1 CRA No. 395 of 2015 2025:CGHC:14561-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 395 of 2015 [Arising out of judgment dated 19.02.2015 passed in Special (Atrocity) Sessions Trial No.08/2013 by the Special Judge (Atrocity) and Sessions Judge, Bemetara, District Bemetara, Chhattisgarh]  Bedram Lodhi S/o Latmar Lodhi, aged about 44 years, Occupation – Motor Winding Mechanic, R/o Village Chorbhatti, P.S. Saja, District – Bemetara, Chhattisgarh. ... Appellant versus  State of Chhattisgarh through Station House Officer, Police Station Saja, District Bemetara, Chhattisgarh. ... Respondent For Appellant :- Mr. Rajnish Singh Baghel, Advocate. For State-Respondent :- Mr. Arvind Dubey, Government Advocate Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (26.03.2025) ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.04.01 14:57:56 +0530 2 CRA No. 395 of 2015 Sanjay K. Agrawal, J 1. Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the the appellant, is to the legality, validity and correctness of the judgment dated 19.02.2015 passed by the Special Judge (Atrocity) and Sessions Judge, Bemetara, District Bemetara, Chhattisgarh, in Special (Atrocity) Sessions Trial No.08/2013, by which the appellant herein along with one co-accused Bhuneshwar Verma (his Criminal Appeal No.345/2015 has been disposed off as having become abated) have been convicted and sentenced as under:- Conviction Sentence Under Section 450 of the IPC Rigorous imprisonment for 10 years with fine of ₹ 2,000/- each; in default of payment of fine amount the appellants have to undergo additional rigorous imprisonment one month. Under Section 376(2) (जी/छ) of the IPC Rigorous imprisonment for 20 years with fine of ₹ 10,000/- each; in default of payment of fine amount the appellants have to undergo additional rigorous imprisonment five months. Under Section 506B Rigorous imprisonment for two years 3 CRA No. 395 of 2015 of the IPC with fine of 1,000/-; in default of ₹ payment of fine amount the appellants have to undergo additional rigorous imprisonment fifteen days. Under Secton 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, ‘the Act, 1989’) Imprisonment for life with fine of ₹ 4,000/- each; in default of payment of fine amount the appellants have to undergo additional rigorous imprisonment two months. All the sentences are directed to run concurrently. Prosecution story:- 2. On 12.02.2013 at about 12:00 midnight at village Chorbhatti Police Station Saja, District – Bemetara, Chhattisgarh, the appellant herein along other co-accused Bhuneshwar Verma, entered into the house of major victim (PW-2) and committed gang rape knowing that she belongs to the Scheduled Tribes and also threatened her to kill if she discloses the fact about the said incident to anyone and thereby committed the offence. On 15.02.2013, FIR (Ex.P/14) was lodged on the report of the victim (PW-2). Crime details form and nazari naksha was prepared vide Exs.P/3 & P/4, respectively. Major victim (PW-2) was medically examined by Dr. Kunti Thakur 4 CRA No. 395 of 2015 (PW-1) who prepared the victim’s medical report vide Ex.P/1. As per the medical report of the victim (Ex.P/1) proved by PW-1, no evidence was found with regard to forceful sexual intercourse and only 3 minor injuries were found over the body of the victim which was older 2-5 days. Caste certificate was produced vide Ex.P/34. Wheels of investigation started running and the appellant was arrested. Clothes of the victim as well of the appellant herein were seized vide Exs.P/17 & P/19, respectively. Other articles were also seized. Slides were prepared. Seized articles and the slides of the victim were sent for chemical analysis to the FSL. However, FSL report has not been brought on record by the prosecution for reasons best known to the prosecution. 3. After due investigation, appellant herein was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence. 4. In order to bring home the offence, prosecution has examined as many as 11 witnesses and exhibited 34 documents, whereas, defence, in support of its case, has not examined any 5 CRA No. 395 of 2015 witness, but exhibited 2 documents. The statement of the appellant / accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. 5. The learned Special Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused for the offence as mentioned in the opening paragraph of the judgment, against which the appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. Submission of the Parties:- 6. Mr. Rajnish Singh Baghel, learned counsel for the appellant, would submit that the prosecution has not been able to bring home the offence beyond reasonable doubt. He would also submit that the conviction of the appellant is solely based on the testimony of the victim, (PW-2), but she has not supported the case of the prosecution and her statement fails to pass the quality of “sterling witnesses” in light of the decision of the 6 CRA No. 395 of 2015 Supreme Court in the matter of Rai Sandeep alias Deepu v. State (NCT of Delhi) 1 followed in the matter of Santosh Prasad @ Santosh Kumar v. The State of Bihar 2 . He would further submit that the minor injuries which were found over the body of the victim are older 2 to 5 days and are of no use to the prosecution in light of decision of the Supreme Court in the matter of Radhu v. State of Madhya Pradesh 3 . Thus, the the appellant herein is entitled for acquittal on the basis of benefit of doubt and the appeal deserves to be allowed. 