1 2025:CGHC:15361 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 375 of 2016 • Uttam Kumar Aghariya S/o Chakraworty Nayak, Aged About 40 Years R/o Village Jogidipa, Police Station Saraipali, District Mahasamund Chhattisgarh ... Appellant versus • State of Chhattisgarh Through The Station House Officer, Police Station Saraipali, District Mahasamund Chhattisgarh ... Respondent For Appellant : Ms. Sameeksha Gupta, Advocate For Respondent/State : Ms. Isha Jajodiya, Panel Lawyer Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on Board 01/04/2025 1. The present Criminal Appeal has been filed by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 against the impugned judgment of conviction and sentence dated 04.03.2016 passed by the learned Additional Sessions Judge, Saripali in Sessions Trial PRIYANKA VERMA Digitally signed by PRIYANKA VERMA Date: 2025.04.04 12:42:13 +0530 2 No.14/2015 whereby the appellant has been convicted and sentenced in the following manner:- CONVICTION SENTENCE U/s 366 of Indian Penal Code R.I. for 7 years and fine of Rs.2000/-, in default of payment of fine 2 months additional S.I. U/s 376 of Indian Penal Code R.I. for 7 years and fine of Rs.2000/-, in default of payment of fine 2 months additional S.I. U/s 342 of Indian Penal Code R.I. for 6 months 2. Brief facts of the case are that on 23.04.2014 at about 15:15 hours, the husband of the victim (PW-3) and the son of the victim (PW-2) had gone to the Police Station and lodged a missing report (Ex.P/2C) stating that the wife/victim has been missing since the previous night when they were sleeping in their house; despite her search in nearby places and relatives houses, she could not be found. During the enquiry of missing person, the victim (PW-1) was recovered on 18.05.2014 when she herself came back to her house and went to the Police Station. The Recovery Panchanama (Ex.P/1) was prepared in the presence of the witnesses. The victim was sent for her medical examination to Government Hospital, Saraipali, where Dr. Smt. Chandrakiran (PW-7) medically examined her and gave a report (Ex.P/9). During her medical examination, the Doctor could not notice any external injuries on her body and opined that there were no signs of recent sexual intercourse and that she was habitual to sexual activity. Two slides of her vaginal swab were prepared, sealed and handed over to the Police for chemical examination. The FIR (Ex.P/13) was registered for offence under 3 Sections 366, 376 & 34 of the IPC against the appellant and his friends. A spot map (Ex.P/2) was prepared by the Police. The petticoat and underwear of the victim have been seized vide seizure memo (Ex.P/4). The appellant - Uttam Kumar Aghariya was arrested on 06.12.2014 and the co-accused- Heera Lal Patel was arrested on 23.12.2014. The appellant- Uttam Kumar Aghariya was also sent for his medical examination to Community Health Centre, Saraipali, where he was medically examined by Dr. Prabhat Toppo (PW-8), who, after his medical examination, opined that the appellant is capable to perform sexual intercourse and his report is Ex.P/11. Maruti Van of the complainant was seized vide seizure memo Ex.P/6; motorcycle of the complainant was also seized vide seizure memo Ex.P/7. The statements of the witnesses under Section 161 of the Cr.P.C. and the statement of the victim under Section 164 of the Cr.P.C. have been recorded. After completion of the usual investigation, charge sheet was filed against two accused persons, Uttam Kumar Aghariya and Heera Lal Patel for offences under Sections 366, 376, 368, 342 & 34 of the IPC before the learned Judicial Magistrate, First Class, Sariapali. The case was committed to the Court of learned Sessions Judge, Mahasamund from where it was transferred to the trial Court for trial. 3. The learned trial Court has framed charges against the appellant- Uttam Kumar Aghariya for offence under Sections 366, 376 & 342 of the IPC, whereas the charge against the co-accused, Heera Lal Patel has been framed for offence under Section 368 of the IPC. The accused persons denied the charges and claimed to be tried. 4 4. In order to establish the charge against the accused persons, the prosecution has examined as many as 16 witnesses. Statements of the accused persons under Section 313 of the Cr.P.C. have also been recorded in which they denied the circumstances appearing against them, pleaded innocence and submitted that they have been falsely implicated in the offence. 5. After appreciation of oral as well as documentary evidence adduced by the prosecution, the trial Court has acquitted the co-accused- Heera Lal Patel of the charge under Section 368 of the IPC but has convicted the appellant- Uttam Kumar Aghariya for offence under Sections 366, 376 & 342 of the IPC and sentenced as mentioned in the earlier part of the judgment. Hence, this Appeal. 