Jitendra Yadav Vs State of Chhattisgarh

The appellant in this appeal filed under Section 374 (2) of Code of Criminal Procedure, 1973 (for short “CrPC”) has challenged the validity, correctness and judicial propriety of the judgment dated 31.03.2005 passed in Sessions Trial No.111/2004 by the 8^th Additional Sessions Judge (FTC) Durg Chhattisgarh. By the impugned judgment, the appellant has been convicted and sentenced in the following

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manner:-

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Conviction	Sentence
U/s 376 of IPC	7 years RI and fine of Rs. 2000/- in default 6 months Additional RI
U/s 450 IPC	3 years RI and fine of Rs. 1000/- in default 2 months Additional RI
U/s 323 IPC	6 months RI and fine of Rs.500/- in default 1 month Additional RI

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All the punishment will run concurrently.

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Case of the prosecution in nutshell is that the prosecutrix (PW-7) on the date of incident i. e. 30.03.2004 was sleeping in her house, her door was shut but not closed from inside. At that time, the appellant pushed the door, went inside and dragged the prosecutrix to nearby courtyard (Badi). He threatened the prosecutrix for dire consequences and committed forcible sexual intercourse with her. On being heard of shouts of the prosecutrix (PW-7) her husband and his second wife- Shanta Bai (PW5) came to incident place and on seeing them, the accused/appellant ran away. The incident was reported to the Police Station on 31.03.2004. Thereafter the investigation was set on motion. The prosecutrix was sent for medical examination, her undergarments were seized and she was medically examined by Dr. Shobha Rajput (PW-6) who prepared slides and seized articles were sent for chemical examination to Forensic Science Laboratory. The spot map was prepared, statements of the witnesses were recorded, the appellant was arrested and he was medically examined. After completion of investigation, the charge-sheet was filed before the Judicial Magistrate First Class, who committed the case to the Sessions Court which made over the case to learned trial Court for trial.

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The appellant was charged for an offence punishable under Sections 450, 376 & 323 IPC, however, denied the charge framed against him and claimed for trial.

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So as to establish its case, the prosecution has examined as many as many 10 witnesses and exhibited 20 documents. The statement of the accused/appellant under Section 313 CrPC was also recorded where he pleaded his innocence and false implication in the case.

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By the judgment impugned learned Court below has held the accused/appellant guilty and imposed the sentence as described above which is challenged before this Court by the appellant.

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Learned counsel for the appellant submits that the prosecutrix was aged about 35 years whereas the appellant at the time of commission of offence was aged about 19 years. He submits that the story put forth by the prosecutrix is unrealistic and cannot

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be believed. He further submits that it appears to be a case of consent as the prosecutrix was the first wife of Santosh Sahu (PW-4) and thereafter her husband married to Shanta Bai Sahu (PW-5) who lives along with him. He submits that when the alarm was raised by the prosecutrix, PW-4 and PW-5 came at the place of incident, however, in their statement they have not supported the case of prosecution, therefore it seems that the prosecutrix was in consensual relationship with the appellant and when she was caught red handed, in order to save herself, the false report has been lodged. He further submits that in medical report (Ex. P-8), no definite opinion has been given by the doctor and no external or internal injury was found on the person of the prosecutrix whereas the incident said to have occurred on a rough surface and in the event if such incident had occurred, the prosecutrix was bound to suffer some injury on her back. Therefore, he submits that the prosecutrix was not able to prove the case beyond reasonable doubt, the appellant is entitled to acquittal by allowing the appeal.

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Per contra, State counsel supports the impugned judgment and submits that the conviction of the appellant can sustain on the solitary statement of prosecutrix if it inspire confidence, impeccable and does not require any further corroboration. He submits that the prosecutrix was dragged by the appellant after entering the room towards courtyard ( Badi) where he committed forcible sexual intercourse and gagged her mouth and also bit her cheek and caused injuries on her cheeks and fingers. The injuries sustained by the prosecutrix is also corroborated by the medical evidence. The FSL report is positive and spermatozoa was found on the slide as well as in the Petticoat of the prosecutrix. The uncontroverted evidence of the prosecutrix is sufficient enough to hold the appellant guilty for the aforesaid offence and the meritorious finding recorded by the trial Court in this regard does not require any interference, appeal deserves to be dismissed.

