1 2025:CGHC:16602 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 963 of 2020 Deepak Bhoi S/o Lt. Shri Ragumadi Bhoi Aged About 24 Years R/o Janta Colony, Dr. Rajendra Nagar P.S. Civil Line District Raipur Chhattisgarh. --- Appellant(s) versus State Of Chhattisgarh Through District Magistrate Raipur Chhattisgarh --- Respondent(s) CRA No. 616 of 2022 Vishal Rao S/o Shri Kashi Rao Aged About 19 Years R/o Rameshwar Nagar, Pragati Vidyalaya, House Of Ganesh Rao, P.S. Khamtarai, District Raipur (Chhattisgarh) ---Appellant(s) Versus State Of Chhattisgarh Through District Magistrate Raipur (Chhattisgarh) --- Respondent(s) CRA No. 970 of 2020 Mohit Patel S/o Umesh Patel Aged About 19 Years R/o Rameshwar Nagar, Near Pragati School (Near Pragati Vidyalaya), P.S. Khamtarai Distt. Raipur, Chhattisgarh ---Appellant(s) 2 Versus State Of Chhattisgarh Through District Magistrate Raipur, Chhattisgarh --- Respondent(s) For Appellants (s) : Shri Pragalbh Sharma, Advocate For Respondent/State : Shri Jitendra Shrivastava, GA (Hon’ble Shri Justice Arvind Kumar Verma) Judgment on Board 08/04/2025 As the above three appeals arise out of the judgment and order dated 23.11.2020 passed by the Second Additional Sessions Judge, Second FTSC Raipur in Special Criminal (POCSO) Case No. 170/2018 convicting the accused/appellants under Section 363/34 and sentencing each of them to undergo RI for three years with fine of Rs. 2,000/- with default stipulation, they are being disposed of by this common judgment. 2. Brief facts of the case are that on 05.08.2018, at about 9.15 p.m. mother of the injured lodged FIR at police station Devendra Nagar, alleging that she along with her daughter aged about 14 years and husband, had gone to celebrate Friendship Day with her friend. Thereafter the victim went along with her friends to Centre Mall, Pandri and she stayed in the house of her friend. However, except victim and one of her friend, others returned home. When the victim did not return, her mother/complaint searched and on not being found, she lodged a missing report of abduction against unknown person. On the next day ie. 06.08.2018, in the morning the victim and her friend were recovered 3 from police station Devendra Nagar. The victim has alleged that on the said date, after celebrating friendship day, she went with her friend to Marine Drive, Telibandha and from there to New Rajendra Nagar to the house of one Madam where they slept in the ngiht and in the morning at about 7.15 am she came home at Urkura and thereafter, father of the victim took them to the police station. Statement was recorded by the Child Welfare committee in which they have stated that her friends and accused Mohit and Vishal were instagram friends and they went with them to the marine Drive where the police caught the motorcycle and they went along with one of the friend of accused Deepak and stayed there and in the morning after taking breakfast, they left her friend. After taking consent from the parents of the prosecutrix, she was medially examined and her birth certificate was seized. The mobile phone of the accused persons were seized. The appellants were arrested and appellants Mohit and Vishal were medically examined. Statements of the victim and her friend were recorded. After completition of investigation, charge sheet was filed before the Speil Judge. The accused abjured the guilt and entered into defence. 3. In order to bring home the ofence, the prosecution examined as many as 10 witnesses. Statements of the accused/appellants were recorded under Section 313 of the CrPC in which they denied guilt. 4. The Special Judge upon appreciation of oral and documentary evidence available on record and relying upon testimony of the prosecutrix (PW-3), by the impugned judgment dated 23.11.2020, convicted and sentenced the appellants as mentioned in opening paragraph of this judgment. Hence, these appeals. 4 5. Learned counsel for the appellants submit that the trial Court has failed to appreciate that the case of the prosecution is per se unbelievable, incredible and illogical. The statement of the prosecutrix (PW-3) would disclose that she is not a “sterling witness” or of a very high quality caliber, whose version should therefore be assailable enough for convict on her sole testimony. He submits that the prosecutrix has narrated different incidents on both the statements which was recorded during the investigation, which is evident from Ex.P-1 recorded on 6.8.2018, a day after the alleged date of incident, wherein she has not disclosed that any ofence was committed against her by the accused/appellants and no any incriminating statement has been given against anyone, under which the