1 2025:CGHC:16040 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 750 of 2011 1. Bhagirathi Alias Bhagi, S/o Shri Ramadhar Pade, Aged About 27 Years, R/o Village Sukharikala, P.S. Bori, District- Durg (C.G.). ... Appellant versus 1 - State of Chhattisgarh Through: Station House Incharge, Police Station- Dhamda, District- Durg (C.G.). ... Respondent For Appellant : Mr. G.I. Sharan along with Mr. J.K. Gupta, Advocate For Respondent(s)/State : Mr. Ajay Pandey, G.A. Hon'ble Smt. Justice Rajani Dubey Judgment on Board 04.04.2025 1. This appeal under Section 374(2) of Cr.P.C. has been filed by the appellant against the judgment of conviction and order of sentence dated 25.08.2011 passed by learned 3rd Additional 2 Sessions Judge, Durg (C.G.) in Sessions Case No. 38/2011 whereby, the trial Court convicted the appellant for the offence punishable under Section 376 of IPC and sentenced him to undergo RI for 10 years and fine of Rs.500/-, in default, to undergo additional RI for six months. 2. Case of the prosecution, is that that the prosecutrix lives in Village Gogaon, Police Station- Pahadi Chowk Raipur and works as a labourer. Her elder sister Rekha is married in Village- Sukhrikala. Brother-in-law of the prosecutrix namely Atmaram took the prosecutrix to Village- Sukhrikala for care at the time of delivery of his wife Rekha and it had been more than a month since she had come. On 26/12/2010, when sister of the prosecutrix asked the prosecutrix to bring cow dung, she took a basket and went towards Amner river to collect cow dung. In the meantime, she went to answer the nature’s call and when she returned, she saw that her basket was not there. At that time, the accused/appellant came there and took her with him and forcefully made her lie down on the ground and committed forcible sexual intercourse with her. The prosecutrix came back home from there and informed her sister and brother-in-law about the incident. Thereafter, her brother-in-law went with the Kotwar and lodged a report at the concerned police station against the appellant. Police registered the FIR bearing Crime No. 235/2010 for the offence under Section 376 of IPC against the appellant. Seizures were made and sent for chemical examination. Prosecutrix was sent to 3 Government Hospital, Dhamdha where she was medically examined by lady doctor Dr. Mrs. Rachna Agarwal. During investigation, the statements of the witnesses were recorded and spot map was prepared by the Patwari. On investigation, it was found that the accused/appellant had committed sexual intercourse with the victim. The accused was arrested and his Panchnama was prepared and his clothes were seized. Medical examination of the accused/appellant was also done. The victim's X-ray test was done to determine her age. After completion of usual investigation, the charge sheet was filed before the learned trial Court against the appellant for the offence punishable under Section 376 of IPC followed by framing of charge, to which appellant abjured his guilt and claimed to be tried. 3. So as to hold the accused/appellant guilty, the prosecution examined as many as 14 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the incriminating circumstances appearing against him and pleaded innocence and false implication in the case. Appellant/accused did not adduce any evidence in his defence. 4. Learned trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 25.08.2011, finding evidence adduced by the prosecution trustworthy, convicted him for the offence under Section 376 of IPC and 4 sentenced him as mentioned in para 1 of this judgment. Hence, this appeal. 5. Learned counsel for the appellant submits that the impugned judgment passed by the trial Court is erroneous, contrary to the facts and evidence available on record, hence, the impugned judgment is liable to be set aside. Medical report also does not support the case of the prosecution. The learned trial Court did not appreciate this fact that the prosecutrix also did not state anything against the appellant. He further submits that the prosecutrix (P.W.-1) did not know the appellant either by face or by name before lodging FIR and yet the FIR was lodged by naming the appellant. Atmaram (P.W.-2) also admitted that after the incident, he took the prosecutrix to the house of the appellant. Further, in para 7 of his cross-examination, he states that if the appellant would have paid some compensation report might not have been lodged. Thus, it is clear that the prosecutrix has failed to prove its case beyond reasonable doubt. Therefore, the impugned judgment is liable to be set aside. In support of his contention, he has placed reliance upon the decision of Hon’ble Apex Court in the matter of Santosh Prasad Alias Santosh Kumar v. State of Bihar reported in (2020) 3 SCC 443: (2020) 2 SCC (Cri) 77 : 2020 SCC Online SC 194. 6. On the other hand, learned State counsel supports the impugned judgment and submits that the learned trial Court rightly 5 appreciated the oral and documentary evidence and convicted the appellant accordingly. Hence, the impugned judgment is well merited and does not call for any interference by this Court. 7. Heard learned counsel for the parties and perused the material available on record. 8. It is clear from the trial Court record that the learned trial Court framed charge against the appellant for the offence punishable under Section 376 of IPC. Prosecution examined 14 witnesses to support its case against the appellant. Learned trial Court after appreciation of oral and documentary evidence, convicted and sentence the appellant as mentioned in para 1 of the judgment. 9. In her examination-in-chief, prosecutrix (P.W.