1 CRA No. 635 of 2017 2025:CGHC:30889-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 635 of 2017 [Arising out of judgment dated 12.04.2017 passed in Sessions Trial No.50/2015 by the 1 st Additional Sessions Judge, Sakti, District Janjgir–Champa, Chhattisgarh.] 1. Sanjay Kashyap S/o Dinesh Kashyap, aged about 30 years; 2. Lakhan Prasad S/o Bhuvneshwar Prasad Namdeo, aged about 29 years; Both are R/o Jhoolkadam, Sakti, Police Station Sakti, District Janjgir Champa, Chhattisgarh. ... Appellants versus  State of Chhattisgarh, through S.H.O. Police Station – Sakti, District Janjgir Champa, Chhattisgarh. ... Respondent For Appellants :- Mr. Manoj Paranjpe, Advocate. For State-Respondent :- Mr. Afroz Khan, Panel Lawyer. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Deepak Kumar Tiwari Judgment On Board (07.07.2025) Sanjay K. Agrawal, J 1. Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the appellants herein ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.07.10 16:29:00 +0530 2 CRA No. 635 of 2017 namely Sanjay Kashyap (A-1) and Lakhan Prasad (A-2) is to the legality, validity and correctness of the judgment dated 12.04.2017 passed by the 1st Additional Sessions Judge, Sakti District Janjgir-Champa, Chhattisgarh, in Sessions Trial No. 50/2015, by which the appellants herein have been convicted and sentenced as under:- Sentence Conviction Under Section 120B of the IPC Life imprisonment and to pay a fine of ₹ 10,000/- each, in default of payment of fine, to further undergo RI for 6 months. Under Section 450 of the IPC Rigorous imprisonment for 5 years and to pay fine of ₹5,000/- each, in default of payment of fine, to further undergo RI for 3 months. Under Section 376D of the IPC Life imprisonment and to pay a fine of ₹ 10,000/- each, in default of payment of fine, to further undergo RI for 6 months. 3 CRA No. 635 of 2017 Prosecution Case :- 2. Factual matrix of the case, in brief, is that on 02.02.2014 at about 11:00 pm at Hospital Colony, Sakti, Police Station Sakti, District Janjgir–Champa, Chhattisgarh, when prosecutrix (PW-1) was sleeping in her house along with her daughter, co–accused Ramesh Sahu accompanied with the present appellants herein knocked the door of the house of PW–1 and when she opened the door, the appellants along with co–accused entered into the house of PW-1 and committed sexual intercourse against her wishes by saying her that they have been sent by her husband Achchheram Sahu, who is also a co–accused, for committing rape, thereafter they left her house. In the next morning, when husband of the prosecutrix Achchhe Ram Sahu, arrived at home, prosecutrix (PW-1) informed him about the incident, then her husband Achchheram Sahu said that the appellants were sent by him and also assaulted her with hand and fist. About the said incident PW-1 informed her brother (PW-3), thereafter, on 12.03.2014 PW-1 made a written complaint about the incident vide Ex.P/5 pursuant to which FIR was 4 CRA No. 635 of 2017 registered vide Ex.P/6, with a delay of 38 days. Prosecutrix (PW-1) was medically examined by Dr. Shweta Lal (PW-5) on 12.03.2014. As per the medical report of the prosecutrix (Ex.P/3, enclosed in paper book of connected criminal case of co–accused persons i.e. CRA Nos.1509 & 1558 of 2015) proved by Dr. Shweta Lal (PW-5), three external injuries (contusions were found on her eyes and also abrasion was found on her ring finger of right hand) were found over the body of the prosecutrix except that no injuries were found over her private part and also no internal injuries were found. As per the medical report of the prosecutrix, she was found habitual for sexual intercourse. Slides of the prosecutrix were prepared and sent for the chemical analysis to FSL, however, in the FSL report (Ex.P/22, enclosed in the paper book of the connected criminal case of the co-accused persons i.e. CRA Nos.1509 & 1558 of 2015) stains of semen and human sperm were not found. Wheels of investigation started running and the appellants were arrested. 3. After due investigation, appellants were charge-sheeted for the aforesaid offences and the case was committed to the 5 CRA No. 635 of 2017 Court of Sessions for trial in accordance with law. The appellants / accused persons abjured their guilt and entered into defence. 4. In order to bring home the offence, prosecution has examined as many as 8 witnesses and exhibited 24 documents, whereas, defence, in support of its case, has examined 2 witnesses and exhibited 2 documents. The statement of the appellants / accused persons were recorded under Section 313 of the CrPC in which they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication. 5. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellants / accused persons for the offences as mentioned in the opening paragraph of the judgment, against which the appeal has been preferred by the appellants herein questioning the impugned judgment of conviction and order of sentence. 