1 CRA No. 1354 of 2023 2025:CGHC:11518 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1354 of 2023 [Ari sing out of judgment dated 30.06.2023 passed in Sessions Trial No.12/2022 by the Additional Sessions Judge Fast Track Special Court (POCSO Court) , Gariyaband, Chhattisgarh .]  Yuvraj Ghoghare S/o Narayan Prasad Ghoghare, aged about 24 years, R/o Village Koundkera Police Station Rajim, District Gariyaband, Chattisagarh. ... Appellant versus  State of Chhattisgarh through Station House Officer, Police Station Rajim, Gariyaband, District Gariyaband, Chhattisgarh. ... Respondent For Appellant :- Mr. Shailendra Bajpai and Mr. F.S. Khare, Advocates For State-Respondent :- Mr. Amit Buxy, Panel Lawyer. Hon'ble Shri Justice Sanjay K. Agrawal Judgment On Board 07/03/2025 1. Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the sole appellant-accused, is to the legality, validity and correctness of the judgment dated ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.03.10 10:41:39 +0530 2 CRA No. 1354 of 2023 30.06.2023 passed by the Additional Sessions Judge Fast Track Special Court (POCSO Court), Gariyaband, Chhattisgarh, in Sessions Trial No. 12/2022 by which the appellant herein has been convicted and sentenced herein under:- Conviction Sentence Under Sectoin 450 of the IPC Rigorous imprisonment for 5 years with fine of 1,000/-; in default of ₹ payment of fine amount the appellant has to undergo additional rigorous imprisonment for one month. Under Sectoin 376(1) of the IPC Rigorous imprisonment for 10 years with fine of 2,000/-; in default of ₹ payment of fine amount the appellant has to undergo additional rigorous imprisonment for one month. Under Section 506 Part- II of the IPC Rigorous imprisonment for 2 years with fine of 1,000/-; in default of ₹ payment of fine amount the appellant has to undergo additional rigorous imprisonment for one month. All sentences are directed to run concurrently. 3 CRA No. 1354 of 2023 Prosecution story:- 2. The case of the prosecution as projected by the prosecution and accepted by the trial Court is that on 31.12.2021, between 1:00 pm to 1:20 pm at village Koundkera, Police Station Rajim, District Gariyaband, Chattisagarh, the appellant trespassed into the hosue of the major victim (PW-1) and committed sexual intercourse with her against her wishes and also threatened her that if she discloses the fact about the said incident to anyone, he will kill her and thereby committed the offence. 3. Further case of the prosecution is that on the basis of oral report made by the victim (PW-1) FIR was registered on 01.01.2022 at about 12:30 pm. Crime detail form and nazari naksha were prepared vide Ex.P/2 & P/8, respectively. Victim was medically exmained by Dr. Snehlata Humne (PW-4) who prepared the medical report of the victim vide Ex.P/10. In the victim’s medical report (Ex.P/10) proved by Dr. Snehlata Humne (PW-4), scratch was found on the left arm and chin of the victim; swelling was found on the elbow of left arm as well as on the thigh of left leg, however, no trace of recent 4 CRA No. 1354 of 2023 sexual violence was found. Appellant was also medically examined by Dr. Prakash Sahu (PW-6) on 18.01.2022 vide Ex.P/12. Clothes of the victim was seized vide Ex.P/4. Clothes of the appellant was seized vide Ex.P/14. Other articles were also seized. Seized articles were sent for chemical analysis to FSL and as per FSL report (Ex.P/24) on the slide (article A) and underwear of the victim (article B) stains of semen and human sperm were not found, however, on the underwear of the appellant (article C) stains of semen and human sperm were found which was seized on 18.01.2022 vide Ex.P/14. 4. After due investigation, appellant was charge-sheeted for the aforesaid offences and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence. 5. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 10 witnesses and exhibited 24 documents, whereas, the appellant in defence has not examined any witness, but exhibited 1 document. Statement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against 5 CRA No. 1354 of 2023 him in the evidence brought on record, pleaded innocence and false implication. 6. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant for the offences as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. Submission of the parties:- 7. Mr. Shailendra Bajpai and Mr. F.S. Khare, learned counsel for the appellant, would submit that the conviction of the appellant is solely based on the testimony of the victim (PW-1) and in the medical evidence (Ex.P/10) proved by Dr. Snehlata (PW-4) only two abrasion and swellings were found on the hand and thigh of the victim however, that is of no use to the prosecution in light of decision of the Supreme Court in the matter of Radhu v. State of Madhya Pradesh 1 . They would also submit that the forensic evidence has also not been supported the case of the prosecution as only on the undergarments of 1 (2007) 12 SCC 57 6 CRA No. 1354 of 2023 the appellant stains of semen and human sperm were found. However, the undergarments of the appellant was seized much after the date of incident as the date of incident is 31.12.2021 and the seizure of undergarments