-1) stated that on the date of the incident when she went to collect cow dung. In the meantime, she went to answer the nature’s call and when she returned, she saw that her basket was not there. At that time, the accused/appellant came there and took her with him and committed forcible sexual intercourse with her. Thereafter, she narrated the whole incident to her sister and brother-in-law and subsequently, she lodged the report (Ex.P/1) at Police Station- Dhamdha. In her cross-examination, she admitted that she did not know the appellant either by face or by name before lodging FIR. She further admitted that after the incident, her brother-in-law took her to the house of the appellant and told her the name of the 6 appellant. 10. In paras 7 and 8 of his cross-examination, Atmaram (P.W.-2) stated that, “ 7. यह सह ह कि हमने यह सचा था कि यकि भा गीरथा आ जा य गी तो समझा गी । और हम लोगी सचा था कि लोड़ गीरब ह कि आरपी मआवजा गी तो हम लोगी रिरपी्቏# नेह$ रगी किन्तो अकिभाय्ሹ नेह$ आय । यह सह ह कि जाब आरपी नेह$ आय तो हम लोगी रिरपी्቏# रने गीय था । यह सह ह कि घ्቏ने पीहलो स पीकिड़तो उव#शी आरपी नेह$ पीहचा नेतो था। यह सह ह कि उव#शी ने मझा ह भा अकिभाय्ሹ ने म भा गीरथा ह, ऐस नेह$ बतो य था । स्वतो- ह कि वह ने म नेह$ जा नेतो था। 8. जाब म ब स खा ने जा रह था तोब अकिभाय्ሹ म र स मने तो/ने तोड़र जा रह था जिजास म1ने खा था और उव#शी ने मझा बतो य था कि आरपी तोम्ह र ह उ्቞ ह और तो/ने रखा ह4आ ह इस अ6 जा स तोब म1 उव#शी लो र आरपी भा गीरथा घर लो र गीय था ।” 11. Hon'ble the Apex Court in the matter of Santosh Prasad Alias Santosh Kumar v. State of Bihar reported in (2020) 3 SCC 443 observed in para 5.4.3, 5.5 and 6 of its judgment as under: “5.4.3. In Krishan Kumar Malik V. State of Haryana, it is observed and held by this Court that no doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, 7 unblemished and should be of sterling quality. 5.5. With the aforesaid decisions in mind, it is required to be considered, whether is it safe to convict the accused solely on the solitary evidence of the prosecutrix? Whether the evidence of the prosecutrix inspires confidence and appears to be absolutely trustworthy, unblemished and is of sterling quality? 6. Having gone through and considered the deposition of the prosecutrix, we find that there are material contradictions. Not only there are material contradictions, but even the manner in which the alleged incident has taken place as per the version of the prosecutrix is not believable. In the examination- in-chief, the prosecutrix has stated that after jumping the fallen compound wall the accused came inside and thereafter the accused committed rape. She has stated that she identified the accused from the light of the mobile. However, no mobile is recovered. Even nothing is on record that there was a broken compound wall. She has further stated that in the morning at 10 o'clock she went to the police station and gave oral complaint. However, according to the investigating officer a written complaint was given. It is also required to be noted that even the 8 FIR is registered at 4:00 p.m. In her deposition, the prosecutrix has referred to the name of Shanti Devi, PW 1 and others. However. Shanti Devi has not- supported the case of the prosecution. Therefore, when we tested the version of PW 5. prosecutrix, it is unfortunate that the said witness has failed to pass any of the tests of "sterling witness". There is a variation in her version about giving the complaint. There is a delay in the FIR. The medical report does not support the case of the prosecution. FSL report also does not support the case of the prosecution. As admitted, there was an enmity/dispute between both the parties with respect to land. The manner in which the occurrence is stated to have occurred is not believable. Therefore, in the facts and circumstances of the case, we find that the solitary version of the prosecutrix, PW 5 cannot be taken as a gospel truth at face value and in the absence of any other supporting evidence, there is no scope to sustain the conviction and sentence imposed on the appellant and the accused is to be given the benefit of doubt." 12. As has been held by Apex Court in above stated case that the Supreme Court has repeatedly observed that on the basis of the testimony of a single eye witness a conviction may be recorded, 9 but it has also cautioned that while doing so the court must be satisfied that the testimony of the solitary eyewitness is of such sterling quality that the court finds it safe to base a conviction solely on the testimony of that witness. In doing so the court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must impress the court as wholly truthful, and must appear to be natural and so convincing that the court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness. 13. In view of above, in the present case also, it is clear that the named FIR was lodged against the accused/appellant. Atmaram (P.W.-2) admitted that first he demanded money from the accused/appellant and thereafter, they went to police station to lodge the FIR against the appellant. He further admitted in his cross-examination that if the appellant would have paid some compensation, report might not have been lodged. 14. Keeping the circumstances discussed above and the case law, I am of the view that the findings of the trial Court are either perverse or vitiated by non-consideration of material evidence and relevant factors emerging from the prosecution evidence. 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. 10 15. In the result, the appeal is allowed and the impugned judgment is hereby set aside. The appellant is acquitted of the charge under Section 376 of IPC. In pursuance of the non-bailable warrant issued against the appellant, he is in jail, therefore, he be set free forthwith if not required in any other case. 16. Keeping in view the provisions of Section 481 of BNSS 2023, the appellant is directed to furnish a personal bond for a sum of Rs.25,000/- with two reliable sureties in the like amount before the Court concerned forthwith, which shall be effective for a period of six months alongwith an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereon shall appear before the Hon'ble Supreme Court. 17. 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