Harishankar Gautam and Another Vs State of Chhattisgarh

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2025:CGHC:40270

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 465 of 2004

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1 - Harishankar Gautam, S/o. Shri M.L.Gautam, Aged about 21 year, R/o. Champa Sinchai Colony, Police Station Champa, District Janjgir, present address Risali Sector Bhilai, District Durg

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2 - Shashikant, S/o. Shri B.L. Nagwanshi, Aged about 20 years, R/o. Near Janjgir BTI, Police Station -Janjgir, District Janjgir, Present Address Risali, Sector Bhilai, District Durg

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... Appellant(s)

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versus

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1 - State Of Chhattisgarh, through the SHO, Police Station Durg

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... Respondent(s)

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For Appellant(s)	: Shri Rishi Mahobia, Shri Krishna Tandon
	and Shri Samarth Marhas, Advocates
For Respondent/State	: Ms. Upasna Mehta, Dy.GA

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(Hon’ble Shri Justice Arvind Kumar Verma)

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Judgment on Board

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11/08/2025

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This appeal under Section 374(2) of the Code of Criminal Procedure, 1973 has been preferred against the judgment of conviction

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and order of sentence dated 28.04.2004 passed by the Sessions Judge Durg (CG) in Sessions Trial No.198/2003 whereby the appellants have been convicted for the offence punishable under Section 376 IPC and sentenced to undergo RI for 10 years and to pay fine of Rs. 200/-, in default of payment of fine to further undergo RI for six months.

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PROSECUTION CASE IN BRIEF :

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Case of the prosecution in essence is that the prosecutrix (PW-1) and co-accused Tapas Maitri were classmates pursuing their studies at Vidhya Niketan School, Durg. It is alleged that on the date of incident, ie. 18.02.2003, at about 1.15 pm. she informed her mother that she was going to her teacher’s house. On the way, near Chandrakar Cement Shop, she was stopped by accused Tapas who misled her by saying that he is also having some work and would accompany her after collecting his book from home. Believing him, she went with him and instead of taking her to his house, he took her to Pragati Nagar to the house of one Arjun Yadav, Advocate and on entering the room, she found that other accused persons Vikram and Harpreet who were also her classmates were already present along with Manoj, Shashi and Hari. Accused Vikram forcibly took the prosecutrix inside and locked the door. When she raised cries, accused Shashi gagged her mouth and accused Tapas, Manoj and Hari and Harpreet took her to another room. Acused Manoj, Hari and Harpreet forcibly caught hold of the prosecutrix, acused Shashi removed her shirt and underwear, accused Vikram and Harpreet forcibly restrained both her hands and made to lie on the floor. Subsequently, all the accused persons subjected her to rape each

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committing the offence in succession, one after another. Thereafter, accused/appellants Shashi and Manoj threatened her not to disclosed about the incident to anyone or else her sister would her younger sister. She came home and narrated about the incident to her mother (PW-2) and father (PW-2) who in turn informed about the incident to their relative (PW-3) but as it would bring disrepute to the family and create difficulties in the future for the prosecutrix in her marriage, on the next day ie. 19.02.2003, lodged a written complaint Ex.P-1 at police station Newai, alleging that she was subjected to indecent behaviour by the accused/appellants and later on, on the advice of one Ram Kumar, on 22.02.2003, she lodged a detailed report vide Ex.P-2. Spot map was prepared vide Ex.P-17, clothes of the prosecutrix were seized vide Ex.P-5 and P-4. The undergarments of the appellants were also seized on 23.02.2003, 24.02.2003 and 26.02.2003. Prosecutrix was medically examined by Dr. Alpana Agrawal (PW-4), and X-ray was also taken for age determination and as per the report, she was aged about 18 years. The birth certificate was obtained from the Birth and Death Registration Department though not certified. She has opined that there were abrasions found on the pubic area may be because of forceful intercourse and blood was present after examination. Statements of the witnesses were recorded and after completion of investigation, chargesheet was filed against the appellants namely Harishankar and Shashikant for the offence under Sections 376 of IPC on 17.04.2003 followed by framing of charge by the court accordingly. The other coaccused appellants were juvenile and therefore, they were tried before the Juvenile Court Durg for the offence under Section 376(2)(g) IPC and

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charges were framed.

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So as to hold the accused/appellants guilty, prosecution examined as many as 12 witnesses in support of its case. Statements of the accused/appellants were also recorded under Section 313 of the Cr.P.C. in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. This apart, two defence witnesses have been examined by the accused/appellants.

