1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1735 of 2019 Judgment Reserved on: 25.06.2025 Judgment Delivered on: 08.07.2025 1 - Shrawan Kumar Binjhiya S/o Ram Vishal Aged About 28 Years R/o Village Ratanpur, Uparpara, Police Station Jainagar, District Surajpur Chhattisgarh., District : Surajpur, Chhattisgarh. 2 - Guddu Binjhiya S/o Pandra Aged About 28 Years R/o Village Ratanpur, Nawapara, Police Station Jainagar, District Surajpur Chhattisgarh., District : Surajpur, Chhattisgarh. 3 - Sushil Lakda S/o Bagar Sai Aged About 21 Years R/o Village Podi Kala, Pandopara, Police Station Darima, District Surguja Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh. ... Appellant(s) versus 1 - State of Chhattisgarh Through Station House Officer Ambikapur, District Sarguja Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh. ... Respondent(s) Digitally signed by RAGHVENDRA JAT 2 For Appellant(s) : Mr. Vivek Kumar Agrawal, Advocate. For Respondent(s)/State : Mr. Abhishek Singh, Panel Lawyer. Division Bench Hon’ble Mrs. Justice Rajani Dubey Hon’ble Mr. Justice Amitendra Kishore Prasad C A V Judgment Per, Amitendra Kishore Prasad, J. 1. This criminal appeal filed by the appellants under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") is directed against the impugned judgment of conviction and order of sentence dated 13.09.2019 passed by the learned Upper Sessions Judge, F.T.C. Sarguja (Ambikapur), Chhattisgarh in Sessions Trial No. 07/16, whereby the appellants have been convicted under Section 376 (D) of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") and sentenced to undergo life imprisonment with fine of Rs. 500/- to each of the appellants, in default of payment of fine, additional simple imprisonment for 1-1 month to each of the appellants. 2. The allegations against the present appellants are that, on 05.09.2015, at about 09:00 PM in village-Darima Mod within the ambit of Police Station- Ambikapur, they have committed gang- rape with the prosecutrix one after the other. 3 3. The case of the prosecution, in a nutshell, is that on 05.09.2015, the prosecutrix (PW-9) was going with her fiancee Sandeep Panna (PW-8) and was waiting for a vehicle at Darshani Mod to go to her maternal uncle’s place. In the meanwhile, one of the accused, Sushil Lakda, came with his motorcycle and offered a lift, and took her along with Sandeep Panna (PW-8) to a newly built house near Devnathnagar. At around 09:00 PM, suddenly the accused who were laborers of the said house arrived. The accused Sushil Lakda caught hold of her, and the remaining accused also caught and assault Sandeep Panna (PW-8). Thereafter, accused Sushil Lakda took the prosecutrix into another room and committed raped with her. Thereafter he called Shravan and he too raped with the prosecutrix. In the meanwhile, accused Sushil Lakda caught hold of Sandeep Panna (PW-8), and another accused, namely, Guddu Binjhiya has also committed rape with the prosecutrix (PW-9). Thereafter, Sandeep Panna (PW-8) ran towards the road crying for help and then the accused left the prosecutrix in a field nearby. The prosecutrix (PW-9) save her life and went to her cousin sister’s house (PW-1) at village Bishunpur and narrated the whole incident to her. Thereafter, a named written report was lodged on 10.09.2015 at Police Station Ambikapur against the appellants, upon which, FIR was registered vide Ex.P/12 and medical examination of 4 prosecutrix (PW-9) was conducted. Dr. Rozlin R. Ekka (PW-3) conducted the medical examination of prosecturix (PW-9) and in her report (Ex.P/4), no definite opinion was given regarding forceful intercourse/rape. Statements of witnesses were recorded and spot map was prepared vide Ex.P/10. Thereafter, appellants were arrest vide Ex.P/28. After completion of the investigation, charge-sheet was filed against the appellants. 4. During the course of trial, in order to bring home the offence, prosecution has examined as many as 10 witnesses and exhibited 31 documents. Statements of the appellants were recorded under Section 313 of Cr.P.C., in which, they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, in defence, appellants have not examined any witness, but exhibited two documents. 5. After conclusion of the trial, the learned trial Court, by impugned judgment dated 13.09.2019, on appreciation of the oral and documentary evidence available on record, has convicted and sentenced the appellants as mentioned herein-above, against which, this appeal has been preferred by the appellants calling in question the legality, validity and correctness of the impugned judgment. 