1 2025:CGHC:8759 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 129 of 2016 Vikas Bole @ Baccha Sonkar S/o Ashok Ghore Aged About 22 Years R/o Tikrapara, Mannu Chowk, P.S. - City Kotwali, Bilaspur, District - Bilaspur Chhattisgarh. ... Appellant versus State Of Chhattisgarh Through District Magistrate, Bilaspur, District - Bilaspur Chhattisgarh. ... Respondent For Appellant :Mr. Manish Sahu, Advocate on behalf of Ms. Indira Tripathi, Advocate. For Respondent/State :Ms. Isha Jajodiya, P.L. for the State. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 19/02/2025 1. The present criminal appeal has been filed under Section 374(2) of Criminal Procedure Code 1973, against the impugned judgment of conviction and sentenced dated 22.01.2016 passed by learned Additional Sessions Judge (F.T.C.) District – Bilaspur (C.G.) in Sessions Case No.33 of 2015, whereby the appellant has been convicted for the offence under Section 376 of IPC and sentenced for R.I. for 7 years with fine of Rs. 500/- in default of payment of fine amount further R.I. for three months. VAIBHAV SINGH Digitally signed by VAIBHAV SINGH Date: 2025.03.07 19:39:41 +0530 2 2. The brief facts of the case are that the victim PW-7 has lodged a report Ex.P/5 against the appellant that on 31.12.2014, when she was in her house, the appellant came there, forcefully opened the door, took her towards bed and committed rape upon her. When she raised alarm he fled away. Immediately after the incident she disclosed the incident to her sister and thereafter, lodged the report. The offence under Sections 456 & 376 of IPC have been registered against the appellant. She was sent for her medical examination to District Hospital Bilaspur, where she was being medically examined by Dr. kamla Patnayak PW-1, who gave her report Ex.P/1. While medically examined the victim the doctor could not noticed any external injuries on her body, inflammatory charge was found on her uterus along with whitish discharge. The doctor has opined that whitish discharge with inflammatory charge at interval and sign of recent coitus can’t rule out. Two slides of her vaginal swab were prepared, sealed and handed over to the police for its chemical examination. One petticoat, underwear has been seized vide seizure memo Ex.P/3. Spot map Ex.P/9 was prepared by the police and Ex.P/15 was prepared by patwari. The appellant was arrested on 01.01.2015 and he too was sent for his medical examination to District Hospital Bilaspur, where PW-4 Dr. P.C. Bainarjee has medially examined him and gave report Ex.P/14. After medially examined the appellant the doctor has found him capable to perform sexual intercourse. The statement of the witnesses under Section 161 of Cr.P.C. has been recorded, statement of under Section 164 of Cr.P.C of the victim has also been recorded and after completion of usual investigation, charge-sheet was filed 3 before the learned Chief Judicial Magistrate, Bilaspur for the offence under Sections 456 & 376 of IPC against the appellant. 3. The case was committed to the Court of learned Sessions Judge, Bilaspur from where the same has been transferred to the learned trial Court for its trial. 4. The learned trial Court has framed charge against the appellant for the offence under Section 376 of IPC. The appellant denied the charge and claimed trial. 5. In order to prove the charge against the appellant the prosecution has examined as many as 7 witnesses. The statement of the appellant under Section 313 of Cr.P.C. has also been recorded in which he denied the circumstances appears against him, plead innocence and has submitted that he has been falsely implicated in the offence. 6. After appreciation of the oral as well as documentary evidence led by the prosecution, the learned trial court has convicted and sentenced the appellant as mentioned in the earlier part of the judgment. Hence this appeal. 7. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses, which cannot be made basis for convicting the appellant for the alleged offence. The evidence of the victim itself is suspicious with respect to her conduct. It is not possible for any person that in such a close vicinity where the victim is residing, a person can forcefully enter in her house particularly in night time without hearing of any noise by her neighbors. Even she has not raised her alarm when the appellant pushed the door of the victim and entered inside 4 the house. She has raised alarm only after completion of the act of the appellant, which itself shows that she was the consenting party. He would further submit that her sister to whom she immediately disclosed the incident has not been examined. No injuries or any mark of struggle have been found on her body and further that no FSL report has been produced by the prosecution to prove the presence of sperm and semen on her vaginal smear. The victim has also not stated about presence of her children in the house. Therefore, the entire allegation of rape levelled by the victim is suspicious and the appellant is entitled for acquittal. 8. On the other hand learned counsel for the State opposes and have submitted that the prosecution has proved its case beyond reasonable doubt. There are sufficient evidence available in the record against the appellant to convict him in the offence in question. The evidence of victim PW-7 itself is sufficient and no corroboration is required. Even if no injuries have been found on the body of the victim, that itself does not makes her evidence doubtful. She would further submit that the victim has disclosed in her evidence that her children had gone to her maternal aunts house to watch TV and she was alone in her house at the relevant time. She would further submit that immediately the report has been lodged by the victim and therefore, the impugned judgment of conviction and sentenced passed by learned trial court is well merited which does not requires any interference. 9. I have heard learned counsel for the parties and perused the material available on record. 