1 / 9 2025:CGHC:1178 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment Reserved on : 06.11.2024 Judgment Delivered on : 08 .01.2025 CRA No. 75 of 2005 Mohan S/o Ramchandra Gupta aged about 34 years, Occupation- Labour R/o Jutemill, District-Raigarh (C.G.). ... Appellant Versus State of Chhattisgarh ... State/Respondent For Appellant : Ms. Savita Tiwari, Advocate. For State/Respondent : Mr. Ruhul Ameen Memon, P. L. Hon'ble Smt. Justice Rajani Dubey C.A.V Judgment 1. This appeal is preferred under Section 374 of the Code of Criminal Procedure, 1973 against the judgment of conviction and order of sentence dated 10.01.2005 passed by learned Special Judge, Raigarh (C.G.) in Special Criminal Case No. 13 of 2000 whereby the appellant has been convicted and sentenced as 2 / 9 under:- Conviction Sentence U/S 376 of IPC R.I. for 07 years and fine of Rs. 5000/-, in default of payment of fine to undergo additional R.I. for one year. U/S 450 of IPC R.I. for 05 years and fine of Rs. 2000/-, in default of payment of fine to undergo additional R.I. for 06 months. (Both substantive sentences are directed to run concurrently.) 2. Brief facts of the case are that the complainant lives as a tenant in the house of the accused/appellant. On the intervening night of 06.04.2000 at 12:00 O’ clock the complainant was in her house and at that time, the accused/appellant entered the house and committed forcible sexual intercourse with her. The complainant tried to resist him by screaming, to which the appellant threatened her for life and the accused/appellant intentionally humiliated the complainant on the basis of her caste. Thereafter, the complainant narrated about the entire incident to Gendalal, Bablu and Balram alias Balla. 3. During investigation, the statements of the witnesses were recorded and after completion of due and necessary investigation, the charge sheet has been filed before the concerned Jurisdictional Magistrate and the case was later committed to the learned Special Judge, Raigarh (C.G.) and after registration of Special Criminal Case No. 13/2000, the trial Court framed charges 3 / 9 against the appellant for offence punishable under Sections 376, 450, 506(B) of IPC and Section 3 (1) (x) and Section 3 (1) (xii) of S.C. & S.T. (Prevention of Atrocities) Act, 1989. After the trial the accused person/appellant has been found guilty of the offence under Sections 376 and 450 of IPC and he has been punished by the trial Court, wherein the appellant has abjured his guilt and prayed for trial. 4. So as to hold the accused/appellant guilty, the prosecution has examined as many as 09 witnesses. The appellant has also examined 01 witness in his defence. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C. in which he denied all the inculpatory charges leveled against him and pleaded his naiveness and false entailment in this case. 5. The learned trial Court after appreciating the oral and documentary evidence convicted and sentenced the appellant as mentioned in the inaugural paragraph of this judgment. Hence, this present appeal filed by the appellant. 6. Learned counsel for the appellant submits that the impugned judgment and conviction passed by the learned trial Court is against the law and is not sustainable. The appellant has taken the defence that he had asked the complainant for payment of rent and the other tenants were also asked for the same, but the prosecutrix did not pay the rent and due to that reason, they had 4 / 9 dispute over this matter and the prosecutrix had falsely implicated the appellant of the said charges. The other tenants have been produced by the appellant in his defence, but the learned trial Court erroneously disbelieved the defence witnesses. However, it is highly impossible for the appellant to commit rape in presence of the other tenants and 08 family members of the appellant in the same house, including 04 sons, wife, one daughter and old mother. So, the learned trial Court did not appreciate the oral and documentary evidence properly. As such, the impugned judgment of conviction and sentence is liable to be set aside. 7. Reliance has been placed on the decisions of Omprakash Verma v. State of Chhattisgarh reported in ILR 2023 Chhattisgarh (SN) 68, Gorelal v. State of Chhattisgarh reported in ILR 2023 Chhattisgarh (SN) 26, Dhyan Singh v. State of Chhattisgarh reported in ILR 2023 Chhattisgarh (SN) 43 & Hemant Kumar Chaurasia v. State of Chhattisgarh reported in ILR 2023 Chhattisgarh 941. 8. Per contra, learned counsel for the respondent/State supported the impugned judgment and submits that the learned trial Court minutely appreciated the oral and documentary evidence and rightly convicted the accused/appellant, as such this appeal is bereft of any merit and is liable to be dismissed. 9. Heard both the counsel for the parties and perused the material 5 / 9 available on record including the impugned judgment. 10. It is clear from record of the learned trial Court that the learned trial Court framed charges under Section 450, 506(B) of IPC and Section 3 (1) (x) and Section 3 (1) (xii) of S.C. & S.T. (Prevention of Atrocities) Act, 1989 against the accused person/appellant and after appreciation of oral and documentary evidence, the learned trial Court acquitted the appellant under Section 506(B) of IPC and Sections 3 (1) (x), 3(1) (xii) of S.C. & S.T. (Prevention of Atrocities) Act, 1989, but convicted him under Sections 376 and 450 of IPC. 11. 