and asked for a glass of water and also asked whereabouts of her father, replying to which she told him that her father went to Village Darri Dipa, then the appellant returned and thereafter prosecutrix along with her mother and younger brother after have some meal went to sleep. Further it is stated that at about 11.00 p.m. he again came; caught hold the prosecutrix; put the cloth in her mouth; and committed forceful rape with her on which, she raised alram; her mother and brother were waken up; the neighbours namely Nilamber, Mahant, Parsu Ram Nishad and Ashok Kumar Naik reached the spot; caught the present appellant; and asked some query upon which, the appellant admitted his guilt and ready to marry with the prosecutrix owing to which, the prosecutrix and the other villagers have not lodged any report regarding the aforesaid commission of offence but thereafter the appellant denied to marry with the prosecutrix thereafter, 3 / 10 CRA No. 939 of 2004 the prosecutrix lodged the report. On the basis of the report, an FIR (Ex.P/10) has been registered and investigation has been initiated. 3. During the investigation, Spot Map (Ex.P/3) was got prepared. The Accused was apprehended and statements of the witnesses including the victim was recorded by the police as well as before the Judicial Magistrate under Section 164 CrPC. Upon completion thereof, charge- sheet was submitted accordingly. After framing the charges against the 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 10 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 29/10/2004 convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal. 6. Learned counsel appearing for the appellant would submit that the statement of the victim is filled with contradictions and omissions, thus not worthy of being given credence. He further submits that conviction cannot be based on guesswork. He submits that the statement of the victim is not to be believed in absence of corroboration and prosecution story is filled with doubts, benefit whereof should be extended to the accused. Learned counsel further submits that the appellant has been 4 / 10 CRA No. 939 of 2004 falsely implicated in the present case. He would also submit that Dr. Mandavi, who examined the accused, has not been examined who submitted in his report that the accused is impotent and is not capable of having sexual intercourse. He would submit that the conviction against the appellant is bad in law and it is not supported by the evidence of the prosecution beyond reasonable doubt and without there being any cogent evidence, the conviction of the appellant is bad in the eyes of law. 7. Learned counsel appearing for the State, per contra, would submit that the impugned judgment of conviction and order of sentence passed by the learned Trial Court is just and proper and warrant no interference of this court. 8. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the original records of the learned trial Court with utmost circumspection and carefully as well. 9. As far as the age of the prosecutrix is concerned, the victim PW/9 stated in her statement that while lodging report at the police station she was aged about 15 years old while her father stated in his statement that he did not know the actual age of the victim as he is illiterate. However, PW/6 – Dr. D.K. Tondon who was posted as Medical Officer in the K.G. Hospital, Raigarh, stated in his statement that the prosecutrix was brought to him by Police personnel for X-ray to ascertain her age. He took X-ray of both the elbows and wrists of the prosecutrix and found the age of the prosecutrix as 18 years and submits its report vide Ex. P-7. 5 / 10 CRA No. 939 of 2004 Apart from the above evidence, no other evidence has been produced by the prosecution regarding the age of the prosecutrix. On the basis of the evidence adduced by this witness, it is proved that the age of the prosecutrix was more than 16 years at the time of the incident. In this way, it has not been proved by the prosecution that the prosecutrix was less than 16 years of age at the time of the incident and it is clear that she was major at the time of incident. Even the learned trial Court at para 8 of the judgment impugned has observed that on the date of incident, the age of the victim was more than 16 years and also observed that the prosecution had failed to prove that on the date of incident she was below 16 years of age. 10. So far as the delay in lodging the FIR is concerned, according to Ex. P10, the report is found to have taken place after 27 days. Thus, the report of the incident is found to have been lodged with delay. The reason for this delay is that the report was not filed due to the assurance of marriage given by the appellant. The statement regarding the assurance of marrying the girl or making arrangements for her has been made by her father (PW/7), her mother (PW/8) in their Court statement and the neighbours namely; Nilambar P.W.-4, Ashok Kumbhar P.W.-5 have also corroborated the statements of parents of victim. Thus, the reason for lodging the report with delay has been proved by the prosecution. If the delay explained by the prosecution is taken into consideration, the Hon'ble Supreme Court has held that mere delay in the first information report is not sufficient to dismiss the prosecution case unless there is a clear statement of making out the whole matter or the 6 / 10 CRA No. 939 of 2004 accused has not been implicated in a material manner. Such basis of escape route that the incident was reported late is not acceptable. In such cases, the delay in lodging report has to be considered on the basis of total circumstances of the incident. 11. Now the question for consideration would come, whether the appellant committed such offence punishable under Section 376(1) of the IPC. 12. The victim was examined as PW/9. She stated in her statement that it was late at night, she was sleeping in her house. The accused came to her house on the pretext of drinking water and asked where her father had gone. She replied that he had gone to village Darridipa. After some time, the accused again came to her and applied criminal force. She stated that the accused stuffed a cloth in her mouth; removed her knicker; bite her lips forcibly; and by inserting his sexual organ in her private parts, had forceful illicit sexual intercourse with her. When she screamed her mother and brother woke up and even the neighbours reached to the spot and caught the accused red handed. 13. PW/8 – mother of the victim stated in her statement that it was around 12 o'clock at night. There was no door in her house. She had kept a cot in front of the door. The accused removed the cot and entered into her house where they slept. Her son was sleeping at her feet. She stated that the accused went towards her daughter's side, her daughter screamed very loudly due to which she woke up and started screaming louder. Then the people of the village came. They slapped the accused and asked him why he had come to which the accused admitted his mistake and 7 / 10 CRA No. 939 of 2004 said that he had made a mistake. She stated that the accused had said that he will make some arrangements for the girl and requested not to file report regarding the incident. 14. Dr. Arti Nande PW/1, who examined the victim, has stated in his statement that while examining the knickers of victim, no sperm was found. In her cross-examination, she opined that there is no mark was found of struggle, however, she categorically stated that there is two cut marks were found in her private part. From this evidence, it appears that sexual intercourse has been done 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 the victim does not have a strong motive to falsely implicate the person 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. 17. In such heinous offences, a ‘sterling’ witness refers to a witness 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. 8 / 10 CRA No. 939 of 2004 18. 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 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 9 / 10 CRA No. 939 of 2004 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.” 19. 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 assaulted the victim, intending to commit rape upon her. Victim/PW-9 has categorically assigned role to the accused in commission of said offence against her. 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 assaulted to the victim, 10 / 10 CRA No. 939 of 2004 intending to commit rape upon her. Hence the trial Court has rightly appreciated the entire facts of the case and convicted the accused under Section 376(1) of the IPC. 20. 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 against the appellant. The conviction and sentence as awarded by the trial Court upon the appellant (dead) is hereby upheld. The present appeal lacks merit and is accordingly dismissed. 21. Since the sole appellant/accused has died on 01/08/2023. His legal heir 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. 22. 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 $. Bhilwar/ Gowri