1 Reserved on - 30.06.2025 Delivered on- 11.09.2025 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 777 of 2005 Kariya @ Mal Singh S/o Shiv Lal Bhinjhwar Aged about 35 years, R/o- Village- Rangmatiya, P.S.- Basna, Tahsil- Mahasamund, District- Mahasamund, (C.G.) ... Appellant versus State Of Chhattisgarh through the Police Station- Basna, District- Mahasamund (C.G.). ... Respondent For Appellant : Mr. Jameel Akhtar Lohani, Advocate For Respondent : Ms. Neeta Tulsani, PL Hon'ble Shri Justice Sachin Singh Rajput CAV Judgment 1. This appeal under Section 374 (2) of Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) has been filed by the appellant, assailing the legality, validity and judicial propriety of judgment of conviction and order of sentence dated 09.09.2005 passed by the 1st Additional Sessions Judge, Mahasamund (C.G.) (for short trial Court) in Sessions Trial No.178/2005 by which learned trial Court has held the appellant guilty of commission of offence and sentenced as described below - Conviction U/s 376 of Indian Penal Code. Sentence Awarded 7 years months R.I. and Fine of Rs. 500/, in default of payment of fine 1 2 U/s 506-B Indian Penal months R.I. Three years of R.I. 2. The case of the prosecution, in brief, is that the alleged incident occurred approximately six months prior to the date of the report, i.e., 10.01.2005. The prosecutrix (PW-5) is afflicted with polio in both her legs and, owing to her physical disability, remains confined to her residence, engaging in household chores and unable to undertake employment outside. It is alleged that on one such afternoon, about six months prior to the filing of the complaint, while the prosecutrix was alone at home, her parents having gone to the fields for labour work. The appellant, who is a resident of the same village, entered her house. When the prosecutrix attempted to raise an alarm, the appellant threatened her with dire consequences, forcibly slammed her to the ground, and committed forcible sexual intercourse with her. He also warned her not to disclose the incident to anyone. Subsequently, whenever the prosecutrix happened to be alone at home, the appellant is alleged to have repeatedly visited and subjected her to sexual intercourse against her will. As a result of the repeated sexual assaults, the prosecutrix became pregnant. Upon learning of the pregnancy, she narrated the entire incident to her father (PW-1), following which a written complaint (Ex. P/3) was lodged by the prosecutrix at Police Station Basna. Pursuant thereto, the prosecutrix was medically examined and was found to be carrying a pregnancy of approximately five months. The appellant was also subjected to medical examination and was found to be capable of performing sexual intercourse. The Prosecutrix was also medically examined. On completion of investigation charge-sheet under Section 376 & 506-B of the IPC was filed before the 1st Additional Sessions Judge which committed the 3 matter to the Session Court who made over the case to the learned trial Court for trial. 3. The appellant was charged for an offence punishable under Section 376 & 506-B IPC who denied the charges and claimed to be tried. 4. Prosecution in order to prove its case examined total 10 witnesses and exhibited 6 documents. Statements of appellant was also recorded under Section 313 of CrPC, in which he denied all incriminating evidence available against him, pleaded innocence and false implication. By the judgment impugned the appellant was convicted and sentenced as stated in the first paragraph of the judgment. 5. Learned counsel for the appellant has vehemently contended that the prosecution has failed to establish the guilt of the appellant beyond reasonable doubt. He submits that the prosecutrix was found to be a major, aged about 18 years at the time of the alleged incident, and her conduct indicates that she was a consenting party to the act. Learned counsel further submits that there is an inordinate and unexplained delay in lodging the First Information Report, which casts a serious doubt on the veracity of the prosecution version. He further submits that the father of the prosecutrix harboured enmity against the appellant, as the appellant had earlier deposed against the father of the prosecutrix before the Court in connection with the murder of his own wife (i.e. mother of the prosecutrix). On the basis of these submissions, learned counsel for the appellant contends that the conviction recorded by the learned trial Court is unsustainable in law. He, therefore, prays that the conviction of the appellant is bad in law and appeal deserves to be allowed and the impugned judgment set aside acquitting the appellant from the charge. 4 6. Per contra, learned State Counsel has supported the findings recorded in the impugned judgment. She submits that the prosecutrix was subjected to repeated acts of forcible sexual intercourse by the appellant and was threatened with dire consequences, which instilled fear in her mind and prevented her from lodging the report at an earlier point of time. She further submits that the prosecutrix is a specially-abled person, suffering from polio in both legs, thereby rendering her physically incapable of offering resistance to the acts of the appellant. The delay in lodging the FIR, it is contended, stands explained in view of the threats extended by the appellant and the vulnerable condition of the prosecutrix. Learned State Counsel also contends that the case in hand is one of continuous sexual exploitation of the prosecutrix, which ultimately resulted in her pregnancy. She further submits that the testimony of the prosecutrix is of sterling quality, inspires confidence, and is sufficient in itself to sustain the conviction of the appellant without any corroboration. Therefore, she submits that appeal sans merit and is liable to be dismissed. 7. I have heard learned counsel for the parties at great length and also meticulously examined the record of the trial Court including the impugned judgment. 