1

2026:CGHC:516

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

CRA No. 1051 of 2023

Judgment Reserved on : 04-12- 2025

Judgment Delivered on : 06-01- 202 6

Gangaram Jangade S/o Ghurva Ram Jangade Aged About 48 Years R/o

Dumarpali, Police Station Pamgarh, District Janjgir - Champa Chhattisgarh

... Appellant / Accused

versus

State Of Chhattisgarh Through Station In Charge, Police Station Pamgarh,

District - Janjgir - Champa Chhattisgarh

... Respondent

(Cause title taken from Case Information System)

For Appellant :Mr. Hemant Kumar Agrawal, Advocate

For Respondent / State

For Objector

:

:

Mr. Shailesh K. Puriya, Panel Lawyer

Mr. Udho Ram Koshaley, Advocate.

Hon'ble Shri Justice Naresh Kumar Chandravanshi

CAV Judgment

1.This criminal appeal has been preferred by appellant under Section

374(2) of the Code of Criminal Procedure, 1973 (for brevity ‘CrPC’)

challenging the judgment of conviction and order of sentence dated

25.04.2023 passed by the learned Upper Sessions Judge (F.T.C.),

Janjgir, District Janjgir-Champa (CG) (henceforth referred to as ‘Fast

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Track Court’) in Sessions Case No.62/2022, whereby the appellant /

accused has been convicted for the offence punishable under Section

376(2)(l) of the Indian Penal Code, 1860 (for short “IPC”) and

sentenced to undergo RI for 10 years with fine of Rs.5,000/- and in

default of payment of fine, to undergo 100 days’ additional RI.

2.The case of the prosecution, in brief, is that on 28.07.2022, when

daughter of complainant, who is said to be physically and mentally

retarded, had gone to attend nature’s call towards canal, there

appellant laid her on the ground and raped her. On hearing screams

made by victim, her mother and aunt (

बड़ी माँ

) rushed to the place of

incident, upon seeing them, the appellant fled from the spot. Written

complaint (Ex. P-1) was made by mother of victim in Police Station

Pamgarh, District Janjgir-Champa, based on which, an FIR (Ex. P-2)

was registered against the appellant for the offence punishable under

Section 376(2)(i) of the IPC. During course of investigation, statement

of victim under Section 164 of the CrPC was got recorded from the

concerned Judicial Magistrate First Class, spot map (Ex.P-4) was

prepared, victim was got examined by Dr. Nisha Suryavanshi (PW-6),

who, vide MLC report (Ex.P-6), opined that no external or internal injury

was found on the person of victim and she was habitual to sexual

intercourse. However, she prepared two vaginal slides of the victim and

also collected her underwear, handed over the same to the concerned

police station for FSL examination. Medical examination of appellant

was also got conducted by Dr. Aman Sahu (PW-7), who, vide MLC

report (Ex.P-7), opined positive. Underwear of appellant was also

seized vide seizure memo (Ex.P-10). Statements of witnesses under

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Section 161 of the CrPC were recorded, panchnama (Ex.P-5) was

prepared with regard to soil stained clothes of victim, which she wore

during the said act. The appellant was arrested. Seized underwear &

vaginal slides of victim, and underwear of appellant were sent for

chemical examination to the Regional Forensic Science Laboratory,

Bilaspur in which, vide FSL report Ex. P-16, in underwear of appellant,

semen and human spermatozoa have been reported to be found, but in

vaginal slides of victim and her underwear, no semen and human

spermatozoa have been reported to be found. After completion of

investigation, a charge sheet for the offence under Section 376(2)(l) of

the IPC was filed against the appellant.

3.Learned Fast Track Court framed charge under Section 376(2)(l) of the

IPC against the appellant, who abjured the guilt and entered into trial.

4.So as to bring home the charge, the prosecution examined as many as

8 witnesses and exhibited 16 documents, statement of the appellant/

accused under Section 313 of the Cr.P.C. was recorded, in which, he

denied all the incriminating circumstances appearing against him in the

prosecution’s evidence claiming himself to be innocent and false

implication. The appellant has not examined any witness in his defence.

