1 2025:CGHC:13894 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 384 of 2005 Judgment Reserved on : 07/01/2025 Judgment Delivered on : 22/ 03/2025 1. Vinod Ram, S/o Kashiram Lohar, aged 22 years, Occupation – Agriculture, r/o Harradand, P.S. Kansabel, District Jashpur (C.G.) 2. Prakash Tirkey, S/o Johna Tirkey, age 19 years, Occupation – Agriculture, r/o Harradand, P.S. Kansabel, District Jashpur (C.G.) 3. Vipin Kerketta, S/o Devnish Kerketta, aged 25 years, Occupation – Agriculture, r/o Harradand, P.S. Kansabel, District Jashpur (C.G.) 4. Ajeet Khalkho, S/o Jalsu Khalko, aged 23 years, Occupation – Agriculture, r/o Harradand, P.S. Kansabel, District Jashpur (C.G.) ---- Appellants Versus State of Chhattisgarh Through : Police Station : Kansabel, District Jashpur (C.G.) ---- Respondent For Appellants : Mr. Rishi Kant Mahobia, Advocate. For Respondent/State : Ms. Nand Kumari Kashyap, P.L. Hon'ble Smt Justice Rajani Dubey (C.A.V. Judgment) 2 1. This appeal is directed against the impugned judgment of conviction and order of sentence dated 19.04.2005 passed by learned Additional Sessions Judge, Jashpur, District Jashpur (C.G.), in Sessions Trial No.129/2004 whereby and whereunder, the appellants have been held guilty of commission of offence and sentence them as described below. Conviction Sentence Under Sections 376(2) (g) of IPC. R.I. for 10 years and fine of Rs.5000/- each, in default of payment of fine to undergo additional R.I. for 01 year. 2. The prosecution story, in brief, is that the prosecutrix (PW/1) aged around 13 years, lodged a report in police station Kansabel to the effect that on 27.01.2004, she along with her uncle (Chacha) Florence Kujur had gone to village Harradand to attend the marriage ceremony of Virendra Ekka, son of her uncle (Fufa). On second day i.e. on 28.01.2004 at around 2.00 pm, when the marriage function was going on, at the relevant time Prakash Tirkey (A-2) of village Harradand came and said that her brother is calling her and thereafter, by cheating he took her in the house of Patras Uraon where Ajeet Khalkho (A-4), Vipin Kerketta (A- 3) and Vinod Ram (A-1) were already there in the house of Patras Uraon. Prakash Tirkey (A-2) took her inside the 3 house, removed her clothes and committed forcible sexual intercourse. When the prosecutrix started shouting, her mouth was tide by Ajeet Khalkho (A-4) and thereafter, Ajeet Khalkho (A-4), Vipin Kerketta (A-3) and Vinod Ram (A-4) committed rape with her one after another, as a result of which she became unconscious. When she regained consciousness in mid night, at that time her cousin brother Naresh Ekka was near her. Due to the act of the accused/appellants, there was swelling over her private part but due to shyness, she could not tell anyone there and till 29.01.2004 she stayed there. On 30.01.2004, she came to her house with her sister Mariyagoroti and narrated the incident to her sister Martha Kujur, whereupon her sister asked the name of boys who committed rape with her and she told the name of Prakash Tirkey (A-2), Ajeet Khalkho (A- 4), Vipin Kerketta (A-3) and Vinor Ram (A-1). The prosecutrix stayed in her house for one day and on second day i.e. on 01.02.2004, her brother Naresh Ekka came to her house and took her parents to village Harradand where a panchayat meeting was convened in which compromise was taken place and the report of the incident could not be lodged. The villagers had expelled his brother Naresh from the society and were insulting him, thereafter, her brother Naresh Ekka told that when prosecutrix was unconscious, 4 Malu picked her up from Patras Uraon’s house and brought her to his house and the report of this incident was made in Police Station Kansabel, on the basis of which, FIR (Ex.P/1) was registered. After obtaining the consent of father of prosecutrix, she was medically examined, vaginal slides were prepared and report was given under Ex.P/7. Accused/appellants were also medically examined by the Doctor (PW/10). During investigation, statement of Imil Kujur, Naresh Ekka, Florence Kujur were recorded under Section 161 of Cr.P.C. The accused/appellants were arresed on 22.09.2004. Spot map was prepared by the Patwari under Ex.P/4 and gave his report under Ex.P/6. School Admisssion registered was also seized from Nikolas Kerketta, Teacher (PW/12). Clothes of the prosecutrix were also seized. 