1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 437 of 2005 Jaipal @ Bunda S/o Gurubaru Ram, Aged about 21 years, R/o Village Harramar, Police Station – Sitapur, District Sarguja (C.G.) ... Appellant versus State Of Chhattisgarh Through Police Station – Sitapur, District Sarguja (C.G.). ... Respondent For Appellant : Mr. K. P. Sahu, Advocate For Respondent : Mr. Shailesh Puriya, PL Hon'ble Shri Justice Sachin Singh Rajput Judgment on Board 23.06.2025 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 23.03.2005 passed by the 3rd Additional Sessions Judge (FTC), Ambikapur (C.G.) (for short trial Court) in Sessions Trial No.52/2005 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. 1,000/, in default of payment of fine 6 months R.I. HIFZURRAHMAN ANSARI Digitally signed by HIFZURRAHMAN ANSARI Date: 2025.07.04 11:39:53 +0530 2 2. The case of the prosecution, in a nutshell, is that the prosecutrix (PW-1), on the date of the incident, i.e., 01.10.2004, was at her matrimonial home. At about 2:00 PM, while returning after relieving herself, the appellant accosted her on the way, dragged her to a nearby Kitchen garden (baadi), and threw her to the ground. The appellant then removed her clothes and committed forcible sexual intercourse with her. When the prosecutrix (PW-1) protested and screamed, the appellant bit her on the right cheek, causing an injury to her face. Upon hearing her cries, her brother Ramanand (PW-2) came there, then the appellant ran away and left behind his lungi and chain at the place of occurrence. Witnesses Saynath and others saw the appellant running from the scene. The prosecutrix (PW-1) lodged the report at Police Station Sitapur the next day, which was registered as Ex.P/1, and investigation was initiated. The prosecutrix (PW-1) underwent medical examination, and her petticoat and undergarments were seized. The lungi and chain of the appellant were seized from the prosecutrix (PW-1). The appellant was subjected to medical examination and his undergarments were seized. On completion of investigation charge-sheet under Section 376 & 323 of the IPC was filed before the Judicial Magistrate First Class which committed the 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 & 323 IPC who denied the charges and claimed to be tried. 4. Prosecution in order to prove its case examined total 9 witnesses and exhibited 15 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 on account of some property dispute between one Lohar and prosecutrix PW-1 being used as a tool to falsely 3 implicate him. By the judgment impugned the appellant was convicted and sentenced as stated in the first paragraph of the judgment. 5. Learned counsel for appellant vehemently argues that the conviction of the appellant is bad in law. He submits that the prosecution was not able to bring home the guilt of the appellant beyond reasonable doubt. He submits that the story put forth by the prosecution is unrealistic and unreliable which cannot form basis of conviction of the appellant. He submits that the husband of the prosecutrix PW-1 is residing in Goa for almost three years and has not visited her. The prosecutrix PW-1 appears to be consenting party and when she was seen in compromising position with the appellant, in order to save herself, the false report has been lodged. He further submits that the medical evidence does not support the case of the prosecution, therefore, the appeal may be allowed and the impugned judgment set aside acquitting the appellant from the charge. 6. Per contra, learned State Counsel supports the impugned judgment. He submits that the conviction in the present case can be sustained on the solitary testimony of the prosecutrix (PW-1), provided it inspires the confidence of this Court. He contends that the prosecutrix (PW-1), in her deposition before the Trial Court, has categorically described the manner in which the alleged offence was committed. Learned State Counsel further submits that even if the medical evidence does not fully support the prosecution's version, the fact that the prosecutrix is a married woman would not materially affect the conclusion regarding the commission of forcible sexual intercourse by the appellant. He also points out that Dr. Pooja Agrawal (PW-3) found injuries on the body of the prosecutrix, which corroborates her version of events. Therefore, he submits that the appeal has no merit and liable to be dismissed. 4 7. I have heard learned counsel for the parties and perused the record of the trial Court including the impugned judgment. 8. The point which comes for determination before this Court as to whether the conviction of the appellant can sustain on the basis of evidence brought by the prosecution. The learned trial Court basically relied upon the statement of prosecutrix PW-1. 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 5 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 "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 authoritative judgments, this court has to examined the statement of the prosecutrix PW-1 cautiously and with great care. Prosecutrix was examined as PW-1. She in her statement before the trial Court has vividly described the happening of the incident. Her statement is reproduced herein below :- “ The prosecutrix in her deposition stated that incident took place in Village Harramar, where both the maternal home and the marital home of the prosecutrix are situated. On the date of the incident, the prosecutrix was staying at her maternal home and, at around 2:00 PM, while she was returning after relieving herself, the accused intercepted her and on the date of the incident, her husband was in Goa and she was alone. At that time, the accused forcibly caught hold of her on the way. Later, accused caught her near a well and dragged her to a Baadi. When she tried to raise an alarm, the accused covered her mouth and prevented her from shouting. She further deposed that she understood the meaning of rape despite being uneducated and that in her local dialect, sexual intercourse is 6 referred to as “rape.” The accused removed all her clothes while he himself remained in his undergarments. He took out his private part and forcibly inserted it into her private part against her will, thereby committing rape. Despite her resistance and pleading with him not to do so, the accused did not stop. She categorically identified accused in court as the person who committed the offence of rape. The prosecutrix further stated that on hearing her cries, her mother Janki, father Lohar Sai, and brother Ramanand reached the spot. They saw the accused committing the offence. Her brother, upon witnessing the act, assaulted the accused. She clarified that the accused did not beat her during the incident. Subsequently, she went to the Police Station at Sitapur along with her father and lodged a report….” 