5 6. Learned counsel for the appellant submits that a totally false case has been filed against the appellants. They are not involved in crime of question. The prosecutrix was having relationship with one Sandeep Panna (PW-8). According to Sandeep Panna (PW- 8), he was assaulted and the prosecutrix was raped by the appellants on 05.09.2015 at about 09:00 pm in the night, however, in the next date, when he lodged an FIR on 06.09.2015 he has not stated anything about commission of rape with the prosecutrix. He has only stated about the assault given by the appellants with him. The prosecutrix has lodged the FIR about commission of rape after 5 days and no reasonable explanation has been put forth by the prosecutrix. The prosecutrix was not knowing the accused persons, however, named FIR was lodged which is doubtful. No test identification has been held by the prosecution to identify the accused persons. According to doctor there were no sign of gang rape upon the body of the prosecutrix. The prosecutrix instead of lodging an FIR for the offence had gone to her school where she was teaching which is not a natural conduct. The other evidence is also not corroboratory of the complaints made by the prosecutrix. The appellants have falsely implicated in this case. He has placed reliance upon the judgment passed by this Court in CRA No. 1357/2017 and CRA 6 No. 1651/2017. He has prayed that the appellants are in jail since long back as such they may be acquitted. 7. On the other hand, learned counsel for the State submits that in the first instance the Sandeep Panna (PW-8) who has accompanying with the prosecutrix has lodged an FIR regarding the assault. So far as offence of rape is concerned, the same can only be lodged by the proseuctrix against whom offence has been committed. Therefore, the objection raised by the appellants that Sandeep Panna (PW-8) has not lodged an FIR against commission of rape which is totally irrelevant. Not only this, on the back side of the prosecutrix injuries were found which according to doctor is prior to 4-5 days of the incident which corroborate the version of the prosecutrix. Absence of injuries on the private part of the prosecutrix can not by itself could be a ground to disbeliver the version of the prosecutrix. In a case of gang rape, the prosecutrix after being relieved from trauma of such an offence has rightly lodged the report after 5 days by giving explanation that she was not raped she was ill. The learned trial Court has rightly convicted the appellants for the offence punishable under Section 376 (D) of the IPC, thus, the present appeal deserves to be dismissed. 7 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection. 9. From the perusal of the evidence, it seems that on the date of incident, the prosecutrix/victim was accompanying of his fiance, namely, Sandeep Panna (PW-8). They have taken shelter in an under construction building in which several labourers are there. As per the case projected by the prosecution the inmates who are unknown to the prosecutrix as well as fiancee of the prosecutrix and assaulted due to which this witness Sandeep Panna (PW-8) ran away and thereafter the accussed-appellants forcefully took the proseuctrix and committed rape upon her. 10. But, surprisingly, on the second date of incident when the FIR vide Ex.P/13 was lodged by Sandeep Panna (PW-8), in the said FIR vide Ex.P/13, he has not stated about the gang rape committed with the prosecutrix by the appellants or any other mishappening regarding abuse, arrest or abduction. In the FIR vide Ex.P/13, it has only stated that these appellants have assaulted him when he was along with his fiancee. Not even a single line has been stated he ran away alone and they forcefully raped the prosecutrix and as such from the version of the star witness, the prosecution case itself seems to be doubtful. Though the FIR is not a compendium but it is equally true that if 8 any cognizable offense has been committed by anyone. At least the same should be reduced in the FIR. 11. Sandeep Panna (PW-8) was the eye witness of the incident. Being injured, he was having every opportunity to see the incident and to state the same before the police concerned. Even if he was not aware what had happened of the prosecutrix after he ran away from the place of incident. He further submits that he was along with the prosecutrix and the appellants have forcefully taken the prosecutrix with them but nothing has been stated in the FIR as such from this witness it seems something is being suppressed by this star witness and from the evidence of this witness, the prosecution case itself seems to be doubtful. 