1 2025:CGHC:31107 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 530 of 2005 Bajrang Kumar Nirmalkar, S/o Kamta Prasad Nirmalkar, Aged about 23 years, R/o- Ramsagar Para, Police Station – Sarswati Nagar, Raipur, District Raipur (C.G.). ... Appellant versus State of Chhattisgarh through the District Magistrate, Mahasamund, District Mahasamund (C.G.). ---- Respondent For Appellant : Mr. Shivendu Pandya, Advocate For Respondent /State : Mr. D.R. Minz, Govt. Advocate Hon'ble Shri Sachin Singh Rajput, Judge Judgment on Board 07/07/2025 1. The appellant has filed the instant appeal under Section 374(2) of the Code of Criminal Procedure, 1973, (henceforth ‘the Cr.P.C.') questioning the judgment of conviction and order of sentence dated 13.05.2005 passed in Sessions Trial No.323/2004 by the 2 learned First Additional Sessions Judge, Mahasamund (C.G.), whereby the appellant has been convicted and sentenced as under :- Conviction Sentence Under Section 376 of the Indian Penal Code Rigorous imprisonment (RI) for 07 years and to pay fine of Rs.500/-, in default of payment of fine to further undergo RI for 01 month 2. Case of prosecution in nutshell is that the father of the prosecutrix (PW-2) lodged the report in Police Station Tumgaon that her daughter (prosecutrix) is missing upon which missing report No.12/2003 was registered. Case was taken into investigation and after procutrix being found, her statement was recorded and it was alleged that the appellant threatened by giving threatening on allurement of marriage took her away to Puna, Katak and Raipur and entered into physical relationship with her and committed rape upon her. The appellant as well as the prosecutrix were necessary medically examined and charge sheet was filed against four accused persons namely Bajrang Kumar Nirmalkar (appellant herein), Pawan S/o Kamta Prasad Nirmalkar, Kumar Nirmalkar S/o Kamta Prasad Nirmalkar and Naura Bai W/o Nehru Sahu. All the accused persons including the appellant were 3 charged for the offence punishable under Sections 363, 366 of IPC would denied the charges and claimed trial. 3. In order to establish the charge against the appellant, the prosecution has examined as many as 10 witnesses and exhibited P-1 to P-15 documents. Statement of the appellant was also recorded under Section 313 Cr.P.C., in which he denied the charge levelled against him and stated that he is innocent and has been falsely implicated in the case. 4. By the impugned judgment, the other co-accused persons were acquitted from all the charges and the appellant was also acquitted from the charges under Sections 363 & 366 of IPC. However, he was convicted and sentenced as stated in first paragraph. Hence, this appeal by the appellant. 5. Learned counsel appearing for the appellant submits that the finding recorded by the learned trial Court is bad in law and it has not marshaled the evidence in its proper perspective. He further submits that the prosecutrix accompanied with the appellant in so many different places without any protest or demur, she has not raised any complaint during she was with the appellant, if the conduct of the prosecutrix is seen in its entirety, it is clear that she 4 had been a consenting party to the act of the appellant having developed an intimacy with him and nowhere she appears to have resisted while making physical relation. The learned trial Court given a misplaced finding that the prosecutrix was less than 16 years. It is therefore, prayed that the appeal may be allowed and the appellant may be acquitted from the aforesaid charge levelled against him. 6. On the other hand, learned counsel for the State opposes the submissions of learned counsel for the appellant and submits that at the time of incident, the prosecutrix was minor, there is no illegality or infirmity in the finding recorded by the learned trial Court and the impugned judgment of the Court below needs no interference. 7. I have heard learned counsel for the parties and perused impugned judgment and other material available on record with utmost circumspection. 8. It is trite law with regard to the conviction of the appellant under sections 376 of the IPC can sustain only on the solitary statement of the prosecutrix provided it is inspire confidence, impeccable, beyond latches of doubt and has passed the test of sterling 5 witness. 9. Hon’ble Supreme Court, in the case of Sham Singh v. State of Haryana, reported in (2018) 18 SCC 34 in paragraphs 6 and 7, it is observed and held as under : “6. We are conscious that the courts shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not sterling get swayed by minor contradictions or in significant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations or sexual 6 assaults. [See State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384] (SCC p. 403, para 21).] 7. It is also by now well settled that the courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self- respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases 7 amounts to adding insult to injury. (See Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635).” 