1 CGHC010001962005 2026:CGHC:30415 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 358 of 2005 Reserved on 17/06/2026 Delivered on 17/ 07/2026 1. Mohan Lal S/o. Shri Puran Lal Sahu, Aged about 23 Years, R/o. Hathnipara, Bhatapara, District Raipur (CG) 2. Kamlesh S/o. Nama @ Nirmal Kumar Sahu, Aged about 21 years, Resident of Hathnipara, Bhatapara, District Raipur (CG) ... Appellant(s) versus State Of Chhattisgarh Through Bhatapara Police Station, Bhatapara, District Raipur (CG) ... Respondent(s) For Appellant (s) : Mr. Ashish Shrivastava, Sr. Advocate along with Mr. Rohishek Verma and Mr. Ishaan Singh Rahore, Advocates For Respondent(s) : Mr. Rishiraj Pithawa, Dy. AG with Ms. Prachi Singh, Panel Lawyer Hon'ble Shri Justice Narendra Kumar Vyas CAV JUDGEMENT 1. This appeal is directed against the judgment dated 16.03.2005 passed by the 2nd Additional Sessions Judge, Baloda Bazar, District Raipur (CG) in Sessions Trial No. 241 of 2004, whereby the appellants have been convicted and sentenced in the following manner:- SANTOSH KUMAR SHARMA Digitally signed by SANTOSH KUMAR SHARMA Date: 2026.07.17 16:50:21 +0530 2 Conviction Sentence 450/34 IPC RI for 7-7 years and fine of Rs. 1000/- each in default of payment of fine to further undergo additional RI for one year. 506 B/34 IPC RI for 5 years and fine of Rs. 1000/- each in default of payment of fine to further undergo additional RI for one year. 376(g)/34 IPC RI for 7 years and fine of Rs. 1000/- each in default of payment of fine to further undergo additional RI for one year. 2. Facts of the case, in brief are that, the victim lodged FIR (Ex.P-13) on 09.06.2004 under Sections 450,506 and 376 IPC bearing Crime No. 118 of 2004 before Police Station Bhatapara alleging that she was alone in the house as her husband had gone to out of village for earning livelihood as labour. On 07.06.2004 in the night when she was sleeping along with her three minor children aged about 8, 6 and 4 years respectively on the roof of her house, at that time the appellants with common intention climbed the roof from back side of the house and caught hold the victim while she was sleeping. Suddenly, she woke up then the appellants caught hold her hands and when she tried to scream then the appellants threatened her to kill and told that if she would raise alarm, they will kill her and committed forcible sexual intercourse with her one by one. The Investigating Officer sent the victim for medical examination and thereafter in furtherance to this investigation, the Investigating Officer 3 seized the necessary articles, prepared the spot map. She was medically examined by Dr. S. Dhagamvar (PW-7). Her report is Ex.P-10 in which she did not find any bodily injury. The seized articles were sent to the Forensic Science Laboratory for chemical examination and report was received on 23.10.2004. 3. Statements of witnesses were recorded under Sections 161 of the Code of Criminal Procedure. After completion of the investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Baloda Bazar, who in turn committed the case to the Court of 2nd Additional Sessions Judge Baloda Bazar which was registered as Sessions Case No. 241 2004. The learned trial Court framed the charges under Sections 450, 506-B and 376(g) of the IPC. 4. The prosecution in order to prove the guilt of the appellants has examined as many as 11 witnesses, Chhabiram Sahu (PW-1),Dhannu (PW-2), Babulal (PW-3), Dr. R.K. Awasthi (PW-4), Ganga Meshram (PW- 5), Smt. Shailkumari (PW-6), Dr. S. Dhagamwar (PW-7), Shankar Lal Verma (PW-8), victim (PW-9), Sub inspector R.K. Mishra (PW-10) and Hemant Singh (PW-11). Statements of the accused/appellants were recorded under Section 313 CRPC in which they denied the incriminating circumstances appearing against them in the prosecution case, pleaded innocence and false implication. The appellants in their support examined Sitabai (DW-1), Rambharos (DW-2), Deepak Sahu (DW-3) and Nirmal Kumar Sahu (DW-4). 4 5. After hearing the parties, learned 2th Additional Sessions Judge on the basis of material on record and upon considering the statements of the witnesses passed the judgment of conviction and order of sentence against the appellants as mentioned above. Being aggrieved with the judgment of conviction and order of sentence, the appellants preferred this Criminal Appeal. During the trial, the appellant Mohan Lal remained in jail from 10.04.2004 to 14.02.2005 and Appellant Kamlesh remained in jail from 10.04.2004 to 22.10.2004. This Court vide order dated 25.07.2005 released the appellants on bail. 6. Learned Senior counsel for the appellant would submit that the trial court did not appreciate the evidence properly and erroneously convicted the appellant on the basis of unreliable testimony of the victim without any medical corroboration. He would further submit that the trial court failed to consider that the victim was a major and married lady, and her conduct revealed that she was a consenting party, the evidence of the victim (P.W-9) was not at all reliable for want of corroboration from the medical evidence. According to learned Senior counsel for the appellant, the victim alleged use of force and sexual violence, but Dr. D. Dhagamwar (P.W-7), who medically examined the victim, did not find any external or internal injury over her body. It was further submitted that the absence of injuries on her body revealed that the victim was a consenting party and the description of the incident as narrated by her in para-1 of her deposition regarding undressing her etc. could not have been possible without her consent. 