1 2025:CGHC:2193-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1050 of 2019 1 - Bharat Singh Gond S/o Balsai Gond Aged About 35 Years R/o Village Bilahma Police Station Dhounpur, District (Revenue and Civil ) Surguja District : Surguja (Ambikapur), Chhattisgarh. 2 - Bhaira @ Sainath S/o Baoula Aged About 55 Years R/o Village Bilahma Police Station Dhounpur, District (Revenue and Civil ) Surguja District : Surguja (Ambikapur), Chhattisgarh. 3 - Thorua @ Ramprasad Bargarh S/o Amar Sai Bargarh Aged About 35 Years R/o Village Bilahma Police Station Dhounpur, District (Revenue and Civil ) Surguja District : Surguja (Ambikapur), Chhattisgarh ... Appellants versus 1 - State of Chhattisgarh through District Magistrate, District Surguja District : Surguja (Ambikapur), Chhattisgarh ... Respondent For the appellant : Ms. Nirupama Bajpai, Advocate, through Legal Aid Authority For the State : Mr. Ashutosh Shukla, Panel Lawyer Division Bench Hon’ble Shri Justice Sanjay K. Agrawal Hon’ble Shri Justice Sanjay Kumar Jaiswal A ANNAJEE RAO Digitally signed by A ANNAJEE RAO 2 Judgment on Board (14.01.2025) Sanjay Kumar Jaiswal, J, 1. This appeal under section 374(2) of CrPC is directed against the judgment of conviction and order of sentence dated 30.04.2019 passed by the learned Special Judge, Surguja (Ambikapur), in Special Sessions (Atrocities) Case No. 16 of 2018 whereby the appellants have been convicted and sentenced as under : (i) Conviction and sentence of appellant No.1 Bharat Singh : u/s 341 of IPC : Simple Imprisonment for 6 months, fine amount of Rs.200/-, in default of payment of fine, additional S.I for 1 months u/s 343/34 IPC : R.I for 1 year, fine of Rs.500/- and in default of payment of fine, additional RI for 3 months u/s 376 (D) IPC : RI for 20 years, fine of Rs.5000/- and in default of payment of fine, additional RI for 2 years. (ii) Conviction and sentence of appellant no. 2 Bhaira @ Sainath & appellant no. 3 Thorua @ Ramprashad Bargah : u/s 343/34 IPC : RI for 1 year each, fine of Rs.500/- each and in default of payment of fine, additional RI for 3 months each u/s 376 (D) IPC : RI for 20 years each and fine of Rs.5000/- each, in default of payment of fine additional RI for 2 years each. 2. However, by the impugned judgment, the appellants have been acquitted of 3 the charges under section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3. Prosecution case, in brief, is that a report was lodged by the prosecutrix to the effect that on 03.11.2017 she left her house without informing anyone to go to her maternal home and on the way near Jaggu Gond’s house she was intercepted by accused/appellant no.1 Bharat God who offered her alcohol and as she was heavily intoxicated, he locked her in Turva Bargah’s house. He kept her there for three days and appellant no.1 Bharat Gond and other unknown companions whose names she does not mention, had committed gang rape on her. Her mother-in-law, father-in-law and sister-in-law were searching for her in the village. Then on 06.11.2017 in the morning her uncle-in-law Sukhram Korwa (D.W.1) informed the mother-in-law (P.W.2) that her daughter-in-law is lying in Turva’s house and asked her to come and take her daughter-in-law. Then her parents-in-laws went to get her and then she told her husband the entire matter about the incident. The prosecutrix lodged FIR against accused on 13.11.2017 and during the investigation, accused were arrested and the statements of witnesses were recorded. After investigation, a charge sheet was filed against the accused/appellants. 4. The accused/appellants pleaded innocence and claimed to be tried. The prosecution in order to prove its case has examined in all 9 witnesses and exhibited 18 documents. The accused also examined two witnesses to defend their case. After examination of the prosecution witnesses, the statement of appellants were recorded u/s 313 of CrPC in which they denied the charges and pleaded innocence and false implication in the crime. The learned Special Judge after evaluating the evidence convicted and sentenced them as mentioned in the opening paragraph. Hence, this appeal. 5.1 Learned counsel for the appellant argues that the prosecutrix is a married lady of 25 years of age and the FIR is delayed by 10 days and despite the prosecutrix went missing for 3 days, no missing report was filed either by her husband or other family members and no plausible explanation was shown by the 4 prosecution for such delay. 5.2 He next contends that the FIR does not names the other two accused Bhaira @ Sainath (A-2) and Thorua @ Ram Prasad Bargah (A-3) except the name of Appellant no.1 Bharat. 5.3 He further submits that as per the medical report, no injury was found on prosecutrix and in absence of any injury the story put forth by the prosecutrix/ prosecution is not believable. Even as per the FSL report, no human sperm was found on the slide of prosecutrix (Article A), which further makes a dent on prosecution case. 5.4 His next contention is that except the deposition/evidence of the prosecutrix which has not been corroborated by the medical/FSL report, there is no other clear and clinching evidence of independent witnesses to connect the appellants with the guilt. Further, the version of prosecutrix as narrated by her does not conform to the standard of sterling witness. He therefore submits that the impugned judgment of conviction and order of sentence needs interference and prays that the appellants be acquitted of the charges. 