1 2025:CGHC:10939 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1628 of 2022 1. Hemant Jatwar S/o Gopal Jatwar Aged About 33 Years R/o Village Pihrid, Thana Malkharoda, Distt. Janjgir Champa, Chhattisgarh ... Appellant versus 1. The State Of Chhattisgarh Though Police Station Malkharoda, Distt. Janjgir Champa, Chhattisgarh ... Respondent For Appellant : Mr. Rahil Arun Kochar, Advocate For Respondent : Mr. Amit Verma, Panel Lawyer. SB: Hon’ble Mr. Ramesh Sinha, Chief Justice Judgment on Board 05/03/2025 1. I.A. No.3/2023, an application for urgent hearing, is allowed and with the consent of the parties, this appeal is being heard finally. 2. This criminal appeal has been filed by appellant against the judgment of conviction and order of sentence dated 29.9.2022 passed in S.T. No.57/2021 by which by learned Additional Sessions Judge (FTSC) Sakti has convicted the appellant under Section 376(1) of Indian Penal Code (for short ‘IPC’) and sentenced him to undergo 10 years rigorous imprisonment with fine of Rs.1,000/-, plus default stipulation 3. The prosecution case, in brief, is that the victim lodged written report in Police Station Malkharoda to the effect that on 11.9.2020 at 8:30 a.m. NISHA DUBEY Digitally signed by NISHA DUBEY Date: 2025.03.07 16:46:56 +0530 2 she had come to Mission Chowk, where appellant came to her, insisted her to accompany him on his vehicle and upon her refusal, he caught hold of her hand, forcibly sat her on the vehicle and took her to a lonely house situated in village Chaarpara where he committed forcible sexual intercourse with her. Thereafter, accused dropped her at Mission Chowk on his motorcycle and then she went to home from bicycle and upon return of her parents from field, she narrated the entire incident to them, then report was lodged. 4. On the basis of the complaint made by the victim, the police registered the offence under Section 376 of IPC. Victim was sent for medical examination. Statement of the witnesses were recorded. Spot map was prepared. Appellant was got medically examined, he was found competent to have sexual intercourse and he was arrested. Seized articles were sent for FSL report from where report Ex.P-26 was received. After completion of investigation, charge-sheet against the appellant under the aforesaid section was filed. The case was committed to the Court of Sessions and from where it was received by the trial Court for trial. 5. In support of its case, the prosecution has examined 16 witnesses. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C. in which he denied the charge levelled against him and pleaded innocence and false implication in the case. He examined two witnesses in his defence. 6. After hearing the parties, the trial Court vide impugned judgment convicted and sentenced the accused/appellant as mentioned in para-2 of this judgment. 3 7. Learned counsel for appellant would argue that the judgment passed by the learned trial Court is bad-in-law and contrary to facts and evidence of the case. He submits that the appellant has not committed any offence and he has been falsely implicated due to previous animosity. From the statement of the victim it is evident that there was affair between the victim and the appellant; they have mobile talks also and there was consensual relations between them, if any. There is no independent witness of the occurrence. The victim was major girl of 22 years age and she willingly accompanied the appellant. No marks of injury were found in the internal or external parts of the victim. In such a way, learned trial court has held guilty to the appellant against established principle of law and conviction and sentence based on such evidence is not sustainable, therefore, impugned judgment is liable to be set aside and appeal to be allowed. 8. Per contra, learned counsel appearing on behalf of the respondent- State, while supporting the impugned judgment of conviction and order of sentence submits that the judgment was passed by the trial Court after proper appreciation of evidence available on record. The same is well reasoned establishing the guilt of appellant beyond reasonable doubt. Therefore, confirming the impugned judgment of conviction and order of sentence, the appeal filed by the appellant may be dismissed. 9. Heard learned counsel for the parties and perused the record of trial Court including the impugned judgment. 10. Appellant's conviction is primarily based upon the sole testimony of the victim (PW-3). Settled legal position is that conviction can be based upon the sole testimony of the victim provided it is reliable and is of sterling quality. Therefore, the question for consideration is, whether in 4 view of the submissions and the grounds raised in appeal, the appellant appeal deserves to be allowed? 11. It is settled position of law that in the case of rape, the accused can be convicted only on the basis of solitary evidence of victim. In the case of Krishna Kumar Malik vs. Stateof Haryana, reported in (2011) 7 SCC 130, Hon’ble Supreme Court has held as under:- "No doubt, it is true that to hold an accused guilty for commission of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires the confidence and appears to be trustworthy, unblemished and should be of sterling quality." 12. In the matter of Abbas Ahmed Choudhary v. State of Assam, reported in (2010) 12 SCC 115, observing that a case of sexual assault has to be proved beyond reasonable doubt as any other case and that there is no presumption that a prosecutrix would always tell the entire story truthfully, the Hon'ble Supreme Court held : "Though the statement of prosecutrix must be given prime consideration, at the same time, broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there could be no presumption that a prosecutrix would always tell the entire story truthfully. In the instant case, not only the testimony of the victim woman is highly disputed and unreliable, her testimony has been thoroughly demolished by the deposition of DW-1." 