6 CRA No. 635 of 2017 Submission of the Parties :- 6. Mr. Manoj Paranjpe, learned counsel for the appellants, would submit that the prosecution has not been able to bring home the offence beyond reasonable doubt. He would also submit that the trial Court has committed grave legal error in convicting the appellants for offence in question as there is inordinate delay of 38 days in lodging the FIR which has not been satisfactorily explained by the prosecution. He would further submit that the named FIR has not been registered against A-2. He would further submit that the medical evidence as well as the forensic evidence have not supported the case of the prosecution even there is contradiction in the statement of the prosecutrix. Hence, the conviction of the appellants for offence in question is liable to be set aside and they are entitled to be acquitted. 7. Mr. Afroz Khan, learned State counsel, would support the impugned judgment and submit that prosecution has been able to bring home the offence beyond reasonable doubt. He would also submit that the trial Court has rightly convicted the appellants for the aforesaid offences as the 7 CRA No. 635 of 2017 prosecutrix has supported the case of the prosecution. Therefore, the present appeal deserves to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records meticulously. Discussion & Analysis :- 9. Delay in lodging the written complaint & FIR :- As per the prosecution case, the appellants herein along with co– accused Ramesh Kumar and Achchheram Sahu involved in the conspiracy against the prosecutrix (PW-1), wife of Achccheram Sahu. On 02.02.2014, when co–accused Achchheram Sahu, was not at home, the appellants herein along with one co–accused Ramesh Kumar entered into the house of the prosecutrix and committed sexual intercourse against her wishes. However, it appears from the records that the written complaint was made by the prosecutrix on 12.03.2014 pursuant to which FIR was lodged, meaning thereby there is a delay of 38 days in lodging the FIR. The delay in lodging the FIR has not been satisfactorily explained by the prosecution. In the written complaint, the 8 CRA No. 635 of 2017 prosecutrix has stated that due to the criminal act of the appellants, she was not well for 8 to 10 days and in the FIR it has been stated by the prosecutrix that she was waiting of her brother (PW-3) and after coming of her brother, the FIR was lodged, however, PW-3 brother of the prosecutrix has not supported the case of the prosecution and declared hostile. In his (PW-3) statement before the Court he has stated that he did not know about the incident, though the prosecutrix (PW-1) in her statement before the Court has stated that she had informed her brother (PW-3) about the incident. As such, the delay of 38 days occurred in lodging the FIR has not been satisfactorily explained and even name of A-2 has not been mentioned in the written complaint and also no named FIR was lodged against A-2 and also to identify the accused, test identification parade was not conducted. Furthermore, the unexplained delay in lodging the FIR raises grave doubt regarding the truthfulness of allegations and delay in lodging the FIR often results in embellishment, which is a creature of an afterthought and on account of delay, FIR not only gets bereft of advantage 9 CRA No. 635 of 2017 of spontaneity, danger of coloured version or exaggerated story being introduced in FIR. [See:- Jai Prakash Singh v. State of Bihar and another 1 & Manoj Kumar Sharma and others v. State of Chhattisgarh and another 2 .] 10.Medical and Forensic evidences :- As per the medical report of the prosecutrix (Ex.P/3) proved by Dr. Shweta Lal (PW-5) dated 12.03.2014, external injuries (contusions on her eyes and abrasion on ring finger of right hand) found were opined to have been caused within seven days of her examination except that no external injuries were found over the private part of the victim as well as no internal injuries were found. Moreover, in the FSL report (Ex.P/22) on the slides of the prosecutrix stains of semen and human sperm were not found. As such, the external injuries which were found over the body of the prosecutrix might be occurred seven days prior to the examination and not on the date of incident. In view of the above, the medical as well as the forensic evidence are of no use to the prosecution. 