6. Learned counsel for the appellant submits that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses with that of the material available in the charge sheet and their evidence is exaggerated. Initially, a missing report was lodged by the husband of the victim, who stated that in the night when they were sleeping in their house, the victim was found missing. Whereas, as per the evidence of the victim, her husband and her son, they claimed that when the victim along with her son (PW-2) was going to the Doctor for her treatment, on the way, the appellant abducted her and wrongfully restrained her up to 18.05.2014, which is self-contradictory. At the time of lodging of the missing report, the son of the victim (PW-2) was there with his father, who lodged the missing report but she has not made any allegations that 5 the victim was abducted by the appellant. The conduct of the victim as well as her son is suspicious, as at the time of the alleged abduction, her son was also there in the said Maruti Van by which the victim was alleged to be abducted and on the way, he asked to return to his house and the appellant took the victim with him. They resided together for more than 15 days in a rented house of PW-15, yet she has not made any complaint to the persons of the vicinity nor raised any alarm while allegedly abducted by the appellant. A new story has been developed during the recording of her evidence. The incident is alleged to have occurred on 23.04.2014, whereas 161 Cr.P.C. statement of the victim as well as her husband was recorded on 14.12.2014. No injuries were found on the body of the victim and no sign of any protest is there. The appellant is the brother-in-law of the husband of the victim and the entire facts and circumstances of the case as well as the evidence on record create a doubt as to the authenticity of the prosecution story that the appellant has abducted the victim and committed rape upon her. The appellant cannot be convicted for such exaggerated evidence made by the prosecution witnesses that too is self-contradictory statement made by them with that of their statement recorded during the investigation. Therefore, the appellant is entitled to acquittal. 7. Per contra, learned counsel appearing for the State vehemently opposes the submissions made by learned counsel for the appellant and submits that the prosecution has proved its case beyond reasonable doubt but for minor omission and contradiction, the evidence of prosecution witnesses is fully reliable and the conviction of the appellant can be made on the 6 said evidence. Though in the missing report lodged by the husband of the victim on 23.04.2014 (Ex.P/21C), there is no mention about the fact that she was abducted by the appellant, but from the evidence of PW-1, 2 & 3, there is sufficient explanation that due to non-cooperation of the Police authorities and deficiency in discharging their duties, instead of lodging the named report against the appellant, they recorded a missing report and when the victim was thrown by the appellant from his house, she immediately informed her husband about the incident and a report was lodged. The allegation leveled by the victim is sufficient to hold conviction of the appellant for the offence in question. Although no injuries have been found on the body of the victim, however, the presence of the injury is not necessary to be received by the victim in each case and the same depends upon the facts of each case. The evidence of the victim was corroborated by the evidence of her son (PW- 2) who was there at the time when she was abducted by the appellant, therefore, there is overwhelming evidence against the appellant in the case, which is sufficient to uphold his conviction and his Appeal is liable to be dismissed. 8. I have heard learned counsel for the parties and perused the record of the case. 9. PW-1 is the victim. She has stated in her evidence that on 23.04.2014, when she along with her son (PW-2) was going to the Doctor at Village Mudhpahar by motorcycle, on the way, the appellant and his two friends stopped them and got them boarded in their Maruti Van. Their motorcycle was taken by one of his friends who was standing with him 7 at that time. The appellant took her to Barmkela Bus Stand, where he asked her son to go back. Her son came back with the Maruti Van to his house at Village Kejua and the appellant took her to another village. When her son informed her husband about the incident, they started searching. The appellant took her to Village Sanda to the house of his maternal uncle, where she was confined by him for about 10-12 days. He had not provided her with the food and thereafter, he threw her from his house. When they were residing at Village Pussore, the appellant committed rape upon her. During that period, when she had gone to answer the nature's call, she met with a lady of the vicinity to whom she informed about the incident and asked her to manage a vehicle for her return. Then, with the help of said lady, she came back to her village Kejua, on 18.05.2014. On the same day, she came to the Police Station, and her statement was recorded. In cross-examination she admitted that the daughter of the appellant was residing in her house and studying. She stated that she was abducted by the appellant with the help of his two friends, who tied her mouth with clothes. The friend of the appellant was driving the Maruti Van and she was sitting on the back side of the Maruti Van and in the front seat of the said Maruti Van, the appellant was sitting. The door of the said van was not locked and it could be opened. She admitted that her son had a mobile phone, but voluntarily stated that the said mobile phone was thrown by the appellant. Since the appellant had given a threat to her, she could not try to flee or ask for help from anyone. On the way, Uttam also came on the back seat of the Maruti Van from Barmkela Bus Stand; the appellant took her on motorcycle. 