10. PW-7 the victim has stated in her evidence that she is having three children and she was tenant in the house of the appellant. On the date 5 of incident her children had gone to her maternal aunt’s house to watch TV and she was alone in her house. At about 09:00p.m. the appellant came to her house and knocked the door and when she did not open the door he pushed it and forcefully entered into her house. He laid her down on the ground and thereafter committed rape upon her. Since it was the time of new year celebration, her voice could not be heard by her neighbors. After commission of the offence of rape when she had gone to appellant’s house to inform her mother, the appellant fled away from his house. Thereafter, she has lodged the report. In cross-examination, she stated that she was deserted lady and her husband has left her. She was residing in the house of appellant as tenant and presently she is residing in the house of his maternal aunt on rent. She admitted that the place where she is residing is surrounded by the house and shop of the others. She further admitted that in the same house the maternal aunt of the appellant is also residing, she further stated that in her FIR Ex.P/5 she disclosed her children had gone to watch TV to her maternal aunt’s house and if it is not there in her report she could not tell the reason. She also disclosed in her report that she informed about the incident to the mother of the appellant and if it is also not there in her report, she could not tell the reason. She further stated that she knew the appellant since 3-4 years back and she was a maid servant in the house of the sister of the appellant. During her employment in the house of the sister of the appellant, her husband left her and she denied the suggestion given by the appellant that she was having love affairs with the appellant and wanted to marry with him and due to 6 their relations, the rented house was got vacated by the family members of the appellant. 11. From the evidence of the victim, it appears that in the night at about 9:00p.m. When the appellant pushed the door of the house of the victim, immediately thereafter she has not raised any alarm. Till the completion of the act of the appellant, she has not raised any alarm and she has not tried to save herself by fleeing from the place or any other mode of protest. Even while committing the alleged offence by the appellant she has not tried to give any nail scratch mark or teeth bite on his body and further that there is no sign of struggle have been found on the body of the victim. Though she explained that it was the time of new year celebration and there was music playing outside of the house therefore her voice could not be heard by her neighbors but that itself is not sufficient because of the reason that her house is closely surrounded by the house of others and shops. When the fact came on record that she was the tenant of the appellant and her husband has left her when she was working in the house of sister of the appellant, when the suggestion has also came that she was having love affairs with the appellant and for that reason her rented house has got vacated, the false implication of the appellant cannot be ruled out. In view of the fact that she was deserted lady and got her rented house vacated on that ground that she was having relation with the appellant, though, it is denied by the victim, her evidence appears to be doubtful. 12. The victim PW-7 has stated in her evidence that she immediately inform the incident to her maternal aunt but in the present case her maternal aunt has not been examined by the prosecution. As per the 7 evidence of Dr. Kamla Patnayak PW-1 no definite opinion can be given regarding recent sexual intercourse and the swelling found on her uterus could have been by the white discharge or sexual intercourse which is confirmed from the FSL examination. There is no FSL report has been produced by the prosecution to prove the same. 13. The evidence of the victim PW-7 is not of that starling quality which requires for conviction of the appellant in the offence in question. 14. The Hon’ble Supreme Court in the matter of Santosh Prasad @ Santosh Kumar Vs. State of Bihar reported in (2020) 3 SCC 443 has held in para 5.4.2 which reads as under:- “5.4.2. In the case of Rai Sandeep alias Deepu (supra), this Court had an occasion to consider who can be said to be a “sterling witness”. In paragraph 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 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 8 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 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 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.” 15. The version of the prosecutrix commands great respect and acceptability, but if there are some circumstances which cost some 9 doubt in the mind of the Court on the veracity of the prosecutrix evidence, then it will not be safe to rely on the said version of the prosecutrix. The law is well-settled that in a case of rape, conviction can be maintained even on the basis of sole testimony of the prosecutrix. However, there is an important caveat which is that the testimony of the prosecutrix must inspire confidence. Even though the testimony of the prosecutrix 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 in the instant case. This Court is conscious of the sensitivity with which heinous offence under Section 376 I.P.C. has to be treated but in the present case the circumstances taken as a whole create doubt about the correctness of the prosecution version. 16. From the aforesaid consideration, this Court is of the opinion that there is no cogent and clinching evidence against the appellant to upheld his conviction and sentence for the alleged offence. Therefore, the appeal filed by the appellant is allowed. The impugned judgment of conviction and sentence is hereby set aside. The appellant is acquitted from the alleged offence. The appellant is reported to be on bail. His bail bond shall continue for further period of 6 months as provided under Section 481 of B.N.S.S. 2023. 17. The trial Court record along with a copy of this judgment be sent back to the trial Court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) JUDGE Vaibhav