5 7. Learned Sr. counsel for the appellant submits that though the victim made allegations of rape against the appellants, yet she did not try to escape, nor she shouted for help, though her children were sleeping along with her and there is unexplained delay in lodging the FIR which renders the entire prosecution story doubtful. He would further submit that as per FIR itself the case of the prosecution is that the victim was sleeping with the children but non-examination of this vital witnesses who were also present at the place of occurrence weaken the case of the prosecution, as such the accused are entitled to get benefit of doubt as the prosecution is unable to prove the case beyond reasonable doubt against the appellants. 8. Learned Sr. counsel for the appellants would submit that the evidence of the prosecution witnesses is not consistent and trustworthy to sustain conviction. Therefore, the findings recorded by the trial Court are perverse and unsustainable in the eyes of law. On these grounds, learned Sr. counsel for the appellants would pray for setting aside the impugned judgment of conviction and order of sentence and the appellants be acquitted of the charges by extending the benefit of doubt. To substantiate this submission, he referred to the judgments of Hon’ble Supreme Court in the cases of Rai Sandeep alias Deepu vs. State (NCT of Delhi reported in 2012 SCC Online SC 590, Santosh Prasad alias Santosh Kumar vs. State of Bihar reported 2020 SCC Online SC 194, Davinder Sing vs. State of Punjab reported in 2023 (19) SCC 229 and Nirmal Premkumar and another vs. State Represented by Inspector of Police reported in 2024 (20) SCC 293. 6 9. Per contra, learned counsel appearing for the State opposing the submissions made by the learned counsel for the appellants would submit that the judgment of conviction and sentence passed by the learned trial Court is legal, justified and based on proper appreciation of the evidence available on record. Learned State counsel would further submit that the prosecution has proved the guilt of the appellants beyond reasonable doubt, particularly on the basis of the cogent and reliable testimony of the victim (PW-9). It is contended that the statement of the victim is natural, consistent and trustworthy, and there is no reason to disbelieve her version. It is further argued that in cases of sexual assault, conviction can be based solely on the testimony of the victim if it inspires confidence. Learned counsel would also submit that the testimony of the victim stands corroborated by other prosecution witnesses including the FIR. 10. Learned counsel for the State would submit that the delay has been satisfactorily explained by the prosecution as the victim had first narrated the incident, thereafter the matter was discussed in a village meeting (panchayat). Only upon the advice of the villagers, the report was lodged before the police. Therefore, the delay is natural and does not affect the credibility of the prosecution case, even otherwise in an Indian society normally the victim of sexual offence hesitates in lodging the FIR as such delay is not so fatal for the prosecution case and does not make out prosecution case untrustworthy and would pray for dismissal of the appeal. 7 11. I have heard learned counsel for the appellant and the State and perused the record of the trial Court with utmost satisfaction. 12. From the submission made by the learned counsel for the appellant, the point emerged for determination by this Court is;- “Whether conviction can be recorded on the sole evidence of the victim and whether evidence of the victim inspires confidence and appears to be absolutely trustworthy, unblemished and is of sterling quality or not?. 13. Victim (PW-9) in her examination-in-chief has reiterated the facts mentioned in the FIR but in the cross examination she has admitted in para-9 that she knew Mohan and Kamlesh for last 10 years since when she was living at the present place. She has admitted that the staircase is within the house and also admitted that she used to sleep in the house after closing the gate. She also admitted that in para-13 that at the time of incident she was sleeping with the children and also admitted that if she would have made hue and cry then the neighbours would have heard the noise and voluntarily stated that the accused have pressed her mouth, therefore, she could not make noise. She also stated that when the police came to her house for enquiry then she has not informed them that as to how the accused climbed the roof and the police have seen the staircase. She