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Heard the learned counsel for the parties and perused the record including the judgment impugned.

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It is a trite law that the conviction can sustain on solitary statement of prosecutrix if it is impeccable, inspire confidence and does not suffer from any clutches of doubt. In other words, if the prosecutrix is termed as sterling witness, conviction can sustain on such testimony.

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Hon’ble Supreme Court, in the case of Sham Singh v. State of Haryana¹ , in paragraphs 6 and 7, it is observed and held as under:

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“6. We are conscious that the courts shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations or sexual assaults. [See State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384] (SCC p. 403, para 21).]

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7. It is also by now well settled that the courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused

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1 (2018) 18 SCC 34

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where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. (See Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635).”

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In the case of State (NCT of Delhi) v. Pankaj Chaudhary and ors² , it is observed

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and held in paragraph 29 as under:

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“29. It is now well-settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence. [Vishnu v. State of Maharashtra, (2006) 1 SCC 283]. It is well-settled by a catena of decisions of this Court that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the “probabilities factor” does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. . [State of Rajasthan v. N.K., (2000) 5 SCC 30] .”

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In a decision of the Hon’ble Supreme Court in Phool Singh Vs. State of Madhya

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Pradesh³ , considering various case laws on the point that conviction can rest on the sole testimony of prosecutrix if it inspires confidence held in paragraph 11 as under :-

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“11. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and as observed hereinabove, we see no reason to doubt the credibility and/or trustworthiness of the prosecutrix. She is found to be reliable and trustworthy. Therefore, without any further corroboration, the conviction of the accused relying upon the sole testimony of the prosecutrix can be sustained.”

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In case of Santosh Prasad @ Santosh Kumar Vs. State of Bihar⁴ cited

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by the counsel for the appellant the Hon’ble Supreme Court observed as under:-

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5.5 With the aforesaid decisions in mind, it is required to be considered, whether is it safe to convict the accused solely on the solitary evidence of the

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2 (2019) 11 SCC 575

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3 (2022) 2 SCC 74

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4 (2020) 3 SCC 443

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prosecutrix? Whether the evidence of the prosecutrix inspires confidence and appears to be absolutely trustworthy, unblemished and is of sterling quality? 6. Having gone through and considered the deposition of the prosecutrix, we find that there are material contradictions. Not only there are material contradictions, but even the manner in which the alleged incident has taken place as per the version of the prosecutrix is not believable. In the examination- in-chief, the prosecutrix has stated that after jumping the fallen compound wall accused came inside and thereafter the accused committed rape. She has stated that she identified the accused from the light of the mobile. However, no mobile is recovered. Even nothing is on record that there was a broken compound wall. She has further stated that in the morning at 10 O’clock she went to the police station and gave oral complaint. However, according to the investigating officer a written complaint was given. It is also required to be noted that even the FIR is registered at 4:00 p.m. In her deposition, the prosecutrix has referred to the name of Shanti Devi, PW1 and others. However, Shanti Devi has not supported the case of the prosecution. Therefore, when we tested the version of PW5 -prosecutrix, it is unfortunate that the said witness has failed to pass any of the tests of “sterling witness”. There is a variation in her version about giving the complaint. There is a delay in the FIR. The medical report does not support the case of the prosecution. FSL report also does not support the case of the prosecution. As admitted, there was an enmity/dispute between both the parties with respect to land. The manner in which the occurrence is stated to have occurred is not believable. Therefore, in the facts and circumstances of the case, we find that the solitary version of the prosecutrix – PW5 cannot be taken as a gospel truth at face value and in the absence of any other supporting evidence, there is no scope to sustain the conviction and sentence imposed on the appellant and accused is to be given the benefit of doubt”.