appellants can be held guilt of ofences they are convicted with. Therefore, the finding recorded by the learned trial Court is highly erroneous and unsustainable. It is submitted that the prosecutrix in her statement has stated that she had gone along with her friend voluntarily, therefore, offence under Sections 363 of the IPC is not attracted. The prosecution has not brought anything on record to establish the age of the victim at the time of incident. Medical evidence is also doubtful because as per medical examination report (Ex.P-1), there was no sign of injuries found on the body of the victim in her private parts. As such, the appeals deserve to be allowed and the impugned judgment deserves to be set aside. 6. On the other hand, learned State counsel appearing for the respondent/State, would support the impugned judgment and submit that statement of the prosecutrix (PW-3) is wholly reliable and trustworthy and her testimony inspires confidence. He further submits 5 that the prosecution has proved its case beyond reasonable doubt and the trial Court has rightly convicted and sentenced the appellants which warrants no interference by this Court. 7. We have heard learned appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 8. As regards the complicity of the appellants in crime in question, conviction of the appellants is based on the evidence of the prosecutrix (PW-3). In para 2 of her evidence, she has stated that she was with her classmate. Her age is around 13-14 years, date of incident is 05.08.2018. On that day, a birthday party was organized by her at City Center Pandari. On the date of incident, victim went to the house of her friend Ishita along with her mother on the and from there they had gone to City Center Pandari and thereafter, the appellants came there and the victim along with her friend Ishita went with the accused Mohit and Vishal to Marine Drive where the police intercepted and seized the motorcycle at about 11.30 pm. then the appellants took them to Rajendra Nagar in a marriage party from where they went to the house of Deepak and then to another house of Deepak where they stayed in the night and in the morning they dropped the victim and her friend to their house. 9. Dr. Snehlata Singh (PW-1) Medical Officer at District Hospital, Raipur has stated that she has medically examined the victim and gave her report Ex.P-1 wherein she has opined that sexual intercourse might have been done and which can be confirmed after chemical analysis. 6 Ishita (PW-2) classmate of the victim has stated that on the date of incident, they met the accused in the City Centre Mall, Pandri and she was introduced by the victim with the accused persons. Thereafter they went along with accused Mohit and Vishal to Marine Drive. She has also given similar statement to that of the victim (PW-3). Mother of the victim (PW-4) has stated that the date of birth of the victim is 04.08.2004 and the date of incident is 05.08.2018. She has stated that on the date of incident, she went along with her daughter to her friends house and from there the victim along her friend went to City Centre Mall, Pandri for celebrating Friendship Day and when they did not return in the evening, they tried to contact them but they were not having phone and at about 10.00 pm, they lodged the report at police station Devendra Nagar. Father of the prosecutrix (Pw-5) has stated that on the date of incident, he received a call from Ishita to drop his daughter near the Sari Centre from where she will pick up and when in the evening till 7.30 pm, he did not receive any call, he contacted his wife and she has also stated that the victim and Ishita are not responding. On the next day, at about 3.00 am they again went to police station and found the victim and her friend there. Vijay Panjwani (PW-6) has stated that on the date of incident, the victim came along with her mother and thereafter went to celebrate friendship day at City Centre Mall, Pandri, Therefter they waited till 7.7.30 pm and when they did not return, search was made and at about 10-10.30 pm, report was lodged. 10. The first and foremost contention of learned counsel for the appellants was that merely because the matter relates to sexual 7 assault on a minor, the appellants cannot be mechanically held guilty. Unless the legal test and requisite evidence is available, the appellants cannot be held guilty on the basis of sensitivity of matter alone. 11. The probability factor is certainly important and it is not safe to accept the statement of victim alone as a gospel truth, unless her statement is of ‘sterling quality’. 