1 2026:CGHC:15520-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2379 of 2023 1 - Sundarlal Gond S/o Kishno Gond Aged About 21 Years R/o Kamrid, PS- Pamgarh, District : Janjgir-Champa, Chhattisgarh. ... Appellant Versus 1 - State of Chhattisgarh Through Officer Incharge of Police Station-City Kotwali, Balodabazar- District- Baloda- Bhatapara, Chhattisgarh. ... Respondent(s) (Cause-title taken from Case Information System) For Appellant : Shri Sumit Jhanwar, Advocate. For State : Shri Nitansh Jaiswal, Dy. Govt. Advocate. Hon'ble Shri Justice Ramesh Sinha, CJ Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board 06.04.2026 Per, Ramesh Sinha, CJ. 1 Though the matter was listed for orders on application for suspension of sentence and grant of bail to the appellant, however, with the consent of the parties, the matter is heard finally. 2 The present appeal has been filed by the appellant against the impugned judgment of conviction and order of sentence dated 24.11.2023 passed by the Additional District & Sessions Judge, FTSC (POCSO Act) Balodabazar, in Special Case (POCSO) No.47/2022 INDRAJEET SAHU Digitally signed by INDRAJEET SAHU Date: 2026.04.08 17:19:39 +0530 2 whereby the appellant has been convicted for the offence under Sections 366 and 376 IPC and sentenced to undergo RI for 10 years with fine of Rs.3000/- and Life Imprisonment and fine of Rs.5000/- respectively. 3 Brief facts of the case are that, on 14.10.2021 the mother of victim, PW-1, lodged a missing report to the police that her minor daughter aged about 16 years and 9 months had gone for grazing her she goats on 12.10.2021 towards Nalla but could not return back and despite search her whereabouts could not be traced out and she is missing since then. The police registered an FIR for the offence under Section 366 IPC and started investigation. During investigation, the victim PW- 2 was recovered from the possession of appellant on 20.04.2022 and recovery Panchnama Ex.P/6 was prepared in presence of witnesses. She was sent for her medical examination to Community Health Centre Kasdol where she was medically examined by PW-7, Dr. Priyanka, who gave her MLC report Ex.P/2. While medically examining her, no internal or external injuries were found on the body of victim and doctor opined that there is no exact opinion regarding recent sexual intercourse. Two slides of her vaginal swab were prepared, sealed and handed over to police for its FSL examination. She was also advised for her UPT examination. The victim was kept at Child Welfare Committee, Baloda Bazar from where she was handed over to her mother on 21.04.2022. One petticoat was seized from victim vide seizure memo Ex.P/7. Spot map Ex.P/3 was prepared by the police whereas Ex.P/7 by the Patwari. The appellant was arrested on 20.04.2022 and his underwear were seized vide Ex.P/10. One 3 motorcycle was seized from Sadh Ram Ratnakar vide seizure memo Ex.P/12. The petticoat was sent for its query report to doctor who gave her query report Ex.P/13 and advised for FSL examination for confirmation of vaginal stains or perennial stains. The appellant was also sent for his medical examination to Community Health Centre, Kasdol where he was examined by Doctor who found him capable to perform sexual intercourse and gave report Ex.P/14. His underwear was also sent for its query report to the doctor who gave query report Ex.P/15. The petticoat of victim, vaginal slides and underwear were sent for its chemical examination to regional FSL Raipur from were report Ex.P/21 was received and no semen or sperms were found on the sent articles. 4 The statement under Section 161 CrPC of witnesses were recorded. The statement of victim under Section 164 CrPC was recorded. After completion of usual investigation, charge sheet was filed against the appellant for the offence under Sections 363,366 and 376 IPC before the trial court. The trial Court has framed charge against the appellant for the offence under Sections 363,366 and 376 IPC and Section 5(l)/6 of POCSO Act. The appellant abjured his guilt and claimed trial. 5 In order to establish the charge against the appellant, the prosecution has examined as many as 9 witnesses. Statement under Section 313 CrPC of the appellant has also been recorded in which he denied the circumstances appears against him, pleaded innocence and have submitted that he is innocent and falsely implicated in the offence. 4 6 After appreciation of oral as well as documentary evidence led by the prosecution, the trial Court has convicted the appellant and sentenced him as mentioned in opening para of this judgment. Hence this appeal. 