of the appellant was made on 18.01.2022, therefore, it is also of no use to the prosecution. They would further submit that to base the conviction of the appellant the statement of the victim (PW-1) should be of “sterling quality”, and as per the statement of the victim before the Court at paragraph No.12, she has clearly stated that before the appellant had committed the said criminal act, her son Bhupendra Ghritlahre (not examined), aged about 14 years, came to the house however, as per her statement (Ex.D/1) recorded under Section 164 of the CrPC, appellant had already in the house when her son Bhupendra Ghritlahre came to the house and after seeing her son, the appellant absconded. Even otherwise, she did not make any hue and cry and also did not report the matter anyone in her locality and nereby places as her in-laws is also residing nereby place of her house. They would further submit that vicitm in her statement before the Court in paragraph No.14, herself has stated that she did not protest the criminal act of 7 CRA No. 1354 of 2023 the appellant and also did not cause the external injuries to the appellant and furthermore, there is a delay of more than one day in reporting the matter to the police which has not been satisfactorily explained by the prosecution. As such, the statement of the victim is not of “sterling quality” in light of the decision of the Supreme Court in the matter of Rai Sandeep alias Deepu v. State (NCT of Delhi) 2 followed in the matter of Santosh Prasad @ Santosh Kumar v. The State of Bihar 3 . Therefore, the appellant is entitled for acquittal on the basis of principles of benefit of doubt and the appeal deserves to be allowed. 8. Mr. Amit Buxy, learned State counsel, would submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the Special Court has rightly convicted the appellant for offences in question. He would further submit that though there is no forensic evidence implicating the appellant in crime in question, but in the medical evidence injuries (abrasion and swelling) were found over the body of the victim which was supported by the statement of the victim 2 (2012) 8 SCC 21 3 (2020) 3 SCC 443 8 CRA No. 1354 of 2023 (PW-1), therefore, the appeal deserves to be dismissed and the appellant is not entitled for acquittal. 9. I have heard learned counsel, considered their rival submissions made herein-above and gone through the records minutely. Discussion and analysis:- 10. Admittedly, the conviction of the appellant is based on the testimony of the victim (PW-1) and the medical evidence (Ex.P/10) proved by Dr. Snehlata Humne (PW-4), in which abrasion were found on the forearm and chick and swelling was found on the elbow of left hand and thigh of left leg and except that no other external injuries and internal injuries were found even Dr. Snehlata Humne (PW-4) who examined the victim, stated that no sign of sexual intercourse was found. Furthermore, in the forensic evidence stains of semen and human sperm were found on the undergarments of the appellant, however, except that nothing has been found on the slides of the victim as well as undergarments of the victim. As such, to base the conviction of the appellant for the offence in 9 CRA No. 1354 of 2023 question, the statement of the victim should be of “sterling quality”. 11. Now, the question for consideration would be whether the statement of victim inspires confidence and appears to be absolutely trustworthy, unblemished and whether it is of sterling quality? 12. As this stage, it would be appropriate to notice the judgment of the Supreme Court in the matter of Rai Sandeep alias Deepu (supra) in which their Lordships of the Supreme Court have observed that who can be said to be a “sterling witness” and which has been recently followed in the matter of Santosh Prasad @ Santosh Kumar (supra). Their Lordship of the Supreme Court in the matter of Rai Sandeep alias Deepu (supra) have held in paragraph No.22 as under:- “22. In our considered opinion, the “sterling witness” should be of a very high quality and calibre 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 10 CRA No. 1354 of 2023 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, can it 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.” 13. First of all, the incident has taken place on 31.12.2021 between 1:00 pm to 1:20 pm in the house of the victim. As per 11 CRA No. 1354 of 2023 statement of the victim (PW-1) her house i.e. the house in question, is situated in dense locality, and nearby place of her house, her in-laws is residing. Furthermore, as per the victim’s Court’s statement, the appellant is said to have committed the criminal act after coming of one of her son Bhupendra Ghritlahre (not examined), aged about 14 years, but as per her statement (Ex.D/1) after coming of her son Bhupendra Ghritlahre, the appellant absconded from the house. However, surprisingly, Bhupendra Ghritlahre, son of the victim, has not been examined and even they (victim and her son) did not inform about the said incident to anyone including their parents/family members who were residing nereby place of the house. Furthermore, it would be most improbable that the appellant had