13. In her cross-examination, nothing incriminating has been brought on record. In her cross-examination though she has admitted that the appellant is brother- in-law in relation and he used to visit her. However, she also admits that her husband in Goa for about three years and has not returned back. She denied the suggestion that with consent, she has gone with the appellant to the kitchen garden (Baadi). She denied the suggestion that she was consenting party. The statement of the prosecutrix PW-1 on material particular states the prosecution story. The report Ex.P/1 was lodged on the next day in the same line which has been proved by the prosecutrix PW-1. 14. Her statement is also corroborated by statement of PW-2 Ramanand who has categorically deposed that the prosecutrix (PW-1) was taken by the appellant to the kitchen garden (Baadi). He further stated that, at the relevant time, he was grazing buffaloes when Saynath (PW-8) informed him that the prosecutrix (her elder sister) and the appellant were in the Baadi. Upon reaching the spot, he saw them there and witnessed that the appellant was committing forcible sexual intercourse upon the prosecutrix, who was shouting for help. He further deposed that he felt insecure and immediately informed his mother, following which they proceeded to the place of the incident. Out of anger, and under the mistaken belief that the prosecutrix was at fault, he assaulted her with a stick. Upon being asked, the prosecutrix informed him that the appellant had 7 committed forcible sexual intercourse upon her and that, prior to the incident, the appellant used to subject her to physical assault. However, he also stated that before the incident, the prosecutrix had not disclosed to him any prior incident of rape committed by the appellant. During his cross-examination, he admitted that the husband of the prosecutrix and the appellant are cousin brothers and that, being relatives, the appellant used to visit their house frequently. He further admitted that the prosecutrix and the appellant used to go out together and that her husband had been residing in Goa for the past three years and had not returned during that period. He also admitted that prior to the incident, the prosecutrix and the appellant were seen together in public. He further admitted that he was informed about the incident by Saynath (PW- 8), who told him that the prosecutrix and the appellant were engaged in inappropriate activity ("bad work"). He also acknowledged that, in a fit of rage, he assaulted the prosecutrix with a stick, and that the appellant fled from the scene. 15. PW-3 Dr. Pooja Agrawal medically examined the prosecutrix (PW-1) and observed a superficial scratch on her left cheek and a 2x0.5 cm injury on her left chest. Upon examination, she found that the hymen was ruptured at the 5 o'clock position. She prepared a vaginal slide of the prosecutrix and opined that the prosecutrix appeared to be habituated to sexual intercourse. She further stated that no conclusive opinion could be given regarding recent sexual intercourse, and whether the prosecutrix had been subjected to sexual intercourse could only be confirmed through chemical analysis of the vaginal slide. She prepared her medical examination report and gave report as Ex. P/3. She also stated that the hymenal rupture appeared to have occurred within approximately 48 to 72 hours prior to the time of examination. During the examination, two microscopic vaginal slides were prepared, sealed, and 8 handed over to the police officer or medical staff for further microscopic and chemical analysis. She gave a supplementary report as Ex.P/4. In her cross- examination, she deposed that the superficial scratches on the cheek and chest of the prosecutrix could have resulted from, or occurred during, the act of sexual intercourse, depending upon the specific circumstances in which it took place. 16. PW-6 Investigating Officer supports the case of the prosecution. 17. PW-7 Dr. M. Nikunj is the person who examined the appellant and found him fit for sexual intercourse. 18. PW-8 Saynath is a witness who claims to have seen the appellant and the prosecutrix (PW-1) at the place of the incident and who subsequently informed Ramanand (PW-2), the brother of the prosecutrix. In his examination-in-chief, he stated that he is acquainted with both the appellant and the prosecutrix. While he was on his way to cut grass near the field of Pandu, he saw the appellant and the prosecutrix lying down near the Kapsa Baadi of Pandu. Upon hearing the rustling sound of dry leaves, he approached the Baadi and observed the appellant and the prosecutrix lying close to the mud wall. He further stated that their bodies were moving in a to-and-fro manner, and the prosecutrix was shouting for help. On hearing her cries, he informed his brother Ramanand PW-2, who was grazing buffaloes near the dam. During his cross-examination, he admitted that the appellant and the prosecutrix used to visit each other’s houses. He also admitted that the prosecutrix used to accompany the appellant, even during night time. He further admitted that the appellant and the prosecutrix had a love relationship, which continued even after the marriage of the prosecutrix. He also admitted that the husband of the 9 prosecutrix had been residing in Goa for the past 2–3 years and had not returned home during that period. 