7. Mr. Arvind Dubey, learned State counsel, would support the impugned judgment and submit that prosecution has been able to bring home the offence. He would also submit that the victim (PW-2) has clearly supported the case of the prosecution beyond reasonable doubt and in shape of corroboration medical evidence (Ex.P/1) proved by Dr. Kunti Thakur (PW-1) has rightly been relied upon by the Special Court to base the conviction of the appellant and, therefore, the present appeal deserves to be dismissed. 1 (2012) 8 SCC 21 2 (2020) 3 SCC 443 3 (2007) 12 SCC 57 7 CRA No. 395 of 2015 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the with utmost care and circumspection. Discussion & Analysis:- 9. Admittedly, the conviction of the appellant is based on the testimony of the victim (PW-2) and the medical report (Ex.P/1) proved by Dr. Kunti Thakur (PW-1). In the medical reort (Ex.P/1) three minor injuries were found over the body of the victim out of which two injuries on back side and one on right thigh of the victim and except that no other external and internal injuries were found, even no evidence has been found with regard to forceful sexual intercourse. However, forensic evidence has not been brought on record by the prosecution in support of its case. As such, to base the conviction of the appellant for the offences in question, the statement of the victim should be of “sterling quality” and the victim (PW-2). 10. Now, we will consider the statement of the victim in toto to find out whether the statement of victim inspires confidence 8 CRA No. 395 of 2015 and appears to be absolutely trustworthy, unblemished and whether it is of sterling quality? 11. As this stage, it would be appropriate to notice the judgment of the Supreme Court in the matter of Rai Sandeep alias Deepu (supra) in which their Lordships of the Supreme Court have observed that who can be said to be a “sterling witness” and which has been recently followed in the matter of Santosh Prasad @ Santosh Kumar (supra). Their Lordship of the Supreme Court in the matter of Rai Sandeep alias Deepu (supra) have held in paragraph No.22 as under:- “22. In our considered opinion, the “sterling witness” should be of a very high quality and calibre 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 9 CRA No. 395 of 2015 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, 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.” 12. It is the case of the prosecution and stated by the victim (PW- 2) is that on the date of offence i.e. 12.02.2013 her husband was not at home as he had gone to nearby village for some work and she was alone in the house along with her four children. First of all, the incident took place on 12.02.2013 between 11:30 pm to 12:00 midnight and the matter was reported by the victim on 15.02.2013, with a delay of 3 days. 10 CRA No. 395 of 2015 Though the victim (PW-2) has immediately informed the said incident to her husband (PW-3) and on the next day i.e. 13.02.2013 her husband came to home, but they (PW-2 & PW- 3) did not report the matter immediately after coming of PW- 3. With regard to delay in the FIR the reason has been mentioned that victim’s husband was outside the village and the same fact has been stated by the victim too, however, the victim’s husband (PW-3) came to the house on the very next day of the incident i.e. 13.02.2013, but they did not report the matter immediately. In view of the above, the explanation given by the victim for not lodging the FIR right in time is not found to be satisfactory. 13. Further, as per the victim (PW-2) she was sleeping in the house along with her four children and the door was closed from inside, however, considering the statement of victim’s husband (PW-4) in pargraph No.14, he has clearly stated that once the doors is closed from inside, it can be opened by a person who is inside the house and there is no evidence on reocrd that the door was opened by the appellant as the same was closed from the inside. Moreover, the victim in her statement before the Court has clearly stated that besides her 11 CRA No. 395 of 2015 house, her husband’s elder brother, younger brother and father are residing, and as per the victim (PW-2), the appellant had taken her from her own house to the newly constructed house and also as per crime details form (Ex.P/3), her house is situated in a dense loaclity, but at that time she did not make any hue and cry seeking help from them (in- laws) which makes the statement of the victim untrustworthy. Victim (PW-2) in her statement as well as in the