10. In the case of State (NCT of Delhi) v. Pankaj Chaudhary and ors., reported in (2019) 11 SCC 575 it is observed and held in paragraph 29 as under:- “29. It is now well-settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence. [Vishnu v. State of Maharashtra, (2006) 1 SCC 283]. It is well- settled by a catena of decisions of this Court that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the “probabilities factor” does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard laid down that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the “probabilities factor” does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having 8 regard to the circumstances of the case, medical evidence can be expected to be forthcoming. . [State of Rajasthan v. N.K., (2000) 5 SCC 30].” to the circumstances of the case, medical evidence can be expected to be forthcoming. . [State of Rajasthan v. N.K., (2000) 5 SCC 30].” 11. In a decision of the Hon’ble Supreme Court in Phool Singh Vs. State of Madhya Pradesh, reported in (2022) 2 SCC 74, considering various case laws on the point that conviction can rest on the sole testimony of prosecutrix if it inspires confidence held in paragraph 11 as under :- “11. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and as observed here-in-above, we see no reason to doubt the credibility and/or trustworthiness of the prosecutrix. She is found to be reliable and trustworthy. Therefore, without any further corroboration, the conviction of the accused relying upon the sole testimony of the prosecutrix can be sustained.” 14. In case of Santosh Prasad Vs. State of Bihar, reported in (2020) 3 SCC 406 cited by the counsel for the appellant the Hon’ble Supreme Court observed as under:- “5.5 With the aforesaid decisions in mind, it is 9 required to be considered, whether is it 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 fnd 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 identifed 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. 10 Therefore, when we tested the version of PW5 - 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 – PW5 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”. 12. In the light of above principle of law laid down by Hon’ble Supreme Court, it is well settled preposition of law that the accused can be convicted only on the basis of the sole testimony of the prosecutrix if it is found credible and inspires confidence without any further corroboration. The testimony of the prosecutrix (PW-1) requires examination with great care and caution. This court has to see that the testimony of prosecutrix 11 inspires confidence, is of high quality and caliber, on the face value acceptable, cannot create a doubt and is unassailable looking from any angle. The statement should pass the test of “sterling witness” as held in case of Santosh Prasad (Supra). Prosecutrix was examined as PW-1. Before dwelling into the merits of the procutrix’s statement, this Court would like to deal as to whether the finding recorded by the trial Court in respect to the age is based upon proper appreciation of evidence or not. The prosecution has exhibited the mark-sheet of the Class – 5th of the prosecutrix as Ex.P-4. According to which the date of birth of the prosecutrix 18.01.1987 and the incident had occurred on 03.12.2003. Therefore, at the time of incident, the prosecutrix was 16 years, 10 months and 15 days. 13. Dr. Alka Pardal (PW-8) who examined the prosecutrix stated her age to be 16 years. Though she advised to conduct the ossification test. However, the prosecution has not conducted any ossification test of the prosecutrix and only relied upon the Class-5th mark- sheet (Ex.P-4). Excepting the same, the prosecutrix appears to be more than 16 years of age. 14. Prosecutrix (PW-1) stated in her statement though in her statement before the Court stated that on 03.12.2003, she was 12 studying in Class 10th in Tumgaon High School. At about 10:30- 10:45 AM, she was going to school near the pond the appellant met her and held her hand forcibly and took her to his house and committed sexual intercourse, thereafter, he took the prosecutrix to Raipur thereafter he took his mother’s residence where the brother Pawan (acquitted accused), Kumar Nirmalkar (acquitted accused) and their wives were there. According to this witness, she was kept in the Raipur home for about three months. It is further stated that she was being threatened for dire consequences. Thereafter, she further stated that she stayed in a rented house in Ramnagar, Raipur and stayed there for three months and after getting the chance, she came back to her parents Tumgaon and informed about the incident. Thereafter, report was lodged and investigation was set on motion. 