19. PW-9 Lohar Sai, the father of the prosecutrix deposed that his daughter (prosecutrix) informed him that the appellant had committed rape upon her, following which he lodged the report in the police station. He stated that he did not personally visit the place of the incident but proceeded to lodge the report based on the information provided by his daughter. During his cross- examination, he admitted that his son-in-law (husband of the prosecutrix) had gone to Goa and had not returned. He further deposed that he was unaware whether the prosecutrix and the appellant used to visit each other. He deposed that Saynath (PW-8) had informed his son Ramanand (PW-2) about the incident, and thereafter, they all went to the place of occurrence one after another. He admitted that, in a fit of rage, his son Ramanand (PW-2) assaulted the prosecutrix with a stick. He also stated that he himself intended to assault the appellant, but in the process, the blow mistakenly hit the prosecutrix. He denied the suggestion that there was any prior love relationship between the prosecutrix and the appellant. 20. Now, this Court proceeds to scrutinize the evidence available on record. The case of the prosecution, as projected, is that when the prosecutrix was returning after relieving herself, the appellant allegedly met her on the way, forcibly took her to a nearby baadi, removed her clothes, and committed forcible sexual intercourse. The prosecutrix has deposed that she was shouting for help during the incident. According to PW-8 Saynath, who was going to cut grass, he heard the sound of dry leaves and, out of curiosity, reached the spot and allegedly found the appellant and the prosecutrix in a compromising position. Though he has stated that the prosecutrix was shouting, instead of extending any immediate help, he went to inform the brother of the 10 prosecutrix, who was grazing buffaloes near the dam. Upon receiving this information, the brother of the prosecutrix reached the spot and witnessed the appellant allegedly committing forcible sexual intercourse. In a fit of rage, he assaulted the prosecutrix, though an explanation has been offered that he mistakenly believed his sister was at fault. From the evidence available, it is apparent that the husband of the prosecutrix has been residing away from home for the last 2–3 years and has not returned during this period. It is also on record that the appellant and the husband of the prosecutrix are cousin brothers. Furthermore, there is evidence to suggest that the appellant and the prosecutrix used to visit each other’s houses and would even go out together during night hours. PW-8 Saynath has also stated that the appellant and the prosecutrix were in a love relationship which continued even after her marriage. In view of the above facts and circumstances, the story put forth by the prosecution appears to be improbable and lacking in credibility. The testimony of the prosecutrix does not inspire confidence and fails to pass the test of reliability rather it appears from the evidence on record that the prosecutrix and the appellant were previously involved in a love relationship, which continued even after the marriage of the prosecutrix. It further emerges that when they were found in a compromising position by family members, the possibility of false implication by the prosecutrix cannot be entirely ruled out. An important aspect that cannot be overlooked is the medical examination of the prosecutrix conducted by Dr. Pooja Kumari (PW-3). The medical report does not offer any conclusive opinion regarding recent sexual intercourse. The mere presence of certain scratches on the body of the prosecutrix is not, in itself, sufficient to arrive at the conclusion that she was subjected to forcible sexual intercourse. It is highly improbable and against the natural course of human conduct that in broad daylight, the prosecutrix could have been forcibly 11 dragged to a secluded place like a baadi, her clothes removed, and subjected to forcible intercourse without sustaining any significant injuries. Notably, the medical report also does not reflect the presence of any injuries on other parts of her body, including her private parts. It is well settled that conviction can be based solely on the testimony of the prosecutrix if it is found to be trustworthy and reliable. However, upon a holistic and cumulative assessment of the entire evidence available on record, this Court is of the considered opinion that the conduct and circumstances suggest that the prosecutrix was a consenting party to the act. 21. It is also pertinent to note that, although delay in lodging the First Information Report may not, by itself, be fatal to the prosecution case particularly in offences involving sexual assault such delay must be adequately explained. In the present case, the incident allegedly occurred on 01.10.2004 at around 2:00 PM, and both the prosecutrix and the appellant were seen at the place of occurrence. However, the report was lodged only on the next day at about 5:00 PM, resulting in an unexplained delay of more than 24 hours, which casts a shadow of doubt on the prosecution version. 22. An explanation has been offered after the consultation with the villagers as a result of night, the lodging of the FIR was delayed. While delay in filing the FIR, by itself, may not always be a decisive factor to discredit the prosecution case, however, in the facts and circumstances of the present case where the conduct of the prosecutrix, the nature of the relationship between the parties, and other surrounding circumstances suggest consensual involvement such delay assumes significance. As already discussed, the evidence on record indicates that the prosecutrix appears to be a consenting party to the act. Therefore, in light of the judgment of the Hon’ble Supreme Court in Rai Sandeep (supra), the prosecutrix cannot be regarded as a sterling witness, and 12 the conviction cannot be sustained solely on such evidence. Accordingly, this Court is of the opinion that the learned Trial Court misdirected itself in recording the finding of guilt against the appellant based on such uncorroborated and unreliable testimony. 23. 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