12. The Supreme Court in the matter of Rai Sandeep alias Deenu v. State (NCT of Delhi), 2012 (8) SCC 21 held as under:- 2. In our considered opinion, the ‘sterling witness’ should be of a very high quality and caliber 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 ofence committed, the scientific evidence and the expert opinion. The said version should consistently match with the 8 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 ofence alleged against him. Only if the version of such a witness qualities the above test as well as all other similar such tests to be applied, it can 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 ofence to rely on the core version to sieve the other supporting materials for holding the ofender guilty of the charge alleged.” 13. In Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130, the Supreme Court laid down that although the victim's solitary evidence in matters related to sexual ofences is generally deemed sufficient to hold an accused guilty, the conviction cannot be sustained if the prosecutrix' testimony is found unreliable and insufficient due to identified laws and lacunae. It was held thus: “31. No doubt, it is true that to hold an accused guilty for commission of an ofence 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 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 ofences. 9 32. Indeed there are several significant variations in material facts in her Section 164 statement, and deposition in court. Thus, it was necessary to get her evidence corroborated independently, which they could have done either by examination of Ritu, 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.” 14. What flows from the aforesaid decisions is that in cases where witnesses are neither wholly reliable nor wholly unreliable, the Court should strive to find out the true genesis of the incident. The Court can rely on the victim as a “sterling witness” without further corroboration, but the quality and credibility must be exceptionally high. The statement of the prosecutrix ought to be consistent from the beginning to the end (minor inconsistencies accepted), from the initial statement to the oral testimony, without creating any doubt qua the prosecution’s case. While a victim's testimony is usually enough for sexual ofence cases, an unreliable or insufficient account from the prosecutrix, marked by identified flaws and gaps, could make it difficult for a conviction to be recorded. 15. Taking a close look at the overall picture, the inference which could reasonably be drawn is that the prosecution's case has been marked by lackluster efforts, revealing a poorly executed endeavour that gives rise to substantial doubts regarding the integrity of the case. The material contradictions apparent in the depositions of prosecution witnesses, including the victim, significantly undermine the credibility of the prosecution version. These inconsistencies in the prosecution's 10 narrative, render it considerably doubtful. On the face of such evident discrepancies, recording conviction becomes untenable, as the foundation of the case crumbles under the weight of doubt. While we might have chosen to overlook other contradictions and solely relied on the victim's account, considering her as a ‘sterling witness’, her version appears muddled and prevaricated, much less coherent. 16. No doubt, it is true that to hold an accused guilty for commission of an offence of kidnapping or 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 hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the appellants guilty of the said offences. In the present case, the victim went with the appellants willingly and there is no evidence that she was under any threat or coercion or inducement or enticement by the appellants. Victim remained with the appellants for a reasonable period of time and had ample opportunity to make complaint to other person or raise alarm but she did not do so therefore the ingredients of kidnapping under Section 361 has not been fulfilled. 17. In view of the aforesaid discussion, this Court is of the considered opinion that the prosecution has not been able to prove its case beyond reasonable doubt and so also the Court below has gone wrong in appreciating the evidence collected by the prosecution while 11 recording the finding of conviction and slapping the sentence on the accused/appellants. Appeals are therefore allowed, judgment impugned is set aside and the accused/appellants are acquitted of the charge under Section 363 IPC levelled against them. They are reported to be on bail and therefore, no order needs to be passed to set them free etc. Sd/- (Arvind Kumar Verma) Judge SUGUNA DUBEY Digitally signed by SUGUNA DUBEY Date: 2025.05.24 13:13:24 +0530