also stated that she has informed about hue and cry in her evidence before the Police but if it has not been written no explanation can be given. Also admitted that fact regarding kicking to the accused has been informed to police but the same has not been written in police station then she cannot explain it. In para-16 the victim denied that she has opened the gate for Pawan but after hearing the noise near by the 8 resident, Pawan left away and voluntarily stated that Pawan has come on previous night when she raised voice, he left away. 14. Dhannu (PW-2) deposed that the victim informed him that Mohan, Kamlesh and Pawan entered in her house and nothing else informed him. In the cross-examination, this witness has stated that after two three days of the incident the victim informed him that some people had jumped into her house but she did not name anyone. 15. Babulal (PW-3) deposed that the victim came to his house and informed that two boys committed rape on her. In the cross-examination, he deposed that after how many days of the incident her daughter-in-law came and informed him about the incident is not recollected today. 16. Smt. Shail Kumari (PW-6) deposed that the victim after returning from Police Station informed her that she made report against Kamlesh and Mohan and nothing else informed her. This witnesses turned hostile thereafter the prosecution cross-examined her wherein she admitted that the victim has not informed her that the accused has entered the house and committed rape upon her. But has simply informed that two persons entered into her house. In para-7 she has also admitted a person named Pawan entered into the house of the victim against which she has lodged the report and the matter is still pending. She also admitted that the appellants are neighbours of the victim. 17. Dr. S. Dhagamvar (PW-7) medically examined the victim (PW-9) wherein she did not find any injury on the private part of her body and stated that hymen of the victim was torn and she did not notice swelling on her private part and two fingers were easily entered into her vagina. She was 9 habitual of sexual intercourse; therefore, no definite opinion regarding recent sexual intercourse can be given. The seized articles were handed over to constable for chemical examination and she herself prepared report Ex.P-10. She has further stated that according to her report, no opinion regarding commission of rape upon the victim can be given. 18. Shankar Lal Verma (PW-8) Patwari deposed in the cross-examination, that total height of the roof of the victim’s house is eleven and half feet and there is no staircase to the victim’s terrace. He further deposed that front wall and surrounding wall of victim’s house is completely flat and also admitted that the house of Kamal was adjacent to the victim’s house. 19. The accused examined DW-2 Rambharos who has stated that complaint regarding illicit relationship of Kanhaiya was lodged and a meeting in this regard was conducted in the villager wherein the victim accepted her guilt. 20. From the appreciation of evidence, it is quite vivid, that the victim is a major lady and mother of three children and from the evidence it is also quite vivid that the victim has not shouted at the time when the alleged offence was committed otherwise, the victim’s children who are sleeping along with the victim would have woken up and tried to save her mother. The victim has also admitted that there was no staircase from the outside to climb the roof where the victim was sleeping and the staircase was within the house of the victim and there was gate which remained closed as per evidence of the victim. Thus there was no way to climbed up staircase as per evidence of Shankar Lal Verma (PW-8) who has 10 categorically admitted that there is staircase to climb up in the roof and the entire wall of the house which was 11 and half feet flat wall. Thus there is no other way to climb the roof, except the staircase which is within the house and unless door is opened there is no way to climbed up staircase for reaching to the roof and to commit the offence. 21. Further considering the fact that the prosecution has not placed any evidence on record that the accused have broken the door and thereafter committed the offence and they reached to roof. In absence of any such evidence on record a doubt is created regarding commission of rape upon the victim. Further from the evidence of the victim it is quite vivid that the victim has not informed the incident to her husband immediately. 22. Further from the evidence of the victim, during course of alleged sexual assault, she had neither scratched the appellants with her nails nor made any attempt to rescue herself from the hands of the appellants, though she has stated that she has kicked the accused when the offence was yet to commence but at the time of alleged offence she had not scratched any of the accused to cause injury or sign upon the accused to raise alarm or objection. Even there was no injury on the body of the victim found as evident from the evidence of Dr. S. Dhagamwar (PW-7) who has medically examined the victim (PW-9), stated that there was no injury mark on any part of the victim body, including her private parts. The hymen was old torn and has given her opinion that “No definite opinion could be given regarding recent sexual intercourse with her”, as such, the allegation of commission of gang-rape is not supported by medical evidence. Even the FSL report has also found negative. 