FIR (Ex.P/14) she has stated that in the last year, in the month of jeth (जीठ) the appellant entered into her house and committed sexual intercource with her against her wishes, but for a period of more than one year she did not report the matter to the police or any of her family members and only when she was again allegedly subjected to sexual intercourse on 12.02.2013, she reported the matter to the police with a delay of 3 days on 15.02.2013. The act of the victim (PW-2) in not reporting the matter against the appellant to the police for more than one year, is taken note of. Furthermore, victim (PW-2) has stated that for lodging the report against the appellant she gave the money to the police which makes the case of the prosecution doubtful. In that view of the matter, the victim (PW-2) has 12 CRA No. 395 of 2015 failed to pass any of the tests of “sterling witness” as held by their Lordships of the Supreme Court in the matter of Rai Sandeep alias Deepu (supra) followed in the matter of Santosh Prasad @ Santosh Kumar (supra). 14. The Special Court to base the conviction of the appellant has relied upon the medical evidence (Ex.P/1) proved by Dr. Kunti Thakur (PW-1), in the shape of corroboration, however, forensic evidence is missing. 15. Now, we will examine the medical evidence produced by the prosecution and on which the Special Court has relied upon to base the conviction of the appellant for the offences in question. 16.Medical Evidence :- The victim was medically examined by Dr. Kunti Thakur (PW-1) who prepared the medical report of the victim vide Ex.P/1. As per the doctor (PW-1) no injury has been found over the body of the victim by her (PW-1) with regard to forceful sexual intercource and except 3 minor injuries, which were found over the body of the victim, no other external and internal injuries were found over the body 13 CRA No. 395 of 2015 of the victim. PW-1 in her statement before the Court has clearly stated that the said 3 minor injuries which were found over the body of the victim were 2 to 5 days older, meaning thereby it may have been caused prior to the incident, and in the cross-examination she has also stated that it could be caused by scratching (खुजीला ने). Furthermore, the Supreme Court in the matter of Radhu (supra) has held that the marks of the injuries found on the body of the victim are not sufficient to establish rape, if the evidence of the victim is found to be not trustworthy and there is no corroboration and held in para 13 as under:- “13. We are thus left with the sole testimony of the prosecutrix and the medical evidence that Sumanbai had an abrasion on the left elbow, an abrasionon her arm and a contusion on her leg. But these marks of injuries, by themselves, are not sufficient to establish rape, wrongul confinement or hurt, if the evidence of the prosecutrix is found to be not trustworthy and there is no corroboration.” 17.In light of the principles of law laid down by their Lordships of the Supreme Court in the above stated judgment – Radhu (supra), it is quite vivid that the injuries which were found on the body of the victim is of no use to the prosecution as the victim’s statement is not found to be trustworthy. As such, the 14 CRA No. 395 of 2015 conviction of the appellant for offences under Sections 450, 376(2)(जी/छ) and 506B of the IPC is liable to be set aside and is hereby set aside the appellant is entitled for acquittal on the basis of benefit of doubt. 18.So far as the conviction of the appellant for offence under Section 3(2)(v) of the Act, 1989, since the conviction of the appellant for offences under Sections 450, 376(2)(जी/छ) and 506B of the IPC has been set aside herein above, the appellant is also entitled for acquittal for offence under Section 3(2)(v) of the Act, 1989, on the basis of principles of benefit of doubt as, as per the prosecution, the offences under Sections 450, 376(2)(जी/छ) and 506B of the IPC have been committed by the appellant knowing the fact that the victim belongs to the Scheduled Tribes. Conclusion:- 19. In view of the aforesaid discussion and analysis, the impugned judgment of conviction and order of sentence dated 19.02.2015 passed by the Special Court convicting and sentencing the appellant for the offence under Sections 450, 15 CRA No. 395 of 2015 376(2)(जी/छ) and 506B of the IPC and also for offence under Section 3(2)(v) of the Act, 1989, is hereby set aside and the appellant is entitled for acquittal on the basis of principles of benefit of doubt. Appellant is stated to be on bail. He need not surrender. However, his bail bond shall remain in operation for a period of six months as per provisions contained in Section 437-A of the CrPC. 20. Let a certified copy of this judgment along with the original record be transmitted to the Special Court concerned and the copy of this judgment be sent to the concerned Superintendent of Jail where the appellant is lodged and suffering jail sentence, forthwith for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Ankit