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After hearing the parties, the trial court has convicted and sentenced the accused/appellants.

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SUBMISSIONS OF THE APPELLANTS :

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Contention of Shri Rishi Mahobia, counsel for appellant No.1 Harishankar Gautam is that a bare perusal of the prosecution case, even it is taken at its face value, would not justify the continued incarceration of the appellant. It is contended that the prosecutrix herself along with her father had initially submitted a written complaint Ex.P-1 on 19.02.2003 wherein she has categorically stated that the appellants had subjected her to rape but did not want to disclose the matter any further and it is only after on the alleged advice of one Ram Kumar that a subsequent report was lodged on 22.02.2003 (Ex.P-2). Therefore, he submits that it clearly reflects the improvements and afterthoughts in the version of the prosecutrix which according to him render the prosecution case doubtful.

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It has been further submitted that as per the radiological report of

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the prosecutrix, relied upon by the prosecution has not been duly certified and the medical opinion based on X-ray for age determination places her at 18 years and thereby establishing that she was major on the date of alleged incident. Thus, the stringent provisions under Section 376(2) IPC in so far as they pertain to a minor victim are not attracted.

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It has been further urged by the counsel for the appellant that the so called corroborative evidence is weak and unreliable. As regards the medical evidence, it is submitted that though the MLC report refers to presence of human spermatozoa on the undergarments of the appellants, the same by itself is not conclusive proof to commission of the alleged offence. No DNA profiling or forensic correlation has been conducted to connect the alleged stains specifically with the prosecurrix. In absence of such conclusive scientific linkage, the said finding cannot at this stage, be treated as incriminating against the appellants.

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Learned counsel for the appellant further submits that there is a delay in lodging the FIR which has not been satisfactorily explained and the prosecution witnesses are either related or interested witnesses rendering their testimonies susceptible to doubt. On these grounds he submits that the appellant No.1 be acquitted of the charges.

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Shri Marhas, counsel for appellant No.2 Shashikant has drawn attention to the medical evidence. While it is true that human spermatozoa were found on the undergarments seized from the appellants, it is urged that no DNA profiling or scientific corelation was undertaken to connect the same with the prosecutrix. In absence of

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such conclusive evidence, mere presence of spermatozoa cannot establish the guilt. It is further contended that there has been unexplained delay in lodging of the FIR, which caste a serious doubt on the veracity of the prosecution case. Counsel for the appellant No.2 also points out that the prosecution has not examined any independent witness, and all the witnesses are either related or interested, thereby reducing the evidentiary value of their statements. Accordingly, it is submitted that the appellant No.2 also deserves to be acquitted or in the alternative, to be released on the ground of insufficiency of evidence. It has been argud that the presumption under Section 114 of the Evidence Act should not be taken as conclusive proof of guilt and must be carefully weighed against the entire evidence, with the burden of proof always remaining on the prosecution in criminal cases. He submits that thepresumptions are not mandatory but discretionary, allowing the court to draw reasonable inferences based on the evidence presented.

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SUBMISSION OF THE STATE COUNSEL :

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Learned State counsel per contra, opposed the submissions and submits that the prosecutrix has clearly deposed regarding the role of each appellant and her testimony, being natural and consistent in material particulars, requires no further corroboration. It is argued that in a case of gang rape, the statement of the prosecutrix, if found trustworthy, is sufficient to sustain conviction. It is further contended that the initial hesitation of the prosecutrix and her father in disclosing the true nature of the incident cannot be treated as an improvement so as to discredit her testimony. It is well known that victims of sexual assault,

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owing to stigma and social repercussions are reluctant to come forward and often suppress facts at the initial stge. Therefore, the subsequent detailed report (Ex.P-2) only reflects the victim’s courage to disclose the truth and cannot be termed as embellishment.

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With respect to the medical evidence, it is submitted that the presence of human spermatozoa on the undergarments of the appellants is a strong corroborative circumstance which supports the case of the prosecution. The defence has not offered any plausible explanation for such incriminating recovery. The absence of DNA profiling does not by itself dilute the probative value of this evidence.

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She further submits that minor discrepancies or delay in lodging of the FIR are not fatal to the prosecution when the substantive evidence of the prosecutrix is consistent and supported by medical findings. Reliance is placed on the settled principles that the evidence of a prosecutrix is to be treated at par with that of an injured witness and conviction can be based on her sole testimony if it inspires confidence. In these circumstances, it is urged that the conviction recorded by the learned Sessions Judge is based on proper appreciation of evidence and does not call for interference by this Court and the appeal deserves to be dismissed.

