1 CRA No.992/2022 2025:CGHC:46163-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 992 of 2022 Rajendra Yadav S/o Late Gendlal Yadav Aged About 30 Years R/o Village Aandi Sonbarsa Para Police Station Dondilohra, District : Balod, Chhattisgarh ... Appellant versus State of Chhattisgarh Through District Magistrate, Dondilohra, District : Balod, Chhattisgarh Respondent For Appellant : Ms. Indira Tripathi, Advocate For Respondent/State: Mr. Nitansh Jaiswal, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru, Judge Judgment on Board Per Bibhu Datta Guru, Judge 10.09.2025 1. Heard. 2. Learned counsel for the State submits that in compliance of the order of this Court dated 31/07/2025, the notice has been served to PW-2, mother of the victim. But when the matter has been taken up today for hearing, neither PW-2, mother of victim nor any counsel on behalf of the victim has appeared before this Court to contest this appeal. 3. I.A. No.1/2025, application for condonation of delay for filing of 2 CRA No.992/2022 process fees. 4. Learned counsel for the appellant submits that she has already paid the process fee. 5. In view of above, I.A. No.1/2025 is allowed. 6. As the notice has already been served upon PW-2, mother of victim and with the consent of learned counsel for the parties, we proceed to hear this matter finally. 7. This appeal directed against the judgment of conviction and sentence dated 27/04/2022 passed by the learned Special Judge (POCSO), Balod, C.G. in Special Session Case (POCSO) No.53/2019, whereby the appellant has been convicted and sentenced as under:- Conviction Sentence Under Section 342 of the IPC Rigorous Imprisonment for 1 year Under Section 376(2) (झ) of the IPC Rigorous Imprisonment for 20 years & fine of Rs.2000/- in default of payment of fine,additional imprisonment for 2 months Both the sentences are directed to run concurrently. 8. Facts of the case, in brief, is that the victim informed at P.S. Dondilohara with the averment that she stayed in the house of her maternal grandparents and studying in class 6th in the Government Pre-middle school Andi. On 31.05.2019 in the morning, her maternal grandparents have gone for work and her mother had gone to take bath at the pond. She and her younger 3 CRA No.992/2022 sister were remain at home. At about 11 am, she went to the house of the appellant to met his mother Gahrin Bai. When the victim asked the appellant about his mother, then he told that she has gone to the field, thereafter, she was returning, subsequently, the appellant caught her in the court yard and took her inside the room, pushed her, removed her clothes and committed sexual intercourse with her; she was crying loudly. Some persons who came for drink water, heard the voice of victim and they reached the spot. Thereafter, Sumitra bai and another lady asked the victim, to whom the victim narrated the whole incident. Later, the Sarpanch and Kotwar of the Village came & took the victim to the house of her maternal grandparents. Based on above facts, an FIR was was registered against the appellant vide Ex.P-8. Spot map was prepared vide Ex.P-11. The appellant was arrested vide Ex.P-26. Medical examination of victim was conducted vide Ex.P- 12. After completing the investigation, the final report was prepared. 9. In order to bring home the above-stated offence, the prosecution examined as many as 12 witnesses and exhibited 27 documents. Statement of the appellant under Section 313 of the Cr.P.C. was recorded, wherein he has pleaded his innocence and false implication in the matter. 10. After appreciation of oral as well as documentary evidence produced by the prosecution, the learned trial Court has convicted 4 CRA No.992/2022 the appellant and sentenced him as mentioned in opening paragraph of this judgment. Hence this appeal. 11. Learned counsel for the appellant would submit that the appellant has been falsely implicated in the present case. She submits that the learned trial Court has failed to appreciate the deposition of Dr. Megha Jha PW-7, who conducted the medical examination of the victim, in which, she stated that the hymen of the victim was intact and there was no any sign of recent sexual intercourse with her, therefore, the prosecution has not proved the charges against the appellant. There is a contradiction in the statement of victim in the police statement and in the Court statement. The evidence collected by the prosecution, it is clearly established that the prosecution has failed to prove its case beyond all reasonable doubts and the conviction cannot be sustained on the basis of the evidence adduced by the prosecution. The whole case is based upon conjecture and surmises and looking to the facts and circumstances of the case, the sentence awarded to the appellant is too harsh. She would submit that the appellant had been convicted under Section 376(2)(i) of the IPC despite the fact that the same has been omitted by the legislation on 21.04.2018 whereas in the case at hand, the incident took place on 31/05/2019 and hence, the conviction of the appellant on a provision which is not in existence is not at all sustainable in the eyes of law. As such, the criminal appeal deserves to be allowed 5 CRA No.992/2022 and the impugned judgment deserves to be set aside. 12. On the other hand, learned State counsel opposes the argument advanced by the learned counsel for the appellant and has submitted that the statement of the victim and other witnesses are fully reliable. There are sufficient evidence available on record to hold that the appellant is guilty for the alleged offence and the learned trial Court has absolutely justified in passing the judgment of conviction and sentence against the appellant which does not require for any interference. 13. We have heard learned counsel for the parties and perused the record. 