6. Per contra, learned State Counsel contends that the impugned judgment of conviction and order of sentence is well merited and the findings recorded by the trial Court cannot be said to be unjustified. He further submits that having regard to the evidence and circumstances appearing against the appellants, the learned trial Court has rightly convicted and sentenced them, which needs no interference. 7. We have heard learned counsel for the parties and considered the rival submissions and have also perused the records. 8. In this case, the prosecutrix (P.W.1) is a 25 year-old married woman. She has confirmed the prosecution case in her court evidence and stated that she was going to board a Bus at Bilhama to go to her maternal home in village Darki from village Ghutrapara. Then near the house of one Jaggu, appellant Bharat told her that he would give her alcohol and took her to the house of appellant Thorua and made her to drink alcohol and kept her locked in the house of appellant Thorua for 5 3 days and all the three appellants continued commission of rape on her. When her uncle-in-law (DW-1) came to the neighbor to buy mutton, the appellant Thorua told him that the prosecutrix (PW-1) was there, then the uncle-in-law (DW-1) met her, to whom she narrated the incident. Later on, the uncle-in-law (DW-1) went and narrated the incident to her parents-in-law, who came to pick her up. Then she went with them to her house and filed report (Ex. P-1) with the police, then the police conducted her medical examination and investigated the matter. 9. It is pertinent to note that in this case the incident is said to have taken place on 03.11.2017 but the report was lodged on 13.11.2017 with a delay of about 10 days. The second important thing is that in FIR (Ex.P-1) at Serial No.7 & 12, the name of the appellant Bharat and two others (without naming their names) have been mentioned but the names of other two accused i.e., Bharia alias Sainath and Thorua alias Ramprasad Bargah are not found mentioned. Whereas according to the prosecutrix, she was at the house of appellant Thorua and it was Thorua who informed her uncle-in-law (D.W.1). The third important thing is that the statement of the prosecutrix is not corroborated by the medical evidence. Another important fact is that despite the prosecutrix being missing for 3 days, either her husband or any other family member did not lodge any missing report with the Police. Apart from this, there are more discrepancies in the statements of the examined witnesses. At this stage, the only important witness is the prosecutrix herself (P.W.1) whose evidence has to be minutely assessed. 10. Before considering the evidence of the prosecutrix and other witnesses, the decision of Hon’ble the Supreme Court in Rai Sandeep alias Deepu versus State (NCT of Delhi) (2012) 8 SCC 21 is required to be referred to and considered wherein it was held that the prosecutrix's evidence alone cannot be used to convict the accused persons in a rape case, unless she meets the criteria for a "Sterling Witness". The Supreme Court further held that prosecutrix's sole piece of evidence must be reliable, flawless, and of the highest caliber to be utilised to condemn the 6 act of accused persons. The Hon’ble Court emphasised that the "sterling witness" should be of extremely high quality and caliber, whose version should, therefore, be impregnable. The said criteria laid down by Hon’ble the Supreme Court was widely followed in catena of cases including the decision rendered in Santosh Prasad alias Santosh Kumar versus State of Bihar (2020) 3 SCC cases 443, wherein it was reiterated that court should be able to accept the testimony of such a witness at face value without any reservations. Para 5.4.2 of Santosh Prasad’s case (supra) is relevant and quoted hereinbelow : 5.4.2. In Rai Sandeep v. State (supra), this Court had an occasion to consider who can be said to be a “sterling witness”. In para 22, it is observed and held 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 my 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 circumstances 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 every one 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 7 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 such similar 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.” (Emphasis supplied) 11. In another case Raju v. State of Madhya Pradesh (2008) 15 SCC 133, the Hon'ble Supreme Court has held that the testimony of the victim of a rape cannot be presumed to be a gospel truth and the relevant observations made by the Hon'ble Supreme Court are reproduced as under : “11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.