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Heard learned counsel for the parties and perused the material available on record.

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POINTS FOR DETERMINATION :

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The following issues fall for consideration and determination of

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this appeal before this Court:

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(i) Whether the testimony of the prosecutrix is trustworthy and sufficient to establish the charge of gang rape against the appellants? (ii) whether the medical and seizure evidence corroborates the version of the prosecutrix?

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(ii) Whether the conviction recorded by the Sessions Court requires interference?

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APPRECIATION OF EVIDENCE :

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Prosecutrix (PW-1) has stated that she knew the accused/appellant and the juveniles. On the date of incident, when she was going to her teacher’s house, co-accused Tapas met her on the way and stated that he is also having some work and would accompany her after collecting his book from home therefore, he asked her to come along with him to his house. Co-accused took her to a flat at Maitri Nagar, Bhilai and asked her to come inside. On entering inside, she saw other accused persons who were her classmates namely, Shashi, Vikram, Hari, Harpreet and Manoj. Thereafter, accused Vikram closed the door and forcibly took her inside, unclothed her and hidden her clothing, all the accused persons subjected her to rape each committing the offence in succession, one after another. After committing the offence, other accused/appellants went outside except Manoj and Shashi who threatened her not to disclose about the incident or else they will kill her sister. She came home and narrated the incident to her parents and thereafter on 22.02.2003 report was lodged at police station Newai. She has stated that the police persons have threatened his

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father not to lodge the report or else it would bring disrepute to the family and create difficulties in the future for the prosecutrix in her marriage. After the report was lodged, the police went to the place of incident and spot mpa was prepared vide Ex.P-4, her clothing was seized vide Ex.P-5 and P-6. She was medically examined.

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Father of the prosecutrix (PW-3) has stated that on the date of incident, when he came from his work place at bout 6.30 pm, the prosecutrix and his wife were weeping and on being asked, his wife narrated the incident to him. Thereafter they went to the police station to lodge report but on the advice of SI R.P. Yadav, that would bring disrepute to the family and it would be published in the newspaper therefore they returned home. However, on the advice of his brother in law, they lodged a report on 22.02.2003. Similar statement has been made by mother of the prosecutrix (PW-2). In para 4 of her deposition she has stated that

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“4. Fkkus esa Vh-vkbZ- oekZ vkSj vkj-ih-;kno ekStwn FksA eSa tc oekZ Vh-vkbZ dks ?kVuk dh tkudkjh ns jgh Fkh rc ;kno esjs ifr dks ckgj ys tkdj ckrphr dj jgs FksA Jh ;kno cksy jgs Fks fd isij esa ?kVuk Ni tk;sxh rks cnukeh gksxh vkSj Hkh cPps gS ftudh ‘kknh ugha gksxhA bl ckr dks lqudj esjs ifr ?kcjk x;s blh le; esjh cMh cPph dksfpax ls?kj vk;h gqbZ Fkh ftls ?kVuk dh tkudkjh ugha Fkh] ftls Fkkus ls Qksu fd;s Fks fd ge yksx ;gka ij gSA rks cMh cPph us crk;k Fkk fd mls Qksu ls /kedh vk jgh gSA bu lc dkj.kksa ls ml fnu ge yksx iqfyl esa fjiksVZ ugha djok ik;sA”

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She has further stated that “ ;g ckr lgh gS fd eSaus iwfyl dks c;ku nsrs le; bu N% yMdksa ds uke crk;k FkkA eSaus vius iqfyl ck;ku esa bu N% yMdksa dk uke crk;kFkk ij esjs iqfyl c;ku esa bu N% yMdksa dk uke ugha fy[kk gks rks eS dkj.k

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ugh crk ldrhA”

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Dr. Smt. Alpana Agrawal (PW-4) has stated that she has medically examined the prosecutrix and gave her report Ex. P- 5 & P-6. She has opined that she is matured sexually and there was abrasion in pubic area on account of forceful intercourse though she did not give any opinion about recent intercourse. She has opined that the prosecurrix was aged between 17-19 years and for confirmation, she referred her to District Hospital Durg to the Radiologist. As per the report of the Radiologist, age of the prosecutrix is a bout 18 years. She has given her opinion vide Ex.P-6 wherein the injuries found on her internal and external part is as under:

