2025:CGHC:2278 HIGH COURT OF CHHATTISGARH AT BILASPUR Cr. A. No. 325 of 2004 Umesh Singh Kanwar, S/o. Ramgadiya, aged about 24 Years, R/o Village Lasgi, Police Station – Lakhanpur, District : Surguja (C.G.) ------ Appellant Versus State of Chhattisgarh, Through : Surguja (C.G.) ---- Respondent For Appellant through legal Aid : Shri Shobhit Koshta, Advocate. For Respondent/State : Shri Ankur Kashyap, Dy. G.A. . Hon'ble Shri Justice Sachin Singh Rajput Judgement on Board 22/04/2025 1. Heard. 2. Challenge in this appeal has been filed by the appellant under section 374 (2) of the Code of Criminal Procedure, 1973 (for short CrPC) is to the judgment dated 16/03/2004 passed by the II Additional Sessions Judge, Ambikapur, District – Surguja (C.G.) in Session Case No. 390/99. 3. By the impugned judgment, the appellant has been convicted and sentenced in the following manner:- Conviction Sentence Under Section 366 of Indian Penal Code, 1860 Rigorous Imprisonment of 07 years and fine of Rs.500/- in default of payment of fine 01 year Additional R.I. Under Section 376 of Indian Penal Code, 1860 Rigorous Imprisonment of 07 years and fine of Rs. 500/- in default of payment of fine 01 year Additional R.I. 4. Case of the prosecution, in nutshell, is that, on the date of incident i.e. ASHISH TIWARI Digitally signed by ASHISH TIWARI Date: 2025.06.26 09:56:21 +0530 -2- 04/08/1999 at about 05:00 PM, complainant / prosecutrix (PW-9), his father (PW-1) and her friend Kaushalya Bai (PW - 12) were returning to her home from Lakhanpur Bazaar to Village – Rajpuri. At the same time, near B.E.O. office, Lakhanpur, the appellant came and stopped there on motorcycle and asked prosecutrix and her friend Kaushlaya Bai to drop them to their Village by motorcycle. Thereafter prosecutrix and her friend Kaushalya Bai sat on the motorcycle. On reaching Village – Rajpur, accused - Umesh did not de-board them. On being asked to de-board, the appellant did not stop the motorcycle neither de-boarded them. The appellant jerked his motorcycle as a result Kaushalya Bai fell down and thereafter the appellant took the prosecutrix to Village – Patharatoli where the appellant kept the prosecutrix in his house and committed sexual intercourse twice in the night. On the next day he asked his maternal uncle Nanda to drop the prosecutrix to her home. Thereafter, on the next day Nanda took her to Village – Salwa, there in the night Nanda also committed sexual intercourse. Thereafter, Nanda took the prosecutrix to Village - Damali and there also he committed sexual intercourse. On 07/08/1999, Nanda took her to Village – Losagi where the father of the prosecutrix came in search of her and the incident was told by her to her father and thereafter on 08/08/1999 a report was lodge by the prosecutrix in Police Station – Lakhanpur against the appellant and Nanda vide Ex.P/10. The medical examination of the prosecutrix was conducted. Statement of the witnesses were recorded and after completion of the investigation, the charge-sheet was filed by Police Station - Lakhanpur under sections 366, 376 (2) (g) / 34 IPC by the Police before the Chief Judicial Magistrate, Ambikapur wherein other accused – Nanda was shown absconding. The case was committed to the learned Sessions Court who made over the case to trial Court for trial. The appellant was charge for committing an offence under sections 366 and 376 (1) of the IPC who denied the charge and claimed to be tried. 5. To establish it’s case prosecution examined 14 witnesses and exhibited as many as 17 documents. Statement of the accused/appellant under section 313 of the -3- Cr.P.C. was recorded in which he pleads his innocence and false implication. 6. Learned trial Court on the basis of material available on record and on due assessment of evidence, found the appellant guilty of commission of offences under section 366 and 376(1) IPC, and sentenced and convicted him as stated above in third paragraph of this judgment, which led to filing of this appeal. 7. Learned Counsel for the appellant submits that the prosecutrix was aged about more than 18 years at the time of commission of the offence. He submits that the statement of the prosecutrix does not inspire confidence; is not credible and suffers from majority of contradiction and omission. He further submits that the allegation against the appellant is that the he took the prosecutrix on the motorcycle and thereafter committed sexual intercourse upon her twice in the night. Thereafter, the case of the prosecution is that the prosecutrix was left with Nanda for dropping her to her Village. The case of the prosecution further reflects that the co-accused - Nanda also committed forcibly sexual intercourse on the prosecutrix. The prosecutrix though in her examination-in-chief stated that she was subjected to forcibly intercourse but in it’s entirety, it appears to be a case of consent. The prosecutrix in her cross-examination