12. The second important witness of this case is prosecutrix (PW-9). The prosecutrix (PW-9) after commission of the offense went to her sister’s house and thereafter on the next day instead of lodging any FIR or complaint etc before the concerned police she went to attend her duties in the school where she was teaching. After 4-5 days of the incident, she made a written complaint to the police inter alia stating that she was subjected to forceful gang rape by these appellants. It is further surprisingly that the prosecutrix is not knowing these appellants, however, the complaint has been lodged against named persons. The reason which has been stated by this witness is that they are calling 9 each of the appellants by their name as such she came to know there are as many as three appellants as such the specific names should have been ascertained by showing them in any test identification parade, however, the prosecution has not conducted any test identification parade which is a serious dent in the case of prosecution. She submits that she was not knowing the names of the labourers, however, the report has been lodged against named persons. In her cross-examination she has admitted this fact that on the date of incident there was dark night and as such she could not identify the accused persons as the accused persons are naming each other by their names. She further stated that some identification has been conducted by the police, however, from the records it does not seems that any test identification parade has been conducted. The delay in lodging FIR would not be material in all cases, if the version of the complainant seems to be truthful. There may be reasons for not lodging FIR within shortest time but from the conduct of Sandeep Panna (PW-8) and the prosecutrix (PW-9) it seems that their version should have been examined with great care and caution as their version seems to be doubtful. If such a gruesome offence has been committed the conduct would be something different. The proseuctrix (PW-9) would have lodged 10 the report by next date when the Sandeep Panna (PW-8) lodged his report. 13. The version of the prosecutrix (PW-9) is also not corroborated from the medical evidence. Dr. Rozlin R. Ekka (PW-3) who has examined the prosecutrix (PW-9) has categorically stated that no external injuries were found in the private parts of the prosecutrix . The incident was said to be happened on 05.09.2015 and examination was conducted on 10.09.2015 though some healed abrasion were found in the back side of the prosecutrix as well as in the left hand some linear abrasion was found but that by itself was not sufficient and therefore, Dr. Rozlin R. Ekka (PW-3) who has conducted MLC has stated that the prosecutrix was habitual as such regarding recent intercourse she cannot give any opinion. 14. Seizure of articles i.e. paint tin (bakkal), handkerchief and button was also not proved from the evidence of seizure witness. It is true that so far as conviction in rape cases are concerned it can be based only upon the sole evidence of the prosecutrix but that can be relied upon only on the circumstance where the evidence of prosecutrix inspire confidence. 15. In the matter of Dola and ors. vs. State of Odisha reported in (2018) 18 SCC 695, the Hon’ble Supreme Court has held as under:- 11 “(i) the Trial Court as well as the High Court had convicted the appellants without considering the aforementioned factors in their proper perspective. The testimony of the victim is full of inconsistencies and does not find support from any other evidence whatsoever. Moreover, the evidence of the informant/victim is inconsistent and self-destructive at different places. It is noticeable that the medical record and the Doctor's evidence do not specify whether there were any signs of forcible sexual intercourse seems that the First Information Report was lodged with false allegations to extract revenge from the appellants, who had uncovered the theft of forest produce by the informant and her husband. The High Court had brushed aside the various inconsistencies pointed out by us only on the ground that the victim could not have deposed falsely before the Court. The High Court had proceeded on the basis of assumptions, conjectures and surmises, inasmuch as such assumptions are not corroborated by any reliable evidence. The medical evidence does not support the case of the prosecution relating to the offence of rape. Having regard to the totality of the material on record and on facts and circumstances of this case, it was not 12 possible for this Court to agree with the concurrent conclusions reached by the courts below.” 16. In the matter of Krishan Kumar Malik vs. State of Haryana reported in 2011 (7) SCC 130 in respect of the offence of gang rape under Section 376 (2) (g), IPC, it has been held as under:- “31. No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, which have already been projected hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the Appellant guilty of the said offences.” 17. In the case of State of Punjab vs. Gurmit Singh reported in (1996) 2 SCC 384, it has been held as under:- "If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration 13 required in the case of an accomplice. The testimony of the prosecutrix must be appreciated I the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations." 