1 2025:CGHC:7372 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 279 of 2019 Paras Nihal S/o Lakhaidhar Panka Aged About 60 Years R/o Valmiki Nagar ,block V-9/16 Police Station Kabir Nagar District Raipur Chhattisgarh., District : Raipur, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Police Station Kabir Nagar District Raipur Chhattisgarh., District : Raipur, Chhattisgarh ... Respondent (Cause title taken from Case Information System) For Appellant : Ms. Neelu Singh, Advocate on behalf of Mr. F.S. Khare, Advocate For Respondent/State : Ms. Isha Jajodia, Panel Lawyer Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on Board 10/02/2025 1. The present criminal appeal has been filed under Section 374(2) of the Code of Criminal Procedure, 1973 against the impugned judgment of conviction and sentence dated 14.01.2019, passed by learned Additional Sessions Judge, Fast Track Court, Raipur, District VEDPRAKASH DEWANGAN Digitally signed by VEDPRAKASH DEWANGAN Date: 2025.05.06 10:42:44 +0530 2 Raipur, in Sessions Case No. 156 of 2017, whereby the appellant has been convicted and sentenced in the following manner: - Conviction Sentence U/s. 342 of IPC R.I. for 01 year and fine of Rs. 500/-, in default of payment of fine further R.I. for 02 months. U/s. 376(2)(l) of IPC R.I. for 10 years and fine of Rs. 500/-, in default of payment of fine further R.I. for 06 months. Both the sentences are directed to be run concurrently 2. The brief facts of the case are that on 22.02.2017, the mother of the victim (PW-1) lodged a report against the appellant alleging in it that her daughter, aged about 25 years, who is differently abled girl, was being taken by the appellant to his house and wrongly confined her in his house and committed rape upon her. When she returned back in the evening from her work, her sister-in-law disclosed about the incident. On the report made by the mother of the victim, the FIR (exhibit P-1) was registered against the appellant for the offence under Sections 342 and 376 of IPC. The victim was sent for her medical examination to District Hospital, Raipur, where she was being medically examined by PW-5/Dr. Pratibha Sharma, who gave her report (exhibit P-10). While medically examining the victim, the doctor has not found any external injuries on her body. At the time of her medical examination, the doctor has observed that she is not able to answer properly any question except her name. she is not aware of her address and mensural cycle. After her medical 3 examination, the doctor has opined that sexual intercourse might have been done, but no sign of recent forceful sexual act. She was advised for her pregnancy test and USG test. Two slides of her vaginal swab were prepared, sealed and handed over to the police for its chemical examination. When she was being taken to B.R. Ambedkar Memorial Hospital for UPT and USG test, after examination, her UPT test was found positive and the Dr. Smriti Naik/PW-6 had given report (exhibit P-12). In the USG report (exhibit P-14), she was found pregnant of about 10 weeks and 06 days. Spot map (exhibit P-3) was prepared by the police and exhibit P-6 was prepared by the Patwari. The appellant was arrested on 22.02.2017 and he too was sent for medical examination to District Hospital, Raipur, where Dr. S.K. Bhandari/PW-4 medically examined him and gave his report (exhibit P-8). While medically examined the appellant, the doctor has found no external injuries and opined that nothing is suggestive that the appellant is unable to perform sexual intercourse. The vaginal slides were sent for its chemical examination to FSL Raipur. Statement of the witnesses under Section 161 of CRPC have been recorded and statement of the victim under Section 164 of CRPC has also been recorded and after completion of usual investigation charge sheet was filed before the learned Judicial Magistrate First Class, Raipur against the appellant for the offence under Sections 342 and 376 of IPC. The case was committed to the Court of learned Sessions Judge, Raipur, from where the same has been transferred to the learned trial Court for its trial. 4 3. The learned trial Court has framed charge against the appellant for the offence under Sections 342 and 376(2)(l) of IPC. The appellant denied the charge and claimed trial. 4. In order to prove the charge against the appellant, the prosecution has examined as many as 07 witnesses. Statement of the appellant under Section 313 of CRPC has also been recorded, in which he denied the circumstances appears against him, plead innocence and has submitted that he has been falsely implicated in the offence. 5. After appreciating the oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted and sentenced the appellant as mentioned in the earlier part of the judgment. Hence, this appeal. 6. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses. There is no documentary evidence that the victim was differently abled girl or she is suffering from any physical or mental disability. He would further submit that there is no injuries found on the body of the victim to support her allegation that she was subjected to sexual intercourse by the appellant. She is a major girl having engaged in consensual physical relation with the appellant. There is no ingredients of rape in the allegation made by the victim and therefore, the appellant is entitled for acquittal. 5 7. On the other hand, learned counsel for the State opposes and has submitted that the prosecution has proved its case beyond reasonable doubt, but for minor omissions or contradictions, which are trivial in nature, the evidence of the prosecution witnesses are fully reliable and conviction can be made on the basis of the evidence led by the prosecution. The evidence of the victim is fully reliable, which need not any corroboration. She would further submit that even if no injuries have been found on the body of the victim, looking to the nature of the offence and the manner in which she was subjected to sexual intercourse by the appellant, injuries may not have been possible to receive by the victim. She would further submit that the doctors, who medically examined the victim, have clearly opined that she was a differently abled girl, who has not been cross- examined by the defence. The victim/PW-2 has clearly deposed against the appellant that she was being wrongfully confined in the house of the appellant by him and committed rape upon her. Therefore, the allegation against the appellant has been duly proved by the prosecution and the learned trial Court has rightly convicted and sentenced him, which needs no interference. 8. I have heard learned counsel for the parties and perused the record. 