11 23. Further the statement of the victim does not confer confidence as she has admitted that another person namely Pawan has also visited her house on previous night and ran away after raising her voice. Even the victim has admitted in the evidence that the children have not wake up, if the victim would have make hue and cry while offence was committed upon her then there is no possibility that the children who are sleeping may not awake up and not raise alarm to object the commission of offence. 24. From the appreciation of the evidence, it is quite vivid that the victim aged about 40 years having three children and also her testimony before the trial Court wherein it has been reveled that no alarm or resistance was made by her while the appellant were performing the act, therefore, no other conclusion can be drawn except that the victim is a consenting party. The Hon’ble Supreme Court in case of Kaini Rajan vs. State of Kerala {(2013) 9 SCC 113} has held as under :- “12. Section 375 IPC defines the expression “rape”, which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her on any person in whom she is interested in fear of death or of hurt. The expression “against her will” means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. “Consent” is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression “consent”. Section 90, though, does not define “consent”, but describes what is not consent. “Consent”, for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether 12 there was consent or not, is to be ascertained only on a careful study of all relevant circumstances”. 25. It is well settled position of law that if the sole testimony of the victim is found reliable and trustworthy it requires no corroboration and may be sufficient to invite conviction of the accused provided the same must inspire confidence and appears to be absolutely trustworthy, unblemished and of sterling quality, as such the submission of Sr. counsel for the appellants that non-examination of children by the prosecution is fatal is misconceived and deserves to be rejected. But the sole evidence of the victim should be sterling quality and must confer confidence on the case of the prosecution then only conviction in a sexual offence can be passed. It is also settled position of law that while considering the evidence of the victim subjected to sexual offence the Court does not require an almost accurate repetition of facts with regard to the incident but the Court has to consider the version of the victim events to extent reasonably possible for her to recollect the events and if the Court deems fit such evidence credible and free from doubt, there is hardly instance on corroboration of that version requires. The Hon’ble Supreme Court in case of Nirmal Premkumar and Anr. vs. State Represented by Inspector of Police reproted in 2024 INSC 193 has examined the issue and has held as under:- 12. In Ganesan v. State 2020 (10) SCC 573, this Court held that the sole testimony of the victim, if found reliable and trustworthy, requires no corroboration and may be sufficient to invite conviction of the accused. 14. In Krishan Kumar Malik v. State of Haryana(2011) 7 SCC 130, this Court laid down that although the victim's 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 13 unreliable and insufficient due to identified flaws and lacunae. 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 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 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.” (2011) 7 SCC 130. 26. Guided by the law as aforesaid and, in my pursuit, to answer the issue framed by this Court, I record having examined the evidence threadbare and noticed manifest contradictions and discrepancies in the oral evidence of the prosecution witnesses. To my mind, these have the effect of casting a serious doubt with regard to the veracity of the prosecution version. They are summarized hereunder: (I) that in absence of any staircase for climbing up on the roof of house, as to how the appellants would reach the roof for commission of offence unless the door which is within the house is opened for allowing them to reach to the rooftop for commission of offence is not possible without any help and who has helped them out to open has not been proved by the prosecution. Even the victim has admitted that without opening of the door it is not possible to climb up on the staircase. 