3. After usual investigation, charge sheet was filed against the accused/appellants under Section 376 (2) (g) and 201 of IPC, and accordingly, charge was framed against them by the trial Court. 4. So as to hold the accused/appellants guilty, the prosecution examined as many as 14 witnesses. Statement of the accused/appellants was also recorded under Section 313 of Cr.P.C. in which they denied the circumstances appearing 5 against them in the prosecution case, pleaded innocence and false implication. 5. The trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment convicted and sentenced the appellants as mentioned in para-1 of this judgment. 6. Learned counsel for the appellants submits that the impugned judgment is perverse, erroneous, contrary to law & facts and circumstances of the case, therefore, the conviction and sentence are liable to be set aside. The prosecution has utterly failed to prove its case beyond reasonable doubt, which the learned trial Court failed to see and passed the judgment, which is not sustainable in law. The conviction of the accused/appellants is based on evidence of witnesses which are interested and the accused/appellants cannot be convicted on the basis of evidence of interested witnesses unless corroborated by the substantive piece of evidence. The evidence of witnesses do not inspire full confidence of this Court and is not safe to rely upon. Learned counsel further submits that there is no reliable witness in the case on the basis of which the accused/appellant can be convicted. The learned trial Court has failed to see that there is inordinate and unexplained 6 delay of about 08 months in lodging the FIR, which renders the case of the prosecution suspicious. Learned counsel also submits that no test identification parade was conducted by the prosecution though the prosecutrix was not well known about the persons. The prosecutrix neither identified them nor was having knowledge of their names. Therefore, the impugned judgment of conviction and order of sentence is liable to be set aside. To buttress his submission, learned counsel placed reliance on the decision of this Court in the matter of Santosh Sahu and Others Vs. State of C.G. reported in (2007) 3 CHLJ 243. 7. On the other hand, learned State counsel supporting the impugned judgment of conviction and order of sentence submits that the learned trial Court minutely appreciated oral and documentary evidence and has rightly convicted the appellant and no interference is called for by this Court. The appeal being without any merit is liable to be dismissed. 8. I have heard learned counsel for the parties and perused the material on record. 9. It is clear from the record of the learned trial Court that the learned trial court framed charges under Sections 376 (2)(g) of IPC and 201 of IPC against the appellants and after appreciation of oral and documentary evidence, the learned 7 trial Court convicted the appellants Vinod Ram, Prakash Tirkey, Vipin Kerketta and Ajeet Khalko (A-1, A-2, A-3, A-4) under Section 376 (2)(g) of IPC & co-accused persons under Section 201 of IPC. 10. According to the prosecution case, the age of the Prosecutrix (PW-1) is 14 years. She has stated in her Court evidence that on 27.01.2004, she had gone to village Harradand in the house of her brother Naresh to attend the marriage of Virendra. On 28.01.2004, when the marriage function was going on, appellant Prakash (A-2) came to her and called her to Patras Uraon house saying that her brother is calling her. Thereafter, she went to Patras Uraon’s house, where appellants Ajeet Khalkho, Vipin Kerketta, Vinor Ram were already present in the house. She has further stated that appellant Prakash Tirkey removed her under garment (panty) and forcefully committed sexual intercourse with her. When she raised her cries, at the relevant time appellant Ajeet Khalkho tide her mouth with handkerchief. Then Ajeet Khalkho also committed rape with her. Appellant Vipin Kerketta and Vinod Ram also committed rape with her. Thereafter, she became unconscious and she didn’t know who picked her up after that. She has also stated that she gained consciousness in the house of her brother Naresh and at the relevant time he was present. 