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“2. -------------------------mlds nksuks Lru ij 2x3 ls-eh- dk uhys jax dk czwl mifLFkr Fkk vksj fdlh izdkj ds pksV ugha Fkha

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3- ------------------------------------ I;wfcd ,fj;k ds fupys Hkkx ij chpks chp ,d ,cjstu ftldk vkdkj yxHkx 1 ls-eh- x 1 fe-eh- dk FkkA tkap djus ij mle s a [kwu ds cwans ekStwn FksA 5- ------------------------------I;wfcd ,fj;k esa ,cjstu tks fd cyiwoZd cykRlax djus ls vk ldrk FkkA”

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Upon careful consideration of the evidence on record, it is noted that the father of the prosecutrix initially made a written complaint Ex.D2 at police station Newai, which reads as under:

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“ fo”k;% fjiksVZ ugha djuk pkgrs ckcr~A

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------------------------------ vkt fnukad 18-02-2003 dks lok cts esjh yMdh izhfr i<us tkuk crkdj ?kj ls fudyh Fkh tks lk<s pkj cts ?kj okil vkbZ gS vkSj mlls iwNrkN ij eq>dks vk’kadk gS fd mlds lkFk vHknz O;ogkj gqvk gSA tks blds Ldwy ds lgikBh yMds gSA yMdh ds Hkfo”; dks ns[krs gq, eSa bl laca/k

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esa Los{kk ls iqfyl Fkkuk fuobZ esa fjiksVZ ughas djuk pkgrk gwaA ”

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At that point of time, he did not know as to what had happened with his daughter and thereafter on 22.02.2003, prosecutrix lodged the written complaint in detail that she was subjected to rape by the accused/appellants and other co-accused persons the report was lodged on the same day vide Ex.D-2. There is nothing on record to suggest that the prosecutrix has falsely implicated the accused/appellant. It is further pertinent to note that the prosecutrix bears no enmity with the accused-appellants.

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The prosecutrix has consistently narrated the incident in her deposition before the Court. Her testimony is categorical regarding the role of each accused and remains unshaken in her cross-examination. Her version that her hands were violently restrained and she was forced to lie on the floor and thereafter each of the accused, in deliberate succession, subjected her to sexual assault. This version not only describes the crime clearly but also conveys the gravity and societal condemnation. Such acts reflect a complete disregard for human dignity and morality and demand the sternest punishment to serve as a deterrent to society at large. Though there was initial hesitation in disclosing the true nature of the incident, this Court cannot overlook the reality that a victim of sexual assault suffers not only physical violence but also severe trauma, shame and social stigma. The Apex Court in the matter of State of Himachal Pradesh Vs. Raghubir singh (1993) 2 SCC 622 , has held that delay in lodging of FIR in rape cases is not

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material if the testimony of the prosecutrix is otherwise credible.

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The seizure of the clothing of the prosecutrix coupled with the recovery of the undergarments of the appellants containing human spermatozoa lends corroboration to her statements. The absence of DNA profiling does not erase the probative force of this recovery. The appellants have not offered any plausible explanation as to why spermatozoa was found on their undergarments which is a circumstance pointing towards their culpability.

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The medical report also rules out false implication. The testimony of Dr. Smt. Alpana Agrawal (PW-4) further strengthens the prosecution version as she has specifically noted the presence of bruises of 2 x 3 cm. on both breasts of the prosecutrix, abrasion on the central part of the pubic region with blood droplets and additional abrasion on the pubic area which, in her opinion could only be the result of forceful sexual intercourse. Although no opinion was given regarding the recentness of the intercourse, the nature and location of the injuries clearly establish that the act was committed with use of force. These injuries corroborate the consistent testimony of the victim and leave no scope for false implication.

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In the matter of Bharwada Bhoginbhai Hirjibhai Vs.State of Gujarat (1983) 3 SCC 217 and in the recent ruling in Saibaj Noormohammad Shaikh Vs. State of Maharashtra (2024) CRIMINAL APPEAL No.4495/2024, the Apex Court has observed that the testimony of a victim of rape stand on a higher footing than that of an

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accomplice, and courts must not adopt a hyper technical approach in such cases. It has stressed that victims of sexual offences must be treated with utmost dignity.