‟ 12. Dr. Snehlata Tirkey (P.W.5) has stated that on 13.11.2017, she had conducted medical examination of the complainant and given a report Ex.P-10, 8 according to which, there were no marks of injury on her and she was habituated to coition. Her vaginal slide was prepared and sent for chemical examination. According to the FSL report, Ex.P-18, no human sperm was found in the said slide of the prosecutrix. Thus, the statement of the prosecutrix is not corroborated by the medical or chemical test report. 13. The husband of the prosecutrix (P.W.4) has stated that his sister-in-law had informed him over phone that the prosecutrix was not at home for 03 days, then he went to his in-laws’ house in village Darki where the prosecutrix met him and narrated the incident to him. Thus, it is apparent that this witness has given the statement on the basis of information received from the prosecutrix. In other words, he is a witness of hearsay. In cross examination, he has stated that neither he nor any of his parents had lodged any missing report with the Police about missing of prosecutrix for 3 days. As per the evidence of husband (P.W.4) the prosecutrix was found at her maternal home, whereas according to the prosecution’s case, the prosecutrix was at the house of appellant Thorua for 03 days and her in-laws themselves brought her back. However, this witness has not supported the fact that the parents of the prosecutrix brought her from the house of the appellant Thorua. Thus there exists a contradiction in the statement of this witness (P.W.4) with the case of prosecution. 14. The uncle-in-law (D.W.1) to whom the prosecutrix (P.W.1) told about the incident in the house of the appellant Turuva had stated that he had never seen the prosecutrix in anybody’s house. The uncle-in-law (D.W.1) may have stated in cross examination that he is not giving a statement in the Court as instructed by the family members of the appellants to save them. But it is noteworthy that the prosecution did not examine him in support of its case and when he appeared as a defence witness, he did not support the statement of the prosecutrix that he had seen the prosecutrix in the house of appellant Thorua and then informed the in-laws of the prosecutrix and then they came and took her away. Therefore, the statement of the prosecutrix becomes doubtful. 9 15. The mother-in-law of the prosecutrix (P.W.2) has stated in her court evidence that when the prosecutrix was not at home, the uncle-in-law (DW-1) of the prosecutrix had informed her that the prosecutrix was at the house of the appellant Thorua. Then he went and got the door opened and the prosecutrix was found there, who told him the incident upon enquiry. But this witness (P.W.2) has neither lodged any report of missing of prosecutrix with the police nor it is the case of prosecution that the prosecutrix has stated that she was going to the house of appellant Thorua with her husband nor the prosecutrix’s uncle-in-law (D.W.1) affirmed the fact that he came and informed her mother-in-law (P.W.2) about the presence of prosecutrix in the house of appellant Thorua. Therefore, the statement of mother-in-law (P.W.2) cannot be said to be trustworthy. This witness also says in cross examination that the prosecutrix had left the house saying that she was going to her maternal home, but she stayed at Bandhu Korwa’s place and when she came to the market the next day, she was made to consume alcohol and made to disappear. She further says that the prosecutrix met her near Jagmohan Patel’s house. She further says that the prosecutrix did not tell her anything about the incident. She also said that when the prosecutrix met her, she expressed fear that if she comes home, her husband will beat her, so the prosecutrix asked this witness to take her to her maternal home. Thus, the entire conduct of the prosecutrix (P.W.1) appears suspicious. 16. The prosecutrix herself (P.W.1) has stated in her cross examination that when she was declared hostile by the prosecution and was asked suggestive questions she has replied that she was nervous while writing the report, so she could not tell the names of other accused except accused Bharat. But it is noteworthy that the report was written after 10 days and she has stated that she stayed at the place of appellant Thorua for 3 days. According to the prosecution case, her uncle-in-law (DW.1) has told other family members that the prosecutrix was staying at the house of appellant Thorua. In this situation, it does not appear credible that the prosecutrix did not know the names of other accused at the time of 10 the report. 