2025:CGHC:44671 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment reserved on: 23.06.2025 Judgment delivered on: 02.09.2025 CRA No. 256 of 2007 1 - Kole @ Deeman Rathore, S/o Baboon Rathore, Aged about 45 years, R/o Village, Korja, P.S. Gaurela, District- Bilaspur (C.G.). ...Appellant versus 1 – The State of Chhattisgarh Through P.S. Gaurela, District- Bilaspur (C.G.). ... Respondent(s) For Appellant : Mr. Achyut Tiwari, Advocate For Respondent(s)/State : Ms. N.K. Kashyap, P.L. Hon'ble Smt. Justice Rajani Dubey C A V Judgment 1. This criminal appeal has been filed under Section 374(2) of the Cr.P.C. against the judgment dated 24.02.2007 passed by learned Additional Sessions Judge, Fast Track Court, Pendraroad, District- Bilaspur in Sessions Trial No. 285/2004, whereby learned Sessions Judge found the appellant guilty of the offence punishable under Section 376 of IPC and sentenced to undergo R.I. for 7 years and fine of Rs. 5,000/-, in default of payment of fine, additional R.I. for 3 months. 2. Briefly stated facts of the case, are that the prosecutrix lived with her husband Sukul in village Tendumuda Dhanauli and did household work. On 27-04-2004, at about 8.00 a.m., she was going on foot from her house to her parental home at Lalpur Singaltola to take money from her father. As soon as she reached Tilvantolakhar in Korja, appellant saw the prosecutrix and forcibly caught hold of her and asked her as to where she was going. The prosecutrix told him that she was going to Lalpur. After some time, the appellant came on a bicycle, kept the bicycle outside in the drain, caught hold of the prosecutrix and took her towards the drain. The appellant committed rape upon the prosecutrix. Thereafter, she narrated the whole incident to her husband and other people. Later on, a report was lodged at police station- Gaurela against the appellant. The prosecutrix was medically examined. A spot map was prepared. Statements of witnesses were recorded. The accused was arrested. The accused was also medically examined. Seizures were made from the spot of incident. After completion of usual investigation, charge sheet was filed under Section 376 of IPC against the appellant followed by framing of charge accordingly, to which appellant abjured his guilt and prayed for trial. 3. In order to bring home the offence, the prosecution has examined as many as 14 witnesses. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C. in which he denied all the incriminating circumstances appearing against him & pleaded innocence and false implication in the case. In his defence, appellant examined two witnesses namely Kanchhedi Lal as D.W.-1 and Jagatram as D.W.-2. 4. The trial Court after hearing counsel for the respective parties and considering the material available on record, convicted and sentenced the accused/appellant as mentioned in para 1 of this judgment. 5. Learned counsel for the appellant submits that the narration of the incident, as revealed by the prosecutrix is highly improbable and suspicious, therefore, the entire case appears doubtful. According to prosecution, the incident had occurred at 9.00 hours on 27.04.2004, the FIR Ex.P/6 has been lodged by the prosecutrix herself at 17.30 hrs. on the same day i.e. 27.04.2004 while she was medically examined at 18.15 hours on 29.04.2004. This unexplained delay creates doubt over the prosecution case. Prosecutrix (P.W.-6) is a married lady of 25 years old having 2 children. Prosecutrix deliberately wanted to get rid of the cross examination and so she pretended herself to be hard of audibility only at the time of cross-examination. FIR (Ex.P/6) was lodged by the prosecutrix herself and medical report (Ex.P/12) also does not assert that she was hard of hearing. In her deposition in para 1, prosecutrix states that she was called by the accused from her backside and the accused asked as to where she was going. When she could not hear the loud voice in the Court so as to how she could hear the voice of the accused in the said incident. The incident narrated by her appears concocted and hypothesis but the learned trial Court did not appreciate all these facts and gave wrong finding, therefore, the impugned judgment is liable to be set aside. Reliance has been placed on the decision of Hon’ble Supreme Court in the matter of Nehnu Ram @ Narendra Vs. State of Rajasthan and another; (2020) 4 RCR (Criminal) 104. 6. On the other hand, learned State counsel supports the impugned judgment and submits that the learned trial Court minutely appreciated the oral and documentary evidence and rightly convicted the appellant accordingly. Therefore, the contention made by the counsel for the appellant is not acceptable, hence, the appeal is liable to be dismissed. 7. Heard counsel for the parties and perused the material placed on record. 8. It is clear from record of learned trial Court that the learned trial Court framed charge under Section 376 of IPC and after appreciating oral and documentary evidence available on record, convicted and sentence the appellant for the said offence. 9. Prosecutrix (P.W.