5.After considering the evidence brought by the prosecution, learned Fast

Track Court vide judgment dated 25.04.2023 convicted and sentenced

the appellant, as mentioned in opening paragraph of this judgment.

Being aggrieved, the appellant has preferred instant appeal.

6.Learned counsel appearing for the appellant / accused would submit

that it is a case of prosecution itself that the victim was physically and

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mentally disabled, which has also been noted by Judicial Magistrate

First Class in her deposition recorded under Section 164 of the CrPC.

In this regard, note has also been appended by learned Upper

Sessions Judge, in deposition of victim, despite that, neither her

deposition has been recorded with the assistance of interpreter nor it

has been recorded in writing of victim in question-answer form. Though

learned Upper Sessions Judge has noted that statement made by

victim is understandable from her words and gesture, but recording of

her deposition has not been video-graphed, as has been provided

under Section 119 of the Evidence Act, 1872, therefore, deposition of

victim cannot be considered as legal evidence in the eye of law. In this

regard, he relied on the decision of Hon’ble Supreme Court in the case

of State of Rajasthan vs. Darshan Singh alias Darshan Lal, [(2012)

5 SCC 789] and decision of High Court of Sikkim in the case of Bhim

Bahadur Basnett Vs. State of Sikkim [Crl. A. No. 03/2022 decided on

6-12-2023]. He further submitted that there are material contradictions

and omissions in the deposition of victim (P.W. 2), her mother (P.W. 1)

and her aunt (

बड़ी माँ

)(P.W. 3) with regard to where alleged incident

occurred and in which position of the appellant, PW-1 and PW-3 saw

the incident. PW-3 has stated that when they reached to the spot, that

time, the victim (P.W. 2) was fainted but it does not get support from

deposition of the victim (P.W. 2) and her mother (P.W. 1) also. He next

submitted that deposition of victim with regard to offence of rape does

not get support from medical evidence. Thus, the impugned judgment is

perverse to the evidence available on record and also against the law.

Hence, he prays that this appeal may be allowed and the appellant be

acquitted of the said charge.

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7.Per contra, learned State counsel supported the impugned judgment.

8.Mr. Udho Ram Koshaley, learned counsel appearing on behalf of the

complainant / victim would submit that the victim /complainant has no

objection, if appellant / accused is acquitted of the said charge levelled

against him.

9.I have heard learned counsel for the parties and perused the material

available on record along with record of the Fast Track Court.

10.P.W. 2 is victim. She has stated in her deposition that, at the time of

incident of 28-7-2022, when she had gone to attend nature’s call

across the canal, then the appellant/accused gagged her mouth and

committed rape with her. When she cried calling her mother, seeing her

coming, the appellant ran away. She has further stated that, police got

examined her from the doctor. In cross-examination, the victim (P.W. 2)

has admitted that, though the appellant threw her on the field, which

was rough, despite that, she did not sustain injury on her back. She has

denied the suggestion that, she did not try to prevent herself. She has

also denied the suggestion of learned defence counsel that, prior to the

incident, she had made physical relation with the appellant many times.

She has denied the suggestion that, at the time of incident, she had

talked with him and she herself disrobed herself.

11.P.W. 1 is mother of the victim. As per her deposition, when the victim

(P.W. 2) had gone to attend nature’s call across the canal, at that time,

she was sitting on the terrace of the house of her Jeth (Pati ke Bade

Bhai). She has further stated that, when the victim screamed, she along

with her Jethani (Pati ke Bade Bhai ki Patni) went to the place from

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where the scream was coming, then she saw the appellant committing

rape of victim and upon seeing them, he ran away from there.

Thereafter, they brought the victim and made written complaint (Ex. P-

1) on the basis of which, FIR (Ex. P-2) was registered. Though, there is

omission in her police statement Ex. D-1 on the point that, at the time of

incident, she was sitting on the terrace of the house of her Jeth and she

had seen the incident, but her Jethani (P.W. 3) has also supported her

statement that, at the time of incident, mother (P.W. 1) of the victim was

sitting near the stair of their house, then on being called by her, both of

them went towards the field from where scream was coming, where

she saw the appellant running away from the place of incident, the

victim was present there and her clothes were opened. She has also

stated that, the victim told them that, the appellant took her gagging her

mouth and rapped her.