14. For the sake of convenience, the questions for consideration are whether the trial court was justified in convicting the appellant under Sections 342 and 376(2)(i) of the IPC. 15. PW-1 Victim, stated in her evidence that about two to four months ago, she visited the house of the appellant to ask for his mother. The appellant was alone at home and told her that his mother had gone outside for work. Thereafter, the appellant closed the door; gagged her mouth; and forcibly committed sexual intercourse with her on the cot, due to which, she started crying. After hearing her voice, Sumitra, a neighbor, came out of the house and narrated the incident to her. Then she returned home and when her mother returned home around 3 PM, Sumitra informed her about the incident. In her cross-examination, she stated that the appellant 6 CRA No.992/2022 used to visit her house before the incident. She admits that after the incident, Gendalal, Ramsay, and the kotwar came to the house of the appellant. She further admits that she does not remember whether she told Gendalal, Ramsay and Kotwar about the incident or not. 16. PW-4, Sumitra Bai stated in her evidence that she know the victim. The victim resides in the village at the house of her maternal grandparents. About 2-3 years ago, she was going to the village to drink water and she the victim standing there. She further stated that she asked her why she was standing, then the victim told her that someone has committed wrongful act with her, but she did not tell who had done the said act. In her cross- examination, she admits that all the statements made by her in examination-in-chief were made on the basis of information given by the villagers. She further admits that she does not know whether the appellant actually committed the incident against the victim or not. 17. PW-2, mother of victim stated in her evidence that while she was bathing in the canal drain, the people filling water told her that her daughter/victim had gone home with crying. When she returned home, the victim was not at home, then she went to look for her and she found that the victim had gone towards Khalhepara. When she asked the victim the reason for crying, the victim told her that the appellant took her to his house and made 7 CRA No.992/2022 physical relations with her and also assault her. In her cross- examination, she stated that whatever she was telling in the Court about the incident happened with the victim, was on the basis of information given by Sumitra Bai. 18. PW-7 Dr. Megha Jha, conducted the medical examination of victim and submitted a following reports: External Examination: The victim was fully conscious and aware, but mentally weak. There were no visible injuries or scratch marks on her body. The victim had an average build. Her pulse rate was 72 beats per minute, and her blood pressure was 96/60. Her gait was normal. The victim had not yet begun menstruation. Internal Examination: The hymen was intact. No discharge was observed from the victim’s genital area. There was no bleeding of any kind. Two vulval swabs were prepared and sealed, then handed over to the same woman constable for chemical analysis. Opinion: No conclusive opinion can be given regarding recent sexual intercourse. 19. From bare perusal of above evidence and as per the statement given by the victim, it is manifest that the victim herself had gone 8 CRA No.992/2022 to the house of the appellant to ask his mother. Thereafter, the appellant forcefully took the victim inside the room by gagged her mouth and committed sexual intercourse with her and also assaulted her. After the incident, Gendalal, Ramsay, and the kotwar came to the house of the appellant, however, she admits in cross-examination that she does not remember whether she told Gendalal, Ramsay and Kotwar about the incident or not. neighbor. 20. PW-2, mother of victim also admits in her cross-examination that whatever she deposed in the Court about the incident happened with the victim, was only on the basis of information given by Sumitra Bai. 21. The victim stated that she narrated about the incident to Sumitra PW-4, neighbor first. But Sumitra PW-4 admits in cross- examination that all the statements made by her in examination- in-chief were made on the basis of information given by the villagers. PW-4 further admits that she does not know whether the appellant actually committed the incident against the victim or not. 22. Looking to the medical examination report conducted by Dr. Megha Jha PW-7, she categorically stated that there were no injuries or scratch marks on the body of the victim and further stated that no conclusive or definitive opinion can be given regarding recent sexual intercourse. 23. In light of the evidence presented, it is clear that the medical 9 CRA No.992/2022 examination report lacks a conclusive opinion regarding the injuries sustained by the victim. The doctor who conducted the examination, failed to provide definitive findings regarding the recent intercourse happened with the victim. Without such crucial medical evidence, the prosecution has not met its burden of proving the appellant’s guilt beyond a reasonable doubt. Therefore, in the interest of justice and fairness, the appellant must be acquitted due to the absence of conclusive medical opinion essential for substantiating the charges. 24. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the victim. However, there is an important caveat which is that the testimony of the victim must inspire confidence. Even though the testimony of the victim is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges leveled against the appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case. 25. Be that as it may, the incident occurred in the year 2019 and the charge has been framed on 29.8.2019 for offence under Section 376(2)(i) despite the fact that the said provision has already been omitted by the legislation on 21.4.2018. Thus, the conviction and sentence imposed under the Section will not attract to the case at hand. As far as the conviction under Section 4 of the POCSO Act 10 CRA No.992/2022 is concerned, the prosecution has failed to prove the charge leveled against the appellant beyond all reasonable doubt as there are material contradiction and omissions in the evidence adduced by the prosecution witnesses. Particularly, the Doctor PW-7, who conducted medical examination of the victim categorically stated that there were no injuries or scratch marks on the body of the victim and further stated that no conclusive or definitive opinion can be given regarding the alleged sexual intercourse. Thus, the conviction under Section 4 of the POCSO Act is also bad in law. 26. For the foregoing discussions, this Court is of the opinion that the prosecution has failed to prove its case beyond reasonable doubt against the appellant and also the fact that the appellant has been charged under a provision, which has already been omitted by the legislation, the appellant is entitled for benefit of doubt. 27. In the result, the appeal is Allowed. The impugned judgment of conviction and sentence dated 27/04/2022 is set aside. The appellant is acquitted from all the charges leveled against him. The appellant is in jail. He be released forthwith if not required in any other case. 28. Keeping in view the provisions of Section 437-A Cr.P.C., the appellant is directed to forthwith 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 surety in the like amount before the 11 CRA No.992/2022 Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 29. The trial Court record along with the copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. SD/- SD/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Gowri/ Amardeep