1 2025:CGHC:5088 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1573 of 2019 1 - Nandu Rathiya S/o Vishi Rathiya Aged About 23 Years R/o. Village Dhourabhatha, Fittingpara, P.S. Tamnar, District Raigarh, Chhattisgarh, District : Raigarh, Chhattisgarh ...Appellant versus 1 - State Of Chhattisgarh Through- Police Station Tamnar, District Raigarh, Chhattisgarh, District : Raigarh, Chhattisgarh ... Respondent For Appellant : Mr. Shikhar Sharma, Advocate For Res./State : Mr. Aatanu Ghosh, Deputy Government Advocate Hon’ble Shri Justice Ravindra Kumar Agrawal Judgment on Board 28.01.2025 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 27.09.2019 passed by learned Upper Sessions Judge, Gharghoda, District- Raigarh (C.G.) in Sessions Trial No. 17/2019 whereby the appellant has been convicted and sentenced as under: Conviction U/S Sentence Fine In default of payment of Fine U/S 458 of Indian Penal Code R.I. for 5 years Rs. 1,000/- R. I. For 30 days 2 U/S 376 of Indian Penal Code Rigorous imprisonment for 10 years Rs. 2000/- R.I. for 30 days U/S 323 of Indian Penal Code Rigorous imprisonment for 3 months All the sentences have been directed to run concurrently. 2. Case of the prosecution, in brief, is that the victim (PW-01), was residing at village-Dhourabhatha-Fittingpara , Tamnar. On 28.12.2018, at about 10.pm, her neighbour- Nandu Rathiya alongwiht with his two friends came to her house, dragged her toward bushes and thereafter they committed rape upon her one after one. They threatened her not to disclose the incident to anyone and assaulted her by means of Danda, as a result of which, she sustained injuries on her body and went in unconsciousness. On the next morning, her daughter came to the place of incident and gave her cloths to wear and the victim was being taken to the hospital by her daughter. On 31.12.2018, a written complaint (Ex. P/1) was given by the victim to the police. Based on the said written complaint, FIR (Ex. P/ 2) bearing Crime No. 303/2018 was registered against the present appellant and two other accused persons for the offence under Section 376(D) and 323 of IPC. The victim was sent for her medical examination to Community Health Centre, Tamnar, where Dr. Savitri Toppo (PW-04) has medically examined her and gave her report vide Ex. P/7. While medically examined the victim, the doctor has found injuries on her body i.e. bruise present in left shoulder, black mark around her left eye, blister present on both sole at foot finger. After medical examination of the victim, she opined that she cannot give any definite opinion about the sexual intercourse. Two slides of her vaginal swab was prepared, sealed and handed it over to police for its chemical examination. The spot map (Ex.P/6) was prepared by the police and spot 3 map (Ex. P/14) was prepared by the Patwari. The appellant as well as other two accused persons were arrested on 03.01.2019 and the memorandum statement of the present appellant was recorded as Ex. P/8. On the basis of his memorandum statement, one Hawai Chappal and one bamboo club were seized from him vide seizure memo Ex. P/9. The present appellant as well as other co-accused persons were sent for medical examination to Community Health Centre, Tamnar, where the doctor has medically examined them and gave his report Ex. P/11, P/12 and Ex. P/13, respectively. According to the medical report of the accused persons they were found capable to perform sexual intercourse. The accused persons were put to Test Identification Parade, which was conducted by Tahshildar T. R. Kashyap (PW06), who prepared the identification parade memo Ex. P/5. In the Test Identification Parade, the victim (PW-1) has duly identified two other accused persons namely Tulsiram Sarthi and Surendra Rathiya. The Vaginal slides and underwear of the victim were sent for FSL examination. The statement of witnesses were recorded under section 161 of Cr.P.C. Statement of the victim under Section 164 of Cr.P.C. has also been recorded. 3. After completion of usual investigation, charge sheet was filed before the learned Judicial Magistrate First Class, Gharghoda. The case was committed to the Court of learned Sessions Judge, Raigarh, from where the same has been transferred to the learned Upper Sessions Judge, Gharghoda, District Raigarh for its trial. The learned trial Court has framed charges against the appellant as well as other co-accused persons for the offence under Sections 458/34, 376(D), 323/34 of Indian Penal Code. The accused persons denied the charges and claimed trial. 4. In order to establish the charges against the accused persons, the prosecution has examined as many as 07 witnesses. The statements of 4 the present appellant as well as other co-accused persons were also recorded under section 313 of Cr.P.C. in which they denied the material appearing against them, plead innocence and stated that they are innocent and have falsely been implicated in the case. 5. After appreciation of oral & documentary evidence available on record, the learned trial court has acquitted two other co-accused persons namely - Tulsiram Sarthi and Surendra Rathiya of all the offences, however, convicted present appellant -Nandu Rathiya and sentenced him, as mentioned in the earlier part of this judgment. Hence, this appeal. 6. Learned counsel for the appellant would argue that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. There are material omission and contradiction in the evidence of the prosecution witnesses, which cannot be made basis for his conviction. The victim has turned hostile and has not supported the prosecution case with respect to the other co-accused persons, however her entire evidence is liable to be discarded on the ground that in the FIR as well as in her statements recorded under Sections 161 and 164 Cr.P.C., she made allegations against three accused persons whereas in her Court's evidence she resile from her statement and alleged only against the present appellant. Her evidence is shaky and she is inconsistence in her evidence. The report has been lodged after three days of the incident and no injuries have been found on her private part and even no injury of any assault have been found on the body of the victim. He would further submit that from the same set of evidence, two accused persons were acquitted by the learned trial Court. The evidence of the victim had not been supported by the evidence of her daughter and she too have turned hostile during her examination. Therefore, in such inconsistent evidence 5 the appellant cannot be convicted for the alleged offence and he is entitled for the acquittal. 