8 She was without clothes. Her sister Mariya Garoti gave her panty which she wore and on 29.01.2004 she stayed in the house of his brother Naresh. Thereafter, next day i.e. on 30.01.2004, she came to her village Sikipani and upon being asked by her grand-mother, she narrated the incident naming the four accused persons. She has also stated that she informed her grand-mother that accused persons committed rape with her. She stayed in the house for one day and on 01.02.2004, her brother Naresh caller her and her father to Harradand where a panchayat meeting was convened but she was not present in the panchayat meeting, her parents attended the meeting. In the panchayat meeting, Anjulas and Pitrus Tirkey told that since the matter is of village so, settle/compromise the matter here. In para 16 of cross-examination, this witness has admitted that when she regained consciousness, she did not informed her cousin brother Naresh Ekka. She has also admitted that even she did not informed anyone in wedding house. She stayed in the same house on the second day of the incident but did not tell anything to anyone. She has also admitted that after returning village on 30.01.2004, she did not inform about the incident to her father and the same was informed to her grand-mother. She has also admitted that she came to know about the name of accused Ajeet and 9 Vipin after the panchayat meeting and before that she did not recognize them by name. It is also true to say that she came to know about the name of accused persons when her cousin brother told her. This witness, in para 26, also went on to state that she saw the accused persons first time in the Court and if the people of society had not taken any action against her cousin brother Naresh, this report would not have been lodged. Further, in para 38 of cross- examination, this witness had admitted that the people of society were taking action to expel her cousin brother from the society. She has also admitted that if the villagers had not taken any action against Naresh, she would not have lodged the report against the accused Vinod. 11. Dr. (Smt.) R. Toppo (PW/9) has stated that she examined the Prosecutrix (PW-1) on 22.09.2004 and found that valva was healthy, labia majora and labia minora were healthy. Hymen old torn at the middle on posterior surface of vagina. Old scar mark was present on the meddling of the vagina on the posterior surface size of which was 1 cm x 1/4th cm. Two fingers can entered through the vagina through the cervix. Blood of menstrual cycle was coming out. The doctor has opined that the prosecutrix was suffered some sexual intercourse. Old scar which present on the vagina may be caused due to sexual intercourse. Her vaginal smear could 10 not be taken because incident had taken place eight months ago. 12. According to the FIR (Ex.P-1), the date of incident is 28.01.2004 and the date of lodging FIR is 21.09.2004. As such, there is delay of about 09 month in lodging the FIR. Prosecutrix (PW-1) has admitted that after the incident, she did not informed about the incident to anyone and after reaching home when a panchayat held then she narrated the incident about the commission of rape by the accused persons. 13. Father of Prosecutrix (PW-2) has stated that he had not gone to the marriage which took place on 28.01.2004 and his daughter prosecutrix returned home on 29.01.2004. His daughter did not inform the incident to him and the same was informed to her mother who later informed the same to him. Thereafter, a panchayat meeting was convened in village Harradand wherein he was pressurized by co- accused Pitrus and Ajlus not to take the matter outside of village. This witness has also stated that he demanded Rs.50,000/- from the accused persons. Accused Prakash, Ajeet and Vipin gave him Rs.15,000/- and said to compromise the matter here. Thereafter, the villagers demanded Rs.10,000/- from his nephew PW-3 and if he did 11 not give the amount, he would be expelled from village. He has also stated that upon demanding Rs.10,000/-, he went to police station Kansabel with his brother and daughter to lodge the report. In cross-examination, this witness has admitted that his nephew Naresh had told the name of accused persons, he had not known the names of the accused persons and in para 19, he has admitted that if the people of society has not taken any action against his nephew Naresh, he would not have lodged the report. He has also admitted that he lodged the report at the instance of his nephew Naresh. This witness, in para 21, has also admitted that he did not report the matter for 08 months and it is true that if villagers had not demanded money from Naresh, he would not have lodged