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Arat Sai @ Ronha vs The State Of M.P. 38 … on 27 June, 2019

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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 24-6-2019
Pronounced on 27-6-2019
CRA No. 2670 of 2000
Arat Sai @ Ronha S/o. Son Sai Cherwa, aged 20 years, R/o. Village
Sonpur, PS Baikunthpur, Distt. Korea MP (now CG) —- Appellant
Versus
The State of M.P. (now CG) through PS Baikunthpur, Distt. Korea (CG)
—- Respondent

For Appellant : Mr. A.K. Yadav along with Mr. Vikas Pandey,
Adv.
For State : Mr. Ashutosh Pandey, 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 09/12/1999 passed by the Additional
Sessions Judge Baikunthpur, District Korea (M.P.) (Now in
Chhattisgarh) in S.T. No. 315/1998 whereby and whereunder, he has
convicted and sentenced the appellant as under :-

Conviction u/S. Sentence RI. Fine In default of
payment of fine
376 (1) IPC 5 Years Rs. 200/- 1 month RI

2. In brief, the prosecution story is that on 13/11/1996 prosecutrix
was 20 years of age. She was resident of village Sonpur. On
11/11/1996 at about 12 p.m. she was returning back from Government
Hospital, Mansukh to her house by walking. From village Sonpur
appellant followed her and at lonely place caught hold her hand, took
her in a pit by pulling and committed sexual intercourse with her. She
went in the house of Bahal at village Sonpur and narrated the incident
to his wife. She came back in her house and narrated the incident to
her family members. Her husband was not present in the house. On
12/11/1996 her husband returned back then she also narrated him the
incident. On 13/11/1996 she went to P.S. Baikunthpur along with her
husband and lodged an FIR Ex. P-2. After completion of the
investigation, a charge sheet was filed against him for the offence
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punishable under Section 376 of IPC. The trial Court framed the charge
against him under Section 376 (1) of the SectionIPC. He abjured the charge
and faced the trial. To bring home the charge against him, the
prosecution examined 10 witnesses in all. He examined 3 witnesses 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 sentence, 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. She was a consenting party.
Therefore, the impugned judgment of conviction and order of sentence
may be set aside and he may be acquitted of the aforesaid charge.

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-8-A, P.W. 9 Dr. Smt. Rajni
Sharma had examined prosecutrix and found following injuries on her
body :-

i. An abrasion over left elbow,
ii. An abrasion over right side of thigh.

7. As per the alleged MLC report Ex. P-8A no injury mark was
present over vulva, vagina of prosecutrix, aforesaid injuries were simple
in nature and caused by rub against hard and rough surface, no definite
opinion could have been given regarding forcible intercourse.

8. There is no such evidence on record on strength of which it can
be said that Ex. P-8-A is not believable. Thus, this Court believes on
Ex. P-8-A.

9. As per the alleged seizure Ex. P-4, P.W. 10 D.K. Sharma, ASI
had seized one petticoat from the possession of the prosecutrix.

10. 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.

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11. As per the alleged seizure Ex. P-1, P.W. 10 D.K. Sharma, ASI
had seized one sealed packet containing two slides of prosecutrix from
constable Devi Prasad.

12. There is no such evidence on record on strength of which it can
be said that Ex. P-1 is not believable. Thus, this Court believes on Ex.
P-1.

13. As per the RFSL report Ex. P-14 on article A petticoat and on
article B-1 and B-2 slides of the prosecutrix, semen and sperm were
found.

14. There is no such evidence on record on strength of which it can
be said that Ex. P-14 is not believable. Thus, this Court believes on Ex.
P-14.

15. P.W. 2 Prosecutrix says in para No. 1 of her statement given on
oath that she was returning back from village Mansukh after injecting
the injection, on the way appellant took her in a pit and committed
forcible sexual intercourse with her.

16. P.W. 4 Jagsiya Bai who is mother in law of prosecutrix says in
para No. 2 and 3 of her statement given on oath that prosecutrix had
gone to village Mansukh for her treatment. After returning back she had
told her that on the way appellant took her in a pit and committed
forcible sexual intercourse with her.

17. P.W.5 Surendra Mani who is husband of the prosecutrix says in
para No. 2 of his statement given on oath that prosecutrix had told him
that she had gone to village Mansukh for her treatment, during returning
back appellant committed wrong act with her.

18. P.W. 7 Shivbachan says in para No. 2 of his statement given on
oath that prosecutrix had told him that appellant had taken her by
pulling.

19. D.W. 1 Sonsai who is father of the appellant, says in para No. 2,
3 and 4 of his statement given on oath that one Devsai Uraon had
inimical relation with Surendra Mani and others, he helped Devsai thus
Surendra Mani and others have falsely implicated his son. Four days
prior to alleged incident appellant had gone to village Viraulidand and
returned back after 3 months.

20. D.W. 2 Devsai Uraon says in para No. 2, 3 and 4 of his statement
given on oath that Surendra Mani and others used to quarrel with him
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regarding property dispute, Sonsai Uraon helped him thus, Surendra
Mani and others have falsely implicated the appellant.

21. D.W. 3 Bhawan Sai says in para No. 1, 2 and 3 of his statement
given on oath that appellant had come to his village Viraulidand to
cultivate the land of his mother, he resided there continuously for 3
months, he did not go to any other place.

22. Hon’ble Supreme Court in the matter of Munna -v- State of M.P.
[(2014) 10 SCC 254 ] observed in para 11 as under :-

“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
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.”

23. 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.”

24. Hon’ble Supreme Court in the matter of Raju and others -v-

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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.

25. 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
evidence which would lend assurance to her testimony.”