9. While recording the evidence of the victim, the learned trial Court has put a note before starting of her evidence that she is a differently abled girl and her evidence is recorded in presence of her mother and Dr. Mithun Dutta, Psychiatrist. He stated in her evidence that the appellant is her neighbour. On the date of incident, when she was 6 standing in her house, the appellant called her and when she had gone to his house, he committed rape upon her. Her sister and elder mother got the door of the house of the appellant opened and took her back. The appellant threatened her and used to give her money. In cross-examination, she admitted that she had gone to the house of the appellant on her own will and her elder mother had seen her going to the house of the appellant and therefore, she came there to call her. When she raised her voice, she opened the door and came out. She also admitted that when the appellant was committing rape upon her, she neither protested nor raised any alarm and when came out from his house, her elder mother had beaten her. 10. PW-1, mother of the victim has stated in her evidence that on the date of incident, when she returned back from her work in the evening, her sister-in-law and younger daughter informed about the incident and when she asked from her daughter, she disclosed that the appellant has committed rape upon her. On the next day, she lodged the report. In cross-examination, she admitted that she was being informed about the incident by her sister-in-law. She admitted that her sister-in-law has also informed that her daughter had gone to his house on her own will. She also admitted that nearby her house, the houses of other persons of the vicinity are situated, but who gathered there at the time of incident, has not been informed by her sister-in-law. 11. PW-5, Dr. Pratibha Sharma, who medically examined the victim, has stated in her evidence that she medically examined the victim on 7 22.02.2017. Her mother has disclosed that she is mentally challenged by birth. On being examination, she found that she appears to be mentally challenged and except her name, she was unable to answer any question. Even, she could not answer her address and mensural cycle. No injuries have been found on her body, either externally or internally and she opined that she might have undergone the sexual act, but there is no sign of recent sexual act and she referred for UPT and USG test. In cross-examination, she reiterated that she has not found any sign of forceful sexual intercourse on her body. 12. PW-6, Dr. Smriti Naik, who conducted the UPT and USG test of the victim, has found that the victim was carrying pregnancy of about 11 weeks and proved the report (exhibit P-12, P-13 and P-14). Nothing has been asked from her cross-examination by the defence. 13. PW-7, who is the investigating officer, has stated in his evidence that on 22.10.2017, the mother of the victim lodged a report that her daughter, who was differently abled girl, was subjected to rape by the appellant. With the help of lady police officer of police station Khamtarai, the FIR (exhibit P-1) was recorded and the matter was investigated and charge sheet has been filed. In Para 14 of his cross- examination, he admitted that with respect to her disability, he has not recorded any statement of her neighbors, relatives and has not filed any medical treatment document. In Para 15, he admitted that during the investigation, the victim had answered normally and she was not found to be mentally challenged. 8 14. There is no documentary evidence led by the prosecution with respect to the disability of the victim or she suffered any kind of mental or physical disability. Though, it has been mentioned in the deposition sheet of the victim/PW-2 that the evidence of the victim is recorded in presence of her mother and Dr. Mithun Dutta, Psychiatrist, but neither Dr. Mithun Dutta has been examined nor any certificate has been issued by him. Even, the presence of Dr. Mithun Dutta has not been observed in the order sheet dated 08.11.2017, when the evidence of victim/PW-2 was recorded. Under what process, he was being called and appeared in the case to certify that the victim is being differently abled girl, is not mentioned in the order sheets, which ought to be there on the record. 15. The mother of the victim/PW-1 has not stated anything that her daughter (victim) is differently abled girl. It is nowhere come in the evidence that she suffered by any kind of disability. Further, there is no documentary evidence led by the prosecution to prove that she was differently abled girl. The investigating officer/PW-7 has also admitted in Para 14 and 15 that he has not collected any evidence with respect to the disability of the victim and she answered all the questions normally and she was not mentally challenged girl. Although, PW-5/Dr. Pratibha Sharma stated in her evidence that the victim was not able to answer the questions, but she stated that she appears to be the differently abled girl. She has not stated conclusively that the victim was differently abled girl. Therefore, in absence of any cogent, clinching and reliable evidence, it cannot be 9 held that the victim was suffered by any kind of mental or physical disability at the time of incident. 16. The victim/PW-2 has stated that when the appellant called her, she went to his house and then he committed rape upon her. From her cross-examination, it is quite vivid that she on her own will had gone to the house of the appellant. It was seen by her elder mother, who followed her and make a noise to call her. She also admitted that she herself opened the door and came out from the house of the appellant. She also admitted that at the time of making physical relation by the appellant with her, she neither protested nor shouted for help. From the evidence of this witness, it clearly appears that she on her own will had gone to the house of the appellant and engaged in consensual physical relation with him. Further, when she was being medically examined by the doctor, she was found carrying pregnancy of about 11 weeks, which further supports that she was the consenting party in making physical relation with the appellant. 17. From the evidence of the witnesses, they cannot be put into the quality of sterling witness, which makes the offence proved against the appellant as alleged. 18. The version of the victim commands great respect and acceptability, but if there are some circumstances which cast some doubt in the mind of the court on the veracity of the victim's evidence, then it will not be safe to rely on the said version of the victim. There is contradiction and omissions in the statement of the victim and her 10 parents. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the victim. However, there is an important caveat which is that the testimony of the victim must inspire confidence. Even though the testimony of the victim is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges leveled against the appellant beyond any reasonable doubt, which the prosecution has failed to do in the instant case. 19. In view of the above, the prosecution could not establish the guilt of the appellant beyond reasonable doubt, and the appellant is entitled for benefit of doubt. 20. In the result, the appeal filed by the appellant is allowed. The impugned judgment of conviction and sentence is hereby set aside. The appellant is acquitted from all the offences. 21. The appellant is reported to be in jail since 22.02.2017. He be released forthwith, if not required in any other case. 22. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Ravindra Kumar Agrawal) Judge ved