the FIR. 14. Naresh Ekka (PW/3) is cousin brother of prosecutrix and nephew of father of prosecutrix. He has stated that his mother Labina told him that prosecutrix has been raped. The prosecutrix was brought to his house by Malu from the house of Patras Uraon, her clothes were stained with blood. He has also stated that next day prosecutrix informed him that accused Vinod, Ajeet, Vipin and Prakash committed rape with her. Thereafter, a panchayat meeting was 12 convened in which father of prosecutrix had said that his daughter has been raped, give him Rs.50,000/- else he would go to police station for lodging the report. Thereafter, co-accused Pitrus said that he would compromise the matter in two thousand rupees, these people have taken more money, they will be isolated from society and then this witness was expelled from society. This witness has also stated that co-accused Pitrus and Ajlus demanded Rs.10,000/- from him for inclusion in the society but he did not give them money and he was expelled from the society. He has also stated that they did not lodge the report due to fear of accused persons and after six months of the incident, they lodged the report. In para 23 of his cross-examination, he admitted that when prosecutrix had come to his house for attending marriage, she did not tell anything about commission of rape with her by accused Vinod Ram. In para 28, he has admitted that he lodge the report in police station after six month of his expulsion from society. 15. Malu Ram (PW-5) and Hilarius Kerketta have not supported the case of the prosecution and turned hostile. 16. Martha Kujur (PW-7) is the grand-mother of the prosecutrix. She has stated that her grand-daughter prosecutrix told her that four persons have committed rape with her. In cross- 13 examination, this witness has admitted that prosecutrix did not tell her anything first, she told her only when she asked her. She has also admitted that her son Imil and Florence memorized the name of accused persons. 17. Close scrutiny of the evidence of prosecution witnesses makes it clear that there is delay of about 08 months in lodging the FIR and the report was lodged by the prosecutrix (PW-1) and her father (PW-2) only at the instance of Naresh (PW-3) and prosecutrix came to know about the name of accused persons when she was told by Naresh (PW/-3). 18. While dealing with the issue where victims were habitant of different village, they had come to their uncle’s house, the accused persons were not know to them, they identified the accused persons in the Court and named FIR has been lodged with delay, this Court in the matter of Santosh Sahu (supra), held in paras 10, 11, 12, 13, 14 and 18 as under :- “10. So far as requirement of Test Identification Parade (T.I.P.) is concerned, the law is that even without T.I.P., identification in Court can be believed, It has been held by the Apex Court in the matter of Ronny @ Ronald James Alwaris Etc. Vs. State of Maharashtra,, that the identification of the accused by a witness if he had an opportunity to interact with him or to 14 notice his distinctive features lends assurance to his testimony in Court and that the absence of corroborative evidence by way of test identification parade would not be material. 11. In the matter of George and Other Vs. State of Kerala and Another, the Apex Court further held that he identification of an accused in Court is the substantive evidence of the person identifying and his earlier identification in a T.I. parade corroborates the same. In other words, want of evidence of earlier identification in a T.I. parade does not affect the admissibility fo the evidence of identification in Court. 12. The Apex Court again held in the matter of Dastagir Sab and Another Vs. State of Karnataka, that non-holding of T.I. parade would not by itself disprove the prosecution case. To what extent and if at all the same would adversely affect the prosecution case; would depend upon the facts and circumstances of each case. 13. Therefore, it is settled that even without T.I.P., identification in Court can believed and the result of T.I.P. is not substantive evidence, it can be used only for corroboration or contradiction. Prudence requires corroboration of identification in court by prior T.I.P, but absence of T.I.P. is not fatal if accused persons were known earlier to witness or if they had been sufficiently described in the complaint or if accused