12.Mother of the victim (P.W. 1), the victim (P.W. 2) and her aunt (Badi

Maa) have admitted the suggestion of learned defence cousel that,

there was toilet in the house of the victim, but mother (P.W. 1) of victim

and her aunt (P.W. 3) have stated in their deposition that, the victim

could not sit on that toilet, therefore, she used to go to attend nature’s

call outside the house. Though, there are contradictions in deposition of

mother (P.W. 1) of victim and her aunt (P.W. 3) that, at which place, the

mother of the victim was sitting in the house of P.W. 3 as her mother

(P.W. 1) has stated that, she was sitting on the terrace of the house of

P.W. 3, whereas P.W. 3 herself has stated in her cross-examination

that, she was sitting near the stair of their house. Uncle (P.W. 4) of the

victim has stated that, mother of the victim was sitting outside their

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house, but no suggestion has been taken from them that, the stair of

their house is not situated outside their house. Further, when a person

goes to other’s/neighbour house, then normally, some times she/he

sits at one place and some times, at another place. Therefore,

aforesaid contradictions in the statements of witnesses, is not found to

be material contradictions. P.W. 4 is husband of P.W. 3 and elder

brother of father of victim, who has stated himself to be handicapped,

but he has also supported deposition of the mother (P.W. 1) of the

victim, the victim (P.W. 2) and her aunt (P.W. 3) that, after the incident,

when the victim was brought, she told him that, the appellant had

rapped her.

13.Alleged incident is said to have occurred at 17.00 hrs on 28-7-2022 and

FIR (Ex. P-2) was lodged on same day at 19.30 hrs. Thus, it is found

that, the FIR was lodged immediately after the incident.

14.At the time of incident, when the victim screamed, her mother (P.W. 1)

and her aunt (P.W. 3) were present in the house of P.W. 3, which is

situated across the canal. That house and place of incident has also

been shown in the spot map (Ex. P-4) prepared by the Investigating

Officer Om Prakash Kurre (P.W. 8). The victim (P.W. 2) and her aunt

(P.W. 3) have denied the suggestion of learned defence counsel that,

the screams / shouting made from the scene of the incident, would not

have reached to the house of P.W. 3. Though, mother (P.W. 1) of the

victim, has stated that, when they went to the place of incident, she saw

the appellant committing rape upon the victim and upon seeing them,

he ran away from there, but Aunt of victim (P.W. 3) has not stated that,

she had seen the appellant rapping the victim, rather she has stated

that, she only saw the appellant running from the place of incident, but

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she has also stated that, the victim was present there and her clothes

were opened and the appellant who was wearing shirt ran away with a

Lungi wrapped around his bottom. Though, P.W. 3 has stated that, the

victim was fainted, which does not get support from deposition of victim

(P.W. 2) herself and her mother (P.W. 1), but a victim suffering from

such trauma, sometimes becomes bewildered / shocked. Aunt (P.W. 3)

of the victim is an illiterate lady, therefore her aforesaid statement is

found to be purview of her own assessment. Hence, aforesaid omission

is not found to be grave to discard her statement.

15.On next date of the incident i.e. 29-7-2022, Dr. Nisha Suryavanshi (P.W.

6) medically examined the victim in which she found scratch mark on

the neck of the victim. Apart from that, she did not find any external or

internal injury on the body of the victim. She has admitted in cross-

examination that, she did not find any symptom on the person of the

victim with regard to comission of rape with her. She has also admitted

the suggestion of learned defence counsel that, if a victim is thrown on

the rough surface then she may sustain injury. Dr. Nisha Suryavanshi

(P.W. 6) preserved two vaginal slides of the victim and also preserved

her undergarment, which was seized by ASI Om Prakash Kurre (P.W. 8)

vide seizure memo Ex. P-9. The appellant was medically examined by

Dr. Aman Sahu (P.W. 7) in which he did not find any external injury on

his genital organ and he reported vide MLC report Ex. P-7 that, he was

competent to perform sexual intercourse. The underwear of the

appellant was also seized by Investigating officer Om Prakash Kurre

(P.W. 8) vide seizure memo Ex. P-10. Vaginal slide of the victim, her

underwear and underwear of the appellant were sent by the police for

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chemical examination to Regional Forensic Science Laboratory,