8. Case of the prosecution is that a First Information Report was lodged by the prosecutrix with an allegation against the appellant that six months prior to it, when she was alone, the appellant entered in the house slammed her on the ground committed forcible sexual threatened her for dire consequences and also not to disclose the incident to anyone. This Continued for a considerable period as and when the prosecutrix found alone the appellant used to visit and commit the sexual intercourse again and again. As a result of which, the prosecutrix carried 5 months of pregnancy. The factum of pregnancy as such proved by the statement of Dr. Smt. J. Sahu, Medical officer who has given an 5 opinion after examining the prosecutrix that she is 5 months pregnant and gave a report Ex. P/5-A. The learned trial Court found the prosecutrix major and aged about 18 years. This Court has to examine as to whether the conviction of the appellant can sustain on the statement of the prosecutrix and other evidence available on record. 9. The law in this regard is well settled that conviction can sustain on the solitary statement of the prosecutrix if she is found to be credible, impeccable and free from any shadow of doubt and passed the test of sterling witness. 10. What is the meaning sterling witness has been laid down by the Hon’ble Supreme Court in case of Rai Sandeep @ Deepu vs State Of Nct Of Delhi, (2012) 08 SCC 21 in paragraph 22 is observed 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 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 6 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 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. Similar view has been reiterated by the Hon’ble Supreme Court in case of Ganesan v. State, (2020) 10 SCC 573, State (NCT of Delhi) v. Pankaj Chaudhary, (2019) 11 SCC 575 and Sham Singh v. State of Haryana, (2018) 18 SCC 34. 12. In light of the above, it would be expedient to critically examine the statement of the prosecutrix. The prosecutrix is specially-abled girl having polio in her both legs. Prosecutrix was examined as PW-5. She in her statement before the trial Court has vividly described the happening of the incident. She deposed that that she has been suffering from polio since childhood, which has severely affected my physical strength and health. Due to her condition, she is unable to perform manual labour and therefore only do household work and her parents work as labourers and go out daily for earning. The incident took place last year during the months of Asad-Sawan, at around 12 noon. At that time, she was alone at home. She have four sisters and two brothers, but she does not know their exact ages. On that day, the appellant who is present before the Court and whom she can clearly identify, came to her house. She further 7 deposed that that the appellant forcefully pushed her to the ground and committed rape upon her. The appellant threatened her that if she told to her parents about the incident, he would kill me. After the incident, she started experiencing severe pain in my stomach. She was taken to the doctor, who after examining her, told that there was some serious complication in her body and that she had suffered a miscarriage. Later, she gave information to the police regarding the incident. She further stated that she do not know how to write, the police took her thumb impression at her house on the report. After the miscarriage, her health deteriorated further she suffered from severe problems in her uterus. After she reported the incident, the police took her to Government Hospital for medical examination. She further deposed that it is correct that she had lodged the report after a considerable delay and further deposed that she had reported the matter after seven months. In her examination-in-chief she deposed that she currently resides with her stepmother, as her biological mother had passed away. She denied the suggestion that her father had killed her mother. She further deposed that it is true that criminal case had been registered against her father for killing her mother. However, she admitted that her father had been involved in long- standing legal disputes with the appellant and further confirmed that the appellant had deposed as a witness in the case relating to her mother's death. She also deposed that report was lodged after 7 months of incident. 13. PW- 1 father of the prosecutrix deposed in his examination-in-chief that the prosecutrix is his daughter. The incident occurred in January 2005. At the time, she was pregnant and unable to do any work. When asked, she revealed that the accused entered the house and repeatedly raped her by force. As a result, she became pregnant. He deposed that he took her to Basna Government 8 Hospital due to abdominal pain. The doctor advised that a police report be filed before any examination. He further deposed that thereafter, he took her daughter to the police station and lodged a report. The police obtained written permission from the Tehsildar and conducted a medical examination, after which the doctor confirmed the pregnancy. Subsequently, the police visited my village for further investigation and prepared the spot map Ex.(P-1) which bears signatures from point ‘A to A’. He deposed that his daughter has been suffering from polio since childhood, due to which she is unable to walk or leave the house. In his cross-examination he deposed that it was not possible to determine her pregnancy by physical appearance. He further deposed that the fact came to light only after she began experiencing continuous menstruation, upon which he inquired and obtained the information. He deposed that it is correct that his daughter did not disclose the incident of forcible sexual intercourse by the accused until her condition deteriorated. He further deposed that it is also correct that the prosecutrix (PW-5) is his daughter from his first (now deceased) wife. He further deposed that he has a total of seven children four daughters and two sons from his first wife, and one son from his second wife. The prosecutrix, being his eldest daughter, is from his first wife. He deposed that due to polio, his daughter stayed alone at home while other children went to school with him. He further deposed that he took his daughter prosecutrix PW-5 to the police station to lodge the report. It is false to say that she filed it at his instruction, signed a blank paper, or had an affair with any boy. He further deposed that the allegation that he filed a false report is also untrue. 