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The story which put forth by the prosecution is that the prosecutrix is the first wife of Santosh Sahu (PW-4) from whom she married for about 12-13 years when they were not blessed with child, Santosh Sahu married to PW-5 and had four children from her and residing with second wife and the prosecutrix is also residing in same house. It is also a case of prosecution in the night on the date of incident at about 10 pm, the appellant pushed the door, though it was shut but not closed from inside and entered the house and thereafter dragged the prosecutrix to nearby courtyard (Badi). As per statement of prosecutrix, the clothes were removed and thereafter sexual intercourse

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was committed by him, when she was shouting, she was gagged by the appellant. The prosecutrix also discloses that after the incident she remained lying upon the prosecutrix for about half an hour. After hearing the noise PW-4 & PW-5 came there and on seeing them, the appellant ran away.

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The Statement of PW-4 and PW-5 do not support the case of prosecution. The prosecutrix stated in her statement that on the advice of PW-4 & PW-5 she lodged the report. Spot Map (Ex. P-12) indicates that there are two rooms adjoining, one is room of the prosecutrix and another is room of her husband. There is cattle shed away from there and there is field of Ashwini Kumar where is the incident has occurred. It appears that there is some distance between the room of Santosh Sahu (PW-4) and place of incident. The prosecutrix has lodged the FIR immediately in the morning ventilating the entire incident which has occurred with her. In her deposition before the Court she deposed that after removing his pant, he was lying naked over her and committed sexual intercourse for about half and hour and thereafter slept there. She further stated that she shouted for help and that might have been heard by the her husband and his wife they came behind the field of Chandrakar, after seeing them the accused fled away in naked condition and his pant and shirt were left in the field. Surprisingly no pant, shirt and undergarments of the appellant were seized from the spot. She further deposed that on being asked by the husband as to what she is doing she made an allegation that she was forcibly taken away from her room by the appellant and committed the sexual intercourse thereafter her husband advised her to lodge the report. She also admits that in the field where she was taken by the appellant, the paddy is being cut and the field was rough and also admits that the pieces of gravel and bricks are lying in the field behind the house. She denied the suggestion that she went with appellant on her free will for sexual intercourse. She admits that on the date of incident she was being thrown out of the house by her husband and his second wife. Though in her statement she speaks against the appellant but the fact remains that the manner in which the incident was said to be committed and appears to be unrealistic, to dragging a woman and without making

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any resistance simply on the saying that she does not appear to be a truthful statement on the part of the prosecutrix. It is also available on record that for last 1012 years, the husband of the prosecutrix was married to some other girl. Though the Doctor (PW- 6) has stated that she sustained injury on her cheek and finger but she has stated that she was habitual to sexual intercourse for which no definite opinion can be given. The prosecutrix herself has stated that she was subjected to forcible sexual intercourse for half and hour and the appellant was lying over her and when her husband and his second wife came there, the appellant ran away without any clothes and as stated earlier no seizure of undergarments of the appellant was made from the place of incident, it appears that the appellant and the prosecutrix may have a consensual intercourse. It is also to be seen that the prosecutrix was aged about 35 years and the appellant was 19 years and considering all aspects of the matter in light of the authorities cited above and in the opinion of this Court the prosecutrix cannot be termed to be a witness of sterling quality. Therefore, this Court is of the opinion that the appellant deserves to be given benefit of doubt.

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Accordingly, the appeal is allowed, judgment impugned is set aside and the accused/appellant is acquitted of charge leveled against him. Appellant is reported to be on bail, his bail bond will remain in force for six months in view of section 481 of BNSS, 2023.

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The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.

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Sd/-

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Digitally
signed by
PARUL
PARUL MITTAL
MITTAL Date:
2025.05.15
15:56:58
+0530

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(Sachin Singh Rajput) JUDGE

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Parul

Jitendra Yadav v. State of Chhattisgarh

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Jitendra Yadav v. State of Chhattisgarh

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