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As has been argued by the counsel for the appellants on Section 114 of the Evidence Act, 1872, which generally empowers the Court to resume the existence of certain facts if it considers those facts to be likely based on common human experience or natural events. It allows the court to draw a presumption about a fact connected to the facts that are established. However, this Section does not create a mandatory presumption but merely permits the Court top infer certain facts unless disproved. Section 114-A of the Evidence Act provides as under:

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“ Section 114-A . Presumption as to absence of

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consent in certain prosecutions for rape.- In a prosecution for rape under Cl.(a) or Cl.(b) or Cl. (c) or Cl.(d) or Cl.(e) or Cl. (g) of sub-section (2) of Sec. 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.”

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In the context of gang rape cases, Section 114 of the Act itself is not directly applicable to the question of consent or guilt. Instead, the more relevant provision is Section 114-A of the Indian Evidence Act, which specifically deals with the presumption as to absence of consent in certain prosecution cases of rape under the Indian Penal Code. In

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drawing the conclusion, the court states that the exercise of presumptions is subject to overarching principles of fairness and justice. Therefore the contention of the counsels for the appellants that Section 114 of the Evidence Act is applicable in their favour may be held as not acceptable for the appellants in the present case because the facts do not permit the invocation of the discretionary presumptions under that Section and reliance on it would be contrary to the evidentiary principles.

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Where sexual intercourse by the accused is proved and the prosecutrix testifies before the Court that she did not consent, the law enjoins the Court to presume the absence of such consent. Here, in the present case, it is not in dispute that the victim was subjected to sexual assault by multiple accused, and her categorical deposition before the Court is that the act was committed against her will and without her consent. Once this foundational fact is established, the statutory presumption under Section 114-A squarely operates, and it is no longer open for the accused to seek shelter under the discretionary presumptions of Section 114. Thus, the submission of the appellants that Section 114 could be invoked in their favor stands misconceived, for to accept such a contention would be to defeat both letter and spirit of the legislative mandate.

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Upon cumulative consideration, this Court finds that the testimony of the prosecutrix is reliable, consistent and corroborated by medical and seizure evidence. The inhuman act committed against the victim in this case is not just a crime against an individual but a violation

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of the very conscience of society. Gang rape symbolizes the darkest form of brutality, stripping away the dignity and rights that every human being is entitled to. Such offences not only shatter the life of the victim but also corrode the moral and social fabric on which our communities stand.

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Before parting, this Court deems it necessary to observe that offences of this nature leave a deep scar upon the collective conscience of society. A woman’s dignity is not only to preserve her but is a sacred trust which the law and society are bound to protect. Rape is not merely an assault on the body; it is an attack on the soul of the victim. In the matter of State of Punjab Vs. Ramdev Singh (2004) 1 SCC 421 , the Apex Court aptly described rape as a crime against basic human rights and a violation of the victim’s fundamental right to life under Article 21 of the Constitution of India. Recently in the Delhi High Court (2025) it was reiterated that the stigma of rape attaches not to the survivor but to the perpetrator. This court aligns with that principle: the victim bears no shame, only courage, the dishonour rests solely on the shoulders of the offender because the appellants by their conduct have not only destroyed the sense of safety of the prosecutrix but also shaken the conscience of the society. Such crimes must invite stern punishment not only to do justice to the victim but also to serve as a deterrent.

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This Court, therefore reiterates that perpetrators of such heinous crimes deserve no leniency. The punishment imposed serves not only to deter the accused but also to send a clear message to society that sexual offenes will not be tolerated and shall be dealt with sternly and

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uncompromisingly. It should be a clear lesson to those who dare to trample upon the dignity of the women and the society must learn that the honor of a woman is sacrosanct and non-negotiable.

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FINDINGS :

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Accordingly, this Court is of the considered view that the conviction of the appellants under Section 376 IPC recorded by the learned Sessions Judge, Durg is well founded and does not warrant interference.

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ORDER :

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In view of the fact that the appellants have been convicted for the offence of gang rape and the minimum sentence as prescribed by law has been awarded by the learned trial court, this Court finds no merit to interfere with either the conviction or the sentence.

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The appeal thus, stands dismissed. The judgment of conviction and sentence imposed upon the appellants are affirmed. The appellants are reported to be on bail. They shall be taken into custody to serve out the remaining part of the sentence imposed on them.

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With these observations, the appeal stands dismissed.

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Sd/-

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(Arvind Kumar Verma) Judge

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Digitally signed suguna by SUGUNA SUGUNA DUBEY DUBEY Date: 2025.09.26 19:32:15 +0530

Harishankar Gautam and Another v. State of Chhattisgarh

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Harishankar Gautam and Another v. State of Chhattisgarh

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