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Achhelal vs The State Of C.G. 7 Mcrc/2338/2019 … on 5 April, 2019

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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 3-4-2019
Pronounced on 5- 4-2019
CRA No. 395 of 2001
Achhelal son of Dwarika Prasad Jaiswal, aged about 35 years,
R/o.Purani Basti, Darri, PS Darri, Distt. Korba (CG)
—- Appellant
Versus
State of Chhattisgarh through District Magistrate, Korba (CG)
—- Respondent

For appellant : Ms. Seema Singh and Mr. A.K. Yadav, Adv.

For State : Ms. M. Asha, Panel Lawyer.

Hon’ble Shri Sharad Kumar Gupta, J
C.A.V. JUDGMENT

1. Challenge in this appeal is levied to the judgment of conviction
and order of sentence dated 25-4-2001 passed by the Additional
Sessions Judge, Korba, Distt. Korba, CG in ST No. 544/1998 whereby
and whereunder he has convicted and sentenced the appellant as
under :-

Conviction u/S. Sentence RI. Fine In default of
payment of fine
450, IPC 7 Years Rs. 500/- 2 months SI
376, IPC 7 Years Rs. 500/- 2 months SI

Both the jail sentences have been directed to run concurrently.

2. In brief, the prosecution story is that at the time of alleged
incident prosecutrix was 27 years old. She was resident of Purani Basti,
Darri. On 24-11-1998 in the night she slept in her house along with her
minor daughter Ku. Archna aged 7 years and minor son Ashish aged 5
years. Her husband was not present in the house. At about 1 am
neighbour- appellant entered in her house, overpowered her, she
shouted, he pressed her mouth and committed forcible sexual
intercourse with her. Meanwhile, her daughter Archna woke up and
asked him to leave her mother. Thereafter, he ran away from the spot.
In the morning she narrated the incident to neighbour Brahaspati Bai
and by telephone to his brother Bajrang. On 25-11-1998 at about 9.05
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am she lodged an FIR in PS Darri. After completion of the investigation,
a charge sheet was filed against him for the offences punishable under
Sections 450 and 376, of the Indian Penal Code (in brevity ‘IPC’). The
trial Court framed the charges against him under Sections 450 and 376
of the IPC. He abjured the charges and faced the trial. To bring home
the charges against him, the prosecution examined as many as 10
witnesses. He examined one witness in his defence. After conclusion of
trial, the trial Court convicted and sentenced him as mentioned above.

3. Being aggrieved by the aforesaid judgment of conviction and
order of sentences, the appellant has preferred this criminal appeal.

4. Counsel for the appellant submits that the appellant has been
falsely implicated. No rape has been committed by him with the
prosecutrix. Trial Court has not properly appreciated the evidence
available on record in proper perspective. The evidence of the
prosecutrix is not supported by medical report. She was the consenting
party. Her daughter is a tutored witness. The FIR is delayed and no
reasonable explanation has been given by the prosecution. Therefore,
the impugned judgment of conviction and order of sentences may be
set aside and he may be acquitted of the charges.

5. On the other hand, the Panel Lawyer appearing for the State
supported the impugned judgment and submitted that the trial Court
has rightly convicted and sentenced the appellant. Hence the appeal
may be dismissed.

6. As per the alleged MLC report Ex. P-4, P.W. 4 Dr. Smt. R.
Dahariya had examined prosecutrix and found that no any external
injury was present on the upper part of her body, no any injury was
present on her both thighs and external genitalia, no injury was present
on her vaginal canal. She opined that prosecutrix was habitual of sexual
intercourse, no definite opinion can be given about recent act.

7. There is no such evidence on record on strength of which it can
be said that Ex. P-4 is not believable. Thus, this Court believes on Ex.
P-4.

8. As per the alleged MLC report Ex. P-6, P.W. 5 Dr. A.K. Tiwari had
examined appellant and found there was no external injury on his body.
He opined that he was able to perform sexual intercourse.

9. There is no such evidence on record on strength of which it can
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be said that Ex. P-6 is not believable. Thus, this Court believes on Ex.
P-6.

10. P.W. 2 Prosecutrix says in para 1 and 2 of her statement of given
on oath that she slept in her house in the night along with her daughter
Archna and son Ashish. At about 1.30 am appellant entered in her
house, pressed her mouth and committed sexual intercourse with her.
When she slightly shouted her daughter woke up and she also raised
alarm.