14 (ii) She has admitted in the evidence that she knew the appellants for more than 10 years. Also admitted that another person namely Pawan has visited her house previous night but he ran away when she raised her voice. (iii) Neither scratched on the appellants with her nails nor made any attempt to rescue herself from the hands of the appellants has been made out by the victim. (iv) No any incriminating articles were seized by the Police from the place of occurrence to suggest that the victim was subjected to forceful sexual intercourse. (v) Even the treating doctor (PW-9) found no injury on any part of the body of the victim to suggest that she has resisted and still the offence has been committed by the accused coupled with the fact that FSL found negative which does not support the prosecution case. 27. The aforesaid discrepancies shown from the evidence of the victim is not of sterling quality, which is sufficient for conviction of the appellants. The trial Court has held the appellants guilty without taking into consideration the aforesaid relevant aspects of the matter. 28. In view of the above and considering the evidence, material and law as held by the Hon’ble Supreme Court in case of Nirmal Premkumar (Supra), this Court finds that solitary version of the victim, (PW-9) does not confer confidece on the prosecution case and is not of sterling quality and in the absence of any other supporting evidence, there is no justification for this Court to sustain the conviction and sentence imposed on the appellants under Section 376(g) of the IPC, therefore, the accused/appellants are acquitted by given benefit of doubt. 15 29. So far as conviction under Section 506-B/34 IPC is concerned, the prosecution is unable to prove beyond reasonable doubt that the accused have threatened the victim with any injury, to the person or property or reputation of anyone whom that person is interested or the threat must be intentionally to cause harm to the person. From the evidence it is quite vivid, that no injury has been caused to the body of the victim to suggest that the said alleged offence has been committed by the accused on threatening or causing harm to the victim. It is well settled legal position of law that merely utterances of words are not sufficient for successful conviction under Section 506-B of the IPC as held by Hon’ble Supreme Court in the case Parminder Kaur vs. State of Punjab reported in 2020 (8) SCC 811. Again in case of Sharif Ahmed vs. State of U.P. reported in 2024 (14) SCC 122, the Hon’ble Supreme Court has held as under;- “49. This Court in Manik Taneja and Another v. State of Karnataka and Another26, had referred to Section 506 which prescribes punishment for the offence of ‘criminal intimidation’ as defined in Section 503 of the IPC, to observe that the offence under Section 503 requires that there must be an act of threating another person with causing an injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested. This threat must be with the intent to cause alarm to the person threatened or to do any act which he is not legally bound to do, or omit to do an act which he is entitled to do. Mere expression of any words without any intent to cause alarm would not be sufficient to bring home an offence under Section 506 of the IPC. The material and evidence must be placed on record to show that the threat was made with an intent to cause alarm to the complainant, or to cause them to do, or omit to do an act. Considering the statutory mandate, offence under Section 506 is not shown even if we accept the allegation as correct. 50. In view of the aforesaid position, we quash the chargesheet and the summoning order. The appellants are discharged. We clarify that the observations made above will have no bearing on the civil proceedings, if any, already initiated or which may be initiated in future by the respondent/complainant.” 16 30. Thus, it is quite vivid that the prosecution is unable to prove that the appellants have committed the offence under Section 506(2) of the IPC, therefore, their conviction under Section 506(2) of IPC is liable to be set aside by this Court and accordingly it is set aside by grating benefit of doubt. 31. Since the prosecution is unable to prove that the accused/appellants have committed offence under Section 376(g) of the IPC beyond reasonable doubt therefore, they are also liable to be acquitted of the charge under Section 450/34 of the IPC by granting benefit of doubt as Section 450 of the IPC provide that whoever commit house trespass in order to committing of any offence punishable with imprisonment (life) shall be punished with imprisonment either description for a term not exceeding 10 years. Accordingly the accused are also acquitted from the offence under Section 450/34 of the IPC. 32. In view of the aforesaid discussion and for the reasons stated above, the appeal is allowed. The judgment of conviction and order of sentence passed by the learned trial Court in Sessions Trial No. 125/2004 convicting the appellant under Sections 450/34, 506-B/34 and 376(g)/34 of the IPC are hereby set aside by extending the benefit of doubt. 33. The appellants are on bail. Their bail bonds shall stand discharged in view of the provisions of Section 480 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). Sd/- (Narendra Kumar Vyas) Judge santosh