8 She stayed for half an hour at Bus Stand Barmkela but did not raise any alarm. She further stated that at Barmkela Bus Stand her hand and mouth were not tied and on the opening of the door of the Maruti Van by Uttam, she came down from the Maruti Van. In the motorcycle she was sitting on the last; Uttam was sitting in the middle, and his friend was driving the vehicle. After 2-3 hours of traveling by motorcycle, they had reached a particular place. She did not know the name of that place, but she had not raised any alarm and had not shouted for help in the village as well as on the way. She admitted that she had not informed anyone about the incident in the village while residing with the appellant at Village Sanda for about 10-12 days; she usually went to answer the call of nature in the washroom, which was situated outside of the house. After 10-12 days residing at Village Sanda, the appellant took her to village Pussore, where he had already taken a room on rent. She further admitted that she has not disclosed the incident to the landlord. The son of the accused, Heera Lal was residing at Village Pussore and had supplied the meals whenever she had gone to the washroom; the appellant was guarding her and standing outside of the washroom. She admitted that a number of houses were adjoining the places where they were residing. In further cross-examination, she stated that while making physical relations with her by the appellant, she kicked him but did not give any teeth bites or nail scratch marks. She has not received any injuries on her body. She also has not disclosed about the incident of rape to the son of the accused Heera Lal. 9 10.She denied the suggestion given by the appellant that earlier also she had gone with him for about 8 days and the appellant had purchased the land in her name. She also denied that the appellant has given a mobile phone to her son. She further denied that the appellant has helped in the construction of her house. She admitted that the appellant is the real brother-in-law of her husband. She further admitted that she has not bolted the door from inside to save herself. Even she has not bolted the door of the washroom from inside and has not raised any alarm whenever she went there. She admitted that her family members did not know as to with whom she had gone. She voluntarily stated that she would disclose to her mother-in-law that she had to go for her treatment. In further cross-examination she also admitted that in the Maruti Van her son was also sitting when she was being taken by the appellant. From Barmkela, the appellant took her on the motorcycle of his friend. She stated that when her husband came to Village Barmkela in her search, the co-accused Heera Lal informed the appellant that her family members are in search of her and then only the appellant threw her from his house. 11.PW-2 is the son of the victim, who has stated in his evidence that on 23.04.2014, when he was taking his mother to the Doctor at Village Mudhpahar, on the way, the appellant was standing with a Maruti Van, along with the appellant two other persons were there; they stopped them and got them boarded in the Maruti Van and thereafter, the friend of the appellant, took their motorcycle to Village Baramkela. At Barmkela Bus Stand he left the Maruti Van and sent him by the said Maruti Van. On 23.04.2014 itself, he informed the incident to his father and other family 10 members and thereafter, they started searching for his mother. On 18.05.2014, his mother came back to his house and then she was taken to the Police Station. In cross-examination he stated that the appellant has removed the battery from his mobile phone. From Barmkela he alone came with the said Maruti Van. He admitted that at Baramkela, Sarangarh, Saraipali, he crossed the Police Station but he has not made any complaint to any Police Station. In the Maruti Van he and his mother were sitting on the back seat and the friend of the appellant was driving the vehicle and Uttam was sitting in the front seat of the said Maruti Van. On the way, a number of villages crossed, but he has not raised any alarm nor shouted for any help. They were not tied in the said Maruti Van. He denied that they lodged a missing report with respect to the missing of his mother. He stated that he knew the appellant from his childhood. He also admitted that the daughter of the appellant was residing in his house while she was studying in the school, but he denied that Uttam had helped them in the construction of their house. 