11. P.W. 9 Archna Agrawal says in para 1, 3, 5, 6 of her statement
given on oath that in the night appellant entered in her house, climbed
over her mother after removing his pant and underwear, her mother had
shouted, she woke up, he was inserting his private part and shaking
his waist.

12. D.W. 1 Ramasare says in para 2, 3, 4, 5 and 6 of his statement
given on oath that prosecutrix was taking grocery from the grocery shop
of appellant on credit. Appellant had demanded the amount of Rs.
1,000/- due on prosecutrix. She and her husband abused him. She
threatened that she will implicate him in a criminal case. At the time of
alleged incident, he was present in his house which is adjacent to
house of prosecutrix, she had not heard any sound or shouting or
knocking, opening the door of her house. In another room of the house
of prosecutrix, one Basanti was residing, some women employees who
had come for election duty stayed in front of the house of prosecutrix in
a primary school. She had not stated alleged incident to him or Basanti
or women employees.

13. Counsel for the appellant placed reliance on a decision of
Hon’ble Supreme Court in Munna -v- Sate of M.P. [(2014) 10 SCC 254
] para 11 of which is relevant and quoted below :-

“11. Thus, while absence of injuries or absence of raising alarm
or delay in FIR may not by itself be enough to disbelieve the
version of prosecutrix in view of the statutory presumption under
Section 114-A of the Evidence Act but if such statement has
inherent infirmities, creating doubt about its veracity, the same
may not be acted upon. We are conscious of the sensitivity with
which heinous offence under Section 376 IPC has to be treated
but in the present case the circumstances taken as a whole
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create doubt about the correctness of the prosecution version.
We are, thus, of the opinion that a case is made out for giving
benefit of doubt to the accused.”

14. Hon’ble Supreme Court in the matter of Radhu Vs. State of M.P.
[(2007)12, SCC 57], laid down following judicial precedent :-

“A finding of guilt in a case of rape, can be based on the
uncorroborated evidence of the prosecutrix and her testimony
should not be rejected on the basis of minor discrepencies and
contradictions. Absence of injuries on the private parts of the
victim will not by itself falsified the case of rape, nor can be
construed as evidence of consent nor the opinion of a doctor that
there was no evidence of any sexual intercourse or rape,sufficient
to disbelieve the victim. However courts should , at the same
time, bear in mind that false charges of rape are not uncommon,
and there are some rare instances where a parent has persuaded
a gullible or obedient daughter to make a false charge of a rape
either to take revenge or extort money or to get rid of financial
liability. Whether there was rape or not would depend ultimately
on the facts and circumstances of each case.”

15. Hon’ble Supreme Court in the matter of Raju and others -v-
State of MP [(2009) 3 SCC(Cri) 751)], held that testimony of the
prosecutrix is believable on a par with that of an injured witness, her
testimony cannot always be presumed to be gospel truth. Possibility of
exaggeration or embellishment or false implication where several
persons are accused cannot be ruled out. Possibility of immoral past of
prosecutrix based on evidence can be considered.

16. In the matter of Mohd. Ali -v- State of UP [2015 (7) SCC 272],
Hon’ble Supreme Court observed in para 30 as under :-

“30. True it is, the grammar of law permits that the testimony of a
prosecutrix can be accepted without any corroboration without
material particulars, for she has to be placed on a higher pedestal
than an injured witness, but, a pregnant one, when a court, on
studied scrutiny of the evidence finds it difficult to accept the
version of the prosecutrix, because it is not unreproachable, there
is requirement for search of such direct or circumstantial
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evidence which would lend assurance to her testimony.”

17. P.W. 2 prosecutrix says in para 31 during her cross-examination
that she was not in conscious condition thus she did not bite the
appellant by teeth, did not snatch by nails, did not push him, did not
beat him by legs. There is no such material available on record on
strength of which it can be said that such explanation is not natural.
Moreover, in such a situation it is natural human conduct that
prosecutrix gets disturbed and deviated. Thus, not offering physical
resistance by the prosecutrix does not amount that she was allegedly a
“free consenting party”.