-6) states that on the date of incident, when she was going to Lalpur on foot, at that time, accused called her from behind and asked as to where she was going. Thereafter, he came on bicycle and sat near a drain. He forcibly caught hold of her and committed wrong with her. After the incident, she went to the house of the accused and asked his son about him. Thereafter, the FIR (Ex.P/6) was lodged. She denied this suggestion of defence that due to enmity of the accused with her husband, she lodged the false report against the accused. 10. Husband of the prosecutrix (P.W.-7) stated that her wife told him that the accused committed sexual intercourse with her. He denied this suggestion that he had lodged false report against the accused due to enmity. 11. Dr. Smt. Nidhi Korram (P.W.-12) examined the prosecutrix and she found abrasion on hands of the prosecutrix but she did not find any internal injury on her private part and gave her report vide Ex.P/12 in this regard. She further stated that no definite opinion can be given about recent sexual intercourse done with the prosecutrix. 12. Defence witness- Kanchhedi Lal (D.W.-1) states that three years ago, the accused had sold his buffalo to the husband of the prosecutrix (P.W.-7) and some money was still pending. He denied that the husband of the prosecutrix (P.W.-7) did not extend any threat to the accused. 13. Lakhanlal (P.W.-2) admitted his signature from A to A part on seizure memo (Ex.P/4). 14. Paramlal (P.W.-3) and Phoolchand (P.W.-4) stated that the prosecutrix and her husband told them about the incident. 15. Mulchand (P.W.-5) did not support the prosecution case in examination-in-chief, prosecution declared him hostile and cross- examined him then he admitted this suggestion that the husband of the prosecutrix told him that the accused committed sexual intercourse with his wife (prosecutrix). In his cross-examination, he admitted this suggestion that the prosecutrix never told anything to him about the incident. 16. The trial Court during the course of cross-examination of the witness recorded a note that despite being asked loudly the prosecutrix is not making reply to the questions. In such a situation when her husband was asked about it, he told that his wife i.e. prosecutrix is hard of hearing since birth and can reply only when asked very loudly and through gestures. The trial Court after recording evidence of her husband (P.W.-8) commenced cross-examination of the prosecutrix on oath in presence of her husband. 17. In para 5 of her cross-examination, prosecutrix stated that, मैं आरोपी से पी छी कि तुम्हारो नामैं क्या हा तु अपीना नामैं बतुया था। किरो उसे घरो जा रो पी छी। further in para 6, she stated that, मैंझे रिरोपीर्ट" रोना था इसेलि%ए आरोपी से उसे नामैं पी छी था। मैंना पीहा% हा आरोपी से उसे नामैं पी छी % जाब वहा मैं रो सेथा उल्र्ट सेधा रोना %गा तु मैं घर्टना बद आरोपी घरो जा रो पी छी कि बड़े बड़े मैं -छीव% आदमैं .ना हा तु उसे बच्चे %गा ब% कि वहा हामैंरो किपीतु हा तुब किरो मैं पी छी कि हा1 गाया हा तु व %गा ब% कि गा.रो % गाए तुब मैं जाना गाया कि वहा ब्याकि3 हा। 18. No Test Identification Parade was conducted by the prosecution in this case and statement of prosecutrix also appears to be not reliable that she had to lodge a report so she asked the accused his name. 19. Defence of accused is that he has previous enmity with the husband of the prosecutrix therefore, prosecutrix (P.W.-6) lodged FIR against the accused. 20.Upon perusal of deposition sheet of prosecutrix, it is evident that on being asked questions by the defence, she was not able to give answer properly and stated that she is hard of hearing and therefore, her statement was recorded with the help of her husband. 21. 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 in para 22 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 everyone 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 similar such tests to be applied, it can 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.” 22. Applying the above principle to the present case, it is evident that the statement of the prosecutrix as well as her conduct is also highly suspicious. Medical evidence also does not support the version of the prosecution. No Test Identification Parade was conducted by the prosecution. Looking to the facts and circumstances of the case; manner in which the incident is said to have taken place; the version of the prosecutrix cannot be taken as a gospel truth at the face value and it appears to be suspicious. Hence, there is no scope to sustain the conviction and sentence imposed on the appellant. He deserves to be acquitted of the said charge by giving him benefit of doubt. 23.For the foregoing reasons, the conviction and sentence of the appellant under Section 376 of IPC cannot be legally sustained. The appeal is accordingly allowed. The impugned judgment dated 24.07.2007 is set aside. Consequently, the appellant is acquitted of the charge under Section 376 of IPC. He is reported to be on bail. 24. Keeping in view the provisions of Section 437-A of CrPC (481 of the B.N.S.S.), the appellant is directed to furnish a personal bond in terms of form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one reliable surety in the like amount before the Court concerned which shall be effective for a period of six months alongwith an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, for aforesaid appellant on receipt of notice thereon shall appear before the Hon’ble Supreme Court. 25. The record of the trial Court along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- (Rajani Dubey) JUDGE Ruchi RUCHI YADAV Digitally signed by RUCHI YADAV