persons had been arrested at the spot. 15 14. In the present case, admittedly, the accused persons have been named in the FIR lodged by the victim – Shyama (P.W. 1). So far as prosecution is concerned, their contention is that since the accused persons were named in the FIR, therefore, there was no necessity of T.I. parade in this case. The question arises as to what was the source of information with the maker of the FIR to mention the names of the accused persons therein? If we look into the evidence of Shyama (P.W. 1), it comes in para 8 of her cross-examination that since the accused persons were calling each other by taking their names, she could come to know about their names and on this basis only, she has named them in the FIR. Her admission in this regard is clear and unambiguous, which reads as follows: 15. xxxx 16. xxxx 17. xxxx 18. No doubt, the victim of rape stands at par with an injured witness and her evidence is to be given much weightage notwithstanding corroboration and the conviction can well be based on her sole testimony, as our legal system has emphasized on value, weight and quality of evidence, rather than quantity, multiplicity or plurality of the witnesses, but principally, the fact remains intact that her such testimony must inspire confidence of the Court so as to solely depend on it to record a conviction, leaving no 16 room for a doubt or suspicion against the guilt of the accused.” 19. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the prosecutrix. However, there is an important caveat which is that the testimony of the prosecutrix must inspire full confidence of the Court. 20. In the light of above decision of this Court, in the present case also prosecutrix (PW-1) admitted in her evidence before Court that she did no know the name of the accused persons and her cousin brother Naresh (PW-3) told the name of all the accused persons. The grand-mother (PW-7) of the prosecutrix has also admitted that the name of all the accused persons were got memorized by her sons. That apart, Prosecutrix (PW-1), her father (PW-2) and Naresh (PW-3) have admitted this fact that a panchayat meeting was convened wherein PW-2 demanded money from accused persons to settle the dispute and according to the evidence of PW-3, the FIR (Ex.P-1) came to be lodged at his instance only after his expulsion from the society and before that the matter was on the stage of compromise, and the complaint party had also taken money from the accused persons to settle the dispute. In such circumstances, the testimony of prosecutrix (PW-1) does not inspire full 17 confidence of this Court and her statement cannot be relied upon for basing the conviction of the appellants. 21. Further, in order to arrive at finding whether the prosecutrix was raped by the appellants, this Court has looked in to the evidence of Dr. (Smt.) R. Toppo (PW-9), who specifically admitted that she could not prepare the vaginal slides as the incident was 08 months old, as such, the medical report also does not fully support the prosecution case. Thus, in absence of any specific report regarding commission of rape, it would be difficult for this Court to arrive at definite conclusion particularly when the evidence of Prosecutrix (PW-1) is shaky. Further, no satisfactory cause of delay in lodging the FIR has been explained by the prosecution. 22. The statement of all the witnesses are not much reliable so as to arrive at definite conclusion that it is the accused/appellants who committed rape with prosecutrix (PW/1). It is well settled principle of law that prosecution in order to bring home the guilt of the accused has to prove its case beyond all reasonable doubt and defence has to show probability of its defence. In this case, the prosecution has utterly failed to prove its case beyond reasonable doubt. Therefore, in the above facts and circumstances of the case, offence under Section 376 (2) (g) of the IPC would not 18 be made out against the appellants. 23. For the foregoing reasons, the appeal is allowed and the impugned judgment of conviction and order of sentence dated 19.04.2005 is set aside. The appellants stand acquitted of the charge under Section 376 (2) (g) of IPC. The appellants are on bail, therefore, their bail bond shall continue for a period of six months from today in view of provision of Section 437-A of Cr.P.C. Sd/- (Rajani Dubey) Judge pekde Digitally signed by VIJAY BHARATRAO PEKDE