1 CRA No. 1545 of 2023 2025:CGHC:17737 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1545 of 2023 [Arising out of judgment dated 05.07.2023 passed in Sessions Trial No.57/2021 by the Additional Sessions Judge (FTC), Dhamtari, District Dhamtari, Chhattisgarh.]  Bablu @ Ballu @ Thabir @ Thabira Tandi S/o - Khetro @ Khetr Tandi, aged about 49 years, R/o - Komna, Duriapada, P.S.- Komna, District – Nuapada, Orissa. ... Appellant versus  State of Chhattisgarh through – P.S. - Bhakhara, District - Dhamtari, Chhattisgarh. ... Respondent For Appellant :- Mr. Pushkar Sinha, Advocate. For State-Respondent :- Mr. Afroz Khan, Panel Lawyer. Hon'ble Shri Justice Sanjay K. Agrawal Judgment On Board 17/04/2025 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: 2025.04.21 15:11:50 +0530 2 CRA No. 1545 of 2023 05.07.2023 passed by the Additional Sessions Judge (F.T.C.), Dhamtari, District Dhamtari, Chhattisgarh, in Sessions Trial No. 57/2021 by which the appellant herein has been convicted for offence under Section 376 of the IPC and sentenced thereunder to suffer rigorous imprisonment for 10 years with fine of 10,000/-; in default of payment of fine ₹ amount the appellant has to undergo additional rigorous imprisonment for six months while acquitting him from offence under Section 506 Part II of the IPC. Prosecution story:- 2. The case of the prosecution as projected by the prosecution and accepted by the Special Court is that on 21.10.2020 at village Bhakhara, Police Station Bhakhara, District Dhamtari, Chhattisgarh, the appellant while giving treatment to the major victim (PW-1) in the house of Kashiram, committed sexual intercourse with her (PW-1) against her wishes and thereby committed the aforesaid offence. Against the said act of the appellant, written complaint (Ex.P/1) was made by the victim pursuant to which FIR was registered vide Ex.P/2. Wheels of investigation started running and the appellant 3 CRA No. 1545 of 2023 was arrested. Nazri naksha was prepared vide Ex.P/5. Victim (PW-1) was medically examined by Dr. Sheelarani Dewangan (PW-9) who prepared the victim’s medical report vide Ex.P/17. As per victim’s medical report (Ex.P/17) proved by Dr. Sheelarani Dewangan (PW-9) no external and internal injuries were found over the body of the victim, hymen was found old ruptured and no definite opinion was given with regard to recent sexual intercourse. Slides of the victim was prepared. Clothes of the victim was seized vide Ex.P/20. Slides of the victim and seized articles were sent for chemical analysis to FSL and as per FSL report (Ex.P/31), stains of semen and human sperm were not found on the slides of the victim (article A) as well as on the clothes of the victim (articles B, C & D). 3. 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. 4. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 12 witnesses and 4 CRA No. 1545 of 2023 exhibited 31 documents, whereas, the appellant in defence has neither examined any witness nor exhibited any document. Statement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record, pleaded innocence and false implication. 5. The learned Special 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:- 6. Mr. Puskar Sinha, learned counsel for the appellant, would submit that the Special Court is absolutely unjustified in convicting the appellant for the offence in question. He would also submit that the victim (PW-1) was major on the date of offence and even the medical as well as the forensic evidence have not supported the case of the prosecution. He 5 CRA No. 1545 of 2023 would further submit that the appellant has falsely been implicated in the crime in question as according to the prosecution case at the time of offence in the house of Kashiram (not examined), victim’s husband (PW-2), victim’s father (PW-3), Kashiram (not examined) and Kashiram’s family members were also present and she (PW-1) did not inform anyone of them and even otherwise, on the pretext of amount which the victim (PW-1) had allegedly given to the appellant, dispute arose between them. He would further submit that in absence of other evidence, to base the conviction of the appellant the statement of the victim (PW-1) should be of “sterling quality”, but it 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) 1 followed in the matter of Santosh Prasad @ Santosh Kumar v. The State of Bihar 2 . Therefore, the appellant is entitled for acquittal on the basis of principles of benefit of doubt and the appeal deserves to be allowed. 7. Mr. Afroz Khan, learned State counsel, would submit that the prosecution has been able to bring home the offence beyond 1 (2012) 8 SCC 21 2 (2020) 3 SCC 443 6 CRA No. 1545 of 2023 reasonable doubt and the Special Court has rightly convicted the appellant for offence in question as the the victim (PW-1) has clearly implicated the appellant in crime in question and, therefore, the appeal deserves to be dismissed and the appellant is not entitled for acquittal. 