14. Constable D.R. Sahu (PW-2) deposed that he took the prosecutrix for genital examination to Lady Dr. Jayshree Sahu at Basna Hospital and subsequently 9 brought the genital examination report, which was produced before the witness. 15. Constable Balkaran Verma PW-3 deposed that he took the appellant/accused, to Saraipali Hospital for medical examination, where his genital examination was conducted. 16. Dr. N.L. Sahu (PW-4) deposed that when a constable from Police Station Basna brought the accused for medical examination, his genitalia were examined, and it was found that although his secondary sexual characteristics were fully developed, he was capable of performing sexual intercourse. The medical examination report is marked as Ex.P/2. He deposed that it stands proved without any contradiction that the accused was capable of performing sexual intercourse. 17. Dr. Smt. J. Sahu PW-5 deposed that on 11.01.2005, the prosecutrix was aged 18 years, brought for medical examination by a constable from Police Station Basna. Upon general examination, the prosecutrix was identified as a short- statured girl suffering from polio, affecting both legs. She was fully developed in terms of sexual characteristics. She deposed that fetal heartbeat was present, indicating a live pregnancy of around 20 weeks’ gestation. On genital examination, it was noted that two fingers could easily pass into the vagina. She deposed that the prosecutrix appeared to be approximately 18-20 weeks pregnant at the time of examination. Her medical report is marked as Ex.P/05A. No injury marks were found on her body, nor were there any signs of miscarriage. Sonography and DNA tests were not conducted as the hospital lacked the necessary facilities. She further deposed that prosecutrix returned home on foot after the examination and that the foetus was alive at the time of examination. 10 18. Upon careful scrutiny of the entire evidence brought on record and having heard the submissions advanced on behalf of both sides, this Court is of the considered view that the prosecution has failed to prove its case beyond reasonable doubt. The record reveals that the prosecutrix was around 18 years of age at the time of the alleged incident. In the FIR it has been stated that appellant visited and committed sexual intercourse on couple of occasions however in her statement before Court, prosecutrix has not deposed the same and say about a solitary incident. The conduct of the prosecutrix throughout, including the absence of any immediate disclosure to any authority or family member, further supports the defence case that the prosecutrix can’t be a sterling witness. The prosecutrix, when examined before the Court, was asked to explain the meaning of the term 'rape' and in response, she stated that a fight between husband and wife is called rape. Such a response indicates a fundamental misunderstanding of the very nature of the offence and casts serious doubt on the reliability of her testimony. Furthermore, the prosecutrix alleged that she was five months pregnant and that the appellant assaulted her by hitting her on her abdomen, resulting in a miscarriage. This is a grave and serious allegation, but the same is not supported by any medical evidence. The examining doctor has not noted any internal injury, trauma, or signs of miscarriage due to physical assault. In the absence of medical corroboration, such a claim remains unproved. The Court also notes with concern the inordinate delay in lodging the First Information Report. No cogent or plausible explanation has been furnished to justify such delay, which creates a serious doubt about the authenticity of the prosecution’s version. It has also been brought on record that there was pre-existing enmity between the appellant and the father of the prosecutrix, as the appellant had previously deposed against him in a criminal case. While enmity per se is not a ground to discard otherwise reliable evidence, in the present case, where the testimony of the prosecutrix suffers from contradictions and remains uncorroborated, such a circumstance assumes relevance and cannot be ignored. The sole testimony of the prosecutrix, which forms the foundation of the prosecution’s case, is neither consistent nor of such quality that it 11 may be relied upon without hesitation. The contradictions in her statement, the absence of supporting medical evidence, the delay in reporting, the admitted misunderstanding of the offence, and the potential for false implication owing to prior enmity, collectively weaken the prosecution’s case to a significant extent. One important factor of the case is that according to FIR the incident occurred 6 months prior whereas prosecutrix stated that she lodged the report after 7 months after the incident. Medical report suggest that the prosecutrix is carrying pregnancy of 18-20 weeks. Meaning thereby with certainty it cannot be said that prosecutrix became pregnant on the alleged solitary act of sexual intercourse by the appellant. In the opinion of this Court, the prosecution has failed to discharge the burden of proving the guilt of the appellant beyond reasonable doubt. The benefit of such doubt must necessarily enure to the appellant. 19. Ex consequenti, the appeal is allowed and the impugned judgment is hereby set aside. The appellant is acquitted from charge against him. The appellant is reported to be on bail. His bail bonds will remain in force for 6 months in view of Section 481 of the BNSS, 2023. The record be sent back with copy of this Judgment forthwith for necessary action and compliance. Consequence to follow. Sd/- (Sachin Singh Rajput) JUDGE H.Ansari HIFZURRAHMAN ANSARI Digitally signed by HIFZURRAHMAN ANSARI Date: 2025.09.12 10:41:34 +0530