12.PW-3, the husband of the victim has stated in his evidence that on 23.04.2014, his wife and his son had gone for treatment of his wife at about 1 p.m., when he returned from his field, her mother informed him that the victim and her son had not returned from the hospital. He enquired from the Doctor and the Doctor stated that his wife and son had not come to him for treatment. When he returned back to his house, he received a phone call from his son and he informed him that his wife was abducted by the appellant and his friends. Thereafter, he along with his brother, searched for her and when they could not find her whereabouts, 11 they lodged the report at the Police Station. On 18.05.2014, his wife came back to his house by hiring a vehicle and informed him about the entire incident and then on 18.05.2014 itself, he took his wife to the Police Station where Police proceedings were drawn. In cross- examination he denied that he lodged the missing report in the Police Station and voluntarily stated that he lodged the report regarding the abduction of his wife. He denied lodging of the missing report (Ex.P/21C). He admitted that the appellant is his real brother-in-law and prior to the incident he used to come to his house; his daughter was also residing there while she was studying, but he denied that the appellant helped him in the construction of his house. He disclosed in his Police statement (Ex.D/3) that the appellant has abducted his wife. He admitted that at the time of the incident, his son was having a mobile phone and by the said mobile phone, he made a telephonic call to him. He disclosed about the incident on the basis of information given by his wife. Heera Lal had knowledge of the entire incident but he did not disclose to him. 13.PW-4, the cousin brother of the complainant, has stated in his evidence that on 23.04.2014, his cousin brother (PW-3) informed him about the incident that the appellant abducted his wife; thereafter, they were in search of the victim but could not find her whereabouts and thereafter lodged the report to the Police. After 20-25 days, the victim came back to her house and his cousin brother again called him and informed him that she was abducted by the appellant. After keeping her for some days at Village Sanda, he took her to Village Pussore and thereafter, the victim was taken to the police. He too has admitted in his cross-examination 12 that the appellant is the real brother-in-law of the complainant, his son was residing in the house of the complainant and the appellant used to come to his house. He also admitted that he often stayed in the house of the complainant at night; nothing incriminating has come against the appellant in his evidence as he was informed by the husband of the victim about the incident. 14.PW-5 is the mother-in-law of the victim who has stated in her evidence that on the date of the incident, the victim and her son had gone to Village Mudhpahar for her treatment, from where she was abducted by the appellant. Her grandson came back from Village Barmkela and informed about the incident that the appellant and his two goons have abducted his mother and despite her search, they could not find her whereabouts. After about 15 days, her daughter-in-law came back to her house and informed her about the incident. In cross-examination she denied the suggestion given by the defence that prior to the present incident, she had also gone with the appellant once. She also denied that the relationship between the appellant and the victim was in her knowledge. 15.PW-6 is the father-in-law of the appellant and PW-1 is his daughter-in- law and PW-2 is his grandson. One year back, when her daughter-in-law and grandson had gone to Village Mudhpahar for treatment, the appellant kidnapped his daughter-in-law and took her by MRP van at the point of knife and when they did not return, they started searching for her. At about 3 p.m., his grandson came back along with the Maruti Van and informed that his motorcycle was kept by the appellant. When they could 13 not find her whereabouts, they lodged the report with the Police Station. After about 20-25 days, his daughter-in-law came back to the house and informed him about the incident. Except for the fact that he was being informed by the witnesses about the incident, nothing incriminating comes against the appellant and he is disclosing the incident on being informed by the other witnesses. 16.PW-9 is the villager of Village Mudhpahar. He stated in his evidence that on the date of the incident, he saw that the victim and her son were going to Village Mudhpahar and on the way, the appellant got them to board the Maruti Van and took them in the said Maruti Van. His motorcycle was taken by another friend and thereafter, he did not know what happened. In cross-examination, he stated that he is well acquainted with the complainant and accused persons as he used to regularly visit the villages of Mudhpahar and Kejua. On the date of the incident, he saw the victim and her son sitting on the Maruti Van. 17.PW-15 is the landlord of the house where the appellant and the victim resided for about a week. He stated in his evidence that at the time of the incident, the appellant had taken his house on rent @ 1,400/- per month and he also paid the advance amount. The said house was given on rent through the son of the co-accused, Heera Lal, because he knew him and he introduced the present appellant and the victim as they were his brother and sister-in-law. They stayed there for about a week and thereafter, went somewhere else. In cross-examination, he stated that whenever the appellant was not 14 there in the house, the victim used to meet the other persons of the vicinity and he saw her in the vicinity. She used the toilet, which was situated near the house and she admitted that till the time when they were residing in his house, the victim did not disclose any incident to him. 18.Dr. Chandrakiran (PW-7), who medically examined the victim and has not found any external injuries on her body and no sign of any struggle was found on her body. 19.From the above evidence, it appears that on 