Bilaspur (FSL). As per the FSL report (Ex. P-16), in vaginal slide of the

victim and her underwear, no semen stains and human spermatozoa

were reported to be found, and in underwear of the appellant, semen

stains and human spermatozoa has been reported to be found, but, it

was not sufficient for serum examination. Learned defence counsel

referring to the medical report of victim as well as the appellant and the

FSL report, argued that, both the reports do not support the case of the

prosecution, therefore, only on the basis of deposition of the victim and

her relatives, in absence of any independent witness, appellant cannot

be convicted for the offence of rape.

16.The alleged incident occurred on the rough surface of the field. The

victim (P.W. 2) has stated in her deposition that, she has sustained

scratch injury near her neck, which also gets support from deposition

of Dr. Nisha Suryavanshi (P.W.6), who found scratch injury on her neck,

which she has opined to have been sustained within 24 hrs. Since the

appellant had gagged her mouth and dragged her also, therefore, it

seems that, aforesaid injury was sustained by the victim on that count.

Further, the Investigating Officer Om Prakash Kurre (P.W. 8) has proved

Panchnama (Ex. P-5), which has also been supported by Aunt of the

victim (P.W. 3) and her uncle (P.W. 4), wherein it has been stated that,

since it was rainy season therefore, there was mud and dirt on the

Kurti worn by the victim at the time of incident. Since the incident

occurred during rainy season, hence the fact that, the victim did not

sustain any injury on her back, cannot be considered significant.

Further Hon’ble Supreme Court in the case of Krishan Vs. State of

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Haryana [(2014) 13 SCC 574], has held that, it is not expected that

every rape victim should have injury on her body to prove her case. In

this context, in the case of State of Rajasthan Vs. N.K., the Accused

[(2000) 5 SCC 30], Hon’ble Supreme Court has held inter alia that ‘18.

…….The absence of visible marks of injuries on the person of the

prosecutrix on the date of her medical examination would not

necessarily mean that she had not suffered any injuries or that she had

offered no resistance at the time of commission of the crime. Absence

of injuries on the person of the prosecutrix is not necessarily an

evidence of falsity of the allegation or an evidence of consent on the

part of the prosecutrix. It will all depend on the facts and circumstances

of each case. …….’. In the instant case, alleged incident occurred in

rainy season, therefore, not sustaining injury by the victim on her back

is not found to be vital in view of aforesaid judgment rendered by the

Apex Court. Further, the victim had sustained injury on her neck, which

also gets support from medical evidence and back side of her Kurti also

contained stains of mud and dirt, therefore, aforesaid contention raised

by learned defence counsel is not found to be sustainable.

17.The victim (P.W. 2) and her mother (P.W. 1) have admitted the

suggestion of learned defence counsel that the appellant had taken

Rs. 500/- as loan from them, but they have denied the suggestion of the

defence counsel that, since the appellant did not return aforesaid

amount, therefore, they have falsely implicated him in instant case. In

this regard, mother (P.W 1) of victim has specifically stated that, the

appellant had equalized that amount by ploughing their field through

tractor. Even otherwise, it is highly improbable that, for the meager sum

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of Rs. 500/-, the victim or her parents would fabricate an allegation of

rape against the appellant, a charge that carries severe social stigma

and is inherently harmful to the victim’s own reputation and future.

Therefore, aforesaid contention is found to be improbable.

18.I am not inclined with the submission made by learned counsel for the

appellant as it is settled proposition of law that conviction of the

accused could be based on sole testimony, without corroboration and it

has also been held that the sole testimony of victim should not be

doubted by the Court merely based on assumptions and surmises.

