1 2025:CGHC:10947 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment reserved on: 10.12.2024 Judgment delivered on: 05.03.2025 CRA No. 474 of 2005 Shivlal Singh, S/o Lakhan Singh, aged about 21 years, Occupation- Agriculture, R/o Village Aragahi, P.S. Ramanujganj, District- Surguja, C.G. ... Appellant Versus The State of Chhattisgarh, through P.S. Ramanujganj, District- Surguja, C.G. ... Respondent For Appellant : Mr. Rishikant Mahobia, Advocate For Respondent /State : Mr. Akhilesh Kumar, G.A. Hon’ble Smt. Justice Rajani Dubey CAV Judgment 1. The appeal under Section 374(2) of Code of Criminal Procedure, 1973 has been preferred against the judgment of conviction and order of sentence dated 31.03.2005 passed by the learned Additional Sessions Judge (F.T.C.) Ramanujganj, District- Surguja, C.G. in Sessions Trial No. 478/2004 whereby the appellant has been convicted for the offence Digitally signed by RAVVA UTTEJ KUMAR RAJU Date: 2025.03.05 17:11:13 +0530 2 punishable under Section 376(1) of IPC and sentenced to undergo RI for seven years and fine of Rs. 5,000/- in default of payment of fine to further undergo RI for one year. 2. Briefly stated facts of the case are that the complainant- Kamal Krishna Vishwas (P.W.-7) lodged a report before the Police Station- Ramanujganj to the effect that he resides in village Tambeshwar Nagar, Aragahi and on the date of incident, i.e. on 16.06.2004, when he was working in his field, at that time, his son along with brother-in-law came there and told him that the prosecutrix was not at home since 10 O'clock. The complainant came home and inquired about the prosecutrix. When she was not found at night, the complainant Kamal Krishna Vishwas (P.W.-7) and Kartik Mandal (P.W.-9) went to Sarpanch Sukamani (P.W.-2) and told that complaint's daughter is not home since night, upon which, Raju Prajapati (P.W.-3) sitting there told that the prosecutrix is sitting under a tree near Kosabadi. Thereafter, they went to take the prosecutrix and brought her home. On being asked, prosecutrix told that at about 10:00 P.M., Devvrat called her and took her to the house of accused/appellant Shivlal, where appellant committed rape on her. The prosecutrix is aged about 15 years and is mentally weak. On the basis of said report, FIR (Ex.P/4) bearing Crime No. 55/2004 was registered against the appellant for the offence punishable under Section 376/34 of IPC. 3. On 17.06.2004, Sub-inspector- S.K. Rastogi, (P.W.-14) prepared the spot map (Ex.P/5) in presence of the witnesses. Thereafter, seizures were made vide Ex.P/6. On the same date, prosecutrix was taken to District Hospital Ambikapur for medical examination and seizure was 3 sent for medical examination. Patwari- Mahendra Gupta (P.W.-5) prepared the spot map of the incident vide Ex.P/3 on 22.6.2004. 4. On 19.06.2004, Dr. M. K. Jain (P.W.-13) conducted the radiological test for age determination of the prosecutrix. Thereafter, on 14.07.2004, the accused/appellant was arrested by Sub-Inspector S.K. Rastogi (P.W.- 14) as per arrest memo (Ex. P/13), thereafter he was sent to Government Hospital Ramanujganj for medical examination as per Ex. P/2. During investigation, statements of the witnesses were recorded and the seized articles were sent to State Forensic Science Laboratory, Raipur for chemical examination. After completion of investigation, charge-sheet was filed before the learned trial Court against the appellant for the offence punishable under Section 376/34 of IPC followed by framing of charge accordingly, to which the accused/appellant abjured his guilt and prayed for trial. 5. The prosecution in order to bring home the offence, examined as many as 14 witnesses. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C. wherein he denied all the incriminating circumstances appearing against him and pleaded innocence and false implication in the case. However, he did not adduce any evidence in his defence. 6. Learned trial Court after completion of trial and upon appreciation of oral and documentary evidence, by its impugned judgment, convicted and sentenced the appellant as mentioned in the opening paragraph of this judgment. Hence, this appeal. 7. Learned counsel for the appellant submits that the impugned judgment is contrary to the facts, law and circumstances of the case. The learned trial Court failed to consider that there is hardly any reliable evidence 4 on record to warrant the conviction of the appellant. The prosecution has been failed to prove its case beyond all reasonable doubts. The prosecutrix (PW-06) has categorically stated that she has not seen the person who committed rape upon her as it was night time. The learned trial Court did not appreciate the oral and documentary evidence properly and wrongly convicted the appellant, medical report also does not support the prosecution case. As such, the impugned findings recorded by the learned trial Court are perverse and liable to be set aside. 8. Per contra, learned counsel for the State supported the impugned judgment and submits that prosecutrix/victim (PW-06) categorically stated against the accused person/appellant and the learned trial Court minutely appreciated the oral and documentary evidence and rightly convicted the present accused/appellant, so this appeal is without any merit and is liable to be dismissed. 