11. Prosecutrix/victim (PW-03) stated that on the date of incident she was sleeping in her room and at about 12-12:30 am night, the accused/appellant came to her house and abused her using filthy language and thereafter, the appellant removed her clothes and his clothes as well and committed forcible sexual intercourse with her and upon her resistance, he slapped on her face. The prosecutrix lodged F.I.R vide Ex. P/10. In her cross-examination she admitted that she is living in accused person/appellant’s house as a tenant at rent of Rs. 150/- per month and she also admitted that before the incident she was having cordial relations with appellant and his wife. She denied the suggestion of the defence that the accused person/appellant was asked for rent and she also denied the suggestion that she had falsely implicated the accused person/appellant of the said charges. The prosecutrix also stated that 02 to 03 tenants also reside near her house and 6 / 9 she stated that upon her resistance, the appellant gagged her mouth. 12. (PW-01) Balram stated that the prosecutrix came to his house and told him that the accused person/appellant was abusing her using filthy language and was beating her. (PW-07) Gendalal, who is also tenant of the accused/appellant also stated that regarding rent the complainant and the appellant had dispute. The prosecution declared both the witnesses as hostile and cross- examined them, but they denied all suggestions of the prosecution and further stated that only some dispute took place between the complainant and the appellant regarding payment of rent. 13. (PW-05) Dr. Usha Kiran examined the prosecutrix on 07.04.2000 and found one abrasion on her back and left elbow and she further stated that she did not find any internal injuries on the prosecutrix. After examining, she opined that no definite opinion can be given regarding rape of the prosecutrix as she was habituated to sexual intercourse and it was found that her hymen was old ruptured, thereby she gave her report vide Ex. P/11. 14. The learned trial Court finds that the statement of the prosecutrix is reliable and convicted the appellant, but it is clear from the impugned judgment that the learned trial Court acquitted the appellant of offence under Sections 506(B) of IPC and Section 3 (1) (x) and Section 3 (1) (xii) of S.C. & S.T. (Prevention of 7 / 9 Atrocities) Act, 1989 on this ground that there are no ingredients of Special Act and she is tenant of the appellant and the accused/appellant on fully being aware of her caste provided room to the complainant. The defence witness Gangabai (DW-01) stated that the accused/appellant Mohan Gupta asked the prosecutrix for rent and stated that her five months rent was yet to be paid and the accused/appellant was asking money so that he can get his daughter married. It is clear from statement of the prosecutrix (PW-03) that she admitted the suggestion that at the time of the incident, no one came there, but she gave explanation that the accused/appellant gagged her mouth. It is also clear from the statement of the Dr. Usha Kiran (PW-05) that she did not find any internal injuries and the other tenants of the accused/appellant supported the defence version and stated that the prosecutrix did not pay the house rent and it is also clear that at the time of incident, the other tenants were also residing there and family members of the accused/appellant were also present there. 15. Hon’ble Apex Court in the matter of Phool Singh v. State of Madhya Pradesh reported in AIR 2022 SC 222 after considering various case laws, held that the conviction can be based on the sole testimony of prosecutrix, if her statement is found to be reliable and trustworthy, but Hon’ble Apex Court in the matter of Santosh Prasad alias Santosh Kumar v. State of Bihar reported in (2020) 3 SCC 443 held in paras 5.5 and 6 as under:- 8 / 9 “5.5 With the aforesaid decisions in mind, it is required to be considered, whether it is 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 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 FIR is registered at 4:00 p.m. In her deposition, the prosecutrix has referred to the name of Shanti Devi, PW1 and others. However, Shanti Devi has not supported the case of the prosecution. Therefore, when we tested the version of PW-05, 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-05 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 accused is to be given the benefit of doubt.” 9 / 9 16. In the light of above cited judgment, in the present case also the manner in which the alleged incident has taken place as narrated by the prosecutrix (PW-03) is neither trustworthy, nor credible and it appears that there is enmity/dispute present between both the parties. As the medial report does not support the prosecution case, there is no scope to sustain the conviction and sentence imposed upon the appellant and he is entitled to be given the benefit of doubt. 17. In view of the aforesaid discussion and considering the facts and circumstances of the case, this appeal is allowed. The impugned judgment of conviction and sentence against the appellant is set aside and he is acquitted of the offence under Sections 376 and 450 of IPC. 18. The accused/appellant Mohan Gupta is reported to be on bail, therefore, his bail bond shall remain in operation for a period of six months from today in view of provisions of Section 437-A of CrPC. 19. 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 Uttej