1 2025:CGHC:11467 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1870 of 2023 Mahesh Mali S/o Tatu Mali, Aged About 30 Years R/o Kaskonga, P.S. Kudai, District Navrangpur, Odisha ... Appellant versus State Of Chhattisgarh Through Police Station Farasgaon, District : Kondagaon, Chhattisgarh ... Respondent For Appellant(s) : Mr. Karan Kumar Baharani, Advocate. For Respondent(s) : Ms. Shubha Shrivastava, Panel Lawyer. Hon'ble Mr. Ramesh Sinha, Chief Justice Order on Board 07/03/2025 1. Though, today the present appeal has been listed for hearing on I.A. No.2 of 2025, which is application under Section 389 of the Code of Criminal Procedure, 1973 (for short Cr.P.C) for suspension of sentence and grant of bail, however with the consent of learned counsel for the parties and considering the period of detention of the appellant, the appeal is heard finally. 2. Accordingly, I.A. No.02 of 2025 stands disposed of. KUNAL DEWANGAN Digitally signed by KUNAL DEWANGAN 2 3. This criminal appeal arises out of the judgment of conviction and order of sentence dated 08.09.2023 passed by the learned Additional Sessions Judge, (F.T.C.), Kondagaon District Kondagaon (C.G.) in S.T. No. 122/2021, whereby the appellant has been convicted and sentenced in following manner :- CONVICTION SENTENCE Under Section 376 of the Indian Penal Code Rigorous Imprisonment for 10 years with fine of Rs.1000/-, in default of payment of fine to further undergo RI for 6 months. 4. The prosecution story, in brief, is that the victim lodged an FIR (Exhibit P/17) on 30.09.2021 against the present appellant with the averment that she is a resident of Gram Mohlai Bhagwat Khambhapara, was married and had two sons. Unfortunately, her husband passed away four years prior and her father passed away in March 2021, so she went to her maternal home in Gram Jodenga, District Nawarangpur, Odisha, to attend her father's funeral rites and stayed there for 8-15 days. During this time, she met appellant/Mahesh Mali, a resident of Kaskonga, District Nawarangpur, Odisha, who had also came to attend the funeral rites. Due to the lockdown and lack of transportation, she asked Mahesh Mali to drop her off at her in-laws' village, Gram Mohlai, which he did, along with her two children, so he dropped her along with her children. On 21.09. 2021, Mahesh Mali came to her house at 5:00 pm and expressed his desire to have a physical relationship 3 with her and when she refused, he stayed overnight at her house, the victim also slept in another room with her children, then at 11 pm the appellant/Mahesh Mali went to her room, woke her up and raped her by forcefully having physical relations, due to which blood started flowing from her private parts, then he ran away. The next day, out of fear of public shame, she told her sister Kunti that she fell and her private parts got injured and started bleeding, then she was taken to Farasgaon, Kondagaon hospital. Later on 22.09.2021, she was brought to Dimrapal Hospital for proper treatment, where on being asked by the doctor, she told that Mahesh Mali had raped her by made forcefully physical relations with her. 5. On the basis of above written report given by the victim regarding the incident, a Dehati Nalisi (Exhibit P/2) was registered before the Police Station Faraspur (parpa) under the Crime No. 00/2021 for offence under Section 376 of IPC and on the basis of above Dehati Nalisi, on 30.09.2021, the concerned Police Station registered a case against the accused under the original Crime number 96/2021 for the offence under Section 376 of the IPC and thereafter taken into investigation. Pursuant to the victim's written consent, a lady doctor examined her and collected vaginal smear and swab samples. The accused's private parts were also examined, and glans penis and pubic hair samples were sent for chemical analysis. The chemical test report was subsequently obtained. During the examination, the victim was advised to undergo an X-ray, which was conducted. The statement of the victim and witnesses were recorded and the victim's statement was taken under Section 164 4 of the CrPC before the Judicial Magistrate First Class, Keshkal. The Investigating OfÏcer obtained the Spot Map (Exhibit P/5), Patwari's Spot Map. Immediately after the incident, the victim started bleeding from her private parts and was referred to Community Health Center Farasgaon and from Farasgaon to Kondagaon and from Kondagaon to Medical College Dimrapal Jagdalpur for proper treatment. When she was admitted for treatment for 15 days, a (bedhead ticket) was obtained by the Investigating OfÏcer regarding the treatment. When the crime was found against the accused, he was arrested and his family members were informed about his arrest and he was sent to jail on judicial remand. After thorough investigation, the charge-sheet was filed before the Jurisdictional criminal Court, who in turn committed the case to the Court of Judicial Magistrate First Class, Kondagaon, from where the learned Additional Sessions Judge (F.T.C.) Kondagaon received the case on transfer for trial. 6. In order to establish the charge against the appellant, the prosecution examined as many as 11 witnesses and exhibited the documents (Exs.P-1 to P-24). The statement of the appellant under Section 313 of CrPC was also recorded in which he denied the material appearing against him and stated that he is innocent and he has been falsely implicated in the case. 7. After appreciation of evidence available on record, the learned trial Court has convicted the accused/appellant and sentenced him as mentioned in para 1 of the judgment. Hence, this appeal. 