JUDGMENT : Per Bibhu Datta Guru, Judge Heard Mr. Sanjay Agrawal, Advocate appearing for the appellant in CRA No.539/2023 and Mr. Syed Majid Ali, Advocate appearing for the appellant in CRA No.629/2023. Also heard Mr. Shailendra Sharma, Panel Lawyer appearing for the respondent/State. Both the appeals are arising out of same crime number registered at same police station, they are being heard and decided by this common order. 1. This criminal appeal filed by the appellants under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the impugned judgment of conviction and order of sentence dated 28.01.2023, passed by the learned Special Judge under Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, Jashpur (C.G.) in Special Criminal Case under the SC ST Act No. 32 of 2020, whereby the appellants/accused have been convicted for the offence and sentenced as under:- Conviction Sentence Under Section 366 of the IPC R.I. for 7 years and fine of Rs.100/-, in default, additional R.I. for 2 months Under 376(d) of the IPC R.I. for 20 years and fine of Rs. 100/- in default, additional R.I. for 2 months Both the sentences are directly to run concurrently. 2. Case of the prosecution, in brief, is that on 10/10/2020 at about 03:25 pm, complainant-Sukhdev Ram (PW-1) made a complaint before the concerned police station that on 09/10/2020 at about 6 P.M. prosecutrix along with her other family members went to the house of Jagmani Bai for watching television and after that at about 9 P.M. prosecutrix was returning home along with her sister i.e. Anjali, Fulman, sister-in-law and Holika who is daughter of Fulmani. After dropping Fulmani and Holika in their houses, the prosecutrix along with her sister Anjali started walking towards their house. Thereafter, her sister Anjali went inside the house and the prosecutrix stopped at some distance from her house for attending the nature's call. When the prosecutrix stood up after attending her nature's call, around 2-3 persons came behind her and covered her face with a shawl and committed forcibly sexual intercourse with her. When the prosecutrix did not return her home, the family members of prosecutrix and other villagers started searching the prosecutrix in the village and nearby areas but they did not find her. When the prosecutrix did not return her home, the family members of prosecutrix and other villagers started searching the prosecutrix in the village and nearby areas but they did not find her. On 10/10/2020 at about 7 am, when Hari Kamal (PW-6) went to cut the grass in their farm land, he found that the prosecutrix was lying unconscious. After that Hari Kamal (PW-6) informed the family members of the prosecutrix and the prosecutrix was taken to her house. Thereafter, the prosecutrix was taken to Community Health Centre, Kunkuri where the prosecutrix was given first aid after which the prosecutrix regained her consciousness and narrated the whole incident to complainant-Sukhdev Ram (PW-1) and Anita (PW-5). Then she was referred to the District Hospital, Jashpur where her medical examination was conducted. Panchnama cum spot map was prepared vide Ex.P/20. Statement of prosecutrix was recorded under Section 164 of the Cr.P.C. before the Judicial Magistrate First Class, Pathalgaon vide Ex.P/39. 3. The accused/appellants were arrested vide arrest memo Ex.P/6 and Ex.P/31. Underwear of prosecutrix and seized vaginal slide sent to FSL for examination. As per FSL report vide Ex.P/11, semen stains and human sperm were found in underwear of the prosecutrix. After due investigation, FIR was registered against the appellants for the offence under section 366, 376(d) of the IPC and charge-sheet was filed before the Judicial Magistrate First Class, Kunkuri, District:Jashpur, C.G. 4. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 21 witnesses and exhibited 50 documents. Statements of the appellants were recorded under Section 313 of Cr.P.C. in which they denied circumstances appearing against them in prosecution case, pleaded innocence and false implication. The appellants have examined two witnesses in support of their defense i.e. Smt. Sunita Lakda (DW-1) and Laxmi ram (DW-2). 5. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 28.01.2023, convicted the appellants for offence under Section 366 and 376(d) of the IPC and sentenced them as aforementioned in paragraph 1, against which, this criminal appeal has been filed. 6. Mr. Sanjay Agrawal and Mr. 5. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 28.01.2023, convicted the appellants for offence under Section 366 and 376(d) of the IPC and sentenced them as aforementioned in paragraph 1, against which, this criminal appeal has been filed. 