18. As per Ex. P-4 no injury was found on the body of prosecutrix.
Looking to the aforesaid judicial precedent laid down by Hon’ble
Supreme Court in the matter of Radhu (supra) and in the matter of
Munna (supra), this Court finds that in the absence of injury as opined
by P.W. 4 Dr. Smt. R. Dahariya, it cannot be said that prosecutrix was
allegedly ” free consenting party”.

19. P.W.-2 prosecutrix says in para 24 during her cross-examination
that she had not narrated incident to her neighbours, members of
locality, employees who had come for conducting the election,
immediately because she was upset. There is no such material
available on the record on strength of which it can be said that the said
explanation is not normal and natural. Thus, not informing the alleged
incident to the neighbours, members of locality, the employees does
not give rise to the presumption that she was allegedly “free consenting
party”.

20. In the matter of Balwant Singh Vs State of Punjab [(1987) 2
SCC 27] Hon’ble Supreme Court has laid down the following judicial
precedent-

“Defence case that the father of prosecutrix falsely implicated the
accused persons on the ground of litigation and enmity cannot be
accepted as it is absurd that on account of litigation father of
prosecutrix would falsely involve his daughter in case of rape by
the appellant”.

21. In the case in hand, appellant failed to prove any documentary
evidence to the effect that prosecutrix had allegedly taken grocery of
such amount on credit from his shop. Moreover, he had not lodged any
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report in any police station alleging that on account of demand of due
amount regarding grocery, she and her husband had threatened him to
falsely implicate in criminal case. Moreover, it is absurd that on account
of due amount the prosecutrix would falsely involve appellant in rape
case. In these circumstances, the aforesaid judicial precedent laid down
by Hon’ble Supreme Court in the matter of Balwant Singh (supra) is
applicable in favour of prosecution case and against the appellant’s
case.

22. In the matter of State of Madhya Pradesh Vs Ramesh [(2011) 4
SCC 786] Hon’ble Supreme Court has laid down following judicial
precedent-

“In case deposition of a child witness inspires confidence, the
Court may rely upon his evidence”

23. In the matter of Gul Singh alias Gulia -v- State of M.P. [2014
SCC OnLine SC 719] Hon’ble Supreme Court has laid down following
judicial precedent-

“Evidence of child witness cannot be rejected unless the same is
tutored or unless the same is unreliable.

24. There is no such material available on record on strength of
which it can be said that P.W. 9 Archana Agrawal is a tutored witness
and she had made aforesaid statement merely because she was in grip
of her mother- prosecutrix who had asked her to say like that. There is
no material available on record on the strength of which it can be said
that the aforesaid testimony of P.W. 9 Archana Agrawal is not reliable or
does not inspire the confidence. Thus, the aforesaid judicial precedents
laid down by the Hon’ble Supreme Court in the matters of State of
Madhay Pradesh -v- Ramesh (supra) Gul Singh alias Gulia (supra)
are applicable in favour of prosecution case and applicable against the
appellant’s case.

25. There is no such omission and contradiction have been dealt
during the cross-examination of P.W.-2 Prosecutrix P.W.-9 Archana
Agrawal which can adversely affect the testimony of P.W. 2 Prosecutrix
given in para 1 and 2 and testimony of P.W. 9 Archana Agrawal given in
para 1, 3, 5 and 6 of their statements.

26. In the matter of State of H.P. -v- Shree Kant Shekari [2004(8)
SCC 153], Hon’ble Supreme Court has held in para 18 as under :-

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“18. The unusual circumstances satisfactorily explained the delay
in lodging of the first information report. In any event, delay per se
is not a mitigating circumstance for the accused when
accusations of rape are involved. Delay in lodging the first
information report cannot be used as a ritualistic formula for
discarding the prosecution case and doubting its authenticity. It
only puts the court on guard to search for and consider if any
explanation has been offered for the delay. Once it is offered, the
court is to only see whether it is satisfactory or not. In case if the
prosecution fails to satisfactorily explain the delay and there is
possibility of embellishment or exaggeration in the prosecution
version on account of such delay, it is a relevant factor. On the
other hand, satisfactory explanation of the delay is weighty
enough to reject the plea of false implication or vulnerability of the
prosecution case. As the factual scenario shows, the victim was
totally unaware of the catastrophe which had befallen her. That
being so, the mere delay in lodging of the first information report
does not in any way render the prosecution version brittle. These
aspects were highlighted in Tulshidas Kanolkar v. State of Goa
[(2003) 8 SCC 590 : 2004 SCC (Cri) 44] .”