had stated that accused – Nanda has not committed anything. The FIR (vide Ex.P/10) was lodged against both the accused person with allegation of sexual intercourse but the prosecutrix has not leveled any allegation against the accused – Nanda which goes to show that the prosecutrix is not a witness who could be termed as sterling witness. Apart from this he submits that the medical evidence does not support the case of the prosecution. The Doctor (PW-8) has not given a definite opinion with regard to sexual intercourse on the prosecutrix. Though the case of the prosecution is that the appellant while taking the prosecutrix and her friend on the motorcycle and on the way he drove the motorcycle in a manner that her friend has fallen down but the statement of her friend - Kaushalya Bai (PW – 12) clearly indicates that the she dropped down from the motorcycle and thereafter the prosecutrix voluntary went along-with the appellant. He further submits that from the statement of the prosecutrix and other witnesses it is quite vivid on the -4- record that the prosecutrix was never under any confinement and she was all free to run away or to raise an alarm, if she was taken forcibly by the appellant. He submits that though conviction can sustain on the solicitory statement of the prosecutrix, as submitted earlier that the statement of the prosecutrix from very beginning till end should be impeccable, credible, beyond any doubt and could be termed as sterling witness. But in the case in hand, the prosecutrix has given different statement on different thing and from her statement it can safely be gathered that she was a consenting party. It is quite vivid that as per allegation of the prosecution the appellant committed sexual intercourse in the night twice. However, the allegation against the Nanda was of committing sexual intercourse with the prosecutrix for two days. Though Nanda was shown absconding later on he is acquitted by the trial Court vide it’s judgment dated 13/09/2018 under sections 366 and 376(1) I.P.C. Therefore, he submits that as the statement of the prosecutrix alone cannot be a basis to convict the appellant, the appeal deserves to be allowed. He further submits that the case of the prosecutrix itself is that while the prosecutrix her father and friend was returning from the Bazaar, the appellant asked the prosecutrix and her friend to drop them to their house and in presence of the father, the prosecutrix along-with her friend had gone with the appellant. The prosecutrix remained with the appellant and co-accused – Nanda for three days and for this period, no missing report was lodged by the father of the prosecutrix. Therefore, in the above light the prosecution has not proved it’s case beyond reasonable doubt. To buttress his submissions, he placed reliance upon the judgment of Hon’ble Supreme Court in case of Santosh Prasad alias Santosh Kumar Vs. State of Bihar reported in (2020) 3 SCC 443 and S. Varadarajan Vs. State of Madras reported in 1964 SCC Online SC 36. 8. Per contra learned counsel for the respondent submits that the prosecutrix in her deposition before the Court has categorically leveled allegation of sexual intercourse against the appellant. Prosecutrix was minor and the learned trial Court on due appreciation of evidence, convicted the appellant. The meritorious finding recorded by the trial Court cannot be found fault with, appeal has no merit -5- and liable to be dismissed. 9. I have heard the learned counsel for the parties at length and also gone through the record with rapt attention. 10. The law with regard to the conviction under sections 376 of the IPC on the solitary statement of the prosecutrix is no longer res-integra in light of law laid down by the Supreme Court in case of Santosh Prasad alias Santosh Kumar (Supra). But the rider is that the statement of the prosecutrix must be credible, impeccable and beyond any shadow of doubts and to term the prosecutrix as a sterling witness. In light of the above, this Court has to examine the statement of the prosecutrix (PW-9) with great care and caution. Prosecutrix in her examination-in-Chief stated that she knows the appellant, he drives a tractor and used to come to her Village. She further deposed that she was coming back from the Lakhanpur Bazaar along-with her father and was going to her house at Village – Rajpuri. At that time she was not married and a sister in her relation was with her. At about 04:00 PM as they reached Village – Kewara another person came there in motorcycle and after seeing them stopped there and offerred her to drop to Village -Rajpuri on motorcycle. They denied the offer and told to go by foot, however her father asked them to go on motorcycle. Thereafter, appellant, Kaushalya Bai and prosecutrix sat on the motorcycle. She further deposed that the appellant did not take her to Village – Rajpuri, however took them to Village – Puhputra when they