6. Mr. Sanjay Agrawal and Mr. Syed Majid Ali, learned counsel for the appellants submit that the learned trial Court is absolutely unjustified in convicting the appellants for commission of offence under Sections 366 and 376(d) of the IPC, which is bad in law, as the prosecution has failed to prove the offence beyond reasonable doubt. It is further submitted that there were major contradiction and omissions between the Court statement and the case diary statement of the prosecution witnesses. Apart from that, the prosecutrix has not seen the accused/appellants while the act was committed by them. Also in the present case, no test identification parade was conducted by the prosecution to prove its case. Hence, the conviction of the appellants is not sustainable in the eye of law. As such, the appeals deserves to be allowed and the impugned judgment deserves to be set aside. 7. On the other hand, Mr. Shailendra Sharma, learned counsel for the State opposes the submissions made by the learned counsel for the appellants and supports the impugned judgment and submits that there is no illegality or infirmity in the findings recorded by the learned trial Court. The prosecutrix was taken by the appellants and they committed sexual intercourse with her. As such, the impugned judgment needs no interference. 8. We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 9. The prosecutrix has been examined as PW-2, in paragraph 3, in which, she stated that on 09.10.2020 at around 6.00 pm, she was watching television in the house of her aunt Jagmani Bai at village Photkosemer along with her father Sukhdev Ram(PW-2), sisters-Anita(PW-5), Anjali, sister-in-law Phoolmani Bai and Holika. After watching television, the prosecutrix along with Anjali, sister-in-law, Phoolmani Bai and Holika were coming back their home from the house of Jagmani Bai. Thereafter, Phoolmani Bai and Holika had gone to their home. Sukhdev Ram(PW-2), father of the prosecutrix had gone to his house before the prosecutrix and her sister-Anjali. After watching television, the prosecutrix along with Anjali, sister-in-law, Phoolmani Bai and Holika were coming back their home from the house of Jagmani Bai. Thereafter, Phoolmani Bai and Holika had gone to their home. Sukhdev Ram(PW-2), father of the prosecutrix had gone to his house before the prosecutrix and her sister-Anjali. It is further stated that Anjali was also gone inside the house and at that time the lights of the house were off, due to which, the prosecutrix could not not reach inside the house and was sitting near the house for nature’s call. At the same time, suddenly a light was lit on the outside of her house and accused namely Arun Lakda and Sushil Kumar Chauhan picked her from there by covering her face with a shawl and took her away from the house. She stated that she already knew Arun Lakda and also recognized his voice. At that time Arun Lakda had taken the name of co-accused Sushil Kumar Chauhan. She do not know where the accused/appellants took her. She further stated in her evidence that she was given something to smell and thereafter, both the appellants picked her up from there, covered with shawl and took her away in the field. Thereafter, she was taken to the hospital. When she was taken from Kunkuri Hospital to Jashpur Hospital at night, she came to know that she had been raped by the appellants. Thereafter, she told her father at Jashpur hospital that she was having stomach ache and her head was also aching and swollen, it felt as if someone had hit her on the head with a stick. 10. Medical examination of the prosecutrix was conducted by Dr. Kanta Tirkey (PW-3) and submitted a report vide Ex.P/9, in which, two small linear abrasion was found on his left forearm of size 0.3 x 0.1 c.m. and no other injury was found. 11. Medical Examination of the appellants were conducted by Dr. C.K. Sai (PW-16) and submitted a report vide Ex.P/44 & Ex.P/46 and opined that there is no evidence to suggest that they cannot perform sexual intercourse. 12. Looking to the statement of Hari Kamal (PW-6) that when he was coming back to his home from his field then on the way, he saw the prosecutrix who lying unconscious on the rock and her clothes were completely soaked. 12. Looking to the statement of Hari Kamal (PW-6) that when he was coming back to his home from his field then on the way, he saw the prosecutrix who lying unconscious on the rock and her clothes were completely soaked. Thereafter, he informed the Bholeshankar (PW-8) and Parmeshwar Ram (PW-7) and Sukhdev Ram (PW-1), father of the prosecutrix and then the prosecutrix was taken to the hospital. It is further stated in his statement that the face of prosecutrix was covered with shawl and she was not able to talk and lying unconscious. 