9. Heard both the counsel for the parties and perused the material available on record. 10. It is clear from record of the learned trial Court that the learned trial Court framed charges under Section 376 of IPC against the present accused/appellant Shivlal Singh and after appreciation of oral and documentary evidence, the learned trial Court convicted the appellant under Section 376 (1) of IPC. 11. As per prosecution, the prosecutrix was aged about 15 years. (PW-06) stated that she was sleeping in her house and when she came out at 5 night, Devvrat caught her and took her to well. Shivlal was near the well and he forcefully raped her and thereby he left from that place and the prosecutrix was sitting under the Palash tree at night. In the morning her father and Karthik came in search of her and upon finding, they brought her home. After reaching home, she disclosed about the entire incident to her father, and then she went to Ramanujganj for reporting the incident. In cross-examination she stated that she did not know her date of birth and she also admitted that when Devvrat caught her hand, at that time, she was apprised by Devvrat that the one who is commiting sexual intercourse with her is Shivlal. She further stated that it is correct to say that as per Devvrat’s statement she took the name of Shivlal as the person who raped her. It is also correct to say that neither she was able to see the accused person's face at night, nor she can identify him. 12. (PW-01) Grandmother of the prosecutrix stated that on the night of the incident, the prosecutrix went missing and out of fear she sent information about the incident to her son Kamal Krishna Vishwas (PW- 07) and he started searching for the prosecutrix the whole night, however the prosecutrix was found in the morning near the jungle and the prosecutrix narrated about the incident to her that while she was sleeping at night, she woke up to attend nature’s call and at that time, behind the jackfruit tree Devvrat was hiding and he caught her hand and took her to Shivlal and then both Devvrat and Shivlal took her near the well and Shivlal did wrong things with her. 13. (PW-02) Smt. Sukhmani, Sarpanch of the village has not supported the 6 prosecution case and the prosecution declared her hostile and cross- examined her, but she denied all suggestions of the prosecution. 14. (PW-03) Raju Prajapati stated that after sending Harvah to the work he went to Sarpanch’s house and sat over there, and at that time father of the prosecutrix came there and he told him that his daughter went missing since night, then Raju told him that he saw the prosecutrix and he apprised him about the place. However, prosecution declared him hostile and cross-examined him, but he denied all suggestions of the prosecution in his cross-examination. 15. (PW-07) Kamal Krishna Vishwas, father of the prosecutrix has stated that after having his meal, he was heading back towards his field to take care of the same, at that time, his brother-in-law Anand and his son Pushdhwaj apprised him that his daughter/prosecutrix was not at home. Then, he returned to his home along with his wife and though searching near his vicinity, he did not find his daughter. Thereafter, on the next day morning he along with Karthik, went to Sukhmani Devi’s house and apprised her regarding his daughter’s disappearance and there they found Raju Prajapati (PW-03) sitting there. Upon being asked, Raju Prajapati (PW-03) told them that he saw the prosecutrix sitting under Paras tree and then they went in search of the prosecutrix, found her and brought her home. Thereafter, Karthik asked the prosecutrix as what happened, then the prosecutrix told him that at night, Devvrat called her and took her away and handed her over to Shivlal. The prosecutrix further disclosed that she was being raped by one Shivlal. Thereafter, they all went to the police station Ramanujganj 7 for reporting the said incident and the F.I.R. was registered vide Ex. P/04 on and his signature is present on A to A part. The father of the prosecutrix stated that the date of birth of his daughter/prosecutrix is 01.07.1989. 16. (PW-08) Chittaranjan stated that upon being inquired, the prosecutrix told him that Devvrat called her and took her towards the jungle and left her, and she stayed whole night in the jungle and she further apprised him and others who asked her regarding her disappearance that she was with Shivlal on the entire night. In cross-examination he stated that the prosecutrix told him that whole night she was in jungle, however, Shivlal was not there. 17. (PW-09) Karthik stated that the prosecutrix told him that Devvrat and Shivlal took her at night and Shivlal did wrong things with her. 18. (PW-10) Dr. Pratima Rajul Jain examined the prosecutrix on 18.06.2004 and she opined that the hymen of the prosecutrix was old ruptured and there is no sign of any external and internal injuries on the body of the prosecutrix. After examining, she opined that no definite opinion can be given regarding recent sexual intercourse of the prosecutrix as she is habituated of sexual intercourse. 