18. Similarly, in the matter of Sadashiv Ramrao Hadbe vs. State of Maharashtra and another reported in (2006) 10 SCC 92 the Hon’ble Supreme Court has held as under:- "It is true that in a rape case the Accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the Court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the Court shall not act on the solitary evidence of the prosecutrix." 19. Similarly, in the case of Ramdas and ors vs. State of Maharashtra reported in (2007) 2 SCC 170 it has been held as under:- "Conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the Court is convinced about the truthfulness 14 of the prosecutrix and there exist no circumstances which cast a shadow of doubt over her veracity." 20. The Hon’ble Supreme Court in the matter of Sham Singh vs. State of Haryana reported in (2018) 18 SCC 34 has held as under:- “It is also by now well settled that the courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual 15 assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seçking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. (See Ranjit Hazarika v. State of Assam reported in (1998) 8 SCC 635)”. 21. The Hon’ble Supreme Court in the matter of Phool Singh Vs. State of Madhya Pradesh reported in (2022) 2 SCC 74 has held as under:- “In Ganesan vs. State reported in (2020) 10 SCC 573 this Court has observed and held 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. In the aforesaid case, this Court had an occasion to consider the series of judgments of this Court on conviction on the sole 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 16 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. In State (NCT of Delhi) vs. Pankaj Chaudhary reported in (2019) 11 SCC 575 it is observed and held that as a general rule, if credible, conviction of the accused can be based on sole testimony, without corroboration. It is further observed and held that sole testimony of the prosecutrix should not be doubted by the court merely on basis of assumptions and surmises. In para 29, it is observed and held as under: (SCC p. 587) 17 "29. It is now well-settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence. [Vishnu v. State of Maharashtra]. It is well settled by a catena of decisions of this Court that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the "probabilities factor" does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. [State of Rajasthan v. N.Κ.]."” 22. From the aforesaid evidence the commission of gang rape against the prosecutrix is not proved. It is evident that the prosecution has failed to establish the commission of gang rape against the prosecutrix beyond reasonable doubt. The material contradictions and inconsistencies in the statements of the prosecutrix and other prosecution witnesses, coupled with the absence of corroborative medical or forensic evidence, have 18 created substantial doubt regarding the veracity of the allegations. Furthermore, the circumstances presented fail to demonstrate the involvement of multiple accused acting in concert to commit sexual assault as contemplated under the definition of gang rape. Consequently, in view of the deficiencies in the prosecution's case, it cannot be held that the charge of gang rape against the prosecutrix stands proved. 23. Now, it has to be seen whether the statement of the prosecutrix in this case is reliable and beyond doubt. 24. For the foregoing reasons and discussion, we are of the considered opinion that statement of prosecutrix (PW-9) is not corroborated by the medical evidence, satisfactory explanation could not be given for delay in lodging delay FIR. The version of the witness Sandeep Panna (PW-8) is also not trustworthy. 25. The Hon’ble Supreme Court has dealt the aforesaid aspect in which it has been categorically held that if the evidence of prosecutrix is inconsistent and doubtful the same cannot be considered for conviction of the appellants. 26. In that view of the matter, the finding so recorded by the trial Court is incorrect finding and is not based on the evidence available on record. 27. Accordingly, the impugned judgment of conviction and order of sentence dated 13.09.2019 is set aside. The appellants are 19 acquitted of the charges under Section 376 (D) of the IPC. They are stated to be in jail since 11.09.2015. All the appellants shall be forthwith set at liberty, unless they are required in connection with any other offence. 28. In the result, the appeal is allowed. 29. Let a certified copy of this judgment along-with the original record be transmitted to the trial Court and the concerned Superintendent of Jail be also supplied with a copy of this judgment for information and necessary action, if any, at the earliest. SD/- SD/- (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge Raghu Jat