5 8. Learned counsel for the appellant submits that at the time of the alleged incident, the victim was a 30-year-old widow lady. He further submits that the F.I.R. has not been proved by the victim herself and further there are huge contradictions and omissions in the testimony of the victim in respect to allegations made in the F.I.R. and all other relative of the victim including the parents have been examined before the trial court and they did not supported the case of prosecution and the version of victim. The medical report does not corroborate the version of the victim and in the instant case prosecution has not been examined independent eye witness, as per medical report doctor could not found anything in support of the version of the victim. He further submits that the report has been lodged by the victim after a long delayed and the reason for the delay has not been explained satisfactory and the prosecution has failed to prove the case against the appellant beyond the reasonable doubt. The conviction is based on uncorroborated testimony of the witness. The trial Court has not appreciated the evidence on record properly and came into erroneous conclusion while passing the judgment of conviction which is liable to be set aside. He also submits that as the police investigation failed to yield any corroborative evidence and considering the absence of necessary materials, this Court may kindly consider acquitting the appellant of the conviction. As such, the criminal appeal deserves to be allowed and the impugned judgment deserves to be set-aside. 9. On the other hand, learned counsel for the State opposes the submissions made by the learned counsel for the appellant and 6 submits that the prosecution has proved its case beyond reasonable doubt and the victim (PW-1) has clearly deposed the conduct of the appellant in her statement recorded under Section 164 CrPC and in the Court statement and the learned trial Court after considering the material available on record has rightly convicted and sentenced the appellant, in which no interference is called for. 10. I have heard the learned counsel for the parties and perused the record with utmost circumspection. 11. The issue that arises for consideration in the present appeal is whether the testimony of the victim deserves acceptance and whether the prosecution has established the case against the appellant beyond reasonable doubt. 12. The question whether conviction of an accused can be based on the sole testimony of the victim in cases of sexual assault/rape, is no longer res integra. The Hon’ble Supreme Court has dealt with the issue in a catena of judgments and has held that the sole testimony of the victim, if found reliable can be the sole ground for convicting the accused and that the creditworthy testimony of the victim in cases of such nature deserves acceptance. 13. Insofar as, age of the victim on the date of the commission of the offence is concerned, she was admittedly 30 years old at the time of the unsavory incident. 7 14. Further, on perusal of the testimony made by the victim in her statement recorded under Section 164 CrPC, it is observed that the incident occurred on 21.09.2021. During the lockdown, when her father died, she went to village Jodenga to perform ritual. At that time the appellant/Mahesh also came, she met the accused in the village. He came to drop her at her in-laws' village Mohlai and left after dropping her, he again came to her house at 5 pm on the date of the incident. At that time, her children were at home and no one else was there, she had cooked food and put the children to sleep and she also had gone to sleep and the accused had slept in the shade of the house. At that night, the accused came to there where she was sleeping and forcibly caught her and raped her by made physical relations with her thereafter, she tried to move away but he held her tightly. After that, the accused fled on his motorcycle and thereafter, she told her neighbor Didi Kunti about the said incident. She told her during the incident, her urethra got injured and she was bleeding profusely. The accused caused this injury by made forceful physical relations with her. That night, she went to District Hospital Kondagaon with Kunti and three other people, from where she was referred for further treatment. She was then taken to Dimrapal Medical Hospital in Jagdalpur, where she was admitted. When she narrated the incident to the hospital staff, the doctor and police were called and she reported the incident. The accused had threatened her, warning her not to reveal the incident to anyone. 15. The victim has been examined as (PW-1). In paras 2, 3 and 4 of her statement, she has stated that the incident occurred on 21.09.2021 8 when she came to perform ritual at her village Jodanga, Odisha, she met the accused/Mahesh Mali at her father's funeral ceremony. She had to go to her maternal home on the next day, she did not found any means of transportation, so she told the accused/ Mahesh Mali to drop her on his motorcycle. The accused dropped her alongwith her two children at Mohlai and the accused went to his home in Orissa. After nearly 5-6 months, Mahesh Mali came to her village and told her that her mother had sent him to pick her up, she refused and saying that if her mother had sent him to pick her, she would have called her. After that, she told the accused to go, he did not go, and had dinner at her house. At that night, they were sleeping in our room and the accused was sleeping outside on the veranda. Her two children were sleeping beside her around 11:00 pm, when the accused entered her room and grabbed her, she couldn't free herself and then the accused had made forceful physical relations with her. After that, he fled. Following the physical relations with the accused, she lost excessive bleeding from her private part. Thereafter, she came out of the house and told her uncle/mama about the incident that happened with her, then her uncle called an ambulance and sent her to Farasgaon Hospital. Since there was no treatment available in Farasgaon Hospital, she was brought to Kondagaon District Hospital. She was not treated properly even in Kondagaon District Hospital, she was referred to Jagdalpur Dimrapal Hospital where she was treated for 15 days in Dimrapal Hospital. 