19.In the case of Ganesan vs. State, reported in (2020) 10 SCC 573, the

Hon’ble Supreme Court observed and held that there can be a

conviction on the sole testimony of the victim/prosecutrix when the

deposition of the victim is found to be trustworthy, unblemished,

credible and her evidence is of sterling quality. In the aforesaid case,

the Hon’ble Supreme Court had an occasion to consider the series of

judgments on conviction on the sole evidence of the victim. In

paragraphs 10.1 to 10.3, it was observed and held as under:

“10.1. Whether, in the case involving sexual harassment,

molestation, etc., can there be conviction on the sole

evidence of the prosecutrix, in Vijay [Vijay v. State of M.P.,

(2010) 8 SCC 191 : (2010) 3 SCC (Cri) 639] , it is observed

in paras 9 to 14 as under : (SCC pp. 195-98)

“9. In State of Maharashtra v. Chandraprakash

Kewalchand Jain [State of Maharashtra v.

Chandraprakash Kewalchand Jain, (1990) 1 SCC 550

: 1990 SCC (Cri) 210] this Court held that a woman,

who is the victim of sexual assault, is not an accomplice

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to the crime but is a victim of another person's lust and,

therefore, her evidence need not be tested with the

same amount of suspicion as that of an accomplice. The

Court observed as under : (SCC p. 559, para 16)

‘16. A prosecutrix of a sex offence cannot be put on

a par with an accomplice. She is in fact a victim of

the crime. The Evidence Act nowhere says that her

evidence cannot be accepted unless it is

corroborated in material particulars. She is

undoubtedly a competent witness under Section

118 and her evidence must receive the same

weight as is attached to an injured in cases of

physical violence. The same degree of care and

caution must attach in the evaluation of her

evidence as in the case of an injured complainant

or witness and no more. What is necessary is that

the court must be alive to and conscious of the fact

that it is dealing with the evidence of a person who

is interested in the outcome of the charge levelled

by her. If the court keeps this in mind and feels

satisfied that it can act on the evidence of the

prosecutrix, there is no rule of law or practice

incorporated in the Evidence Act similar to

Illustration (b) to Section 114 which requires it to

look for corroboration. If for some reason the court

is hesitant to place implicit reliance on the

testimony of the prosecutrix it may look for

evidence which may lend assurance to her

testimony short of corroboration required in the

case of an accomplice. The nature of evidence

required to lend assurance to the testimony of the

prosecutrix must necessarily depend on the facts

and circumstances of each case. But if a

prosecutrix is an adult and of full understanding the

court is entitled to base a conviction on her

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evidence unless the same is shown to be infirm

and not trustworthy. If the totality of the

circumstances appearing on the record of the case

disclose that the prosecutrix does not have a

strong motive to falsely involve the person charged,

the court should ordinarily have no hesitation in

accepting her evidence.’

10. In State of U.P. v. Pappu [State of U.P. v. Pappu,

(2005) 3 SCC 594 : 2005 SCC (Cri) 780] this Court held

that even in a case where it is shown that the girl is a girl

of easy virtue or a girl habituated to sexual intercourse,

it may not be a ground to absolve the accused from the

charge of rape. It has to be established that there was

consent by her for that particular occasion. Absence of

injury on the prosecutrix may not be a factor that leads

the court to absolve the accused. This Court further held

that there can be conviction on the sole testimony of the

prosecutrix and in case, the court is not satisfied with

the version of the prosecutrix, it can seek other

evidence, direct or circumstantial, by which it may get

assurance of her testimony. The Court held as under :

(SCC p. 597, para 12)

‘12. It is well settled that a prosecutrix complaining

of having been a victim of the offence of rape is not

an accomplice after the crime. There is no rule of

law that her testimony cannot be acted upon

without corroboration in material particulars. She

stands at a higher pedestal than an injured witness.

In the latter case, there is injury on the physical

form, while in the former it is both physical as well

as psychological and emotional. However, if the

court of facts finds it difficult to accept the version

of the prosecutrix on its face value, it may search

for evidence, direct or circumstantial, which would

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lend assurance to her testimony. Assurance, short

of corroboration as understood in the context of an

accomplice, would do.’

11. In State of Punjab v. Gurmit Singh [State of

Punjab v. Gurmit Singh, (1996) 2 SCC 384 : 1996 SCC

(Cri) 316], this Court held that in cases involving sexual

harassment, molestation, etc. the court is duty-bound to

deal with such cases with utmost sensitivity. Minor

contradictions or insignificant discrepancies in the

statement of a prosecutrix should not be a ground for

throwing out an otherwise reliable prosecution case.