7. On the other hand, the learned counsel for the State while opposing the arguments advanced by the counsel for the appellant, contended that the except minor contradictions & omissions, the prosecution has proved its case beyond reasonable doubt. The act of the appellant has duly been supported by the evidence of the victim and the learned trial Court after considering the evidence of the victim, convicted the appellant, as the allegation has been made only against the present appellant. He submits that the appellant committed the offence of lurking house tresspass, assaulted the victim and committed rape upon her. He would further submit that the evidence of the victim is not required to be corroborated by the other evidence and her evidence alone is sufÏcient to hold guilty of the appellant. He would again submit that the injuries found on the body of the victim and the delay in lodging the FIR has also been explained that she was admitted in the hospital and as and when she was discharged from there, she lodged report, therefore, there are sufÏcient material available against the appellant in the record and the learned trial court after considering the entire evidence, by the impugned judgment, has rightly convicted and sentenced the appellant, which is absolutely justified and needs no interference. 8. I have heard the counsel for the parties and perused the material available on record. 9. Victim (PW01) has stated in her evidence that she was well acquainted with the accused persons. On the date of incident, when she was alone in her house, present appellant Nandu Rathiya came to her house, started dragging her and abused & assaulted her by danda and inflicted on her back and other part of the body. By assaulting her, he dragged 6 her from outside of her house and committed rape upon her. She went in unconsciousness and regain her consciousness after about three days. At this stage, she denied by lodging of any report and she also denied by her 164 Cr.P.C. statement. She further stated that the appellant Tulsiram and Surendra have not committed any offence with her and she also has not identified them before the Tahsildar in the Test Identification Parade. She was declared hostile and has not supported the prosecution case. In her cross-examination, she further admitted that she has not lodged any report of the Ex. P/1 and Ex. P/2. She also did not disclose before the Police that appellant Nandu Rathiya has abused her and beaten her by Danda. She further admitted that she also did not disclose before the police that appellant Nandu Rathiya has committed rape upon her. In paragraph 7, she denied that the present appellant had committed rape upon her. From the evidence of this witness, it is quite vivid that she is inconsistence in making statement that the present appellant committed rape upon her or even she has made any report to the police. At one place of her evidence, she has stated that appellant Nandu abused her, committed marpeet with her and committed rape upon her, but in another place of the same evidence she denied the allegation made by her against the present appellant. Again in her cross-examination in suggestion, she denied that the present appellant committed rape upon her. 10. From the evidence of the victim (PW-1), it is apparent that there are material discrepancies in her evidence. From perusal of the FIR, written report (Ex. P/1), FIR (P/2) and her statement recorded under Section 164 Cr.P.C. Ex.P/4 and also from her Court's statement, material discrepancy appears to the effect that in the FIR, she alleged offence against three accused persons whereas in the Court's statement she 7 alleges only against the present appellant. Though, the falsus in uno and falsus in omnibus is not applicable in India, yet it does make the evidence of the victim doubtful and the credibility of her evidence is also suspicious. 11. Daughter of the victim (PW02) who also has not supported the prosecution case specifically and stated that her mother had not disclosed any incident to her. She did know about any incident of rape. 12. PW03 who is also a villager has not supported the prosecution case and denied from any memorandum statement and seizure from the appellant Nandu Rathiya. 13. Dr. Savitri Toppo (PW04) who medically examined the victim though has found the bruise present in left shoulder, black mark around her left eye, blister present on both sole at foot finger, but in cross-examination, she admitted that contusion would have been caused on the body of the person upon whom the lathi blows is to be inflicted. In the present case, no contusion or abrasion have been found on the body of the victim whereas blister has been found but there is no explanation that how she received blister on her body. 14. T. R. Kashyap (PW06) is the incharge Tahsildar who conducted the identification parade and prepared the memo Ex.P/ 5 with respect to co- accused persons namely- Tulsiram Sarthi and Surendra Rathiya. Since both these two co-accused persons have been acquitted by the learned trial Court, the evidence of T.R. Kashyap (PW-6) losses its efÏcacy and need not required to be discussed here. 15. From all these evidences available on record, as also from the evidence of victim PW01, her (victim) statement could not found to be trustworthy and it is very difÏcult for this Court to hold conviction of the appellant and there is no corroboration of her evidence with other evidence. 8 16. The version of the victim commands great respect and acceptability, but if there are some circumstances which cast some doubt in the mind of the court on the veracity of the victim’s evidence, then it will not be safe to rely on the said version of the victim. There is contradiction and omissions in the statement of the victim and her parents. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the victim. However, there is an important caveat which is that the testimony the victim must inspire confidence. Even though the testimony of victim is not required to be corroborated, if her statement is not believable then the accused cannot be convicted. The prosecution has to bring home charges levelled against the appellant beyond any reasonable doubt, which prosecution has failed to do in the instant case. 17. In view of the aforesaid analysis of the evidence available on record this Court find force in the argument advanced by the learned counsel for the appellant that no offence are made out against the appellant and this Court is also in agreement with the same. 18. In the result, the appeal filed by the appellant is allowed. The impugned judgment of conviction and sentence are hereby set aside. The appellant is acquitted of all the offences. He is reported to be in jail since 03.01.2019. He be released forthwith, if not required in any other case. 19. The trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) Judge amita Digitally signed by AMITA DUBEY Date: 2025.03.04 10:21:42 +0530