17. The prosecutrix herself (P.W.1) has also admitted in her cross examination that she occasionally consumes alcohol. When she was asked whether she stayed at Bandhu Korwa‘s house on the day she left her house, she has stated that she does not know. She has also stated that she told her husband about the incident at her maternal home 6 days after the incident and did not tell anyone else. She has further stated that her entire family went to the Police station and got the report of the incident registered. She further says that her husband got the report registered on her advice. When asked what has been written in the report, she has stated that she is telling as much as she knows. She also states that if the appellants had given her Rs.10,000 – 15,000/- she would not have filed this report. She was unable to tell whose houses are situated around the appellant Thorua’s house, but she says that there is a market near his house and if she raises her voice from the house of appellant Thuruva, people in the market would hear her voice. She has admitted that she vomited and became fainted at the house of appellant Thorua, where Dr. Amjad came for her treatment. She has also admitted that she did not bite, scratch or push the appellants in connection with the alleged rape, which shows that she did not resist the said act of appellants. She has denied the suggestion that she stayed at the house of the appellant Thorua of her own free will. She admits that daily she used to have food at the house of appellant Thorua. Thus, considering the nature of evidence deposed by the prosecutrix (P.W.1) and the way the alleged incident narrated by her, her testimony is not believable as it does not conform to the criteria laid down by the Supreme Court in Raideep v. State (Supra) and Raju v. State of M.P (Supra). 18. Apart from the above, the Sarpanch of Village Panchayat Bilhama Smt. Jayrani Bharat (D.W.2) has also been examined by the appellant side. This witness has stated that on 03.11.2017, when she was doing Panchayat work at home, the prosecutrix came in inebriated condition and said that she had a fight with her husband and asked this witness to settle the matter or send her to her parents’ 11 house. Then she gave Rs.100/- to the prosecutrix and thereafter at 04.00 p.m., the prosecutrix was roaming in the market after consuming alcohol and again came to her for 10 minutes , then the witness (D.W.2) has said that you had taken money to go home, so go home, on this the prosecutrix (P.W.1) left. She does not know what happened after that. Thus, according to Sarpanch Smt. Jayrani Bhagat (D.W.2) also the prosecutrix is a woman habituated to consuming alcohol. On a suggestion given by the appellants’ side itself, she has stated that almost everyone in the tribal society drinks alcohol. Thus from the evidence of D.W.2 the fact has emerged that the prosecutrix was addicted to consuming alcohol, which further stood firm by statement of prosecutrix itself. 19. The over-all analysis of the evidence would reflect that the evidence of prosecutrix is not supported by evidence of husband Mangal Sai (P.W.4) as he is a hear-say witness. In his court evidence the husband evidently admits that neither he nor his parents had lodged any missing report with the police about missing of prosecutrix for 3 days. The evidence of mother-in-law Halkaniya Bai (P.W.2) shows that she was informed by D.W.1 Sukhram (uncle in law) that the prosecutrix was at the house of appellants. However, D.W.1 in his cross examination did not affirm the fact that he informed P.W.2 the mother in law of prosecutrix about the presence of prosecutrix at the house of appellant Thorua. Therefore, the evidence of P.W.2 is also not trustworthy as she does not support the version of prosecutrix. At this stage, the only evidence available on record would be the statement of the prosecutrix. Perusal of her evidence does not inspire confidence as in her cross examination she categorically admits that she would not have filed the report if certain amount of Rs.10,000 – 15,000/- is paid by the appellants. The nature of such evidence deposed by her does not conform to the standard of sterling witness. 20. Keeping in view the material contradictions in the testimony of PW1 as to the alleged act of sexual assault upon her by the accused, we are of the opinion that PW1 has failed to pass any of the test as laid down by Hon’ble Supreme Court in case of Rai Sandeep v. State (NCT of Delhi) (Supra) followed by Santosh Prasad v. 12 State of Bihar (Supra) and it makes the testimony of PW1 unreliable. Accordingly, the prosecution has failed to prove its case that the appellants have committed the offence of gang rape on PW-1. Further, the delay of 10 days in lodging the FIR has also not been explained by the prosecution. Hence, the impugned judgment of conviction and order of sentence dated 30.04.2019 cannot be allowed to sustain and is hereby set aside. The appellants are acquitted of the aforesaid offences. 21. Appellants Bharat Singh Gond, Bhaira @ Sainath and Thorua @ Ramprasad Bargarh are stated to be in jail since 16.11.2017. They be released from jail forthwith, if their detention is not required in connection with any other offence. 22. In the result, the appeal is allowed. 23. Let a certified copy of this judgment along with the original record be transmitted forthwith to the concerned Trial Court and the Superintendent of Jail where the appellant is presently lodged and suffering his jail sentence be also supplied with a copy of this judgment, for information and necessary action. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Rao