23.04.2014, PW-3 along with PW-2 had gone to the Police Station and lodged a missing report that the victim had been missing since the previous night when they were sleeping in the house. Though they tried to explain that they lodged the report to the Police about the incident, the Police have not registered the offence against the appellant yet; but there is no evidence that they have made any attempt to approach the higher Police authorities to explain that the Police have not lodged their report or that a false report has been registered by the Police. PW-2 was there with PW-3 at the time of lodging of the missing report, whereas it is alleged by the victim that when she was going to Village Mudhpahar for her treatment, on the way she was abducted by the appellant in his Maruti Van. She was taken to Village Baramkela by the said Maruti Van in which PW-2 was also there and at Village Baramkela he left the Maruti Van along with the victim and went by the motorcycle and sent PW-2 back along with the Maruti Van, despite that PW-2 did nothing, though they have stated that PW-2 has informed about the incident to his family members but there is no 15 evidence that immediately thereafter, they informed the Police about the incident that the appellant has abducted the victim and they had gone towards Baramkela particularly when the accused No.2 (Heera Lal) was also there with them who is their relative and the father of the victim was well-acquainted with the co-accused Herea Lal. Had they approached the Police at that very moment, the victim could have been saved if she had actually been abducted by the appellant, but it is not the initial case of the victim. 20.From the evidence it also appears that she stayed with the appellant for about 14-15 days and in between that period, she alleged that the appellant has confined her in a room after putting a lock in the room, which appears to be exaggerated. When the evidence came on record that she used the washroom, which was situated outside of the room and she also met with the persons of the vicinity, but she has not raised any complaint to anyone or raised any alarm. The fact also came on record that the appellant is the real brother-in-law of the husband of the victim and the daughter of the appellant was residing in the house of the victim while she was studying, though the victim and her family members denied the suggestion that earlier also the victim had gone with the appellant for about 8 days and the appellant helped them in the construction of their house but the suggestion given by the defence itself shows that something was between the appellant and the victim. 21.From the evidence of PW-15, who is a landlord where they resided for about 7-8 days, nothing was informed to him also by the victim, even though there is no evidence that till the date of the alleged incident of 16 abduction up to the returning back to her house she made any alarm or made any complaint to anyone either on the way or in the vicinity that she was being abducted and subjected to rape by the appellant. 22.Under the facts and circumstances of the case, the evidence of the victim cannot be put in the definition of ‘Sterling Witness’ as has been laid down by the Hon’ble Supreme Court in the matter of Santosh Prasad Alias Santosh Kumar vs. State Of Bihar, (2020) 3 SCC 443. The relevant para 5.4.2 reads thus:- “5.4.2. In Rai Sandeep v. State (NCT of Delhi), (2012) 3 SCC (Cri) 750, 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 17 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 18 for holding the offender guilty of the charge alleged.” 23.The version of the prosecutrix commands great respect and acceptability, but if there are some circumstances which create some doubt in the mind of the Court as to the veracity of the prosecutrix’s evidence, then it will not be safe to rely on the said version of the prosecutrix. There is contradiction and omission in the statement of the prosecutrix and other witnesses. 24.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 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 appellants beyond reasonable doubt, which the prosecution has failed to do in the instant case. 25.From the overall evidence available in the case, this Court finds that there is no sufficient evidence to prove the offence against the appellant beyond reasonable doubt and something more is required in the evidence of the victim, particularly when her son was there with her at the time of the alleged abduction, despite the fact that no report has been lodged that the appellant abducted the victim and a simple missing report has been lodged by him and during the course of investigation, certain improvements have been made, when she returned back to her house that the appellant abducted her and committed rape upon her. This Court does 19 not find any sufficient evidence to uphold the conviction and sentence imposed on the appellant by the trial Court. 26.In the result, the Appeal filed by the appellant is allowed. The impugned judgment of conviction and sentence is hereby set aside and the appellant is acquitted of all the charges levelled against him. The appellant is reported to be on bail; his bail bond shall continue for the further period of 6 months as provided under Section 481 of the BNSS, 2023. 27.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 Priyanka