committed the sexual intercourse with the victim (PW-1) after coming of her son Bhupendra Ghritlahre and her son did not inform anyone and also did not try to safe her mother from the appellant’s criminal act. Moreover, the victim (PW-1) in her statement before the Court at paragraph No. 14 has clearly stated that she did not protest against the criminal act of the appellant; did not try to cause external injury to the appellant and also did inform the matter to 12 CRA No. 1354 of 2023 anyone who used to live nearby place of her house. Further, the offence is said to have taken place on 31.12.2021 between 1:00 pm to 1:20 pm and the FIR (Ex.P/1) the same was lodged on 01.01.2022 at about 12:13 pm, as such, there is a delay of about 24 hours, which has not been explained by the prosecution except that she (PW-1) was waiting of her husband whereas, her husband (PW-2) in his statement before the Court has stated that when he reached to the house, immediately his wife (victim) informed him about the incident, but he did not report the matter on that day as after coming to home from the work, he became tired, therefore, he did not report the matter on the same day and reported the matter on the next day which is not satisfatory and cannot be accepted, in the case sexual offence and it has to be explained satisfactorily, which has not been done by the prosecution in the instant case. 14. According to the victim (PW-1), the appellant was in the state of intoxication, but there is no evidence has been brought on record by the prosecution in this regard that on the date and time of offence the appellant had consumed the liqour. Also Bhupendra Ghritlahre, son of the victim, who was present in 13 CRA No. 1354 of 2023 the house in question on the date and time of offence, has not been examined, who was an important witness and his non- examination made weaken to the case of the prosecution as on examination he could have thrown the light on the incident, which has not been done by the prosecution for the reasons best known to the prosecution as to why he has not been chosen to examine. In that view of the matter, the victim (PW-1) has failed to pass any of the tests of “sterling witness” as held by their Lordships of the Supreme Court in the matter of Rai Sandeep alias Deepu (supra) followed in the matter of Santosh Prasad @ Santosh Kumar (supra). 15. Furthermore, two minor injuries (abrasion & swelling) were noticed on the body of the victim, however, the incident has taken place on 31.12.2021 between 1:00 pm to 1:20 pm and she was examined after one day i.e. on 01.01.2022 at about 3:00 pm. Even, Dr. Snehlata Humne (PW-4) who examined the witness vide Ex.P/10, in her statement before the Court at paragraph No.4 has stated that the injuries which were noticed on the body of the victim could have been caused upon falling to the rough surface and while crossing between the bushes. The Supreme Court in the matter of Radhu 14 CRA No. 1354 of 2023 (supra) has held that the marks of the injuries found on the body of the victim are not sufficient to establish rape, if the evidence of the victim is found to be not trustworthy and there is no corroboration and held in para 13 as under:- “13. We are thus left with the sole testimony of the prosecutrix and the medical evidence that Sumanbai had an abrasion on the left elbow, an abrasionon her arm and a contusion on her leg. But these marks of injuries, by themselves, are not sufficient to establish rape, wrongul confinement or hurt, if the evidence of the prosecutrix is found to be not trustworthy and there is no corroboration.” 16. In light of the principles of law laid down by their Lordships of the Supreme Court in the above stated judgment – Radhu (supra), it is quite vivid that the injuries which were found on the body of the victim is of no use to the prosecution and also in the preceding paragraph I have already discussed that the statement of the victim (PW-1) is not of “sterling quality” and she is not a “sterling witness” as she fails to pass any of the tests of “sterling witness” in light of the decision of the Supreme Court in the matter of Rai Sandeep alias Deepu (supra) followed in the matter of Santosh Prasad alias Santosh Kumar (supra). In that view of the matter, it would be absolutely unsafe to maintain the conviction of the appellant, 15 CRA No. 1354 of 2023 and, therefore, he is entitled for acquittal on the basis of benefit of doubt. Conclusion:- 17. In view of the aforesaid discussion and analysis, the appeal is allowed. The impugned judgment conviction and order of sentence dated 30.06.2023 passed by the learned trial Court is hereby set aside. The appellant stands acquitted of the charges for offences under Sections 450, 376(1) and 506 Part II of the IPC. He is stated to be in jail since 18.01.2022. I direct him to be set at liberty forthwith, if his detention is not required in any other offence. 18. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and also the copy of this judgment be sent to the concerned Superintendent of Jail where the appellant is lodged and suffering jail sentence, forthwith for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) Judge Ankit