Evidence of the victim of sexual assault is enough for

conviction and it does not require any corroboration

unless there are compelling reasons for seeking

corroboration. The court may look for some assurances

of her statement to satisfy judicial conscience. The

statement of the prosecutrix is more reliable than that of

an injured witness as she is not an accomplice. The

Court further held that the delay in filing FIR for sexual

offence may not be even properly explained, but if found

natural, the accused cannot be given any benefit thereof.

The Court observed as under : (SCC pp. 394-96 & 403,

paras 8 & 21)

‘8. … The court overlooked the situation in which a

poor helpless minor girl had found herself in the

company of three desperate young men who were

threatening her and preventing her from raising any

alarm. Again, if the investigating officer did not

conduct the investigation properly or was negligent

in not being able to trace out the driver or the car,

how can that become a ground to discredit the

testimony of the prosecutrix? The prosecutrix had

no control over the investigating agency and the

negligence of an investigating officer could not

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affect the credibility of the statement of the

prosecutrix. … 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. … Seeking corroboration of her

statement before relying upon the same, as a rule,

in such cases amounts to adding insult to injury. …

Corroboration as a condition for judicial reliance on

the testimony of the prosecutrix is not a requirement

of law but a guidance of prudence under given

circumstances. …

* * *

21. … 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 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

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of the entire case and the trial court must be alive to its

responsibility and be sensitive while dealing with cases

involving sexual molestations.’

(emphasis in original)

12. In State of Orissa v. Thakara Besra [State of Orissa

v. Thakara Besra, (2002) 9 SCC 86 : 2003 SCC (Cri)

1080], this Court held that rape is not mere physical

assault, rather it often distracts (sic destroys) the whole

personality of the victim. The rapist degrades the very soul

of the helpless female and, therefore, the testimony of the

prosecutrix must be appreciated in the background of the

entire case and in such cases, non-examination even of

other witnesses may not be a serious infirmity in the

prosecution case, particularly where the witnesses had not

seen the commission of the offence.

13. In State of H.P. v. Raghubir Singh [State of H.P. v.

Raghubir Singh, (1993) 2 SCC 622 : 1993 SCC (Cri)

674] this Court held that there is no legal compulsion to

look for any other evidence to corroborate the evidence of

the prosecutrix before recording an order of conviction.

Evidence has to be weighed and not counted. Conviction

can be recorded on the sole testimony of the prosecutrix, if

her evidence inspires confidence and there is absence of

circumstances which militate against her veracity. A similar

view has been reiterated by this Court in Wahid Khan v.

State of M.P. [Wahid Khan v. State of M.P., (2010) 2 SCC

9 : (2010) 1 SCC (Cri) 1208] placing reliance on an earlier

judgment in Rameshwar v. State of Rajasthan

[Rameshwar v. State of Rajasthan, 1951 SCC 1213 :

AIR 1952 SC 54] .

14. Thus, the law that emerges on the issue is to the effect

that the statement of the prosecutrix, if found to be worthy

of credence and reliable, requires no corroboration. The

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court may convict the accused on the sole testimony of the

prosecutrix.”

10.2. In Krishan Kumar Malik v. State of Haryana [Krishan

Kumar Malik v. State of Haryana, (2011) 7 SCC 130 :

(2011) 3 SCC (Cri) 61], it is observed and held by this Court

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.

10.3. Who can be said to be a “sterling witness”, has been

dealt with and considered by this Court in Rai Sandeep v.

State (NCT of Delhi) [Rai Sandeep v. State (NCT of Delhi),

(2012) 8 SCC 21 : (2012) 3 SCC (Cri) 750]. In para 22, it is

observed and held as under : (SCC p. 29)

“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

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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 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.”

20.In the case of State (NCT of Delhi) vs. Pankaj Chaudhary, reported in

(2019) 11 SCC 575, it was observed and held that as a general rule, if

credible, conviction of accused can be based on sole testimony, without

corroboration. It was further observed and held that sole testimony of

victim should not be doubted by Court merely on basis of assumptions

and surmises. In paragraph 29, it was observed and held as under:

19

“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 vs. State of Maharashtra

[Vishnu vs. State of Maharashtra, reported in (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 vs.