19. (PW-11) Shivshankar, (PW-12) Mahendrabala have not supported the prosecution case and the prosecution declared them hostile, however they denied all the suggestions of the prosecution in their cross- examinations. 8 20. In this case, the conduct of the prosecutrix is very suspicious and as per the prosecution, she is aged about 14 years at the time of incident, but no birth certificate or any other document was filed by the prosecution to prove the age of the prosecutrix. 21. (PW-13) Dr. M. K. Jain conducted X-Ray of the prosecutrix to determine her age and he further stated that as per radiological report, the prosecutrix is aged about 14 years and gave his report vide Ex. P/11. In cross-examination he stated that in radiological examination there may be difference of 02 years of age on either side. 22. It is clear from X-Ray report and from the statement of Dr. M.K. Jain (PW-13) that as per radiological report the prosecutrix age was 14 years and as per Modi’s medical jurisprudence there may be difference of 02-03 years of age on either side and there is a possibility that her age was over 17 years. 23. It is also clear from the statement of the prosecutrix (PW-06) that she admitted that she did not identify the appellant at night time and she stated that Devvrat told her the name of Shivlal. However, the learned trial Court did not appreciate all these facts. 24. 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, held in paras 21, 22 & 32 which reads as under:- “21. The other discrepancies which are to be 9 mentioned are the categorical statement of the prosecutrix (PW 4) herself that after the alleged forcible sexual intercourse by both the accused, she wiped off her private parts with a red-coloured sock which was lying in the house, though at another place it was stated that both the accused used the red- coloured sock to wipe off their private parts after the commission of the offence Assuming both the versions to be true, we find that the red -coloured sock sent for chemical examination revealed that it did not contain any semblance of semen in it as per the FSL report, Exhibit PW- 14/N. It was also pointed out that while according to her the sock was handed over to the police in the hospital when the petticoat and the sock were seized from her, according to the seizure memo the sock was recovered from the place of occurrence. She was a married woman and except for the semen found on the petticoat, there is no other reliable evidence for implicating the appellant-accused to the crime alleged against them. In this background, when we refer to the oral version of the prosecutrix (PW 4), as pointed out by the learned counsel for the appellant, very many facts which were not found in her original statement were revealed for the first time before the court. 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 10 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 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 "starting witness whose version can be heated by the be called as a starting witneion and based on which the witness can be court without any corroprecise, the version of the said witness on the Coreshed to be on 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. 32. In the decision in Krishan Kumar Malik v. State of Haryanas in respect of the offence of gang rape under Section 376(2)(g) IPC, it has been held as under in paras 31 and 32: (SCC p. 138) 11 "31. 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, unblemished and should be of sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, which have already been projected hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the appellant guilty of the said offences. 32. Indeed there are several significant variations in material facts in her Section 164 statement, Section 161 statement (CrPC), FIR and deposition in court. Thus, it was necessary to get her evidence corroborated independently, which they could have done either by examination of Ritu, her sister or Bimla Devi, who were present in the house at the time of her alleged abduction. The record shows that Bimla Devi though cited as a witness was not examined and later given up by the Public Prosecutor on the ground that she has been won over by the appellant.’’ 25. In view of the aforesaid discussion and considering the facts and circumstances of the case, it is clear that the conviction cannot be based only on the sole testimony of the prosecutrix as the same is unreliable and untrustworthy and the medical report has also not supported the case of the prosecutrix and Dr. Pratima Rajul Jain (PW- 10) stated that no definite opinion can be given regarding recent sexual intercourse. As such, the prosecution has failed to prove its case beyond reasonable doubt. 26. So, this appeal is allowed. The impugned judgment dated 31.03.2005 is set aside and the present accused/appellant Shivlal Singh is acquitted 12 of the charge under Section of 376 (1) of IPC. 27. The appellant is reported on bail, therefore, his bail bond shall remain in operation for a period of six months from today in view of provision of Section 437-A of CrPC. 28. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- (Rajani Dubey) Judge U. K. Raju