1 2025:CGHC:57980 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 556 of 2005 1 - Jitendra Kumar Naurang, S/o Santu @ Santosh Naurang, Aged About 18 Years, R/o village Kurud P.S. Palari, Distt. Raipur (CG). ... Appellant versus 1 - State Of Chhattisgarh, Through Station House Officer, Police Station Pallari, District Raipur (CG). ... Respondent (Cause title taken from Case Information System) For Appellant : Mr. Anjay Mishra, Advocate appears on behalf of Mr. Vivek Rathore, Advocate For Respondent / State : Mr. Shailesh K. Puriya, Panel Lawyer. Hon'ble Shri Justice Naresh Kumar Chandravanshi Judgment on Board 28/11/2025 1. Heard. 2. This criminal appeal has been preferred by appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (for brevity ‘Cr.P.C.’) challenging the judgment of conviction and order of sentence dated 02.07.2005 passed by the learned Second Upper Sessions Judge, Baloda Bazar, Chhattisgarh (henceforth referred to as ‘trial Court) in Sessions RUKHSAR BANO Digitally signed by RUKHSAR BANO Date: 2025.12.04 13:16:55 +0530 2 Case No.370/2004, whereby the appellant / accused has been convicted for the offence punishable under Section 376 of the Indian Penal Code, 1860 (for short “IPC”) and sentenced to undergo RI for 7 years with fine of Rs.500/- and in default of payment of fine, 6 months’ additional RI. 3. The Case of the prosecution, in brief, is that on 09.09.2004 at about 11.00 am, while the victim (PW-1) was pouring water on the vegetables in her kitchen-garden (Badi / Bayara), the appellant arrived there, took her to heap of straw, threw her beside it and committed rape upon her. After the incident, the victim informed her sister and other relatives, based on which, an un-numbered FIR (Ex.P-16) was lodged by her against appellant for the offence under Section 376 of the IPC at Police Outpost Gidhpuri, Police Station Palari. During the course of investigation, the victim was medically examined by Dr. Sunaina Behra (PW-4), in which, vide MLC report (Ex.P-4), she did not find any visible injury on the person of victim, hence, she could not opine that rape was committed with her or not. However, she prepared vaginal slides of the victim and handed over the same along with victim’s petticoat to the concerned police station for FSL examination. On the same day i.e. 10.09.2004, the appellant/accused was also medically examined by Dr. B.S. Dhruw (PW-9), who opined vide MLC report (Ex. P-10) that the report of appellant is positive. Statements of witnesses under Section 161 of the Cr.P.C. were recorded. A numbered FIR was registered in police station Palari against appellant. Saree & petticoat of the victim were seized vide seizure memo Ex.P-1, spot maps (Ex.P-3 & Ex. P-9) were prepared by the police and patwari respectively, underwear and pubic hair of the appellant were seized vide seizure memo Ex.P-6 & Ex.P-12 respectively. Vaginal slides and pubic hair of the victim were seized vide seizure memo Ex.P-13, the appellant was arrested. FSL 3 report (Ex.P-22) pertaining to the vaginal slides, pubic hair and petticoat of the victim, and underwear and pubic hair of the appellant was obtained, in which, semen and human spermatozoa have been reported to be found in the petticoat (Article ‘A’) and vaginal slides (Article ‘B1’ & ‘B2’) of victim. After completion of the investigation, a charge sheet for the offence punishable under Section 376 of the IPC was filed against the appellant before the Judicial Magistrate First Class, Baloda Bazar, who committed the case to the Sessions Judge, Raipur, thereafter, it was transferred for trial to the Upper Sessions Judge, Baloda Bazar, who conducted trial. 4. Learned Second Upper Sessions Judge framed charge under Section 376 (1) of the IPC against appellant, who abjured the guilt and entered into trial. 5. So as to bring home the charge, the prosecution examined as many as 13 witnesses and exhibited 22 documents, statement of the appellant/ accused under Section 313 of the Cr.P.C. was recorded, in which, he denied all the incriminating circumstances appearing against him in the prosecution’s evidence claiming himself to be innocent and false implication. The appellant has not examined any witness in his defence. 6. After considering the evidence brought by the prosecution, learned trial Court vide judgment dated 02.07.2005 convicted and sentenced the appellant, as mentioned in opening paragraph of this judgment. Being aggrieved, the appellant has preferred instant appeal. 7. Learned counsel appearing for the appellant / accused would submit that the victim was a married lady aged about 34 years at the time of the incident. She herself admitted that her first husband had left her alleging her character, and thereafter, she developed a physical relation with her brother-in-law (Jija). Subsequently, the said brother-in-law kept her as his 4 second wife and she has delivered three children from this relationship. She has further admitted that apart from her brother-in-law (Jija), she had also developed physical relations with other persons. He would further submit that during the alleged incident, the victim did not raise any alarm to protect herself nor did she resist nor apply force against the appellant. Although she has stated that she had sustained various injuries in the said incident but her statement does not get support from deposition of Dr. Smt. Sunaina Behra (PW-4). He next submitted that it was a consensual relation but since it was seen by some person namely son of Manglu, therefore, alleged incident revealed and the FIR was lodged by her under pressure of her second husband (PW-3). However, without considering the aforesaid evidence, learned trial Court has mechanically convicted and sentenced the appellant, which is completely perverse to the evidence available on record. Hence, he prays that this appeal may be allowed the appellant be acquitted of the said charge. 8. Per contra, learned State counsel supported the impugned judgment. 9. I have heard learned counsel for the parties and perused the material available on record along with record of the trial Court. 