13. Looking to the statement of complainant-Sukhdev Ram (PW-1), father of the prosecutrix, it is stated that when he was searching the prosecutrix and went to the house of Jagneshwar, then her daughter Anita Bai(PW-5) came and informed him that the prosecutrix was lying unconscious on the rock near field. Thereafter, Sukhdev Ram (PW-1), Bholeshankar (PW-8) went to the spot and found the prosecutrix lying unconscious on the rock. 14. The Supreme Court in the matter of Rai Sandeep alias Deenu v. State (NCT of Delhi), 2012 (8) SCC 21 held as under:- “22. In our considered opinion, the ‘sterling witness’ should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone 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 similar such tests to be applied, it can 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 recise, 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.” 15. Also, the Supreme Court in the matter of State of Maharashtra vs Chandraprakash Kewal Chand Jain, 1990 SCC 550 held as under:- “A prosecutrix of a sex-offence cannot be put on 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. 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 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 Indian Evidence Act, 1872 (in short ‘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 evidence unless the same is own to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case discloses 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.” 16. Reverting to the facts of the present case in light of above principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that from the statement of prosecutrix (PW-2) that when she was coming back towards her house and stopped at some distance from her house for attending nature's call, then the appellants herein took the prosecutrix by covering her face with a shawl and committed forcibly sexual intercourse with her. Looking to the statement of Hari Kamal (PW-6) that when he was coming back to his home from his field then on the way, he saw the prosecutrix who lying unconscious on the rock and her clothes were completely soaked. Looking to the statement of Hari Kamal (PW-6) that when he was coming back to his home from his field then on the way, he saw the prosecutrix who lying unconscious on the rock and her clothes were completely soaked. Also looking to the statement of complainant-Sukhdev Ram (PW-1), father of the prosecutrix, it is stated that when he was searching her daughter/prosecutrix and went to the house of Jagneshwar, then her daughter Anita Bai(PW-5) came and informed him that the prosecutrix was lying unconscious on the rock near field. Thereafter, Sukhdev Ram (PW-1), Bholeshankar (PW-8) went to the spot and found the prosecutrix lying unconscious on the rock. Subsequently, prosecutrix was taken to hospital and after regained her consciousness, she narrated the whole incident to his father-Sukhdev Ram (PW-1) that she was taken by the appellants and after committing sexual intercourse with her, she was thrown on the rock in the field by the appellants. 17. When we look at the evidence of prosecutrix, we find that she has categorically stated about the sexual intercourse that was committed by the appellants. Therefore, taking into consideration the evidence of prosecutrix (PW-2), evidence of Dr. Kanta Tirki (PW-3), FSL report (Ex.P-11) in which, semen stains and human sperm were found in underwear of the prosecutrix, we are of the considered opinion that the appellants took the prosecutrix from outside of her house and committed sexual intercourse with her, therefore, we have no hesitation in accepting the evidence of prosecutrix. Thus, the trial Court has rightly convicted the appellants for offence under Sections 366 and 376(d) of the IPC. 18. In the result, this Court comes to the conclusion that the prosecution has succeeded in proving its case beyond all reasonable doubts against the appellants. The conviction and sentence as awarded by the trial court to the appellants is hereby upheld. The present criminal appeal lacks merit and is accordingly dismissed. 19. It is stated at the Bar that the appellants are in jail. They shall serve out the sentence as ordered by the trial Court. 20. The Registry is directed to transmit the certified copy of this judgment along with the record to the trial Court concerned for necessary information and compliance.