8. I have heard learned counsel, considered their rival submissions made herein-above and gone through the records minutely. Discussion and analysis:- 9. Admittely, the victim was major on the date and time of offence; the medical evidence has not supported the case of the prosecution as Dr. Sheelarani Dewangan (PW-9) who examined the vicitim (PW-1) and prepared victim’s medical report vide Ex.P/17, has not found any internal and external injuries over the body of the victim and also no evidence was found by PW-9 with regard to recent sexual intercourse except that the victim (PW-1) was found to be habitual in sexual intercourse and hymen was foud old ruptured. Even in the FSL report (Ex.P/31) stains of semen and human sperm 7 CRA No. 1545 of 2023 were not found on the slides of the victim as well as on the clothes of the victim. As such, the conviction of the appellant is solely based on the statement of the victim (PW-1). 10. To base the conviction of the appellant for offence in question, the statement of the victim should be of “sterling quality”. 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? 11. As per the prosecution, the incident had taken place on 21.10.2020 and the FIR was lodged by the victim against the appellant on 29.10.2020 vide Ex.P/2. As such, there is delay of eight days in lodging the FIR which has not been satisfactorily explained by the prosecution. Though, the victim (PW-1) in her statement before the Court has stated that the incident had taken place in the house of Kashiram, but Kashiram has not been examined by the prosecution for reasons best known to the prosecution. She (PW-1) has also stated that on the date of incident, in the house of Kashiram (not examined), her husband (PW-2), her father (PW-3), her 8 CRA No. 1545 of 2023 brother-in-law (जीजी) (not examined), her uncle (फू फू) (not examined), Kashiram Sahu (not examined) and Kashiram’s wife (not examined) were also present, but she (PW-1) did not ask for help from anyone of them even she did not make hue and cry to save herself and also did not inform anyone of them about the incident. As such, the said act of the victim makes the case of the prosecution doubtful. Victim has also stated in paragraph No.10 of her statement before the Court that there was some quarrel took place between the appellant, the victim and her family member on account of money which had allegedly been given to the appellant for her (PW- 1) treatment. Further, it is the case of the appellant that he has falsely been implicated in the crime in question which also appears from the statement of the victim (PW-1), as there was a dispute between them with regard to the money and also she did not inform about the criminal act of the appellant to the police for 8 days, which has also not been satisfactorily explained by the prosecution. As such, the theory of defence with regard to dispute of money and false implication appears to have been established and also in view of the aforesaid reasons chances of fabrication and manipulation cannot be 9 CRA No. 1545 of 2023 ruled out. 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). 12. Consequently, prosecution has not been able to bring home the offence as I have already discussed in the foregoing paragraphs that the medical evidence as well as the forensic evidence are of no use to the prosecution and also on the ground that though the victim’s husband (PW-2), victim’s father (PW-3), Kashiram (not examined), Kashiram’s family members (not examined) and other relatives of the victim (not examined) were also present at the time of offence in the house of Kashiram, where the incident had taken place, but the victim (PW-1) did not ask for help anyone of them and not make any hue and cry to save herself, even she did not inform to the police for eight days and, therefore, the delay which was occurred in lodging the FIR has not satisfactorily been explained by the prosecution, which makes the case of the prosecution doubtful and further the statement of the 10 CRA No. 1545 of 2023 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). As such, it would be absolutely unsafe to maintain the conviction of the appellant for offence in question, and, therefore, he is entitled for acquittal on the basis of benefit of doubt. Conclusion:- 13. In view of the aforesaid discussion and analysis, the impugned judgment of conviction and order of sentence dated 05.07.2023 passed by the learned Special Court is liable to be and is hereby set aside. The appellant stands acquitted of the charges for offence in question. He is stated to be in jail from 11.08.2021 to 01.11.2021 and since 05.07.2023. I direct him to be set at liberty forthwith, if his detention is not required in any other offence. 14. This criminal appeal is allowed. 11 CRA No. 1545 of 2023 15. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and 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