7 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 prosecution witnesses which cannot be made basis to convict him in the offence in question. The trial court has found the victim major and victim herself eloped with the appellant as she was having love affair with the appellant. The victim travelled up to Faizabad (UP) and during travel up to Faizabad she did not raise alarm or any complaint to fellow passengers either in Bus or in Train. Even at Faizabad she has not made any complaint to the persons of vicinity and resided with appellant. The victim on her own will engaged in making physical relation with him. No injury was found on her body and even FSL report does not confirm presence of semen or sperms in support of physical relation with the victim. It is only under the pressure of her parents, she made allegation against the appellant. The conduct of victim itself shows that she was a consenting party and eloped with appellant on her own will and engaged in making consensual physical relation which does not constitute any offence of rape. Therefore, the appellant is entitled for acquittal. 8 On the other hand, learned counsel for the State opposes the submissions made by the counsel for the appellant and would submit that prosecution has proved its case beyond reasonable doubt, but for minor omissions or contradictions, the evidence of prosecution 5 witnesses are sufficient and reliable to hold conviction of the appellant for the alleged offence. The trial court has found the victim major, however, that itself cannot be a ground to discard the other part of her evidence. The victim was a helpless girl and she was taken by the appellant to Faizabad and made physical relation against her will and consent which thus constitute the offence of kidnapping and rape. Had she been a consenting party, she would not have lodged report against the appellant. The victim was sexually exploited by the appellant for which he has rightly been convicted. Absence of injury on the body of victim does not absolve the appellant from his liability or does not make the prosecution case doubtful. There are sufficient and overwhelming evidence against the appellant that he committed the offence and the trial court has rightly convicted the appellant which needs no interference. 9 We have heard the counsel for the parties and perused the records of the trial court. 10 In the present case the age of victim has not been questioned by the prosecution particularly when the trial court has considered that prosecution has failed to prove the age of victim that she was minor and less than 18 years of age on the date of incident. There is no any documentary evidence with respect to age of the victim, however, on the oral evidence of the victim, her mother and maternal uncle, the trial court has held that victim was major and more than 18 years of age which has not been challenged by the prosecution and thus the age of the victim is not in dispute that she attains the majority and was major on the date of incident. 6 11 So far as the offence of kidnapping and rape is concerned, we again examine the evidence of victim PW-2. She has stated in her evidence that on the date of incident she was grazing her she goats and appellant took her with him. He allured her that he will marry her and took her in his motorcycle. Firstly they went to village Kamrid and thereafter Faizabad (UP). The appellant kept her as his wife and made physical relation with her. He kept her for about three months and thereafter they came back to village Kamrid. At village Kamrid, the police came and took her back. In cross examination, though she denied that appellant has not kidnapped her, but she has not stated that when the appellant took her with him, she raised any objection or alarm to call the person of vicinity or informed the persons who met during her travel up to Faizabad. No allegation was made by her that from the time of proceeding from village up till reaching to Faizabad she protested or resisted the act of appellant. It is only stated that appellant took her with him by saying that he will marry her. When the victim being major girl having aware about her well being herself accompanied with the appellant without raising any objection, it cannot be said that she was kidnapped or abducted for the purpose of marriage. It cannot be expected from a major girl that she went outside for couple of months with a person to whom she is not acquainted or there is no relation between them. There is nothing in her evidence that appellant used any force measure for kidnapping or abducting or kept in confinement at Faizabad. There is no sign of any protest on her body and there is no evidence that 7 while making physical relationship with the appellant, she resisted or tried to get flee from his clutches. From the entire evidence of victim, PW-2, it is quite vivid that she is not a witness of sterling quality that requires conviction of accused for the alleged offence of kidnapping and rape. 12 In case of Santosh Prasad @ Santosh Kumar Vs. State of Bihar, 2020(3)SCC 443, the Hon’ble Supreme Court has held in paragraph 5.4.2 as under: “5.4.2 In the case of Rai Sandeep alias Deepu (supra), this Court had an occasion to consider who can be said to be a “sterling witness”. In paragraph 22, it is observed and 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 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 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 8 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.” 