15. From examination-in-chief, she has stated that she was taken to Raipur thereafter she lived in Ramnagar in a rented premises for about three months and she was being threatened by the appellant and as soon as she got an opportunity, she came to her parents’ house. This witness was subjected to lengthy cross-examination. She happened to omit of fact that Bajrang has committed rape upon her in his house in her police statement Ex.D-1. She denied 13 the suggestion that the appellant Bajrang has not committed rape, therefore, it was not disclosed to the police. She admits that near the house of Bajrang, house of other people were also there. She further deposed that there about 15-20 houses between the house of the appellant and her house and she has not disclosed about the rape to anybody else. She further deposed that she does not now what incident has occurred between 02.12.2003 to 02.07.2004. She stated that she was not under in conscious, therefore, she does not know who has committed the rape. She has some stated that the appellant has committed the rape upon her she denied the suggestion that she used to write love letter to the appellant. She stated that they went to Raipur from Tumgaon on bus, the Tumgaon bus stand was near the police station when she was sitting on the bus she has not disclosed that the appellant is forcibly taken by Manharan to Raipur. She was not tied up by rope, she voluntary stated that her hand was held by him. She further stated that while going with Manharan she has changed her school uniform and worn colour dress. She herself stated that she kept the gold and silver armaments as the same remanded by the appellant. She further deposed the when she went to change the cloths, and to bring silver armaments and money inside the house, the appellant standing the outside and she entered the 14 house alone nobody was there in the home. She further stated that the appellant took her to Odisha and Katak from Raipur on bus. She further stated that after three months, when she took her to Raipur from Tumgaon, she has taken into Puna, Katak and Odisha. She further deposed that it is true that she has not disclosed anything that the appellant has forcibly brought her here. She has not stated anything on the way also. She also admits that she and the appellant used to live as husband and wife there. She also admits that the appellant has kept her as his wife and she also admits that appellant used to live her in the house alone for job. She also admits that after appellant had gone to work, she never tried to disclose the fact or to run away from there. She also admits that she has not disclosed to near by people that the appellant has forcibly taken her. She stated that she lived with the appellant for three months in Odisha. She also admits that she was introduced as a wife to the brother and sister-in-law of the appellant. She admits that she has not disclosed to the neighbors that her hands were tied by the appellant, she also admits that the marriage ceremony was organized in landlord’s house and many people have come and she has also gone there along with the appellant and his mother there she has not disclosed that the appellant has forcibly taken her. 15 16. From the deep analysis of the statement of this witness, it is quite evident that in the initial examination-in-chief, she says that she was forcibly taken by the appellant and committed sexual intercourse. However, in the cross-examination from her statement, it reveals that she lived with the appellant for more than 4-5 months. She had opportunity to meet various people during that period and no such complaint was lodged that she has been forcibly taken. It also appears from the statement that they lived in Odisha as husband and wife and no protest or hue and cry was raised by the appellant when she was being taken from Tumgaon to Raipur and thereafter from Raipur to Odisha. 17. Now, the statement of doctor has to be examined. PW-8 has medically examined the prosecutrix and who has given no definite opinion with regard to sexual intercourse as she was habitual to sexual intercourse. Therefore, in the considered opinion of this Court, the prosecutrix has failed to pass the test of sterling witness. Prosecution failed to establish it’s case beyond reasonable doubt and this Court is of the considered view that the prosecutrix statement cannot inspire confidence to convict the appellant. She cannot be termed as sterling witness in light of the judgment quoted above. Thus, the prosecution was unable to 16 bring home the guilt beyond reasonable doubt, the trial Court committed an error in appreciating the evidence available on recorded to finding of conviction against the appellant. Therefore, the appeal deserve to be and is hereby allowed. The impugned judgment is set aside. The appellant is acquitted from the charge levelled against him. 18. Since the appellant is reported to be on bail, his bail bond shall remain in force for a period of six months from today in view of the provision of Section 481 of BNSS. 19. The record be sent back to the trial Court along with a copy of this judgment for information and necessary compliance. Sd/- (Sachin Singh Rajput) Judge Vasant