N.K. [State of Rajasthan vs. N.K., reported in (2000) 5 SCC

30].”

21.In the case of Sham Singh vs. State of Haryana, reported in

(2018) 18 SCC 34, the Hon’ble Supreme Court observed that

testimony of the victim 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 the victim of sexual assault alone to convict an

accused where her testimony inspires confidence and is found to

be reliable. It was further observed that seeking corroboration of her

statement before relying upon the same, as a rule, in such cases

amounts to adding insult to injury. In paragraphs 6 and 7, it was

observed and held as under:

“6. We are conscious that the courts shoulder a great

responsibility while trying an accused on charges of rape.

20

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 vs.

Gurmit Singh [State of Punjab vs. Gurmit Singh, reported

in (1996) 2 SCC 384] (SCC p. 403, para 21).]

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

21

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 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 vs. State of Assam [Ranjit

Hazarika vs. State of Assam, reported in (1998) 8 SCC

635)].”

22.Reverting to the facts of the instant case, though the FSL report and

the medical report pertaining to the victim do not support the case

of the prosecution except an injury on the neck of the victim as also

there is no independent witness, but the victim (P.W. 2) has proved

the charge leveled upon the appellant which has also been

supported by her mother (P.W. 1) and her aunt (P.W. 3). Nothing

material has been brought in their cross-examination to discard

their statements except minor contradictions and omissions which

are not found to be vital. There is no evidence of any enmity or

grudge that would suggest the accused was falsely implicated by

22

the victim party. Therefore, having considered aforesaid law laid

down by the Hon’ble Supreme Court, even in absence of

corroboration by medical/FSL report and independent witness,

deposition of the victim (PW. 2), her mother (P.W. 1) and her aunt

(P.W. 3) cannot be brushed aside. Hence, contention raised by

learned counsel for the appellant on this count is not sustainable.

23.Learned defence counsel referring to the statement of the victim

recorded under Section 164 of the Cr.P.C. before the Judicial

Magistrate First Class, Navagarh, Distt. Janjgir-Champa on 2-8-2022

(not exhibited), deposition of mother of victim (P.W. 1) and note

appended by the Fast Track Court in the deposition of the victim

strongly submitted that the victim is handicapped physically and

mentally, therefore, her deposition ought to have been recorded with

the assistance of an interpreter or a special educator and it also should

have been video-graphed, as provided in Section 119 of the Evidence

Act but learned Fast Track Court has neither recorded deposition of the

victim through an interpreter nor a special educator nor has video-

graphed her deposition, therefore, deposition of the victim cannot be

relied upon.

24.The provisions with regard to a person/witness who is competent to

testify himself and if he is unable to communicate verbally, how his

evidence will be recorded is provided in Sections 118 and 119 of the

Evidence Act, which reads thus :

“118. Who may testify.- All persons shall be competent to

testify unless the Court considers that they are prevented

from understanding the questions put to them, or from

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giving rational answers to those questions, by tender years,

extreme old age, disease, whether of body or mind, or any

other cause of the same kind.

Explanation.—A lunatic is not incompetent to testify,

unless he is prevented by his lunacy from understanding

the questions put to him and giving rational answers to

them.

119. Witness unable to communicate verbally .- A

witness who is unable to speak may give his evidence in

any other manner in which he can make it intelligible, as by

writing or by signs; but such writing must be written and the

signs made in open court, evidence so given shall be

deemed to be oral evidence:

Provided that if the witness is unable to communicate

verbally, the court shall take the assistance of an interpreter

or a special educator in recording the statement, and such

statement shall be videographed.”

25.Hon’ble Supreme Court in the case of State of Rajasthan Vs.

Darshan Singh alias Darshan Lal (Supra) relied upon by learned

defence counsel, has held in para 28 and 29 as under :-

“28. Language is much more than words. Like all other

languages, communication by way of signs has some

inherent limitations, since it may be difficult to comprehend

what the user is attempting to convey. But a dumb person

need not be prevented from being a credible and reliable

witness merely due to his/her physical disability. Such a

person though unable to speak may convey himself

through writing, if literate or through signs and gestures, if

he is unable to read and write. A case in point is the silent

movies which were understood widely because they were

able to communicate ideas to people through novel signs

24

and gestures. Emphasised body language and facial

expression enabled the audience to comprehend the

intended message.