9 16. Mother of the victim (PW-2) has stated in paras 1, 2, and 3 of her statement that she stated that she do not recognize the accused Mahesh Mali. She expressed that she did not recognize the accused when his photograph was shown in the arrest slip and also do not even know where he lives. The victim is her daughter, whose in-laws live in Mohlai police station Farasgaon. Her husband has died earlier. She have 02 children. The victim did not tell her what happened to her, she do not know anything about the incident. The police did not interrogate her. She further stated that, it is wrong to say that her daughter victim had told her that on 22-09-2021 accused Mahesh, a resident of Odisha, came to her house, then she refused him and asked her to go back. Then he said that he will go the next day and stayed overnight and after eating food, slept in a separate room, her daughter also slept in a separate room with her children. It is wrong to say that her daughter victim told her that on the day of the incident accused/Mahesh came into the room and raped her daughter by forcefully made physical relations with her, due to which he ran away after seeing excessive bleeding from her private parts. It is wrong to say that her daughter victim told her that the next day she made an excuse of falling due to fear of public shame at her in-laws' house. Then she came Farasgaon, Kondagaon, for treatment. 17. Father-in-law of the victim (PW-3) has stated in paras 2 and 3 of his statement that it is wrong to say that the accused was a friend of his brother Hiralal Pandey and that he had come to his brother's house, then he saw him. It is correct to say that on 21-09-2021, he had 10 gone to work and he ate dinner at home and slept, then at 12:00 in the night his sister-in-law (Bhabhi) Kunti Pandey shouted and called him, so he went to the victim's house, then he saw that his daughter-in-law’s private parts were bleeding, the victim told him that while giving rat poison she fell and she got hit by iron, after that her uncle (chacha) Kameshwar Pandey called 108 ambulance and took the victim to Farasgaon Hospital, immediately after that he took her to Kondagaon Hospital, as she did not get well there, he took her to Medical College Dimrapal for proper treatment, and the next day morning the victim was admitted. 18. Sister-in-law(Dewrani) of the victim (PW-9) has stated in para 1 of her statement that she do not know or recognize the accused Mahesh Mali. The victim is her sister-in-law (dewrani). The incident took place about 01 year ago at night when she fell at home and was taken to Farasgaon Hospital for treatment. Apart from this, she do not know anything about the incident, nor has anyone ever told her anything about it. The Patwari (village revenue ofÏcer) did come to the village, but no documents were read or written in her presence. When shown the Panchnama document (Exhibit P/9), she acknowledged that her signature appears on parts 'B' and 'B'. The police did not interrogate her. 19. Though the FSL report is negative as neither semen stains nor human sperms has been found in the articles seized during the course of investigation, however coming to the medical evidence adduced; as per the medical opinion contained in the MLC report 11 (Ex.P-12), the doctor has opined that there was noting to suggest that the appellant was not capable performing sexual intercourse. 20. The Supreme Court in the matter of Rai Sandeep @ Deenu v. State of NCT of Delhi, 2012 (8) SCC 21 held as under:- “22. In our considered opinion, the ‘sterling witness’ should be of a very high quality and caliber 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 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 everyone 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 12 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 similar such tests to be applied, it can 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.” 21. In the case of Ganesan v. State, (2020) 10 SCC 573, the Supreme Court observed and held that that there can be a conviction on the sole testimony of the victim/prosecutrix when the deposition of the prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality. 22. In the case of State (NCT of Delhi) v. Pankaj Chaudhary, {(2019) 11 SCC 575}, it was observed and held that as a general rule, if credible, conviction of accused can be based on sole testimony, without corroboration. It was further observed and held that sole testimony of prosecutrix should not be doubted by court merely on basis of assumptions and surmises. 23. In the case of Sham Singh v. State of Haryana, {(2018) 18 SCC 34}, the Supreme Court observed that testimony of the victim is vital 13 and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difÏculty to act on the testimony of the victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It was further observed that seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. 24. Applying the law laid down by the Supreme Court in the cases (supra) to the facts of the case on hand and as observed herein above, this Court sees no reason to doubt the credibility and/or trustworthiness of the victim. She is found to be reliable and trustworthy. Therefore, without any further corroboration, the conviction of the accused even relying upon the sole testimony of the victim can be sustained. The view taken by the learned trial Court that the appellant is the author of the crime is a pure finding of fact based on evidence available on record and we are of the opinion that in the present case, the only view possible was the one taken by the learned trial Court. 25. From the above analysis, I am of the considered opinion that the prosecution has been successful in proving its case beyond reasonable doubt and the learned trial Court has not committed any legal or factual error in arriving at the finding with regard to the guilt of the appellant/convict. 26. Accordingly, the appeal being devoid of merit is liable to be and is hereby dismissed. 14 27. It is stated at the Bar that the appellant is in jail. He shall serve out the sentence as ordered by the trial Court. 28. The Registry is directed to transmit the certified copy of this judgment along with the record to the trial Court concerned for necessary information and compliance. 29. The Registry is also directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail term, to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of the High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- (Ramesh Sinha) CHIEF JUSTICE Kunal