1 (2012) 4 SCC 379 2 (2016) 9 SCC 1 10 CRA No. 635 of 2017 11.Statement of the prosecutrix :- To base the conviction of the appellants herein, the statement of the prosecutrix must be reliable and of sterling quality. By going through the statement of the prosecutrix, it appears that there are other government quarters next to her house, however, during the time of incident, she did not call for help and also not make any hue and cry and even she did not inform anyone about the incident in her neighbourhood, she simply went to sleep after the incident. As per her statement, on the date of incident her daughter was also sleeping with her and at the time of incident, the other two accused persons were standing near the room of her daughter, but she did not call for help and also did not raise alarm to save her daughter. However, it is pertinent to notice here that though the daughter of the prosecutrix was present on the date and time of offence in the house in question, but she has not been examined, who might be a best witnesses of the incident, for the reason best known to the prosecution. Furthermore, as per prosecutrix’s statement, she went to the police station after 15 days of the incident to report the matter, but the police did not 11 CRA No. 635 of 2017 register her report and on the next day i.e. after 16 days, on coming of her brother (PW-3), they went to report the matter to the police. However, as per the prosecution case, the date of incident in 02.02.2014 and the date of complaint and FIR is 12.03.2014, meaning thereby there is 38 days delay, but as per the statement of the prosecutrix, she lodged the FIR after 16 days of the incident and even otherwise, prosecutrix’s brother (PW-3) has not supported the case of the prosecution as in his statement before the Court he has clearly stated that he did not know about the incident. Moreover, the prosecutrix did not know the name of A-2, and no test identification parade was conducted by the police to identify the accused person. As such, there are contradictions in the statement of the prosecutrix and the same does not fall within the ambit “sterling witness”. 12.At this stage, it would be appropriate to notice the relevant decisions of the Supreme Court in this regard. 13.The Supreme Court in the matter of Rai Sandeep alias Deepu v. State (NCT of Delhi) 3 dealt with the facts of “sterling quality” which has been recently followed in the 3 (2012) 8 SCC 21 12 CRA No. 635 of 2017 matter of Nirmal Premkumar and another. v. State Rep. By Inspector of Police 4 . Their Lordships of the Supreme Court in the matter of Rai Sandeep alias Deepu (supra) have 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 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 evidence where there should not be any missing link in the chain of 4 2024 SCC OnLine 260 13 CRA No. 635 of 2017 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, 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.” 14.Similarly, in Krishan Kumar Malik v. State of Haryana 5 , the Supreme Court laid down that although the victims/solitary evidence in matters related to sexual offences is generally deemed sufficient to hold an accused guilty, the conviction cannot be sustained if the prosecutrix’s testimony is found unreliable and insufficient due to identified flaws and lacuna. It was held thus:- “31. 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. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, which have already been projected 5 2024 SCC OnLine SC 260 14 CRA No. 635 of 2017 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. 32. Indeed there are several significant variations in material facts in her Section 164 statement, Section 161 statement (CrPC), FIR and deposition in court. Thus, it was necessary to get her evidence corroborated independently, which they could have done either by examination of Raju, her sister or Bimla Devi, who were present in the house at the time of her alleged abduction. The record shows that Bimla Devi though cited as a witness was not examined and later given up by the public prosecutor on the ground that she has been won over by the appellant.” 15.Coming to the facts of the present case in light of the principles of law laid down by their Lordships of the Supreme Court in the above stated judgments, it is quite vivid that there is delay of 38 days in lodging the FIR which has not been satisfactorily explained by the prosecution and medical evidence and forensic evidence are of no use to the prosecution. Furthermore, there are contradictions in the statement of the prosecutrix and which cannot be solely relied upon as the statement of the prosecutrix does not reflect to be credible and the same does not fall within the ambit of “sterling witness”, and even no named FIR was lodged against Lakhan Prasad 15 CRA No. 635 of 2017 (A-2), therefore, on the basis of the statement of the prosecutrix, the appellants could not be convicted in absence of other corroborative piece of evidence and as such, the prosecution has failed to prove its case beyond reasonable doubt. Conclusion :- 16. In view of the aforesaid discussion and analysis, the impugned judgment of conviction and order of sentence dated 12.04.2017 passed by the trial Court, is hereby set aside and the appellants are entitled for acquittal on the basis of benefit of doubt. Appellants are stated to be on bail. They need not surrender. However, their bail bonds shall remain in operation for a period of six months as per provisions contained in Section 437-A of the CrPC. 17. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned forthwith for information and necessary action, if any. Sd/ Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge Ankit