were asking the appellant to stop the motorcycle he did not stop it rather driving it fast. Her friend Kaushalya Bai jumped from motorcycle. Thereafter, appellant kept her in a house of another person in Pataratoli. It is further stated by her that he committed sexual intercourse with her. The appellant became unconscious after consumption a liquor and slept after he wake up he went to maternal uncle house to bring food but instead of bringing food he again came intoxicated, he also brought one boy and then also drank liquor by that time it was dawn. Maternal uncle asked the appellant to drop the prosecutrix. She says about Nanda that she was dropped on bicycle by Nanda. She further stated that Nanda dropped her on the bicycle -6- on the half way and after that took her on feet to his home. Thereafter, she informed her elder sister – Sunita and asked Nanda to drop her to her sister’s place. Thereafter, Nanda took her to her sister place when her father came to know that she is with her sister, he came to take her and thereafter a report was lodged. The Police lodged the FIR (Ex. P/10), she further stated that she was taken to Ambikapur, Hospital for medical examination and under garments and peticoats were seized vide Ex.P/2. The examination-in-Chief of this witness goes to shows that she sat along-with her friend – Kaushalya Bai on the motorcycle of the appellant and on the way motorcycle was driven rashly and her friend Kaushalya Bai (PW-12) jumped down from the motorcycle but she could not jumped down as her cloth were roped with the appellant. Thereafter, she was taken to a Village - Patharatoli where the appellant committed sexual intercourse. Thereafter, she was taken by Nanda to her sister’s place and her father picked up from there and report was lodged. This witness was subjected to cross-examined. She admits that at the place of incident people were coming and going down being a day of bazaar. She also admits that she has little acquaintance with the appellant and therefore she agreed to go with him. She further admits that when the appellant was taking her towards Village - Puhputra they did not raise any alarm, however she states that she asked Umesh that she was not willing to go to Village – Puhputra. She denied the suggestion that Nanda has also committed any sexual intercourse. She herself stated that Nanda did nothing with her. She admits that Umesh took her inside the house and they sat on the same ‘Veranda’ where she asked the Umesh to drop her to home. Thereafter, the Umesh threatened her to assault. She further stated that the Umesh kept her on the ‘Veranda’, thereafter on the floor removed her cloth at that time she shouted. However, the family members were intoxicated by Umesh. She did not raise much alarm but her family members were knowing of her presence. The family members were sleeping under intoxication and therefore on being shouted, they did not come. She further stated that when the Umesh was performing the bad work she was laying down and did not scratch in the -7- body or shirt of the appellant. She has also stated that she tore his shirt and whenever she used to shout, she was gagged by Umesh. She admits that at the time of bad work, both her hands were free. She sustains some injuries in the back, no injury was sustained by her in the waist. She further stated that Nanda kept her for 02-03 days and denied the suggestions that Nanda belong to her Caste, therefore she wants to save her. She herself stated that Nanda has not done any bad work with him. She also stated that Nanda did not sleep with her. She used to sleep separately in different room. She admits that when she lodged the report she was already married. She admits that she used to live for 10-15 days with her husband and thereafter used to return to her father’s house and about a year back, from the date of incident she has not gone to her matrimonial home and stayed with her father. She denied the suggestion that she used to go to labor with appellant in the tractor. She also denied that she is wondering around here and there, therefore, her husband does not keep her. She herself stated that she herself had not gone to him. She admits that her husband is habitual drinker. Therefore, she used to come to her father’s house, she denied the suggestion that she has falsely implicated the appellant. 