29. To sum up, a deaf and dumb person is a competent

witness. If in the opinion of the court, oath can be

administered to him/her, it should be so done. Such a

witness, if able to read and write, it is desirable to record

his statement giving him questions in writing and seeking

answers in writing. In case the witness is not able to read

and write, his statement can be recorded in sign language

with the aid of interpreter, if found necessary. In case the

interpreter is provided, he should be a person of the same

surrounding but should not have any interest in the case

and he should be administered oath.”

26.From a bare reading of aforesaid provision and the judgment referred

by Hon’ble Apex court, it is evidently clear that, if a witness is deaf and

dumb, but is able to read and write, his / her statement ought to have

been recorded by giving him questions in writing and seeking answer

from him/her in writing. But in case, such a witness is not able to read

and write, his/her statement can be recorded in sign language with the

aid of interpreter, if found necessary.

27.But in the instant case, the Judicial Magistrate First Class while

recording statement of victim under Section 164 of Cr.P.C. has

appended a note in her deposition that, the victim is physically and

mentally disabled, but she is able to speak about the incident that

happened to her. As per mother of victim (P.W. 1), the victim is

physically handicapped, hence she could not speak properly but she

can listen and understand.

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28.Learned Fast Track Court while recording the evidence of

victim/prosecutrix, has appended a note on her deposition that ‘The

victim appears to be physically weak and not giving clear answer

when asked, but her words and gestures, are understandable…...’

29.Dr. Nisha Suryavanshi (P.W. 6), who examined the victim has stated in

her deposition that, the victim was unable to explain things clearly, she

seemed mentally weak, but she was able to understand things.

30.From a bare reading of aforesaid statements, the note appended by

the JMFC who recorded the statement of victim under Section 164 of

the Cr.P.C., the note appended by learned Fast Track Court in

deposition of the victim, statement of victim and report of Dr. Nisha

Suryavanshi (P.W. 6), it is found that the victim is neither deaf nor

dumb nor of unsound mind, rather she is physically and mentally weak

and she was not able to speak properly, but she was able to understand

the things and also able to speak about the incident, though not in clear

words but was understandable. It also does not reflect from the

evidence of the victim that, she was not understanding the question(s)

and has replied without understanding the questions put to her

particularly by the defence counsel. Rather she has given rational

answers to the questions put to her. Therefore, not invoking provisions

of Section 119 of the Evidence Act by learned Fast Track Court while

recording evidence of victim through interpreter or special educator or

not doing videography, is not found to be fatal in this case, as it was not

required in facts situation of instant case. The case of Bhim Bahadur

Basnett (supra) relied upon by the learned counsel for the appellant is

also not helpful in fact situation of instant case, as in that case, the

victim was speech impaired and was communicating only through

26

gesture, but in instant case, the victim was able to speak, though not

clearly but understandable.

31.In view of above discussion, I do not find any perversity or illegality in

the impugned judgment holding the appellant guilty for the offence

under Section 376(2)(l) of the IPC and sentencing him to undergo RI for

10 years which is minimum jail sentence and fine sentence of Rs.

5,000/- with default stipulation.

32.Consequently, the conviction and sentence as awarded by learned

Fast Track Court to the appellant under Section 376(2)(l) of the IPC is

hereby upheld.

33.The appellant is stated to be in jail since 29-7-2022 being the date of

arrest. He is directed to serve out the remaining part of the sentence.

34.The Criminal appeal is dismissed.

35.Registry is directed to send a certified copy of this judgment along with

the original record of the case to the concerned Fast Track Court

forthwith for necessary information and compliance and also send a

copy of this judgment to the concerned Superintendent of Jail, where

the appellant is undergoing his jail sentence to serve the same on the

appellant informing him that he is at liberty to assail the present

judgment passed by this Court by preferring an appeal before Hon’ble

Supreme Court with the assistance of High Court Legal Aid Committee

or the Supreme Court Legal Aid Committee, if he so desire.

Sd/-

(Naresh Kumar Chandravanshi)

Judge

Pathak/-