26. Though prosecutrix had not stated as per the prosecution case
that she had raised alarm, but looking to the aforesaid judicial
precedent laid down by Hon’ble Supreme Court in the matter of Munna
(supra) this Court finds that it cannot be said that prosecutrix was
allegedly a ‘free consenting party’.

27. Though as per the Ex. P-8-A, no injury was found over the
private part of prosecutrix and P.W. 9 Dr. Smt. Rajni Shrma opined that
no definite opinion can be given regarding forcible sexual intercourse,
but looking to the aforesaid judicial precedent laid down by Hon’ble
Supreme Court in the matter of Radhu (supra) it cannot be said that
prosecutrix was allegedly a ‘free consenting party’.

28. As per the alleged FIR Ex. P-2 prosecutrix was returning back
from village Mansukh after her treatment, on the way appellant took her
by pulling in a pit and committed forcible sexual intercourse with her.

29. In the case in hand the alleged date of incident is 11-11-1996 and
Ex. P-2 has been lodged on 13-11-1996.

30. 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 :-

“18. The unusual circumstances satisfactorily explained the delay
in lodging of the first information report. In any event, delay per
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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 SectionTulshidas Kanolkar v. State of Goa
[(2003) 8 SCC 590 : 2004 SCC (Cri) 44] .”

31. 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.”

32. In the case in hand in Ex. P-2 it has been mentioned that
husband of the prosecutrix was not present in the house, he returned
back one day prior to lodging of the Ex. P-2. P.W. 2 prosecutrix says in
para 1 of her statement that her husband had not returned back from
Budhar, he returned back next day of the incident. P.W. 5 Surendra
Mani says in para 2 and 3 that he had gone to Budhar, after returning
back, he brought prosecutrix to police station. There is no such
evidence on record on strength of which it can be said that said
explanation is not simple, not natural and not normal. Moreover in the
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Indian society it is very natural circumstance that normally a report of
alleged rape is lodged after consultation with the head of the family
because honour and reputation of the family are involved in such a
matter. If he is not present then other family members wait for him. In
these circumstances this Court finds that delay in lodging Ex. P-2 is
satisfactorily explained and convincing. Thus looking to the aforesaid
judicial precedents laid down 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-2 is not fatal to the
prosecution case.

33. There is no such evidence on record on strength of which it can
be said that Ex. P-2 is fabricated or concocted to falsely implicate the
appellant in alleged offence.

34. In the matter of State of HP -v- Shree Kant Shekari (supra) the
Hon’ble Supreme Court has dealt with the false implication, the relevant
portion of para 22 reads as under :-

“22. ……. In any event no girl of a tender age and her parents
would like to jeopardise her entire future by falsely implicating a
person alleging forcible sexual intercourse”.

35. 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”.

36. Looking to the above mentioned facts and circumstances of the
case and looking to the aforesaid judicial precedents laid down by
Hon’ble Supreme Court in the matter of Shree Kant Shekari (supra)
and Balwant Singh (Supra), it is absurd that on account of help of
appellant and his father to rival of prosecutrix family i.e. D.W. 2 Devsai
Uraon, prosecutrix family would stake their reputation and honour and
falsely implicate the appellant, through prosecutrix.

37. There is no such evidence on record on strength of which it can
be said that it was totally impossible for appellant to reach on the spot
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at the alleged time of incident from village Viraulidand.

38. No such omissions and contradictions have been dealt during the
cross examination of P.W.2 prosecutrix, P.W. 4 Jagsiya Bai, P.W. 5
Surendra Mani, P.W. 7 Shivbachan which may adversely affect the
aforesaid testimony of aforesaid witnesses. There is no such evidence
on record on strength of which it can be said that P.W. 7 Shivbachan
had made aforesaid statement only because he was interested with
prosecutrix party due to any reason or he was prejudiced with appellant
due to such reason.

39. Looking to the above mentioned facts and circumstances of the
case, this Court disbelieves aforesaid statements of D.W. 1 Sonsai,
D.W. 2 Devsai Uraon, D.W. 3 Bhawansai that appellant has been
allegedly falsely implicated in this case because there was animosity
between D.W. 2 Devsai Uraon and Surendra Mani and others and
appellant and his father were interested with D.W. 2 Devsai Uraon, and
at the time of alleged incident appellant was present in village
Viraulidand.

40. This has been earlier decided that prosecutrix was not free
consenting party.

41. There is no such evidence on record on strength of which it can
be said that aforesaid statements of P.W. 2 prosecutrix, P.W. 4 Jagsiya
Bai, P.W. 5 Surendra Mani, P.W. 7 Shivbachan are not simple, not
natural and not normal.

42. On the basis of aforesaid judicial precedents laid down by
Hon’ble Supreme Court in the matter of Munna (supra), Radhu (supra),
Raju and others (Supra), Mohd. Ali (supra), this Court finds that this
Court can act upon aforesaid sole testimony of P.W. 2 prosecutrix.

43. In the case in hand, aforesaid statement of prosecutrix gets
corroboration from P.W. 4 Jagsiya Bai, P.W. 5 Surendra Mani, P.W. 7
Shivbachan, Ex. P-1, Ex. P-2, Ex. P-4, Ex. P-8-A, Ex. P-14.

44. After the appreciation of the evidence discussed herebefore this
court believes on aforesaid statements of P.W. 2 Prosecutrix, PW. 4
Jagsiya Bai, P.W. 5 Surendra Mani and P.W. 7 Shivbachan.

45. After appreciation of the evidence discussed herebefore this
Court finds that the prosecution has succeeded to prove beyond
reasonable doubt the charge punishable under Section 376(1), SectionIPC
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against the appellant. There appears no reason to interfere in the
quantum of sentence awarded by the trial Court. Thus aforesaid
conviction and sentence are affirmed.

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

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

Sd/-

(Sharad Kumar Gupta)
Judge

Pathak

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