11. From the perusal of the statement of this witness, the facts which are emerging that when she was taken in the house at Village – Puhputra others family members were also there. Though the prosecutrix states that she used to raise alarm but she was gagged by the appellant, it also appears that she did not resist at the time of commission of sexual inter-course, the prosecutrix is saying that the family members were put took to intoxication by the appellant therefore no body came. She does not level allegation against the Nanda and according to this witness, she stayed with Nanda for 02-03 days, however both of them were sleeping separately. At the time of commission of offence she has already married but not residing with her husband. She also admits that her husband was a drunker, therefore she, herself is not willing to live with him. 12. The Kaushalya Bai, friend / sister of the appellant has been examined as PW - 10. In her deposition before the Court she admits that she does not know the -8- appellant and she does not remember in whose motorcycle she went on the date of incident. She further states that she is not aware of the date of incident. She some how supports the version that she along with the prosecutrix sat on a motorcycle but she failed to identify the person. She further stated in the paragraph – 4 that they sat on the motorcycle and when they reached to her house, she asked them to drop but both of them were taken to Village – Puhputra. Near canal of Village – Puhputra she was dropped. Thereafter, where the person and the prosecutrix have gone and she is not aware of it. She further deposed that she got down from the motorcycle, many motorcycle and commuters were there and thereafter this witness also does not disclose the name of the appellant or identifies the appellant. 13. FIR was lodged on 08/08/1999, against the present appellant and the other accused – Nanda. Recital of which indicates that the allegation of sexual intercourse made against both the person. The statement of Dr. Pratibha Rahul Jain (PW-11) who medically examined the prosecutrix deposed that there was no injury on the person and private part. She further deposed that no definite opinion can be given for recent sexual intercourse and gave her report as Ex.P/12. 14. From the analysis of the above evidence, the fact which emerges from the record is that the prosecutrix and her sister voluntary sat on the motorcycle while they was instead of taking them to Village – Rajpuri, the appellant put them to the Village – Puhputra. On the way, the friend of the prosecutrix Kaushalya Bai (PW – 10) was dropped near the canal where commuters and villagers are passing through. The prosecutrix on one hand says that the motorcycle was driven fast and the Kaushalya Bai (PW – 10) jump from it, however she could not jump as she was roped with the cloth whereas the statement of Kaushalya Bai (PW-10) is otherwise. Thereafter, she was taken to one house where the family members were also there, where she was subjected to sexual intercourse. Though she did not raise much alarm and did not resist course of sexual intercourse. Thereafter, Nanda took her to house where she stayed for 02-03 days and no allegation was -9- leveled against Nanda though her name finds place in the FIR. It is also reflected that the prosecutrix was a married lady and she is not residing with her husband regularly and for the last one year from the date of incident she is residing with her father. The medical evidence does not support the case of the prosecution. Hon’ble Supreme Court in case of Rai Sandeep @ Deepu vs State Of Nct Of Delhi, (2012) 08 SCC 21 in paragraph 22 is observed as under:- “22. In our considered opinion, the "sterling witness" should be of a very bioh 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 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 -10- 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.” 15. As analyzed earlier, the different version is being protrayed by the prosecutrix with regard to the manner that the incident has occurred. A serious allegation was leveled by her against Nanda but she has given a go by to him and the entire allegation was put against the appellant. She had all ample of opportunity to run while she was been taken to make an alarm and raise hue and cry when people were passing by, but she does not raise any alarm. She was kept in the house, the other family members were also present but from an statement it does not appear that the prosecutrix raised a serious alarm invite the attention of the family members. Thereafter, she was left with Nanda and report was lodged. 16. Considering the material evidence available on record and on analysis of fact and circumstance evidence coupled with the medical evidence and statement of Kaushalya Bai (PW-10), this Court is of the considered view that the prosecutrix statement cannot inspire confidence to convict the appellant. She cannot be termed as sterling witness in light of the judgment quoted above. Therefore, the appeal deserve to be and is hereby allowed. The impugned judgment is set aside. The appellant is acquitted from all charges. 17. Since the appellant is reported to be on bail, his bail bond shall remain in force for a period of six months from today in view of the provision of Section 481 of BNSS. 18. The record be sent back to the trial Court along with a copy of this judgment for information and necessary compliance. -Sd/- (Sachin Singh Rajput) Judge Ashish