27. The relevant portion of para-13 of Puran Chand -v- State of H.P.
[(2014) 5 SCC 689] wherein the Hon’ble Supreme Court has made
some observation is quoted below :-

“13. ……………The delay in lodging the FIR has been clearly
explained by the prosecution relating the circumstance and the
witnesses supporting the same have stood the test of scrutiny of
the cross-examination as a result of which the version of the
victim girl cannot be doubted. The delay in lodging the FIR thus
stands fully explained.”

28. In alleged FIR Ex. P-3 it has been mentioned that the appellant
entered in the house of prosecutrix, pressed her mouth, committed
sexual intercourse with her.

29. The alleged incident took place on 25.11.1998 at about 1.00 a.m.
Ex. P-3 was lodged on 25.11.1998 at about 9.05 a.m. In Ex. P-3 the
distance from village Darri to Police Station, Darri is mentioned as 1
k.m. There is no such material available on record on the strength of
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which it can be said that the said distance is not believable. Thus, this
Court believes that the distance is 1 km. Moreover, it is alleged that at
the time of alleged incident nobody was present in the house of
prosecutrix except two minor children. Moreover, it is also natural that
she was allegedly upset on account of such incident. In these
circumstances, this Court finds that delay in lodging Ex. P-3 is
satisfactory and convincing. Thus, looking to the aforesaid judicial
precedents laid down by Hon’ble Supreme Court in the matters of
Shree Kant Shekari (supra), Puran Chand (supra) and Munna
(supra), this Court finds that delay in lodging Ex. P-3 is not fatal to the
prosecution case.

30. There is no such evidence on record on the strength of which it
can be said that Ex. P-3 is fabricated or concocted to falsely implicate
the appellant in alleged offences.

31. This has been earlier decided that prosecutrix was not a free
consenting party. After the appreciation of the evidence discussed
hereinbefore, this Court finds that aforesaid statements of para No.1
and 2 of P.W. 2 prosecutrix, paras No.1, 3, 5 and 6 of P.W. 9 Archana
Agrawal are simple, natural, and normal. Thus, on the basis of
aforesaid judicial precedents laid down by Hon’ble Supreme Court in
the matters of Radhu (supra), Mohd. Ali (supra), Raju and others
(supra) and Munna (supra), this Court finds that this Court can act upon
aforesaid sole testimony of para 1 and 2 of P.W. 2 Prosecutrix. Thus,
appellant does not get any help from the aforesaid judicial precedent
laid down by Hon’ble Supreme Court in the matter of Munna (supra).

32. In the case in hand, the aforesaid statement of para 1 2 of
prosecutrix gets corroboration from the aforesaid statement of para 1,
3, 5 and 6 of P.W.-2 Archana Agrawal and Ex. P-6.

33. After the appreciation of the evidence discussed herebefore, this
Court believes on para 1 2 of statement of P.W. 2 Prosecutrix, para 1,
3, 5 6 of P.W. 9 Archana Agrawal and disbelieves aforesaid statement
of D.W. 1 Ramasre in the reference that allegedly prosecutrix had
falsely implicated the appellant on account of demanding due amount
regarding grocery, he had not allegedly committed forcible sexual
intercourse with her.

34. After the appreciation of the evidence discussed herebefore this
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Court finds that prosecution has succeeded to prove beyond
reasonable doubt that appellant had committed house trespass in order
to commit rape with prosecutrix which is punishable with imprisonment
for life, and committed rape with prosecutrix which are punishable
under Section 450, 376 of the IPC respectively. Thus, this Court affirms
the judgment of conviction passed by the trial Court.

35. As regards sentences awarded to the appellant for offence
punishable under Sections 450 and 376(1) of the IPC, considering the
facts and circumstances of the case, they appear to be just and proper,
and do not call for any interference. Hence, this Court also affirms the
sentences regarding Sections 450 and 376, IPC.

36. The appeal being devoid of merit deserves to be and is hereby
dismissed.

37. The appellant is reported to be on bail. His bail and bonds are
cancelled. He is directed to surrender immediately before the trial Court
for undergoing the remaining part of sentences. The trial Court is also
directed to take the appellant in custody immediately for undergoing the
remaining part of sentences.

Sd/-

(Sharad Kumar Gupta)
Judge

Laxmi/pathak

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