10. In instant case, the prosecution has examined 13 witnesses, out of which, PW-1 is victim, PW-2 is her elder sister, PW-3 is husband of PW-2. Other independent witnesses are witnesses to the seizure and members of meeting allegedly held after the incident. 11. Victim (PW-1) has stated in her deposition that while she was pouring water in her kitchen-garden (Badi / Bayara), the appellant arrived there and raped her by gagging her mouth with his scarf (गम). Her sister (PW- 2) and brother-in-law (PW-3) are witnesses to whom she told about the incident, thus they are hearsay witnesses. 5 12. As per the deposition of Latel (PW-5), Nandu (PW-6) and Bhuneshwar (PW-7), the meeting was convened after alleged incident, in which, the victim informed about the said incident to them. Thus, these witnesses are also hearsay witnesses. 13. Victim (PW-1) has stated in her cross-examination that on account of the said incident, she had sustained various injuries. However, Dr. Sunaina Behra (PW-4), who examined the victim and prepared the MLC report (Ex.P-4), has clearly stated in her deposition that she did not find any visible injury on the person of victim. She has further opined that since victim was brought for medical examination after 28 hours of the incident and no visible injury was found on her body, therefore, she could not give any opinion whether the rape was committed upon victim or not. Thus, the claim of sustaining injuries during the incident does not get support from medical evidence. 14. Though in FSL report (Ex. P-22), semen and human spermatozoa have been reported to be found on petticoat and vaginal slides of victim, i.e., Articles A, B1 & B2, but victim was a married lady and was residing along with her brother-in-law (Jija) (PW-3) as his second wife. The MLC of victim was conducted after 28 hours of the incident, therefore, in absence of other material evidence, the FSL report cannot be considered sufficient to convict the appellant. 15. From perusal of deposition of victim, it is found that residential houses and Badi / Byara of various other persons were also situated near the place of the incident and several people were also present nearby but the victim neither screamed to protect herself nor resisted to the alleged act committed by the appellant. She had also admitted in her cross- examination that after physical relation with appellant/accused, she 6 washed her clothes and also took a bath on being asked by appellant. She has further stated in her cross-examination that said act had been seen by the son of Manglu. All these facts show that the relationship was consensual, but the FIR was lodged because the son of Manglu had seen the incident. 16. In the case of Raju Vs. State of MP [(2008) 15 SCC 133], the Hon’ble Supreme Court has held in para 11 as under :- “11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration. 17. In the matter of Krishan Kumar Malik Vs. State of Haryana [(2011) 7 SCC 130], the Hon’ble Supreme Court has held that no doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. 7 18. Further, in the case of Rai Sandeep v. State (NCT of Delhi), [(2012) 8 SCC 21], the Hon’ble Supreme Court had an occasion to consider who can be said to be a “sterling witness”. In para 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 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 8 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 for holding the offender guilty of the charge alleged.” 19. With the aforesaid decisions in mind, it is required to be considered, whether is it safe to convict the accused solely on the solitary evidence of the prosecutrix? Whether the evidence of the prosecutrix inspires confidence and appears to be absolutely trustworthy, unblemished and is of sterling quality ? 20. Coming to the facts of instant case, the victim (PW-1) has stated in her 9 deposition that, when she was alone in her house and was pouring water on the vegetables in her kitchen-garden (Badi / Bayara), the appellant arrived there, took her to heap of straw, threw her beside it and committed rape upon her. After the incident, the victim informed her sister and other relatives. Aforesaid fact has also been supported by her sister (PW-2) and her brother-in-law (PW-3). 21. If any forceful physical relation would have been made with any victim by a person, then the victim would have made some effort to protect herself by applying force upon the person and in such situation, she would have sustained at least some visible injury, but neither the victim (PW-1) has deposed in her deposition that she had made any effort to protect herself nor Dr. Sunaina Behra (PW-4), who examined the victim and prepared the MLC report (Ex.P-4), has stated that, any visible injury was seen on the body of the victim, rather in paragraph 15 of the cross- examination, she has admitted that she did not resist the appellant at the time of alleged offence. It is also apt to be noted here that, if such offence of rape would have been committed with the victim (PW-1), then any independent witness in this regard would have been examined by the prosecution, as residential houses and Badi / Byara of various other persons were also situated near the place of the incident and several people were also present nearby. 22. Having considered the aforesaid facts in the light of aforecited case laws, it is found that judgment of conviction of the appellant for the offence under Section 376 of the IPC is completely perverse to the evidence available on record, hence, it is not found to be sustainable. 23. In view of the above discussion, the criminal appeal is allowed. Conviction and sentence imposed upon the appellant/accused by the 10 impugned judgment under Section 376 of the IPC are set aside and he is acquitted of the said charge. 24. The appellant is said to be on bail. The bail bonds furnished by the appellant shall remain in operation for a further period of 6 months from today in view of the provisions contained under Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023. 25. Record of the concerned Court below along with a copy of this judgment be sent back forthwith for compliance and needful, if any. Sd/- (Naresh Kumar Chandravanshi) JUDGE Rukhsar