13. In the matter of Hem Raj vs. State of Haryana, reported in (2014) 2 SCC 395 the Hon’ble Supreme Court has held as under :- "6. In a case involving charge of rape the evidence of the prosecutrix is most vital. If it is found credible, if it inspires 5 total confidence, it can be relied upon even sans corroboration. The court may, however, if it is hesitant to place implicit reliance on it, look into other evidence to lend assurance to it short of corroboration required in the case of an accomplice. (See State of Maharashtra v. Chandraprakash Kewalchand Jain.) Such weight is given to the prosecutrix's evidence because her evidence is on a par with the evidence of an injured witness which seldom fails to inspire confidence. Having placed the prosecutrix's evidence on such a high pedestal, it is the duty of the court to scrutinize it carefully, because in a given case on that lone evidence a man can be sentenced to life imprisonment. The court must, therefore, with its rich experience evaluate such evidence with care and circumspection and only after its conscience is satisfied about its creditworthiness rely upon it." 14. In case at hand, the victim (PW-4), a 22 years old girl, has stated in her evidence that on 11.9.2021 at about 8-8:30 a.m. she had gone to Mission Chowk from her village Piprid to purchase pen, copy pencil. On the way, the appellant came on motorcycle and asked as to where she had come. On repeatedly being asked by appellant, she sat on his vehicle. Appellant took her to the house of someone situated in Chaarpara, where the owner of said house was also present. After some time, the owner of house went somewhere on motorcycle leaving her and appellant alone in the house. Appellant removed her clothes and thereafter committed sexual intercourse with her despite protest by her. When appellant had gone to bring back his motorcycle, she proceeded on foot towards Mission Chowk, appellant met her on the way and dropped her at Mission Chowk on his motorcycle from where she returned home on her bicycle, informed the factum of incident to 6 her parents on their return from field and then report was lodged. In the cross-examination, the victim has deposed that she used to talk to the appellant on mobile phone. She further admitted that appellant took her from Mission Chowk on his motorcycle to Chaarpara. When accused undressed her, she objected the same from hands. She did not receive injury anywhere. 15. Dr. Neelam Dhruw (PW-3), who conducted medical examination of the victim, has deposed that hymen of victim was torn at many places. Two fingers can easily enter into her vagina, which means the victim was habitual to sexual intercourse for a quite long time. The doctor further deposed that upon examination, she did not notice any injury on the person of victim nor she informed her about injury. She has opined that there was evidence of recent sexual intercourse. 16. Dr. Ravindra Sidar (PW-2), who examined accused/appellant, though found him capable to perform sex, but did not notice any scratch injury on his person. 17. Rajendra Kumar Satsang (DW-1), a betel shop vendor, has deposed that on the date of incident at about 9:00 a.m. the victim came and parked her bicycle in his shop saying that she will come back in half an hour. He does not know as to where she had gone. After about half-an hour she returned and took her bicycle. 18. Hariram Jatwar (DW-2) has stated that there was love affair between the appellant and the victim, they used to talk with each other on phone and in this connection, a meeting was held in the house in which they were advised not to talk with each other. 19. Thus, from the evidence discussed above, it is clear that the victim is a major lady, aged about 22 years. On 11.9.2021 after parking her 7 bicycle in the betel shop of DW-1, the victim along with appellant went on his motorcycle; appellant took her to a lonely house where he committed sexual intercourse with her and thereafter appellant dropped her at Mission Chowk. It is the evidence of the victim that she had put up resistance but appellant committed sexual intercourse despite the same. If that were really so, it is expected that some injuries should have been found either on the victim or on the appellant. But as already indicated above, no injuries of any kind were found either on the victim or on the appellant. The victim did not tell in her evidence as to why she did not resist or shout at the time of incident. Though sole testimony of the victim is enough to base conviction, if inspires confidence, but in this case, the evidence of victim PW-3 lacks credibility and her evidence cannot be said to be of sterling in nature, therefore, the story put forth by the victim appears to be highly improbable and creates doubt in the mind of the Court as to whether the accused/appellant had forcibly taken her and committed rape or it was she who had accompanied him of her own free will and was a consenting party for the sexual act committed by appellant. Hence, in the light of the aforesaid discussion, It would indeed be unsafe to convict appellant based on sole testimony of the victim, which does not inspire confidence, and he is certainly entitled to the benefit of doubt which is created by the very circumstances which are referred above. 20. Accordingly, the appeal is allowed. Impugned judgment of conviction and order of sentence is hereby set aside. Appellant is acquitted of the charge under Section 376 (1) of IPC. The appellant is reported to be in jail. He is directed to be released forthwith unless wanted in any other 8 case. However, keeping in view the provision of Section 437-A of the Cr.P.C.(now Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023), the accused-appellant is directed to furnish a personal bond for a sum of Rs.25,000/- with two sureties in the like amount before the court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant, on receipt of notice thereof, shall appear before the Supreme Court. 21. Registry is directed to transmit the trial Court record along with a copy of this order to the trial Court concerned forthwith for necessary information and compliance. 22. Certified copy as per rules. Sd/- (Ramesh Sinha) Chief Justice nisha