13 In Dola @ Dolagobinda Pradhan & Another Vs. State of Odisha, 2018(18)SCC 695, in paragraph 9 it was observed by Hon’ble Supreme Court as under : “9. However, as is also evident from the observations above, such reliance may be placed only if the testimony of the prosecutrix appears to be worthy of credence. In this regard, it is also relevant to note the following observations of this Court in Raju v. State of M.PA, which read thus: (SCC p. 141. paras 10-11) "10. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the court. 11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration." 14 Although the victim’s evidence suffers from material discrepancy and lack of ingredients to prove the offence of rape, yet this court has gone through the evidence of other witnesses available on record. 15 PW-1, the mother of victim, have stated that when she came back to her house after getting treatment, she could not find her daughter and after sometime her younger son informed that victim was being kidnapped by the appellant. She rushed to the place but she could not find her. Thereafter she lodged a missing report to the police. They also 9 searched her in the relatives house of the appellant but could not succeed. After about two months when they came to know that appellant has returned back to village Kamrid, they went there and found her daughter with appellant. In cross examination, she reiterated that her younger son informed her that victim had gone with the appellant. 16 PW-3 is the maternal uncle of victim. He too have stated in his evidence that younger brother of victim informed him that the victim was being taken by the appellant and thereafter they searched her but could not succeed and then his sister (victim’s mother) lodged a missing report to the police. The appellant took the victim towards Faizabad and when they returned back to village Kamrid, he was being informed by the appellant himself that victim wanted to go her parents house and then he informed this fact to the family members of the victim. In cross examination, he reiterated that appellant himself has informed him that they came back to village Kamrid and victim wanted to go her parent’s house. 17 PW-4 is the uncle of victim. He stated that before the incident the appellant came to his house and stayed in night. In the morning, the appellant and his wife kidnapped her niece which was informed to him by another brother of victim and thereafter they started search and lodged report to police when she could not be traced out. From Faizabad, the appellant made a telephonic call to him and asked about the police report and also informed that he took the victim with him. When he came back to village Kamrid, again he informed that they 10 came back and thereafter asked him to took the victim back. He also contradicted her police statement and made substantial inconsistency with that of her police statement Ex.D/2. 18 PW-7, Dr. Priyanka, who medically examined the victim, did not find any external or internal injuries on the body of victim. No sign of any protest or struggle was found. She gave her medical report Ex.P/13. 19 From all these evidences, nothing is there in the evidence of prosecution witnesses which is sufficient to hold that victim was being kidnapped/abducted by the appellant and committed forcible sexual intercourse with her against her will or consent. Rather, her evidence clearly suggest that she herself accompanied with the appellant, both of them went to Faizabad without any objection or protest and resided together on her own will and engaged in making consensual physical relation with the appellant. 20 The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the prosecutrix. However, there is an important caveat which is that the testimony of the prosecutrix must inspire confidence. Even though the testimony of the prosecutrix 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 levelled against the appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case. 21 Accordingly, the appeal is allowed. The impugned judgment of conviction and sentence is set aside. The appellant is acquitted from 11 all the charges. The appellant is reported to be in jail since 20.04.2022. He be released forthwith, if not required in any other case. 22 Keeping in view the provisions of section 481 of BNSS, 2023, the appellant is directed to forthwith furnish a personal bond of some of Rs. 25,000/- with two reliable sureties in the like amount before the court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of special leave petition against the instant judgement or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 23 The lower court records along with a copy of this judgement be sent back immediately to the trial court, concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice inder