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Chainu Ram Sahu vs State Of Chhattisgarh 45 … on 28 November, 2018

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HIGH COURT OF CHHATTISGARH, BILASPUR

CRA No. 119 of 2010

Reserved on : 12.11.2018

Delivered on : 28.11.2018

Chainu Ram Sahu, S/o Munj Ram Sahu, aged about 37 years,
resident of Dabo O.P. Setganga Fasterpur, P.S. Mungeli, District-
Bilaspur (C.G.)
—- Appellant
Versus
State of Chhattisgarh, through P.S. Mungeli, District- Bilaspur (C.G.)
—- Respondent
——————————————————————————————-

For Appellant : Mr. Ravinder Singh Chhabra Mr.
Ashutosh Trivedi, Advocates.

For State/respondent : Mr. Vinod Kumar Tekam, PL.

——————————————————————————————-

Hon’ble Shri Justice Ram Prasanna Sharma

CAV JUDGMENT

1. This appeal is preferred under Section 374(2) of the Code of

Criminal Procedure, 1973 against judgment dated 30.01.2010

passed by Second Additional Session Judge (FTC), Mungeli,

District- Bilaspur (C.G.) in Session Trial No. 24/2009, wherein

the said court convicted the appellant for commission of

offence under Sections 376 (1) 506 (Part-II) of IPC, 1860

and sentenced to undergo R.I. for 7 years and fine of Rs.

1000/- and R.I. for 6 months and fine of Rs. 500/- respectively

with further default stipulations.

2. In the present case, the prosecutrix is PW-7. According to the

prosecution, on the night of 17.03.2009, the prosecutrix along

with her mother-in-law had approached the appellant for her

treatment to cure problem persist in her stomach. It is alleged
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that the appellant taken the prosecutrix nearby field and had

started practicing exorcism, thereafter, the appellant told the

mother-in-law to go away hence, she went to some other

place and thereafter, the appellant committed rape on

prosecutrix. The prosecutrix disclosed the incident on next

morning i.e. on 18.03.2009 and thereafter, matter was

reported on next day i.e. on 19.03.2009. Matter was reported

and investigated and after completion of trial, the trial court

convicted as mentioned above.

3. Learned counsel for the appellant submits as under:-

(i) There is delay of 2 days in lodging report and the same

has not explained, therefore, case of the prosecution is

fabricated.

(ii) The prosecutrix had not informed the incident to her

mother-in-law while returning from the place of incident. The

whole night she slept at home with her family but she did not

disclose anything to her family members. Her silence till next

morning creates doubt over the prosecution case.

(iii) After rape, she once again had gone to the appellant

house where he had given some more treatment to her. This

conduct of the prosecutrix is highly unnatural against the

human probabilities.

(iv) The trial court has ignored material omission and

contradiction which is vital in nature.

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(v) The medical examination of the prosecutrix does not

corroborate her testimony and medical examination has lost

its value because the prosecutrix is a married lady and she

spent two nights with her husband after the incident.

(vi) The trial court has erroneously drawn conclusion

regarding the counter report lodged by the appellant. Finding

arrived at by the trial court is liable to be reversed.

4. On the other hand, learned State counsel submits that the

finding arrived at by the trial court is based on relevant

material placed on record and the same does not warrant any

interference of this Court with invoking jurisdiction of the

appeal.

5. The prosecutrix (PW-7) deposed that she went to the

appellant for her treatment and during treatment in field, he

asked mother-in-law of the prosecutrix to leave the place and

thereafter, by upturning her sari, has inserted his penis into

her vagina. She further deposed that she objected to the act

of the appellant, but he threatened her to kill. Version of the

prosecutrix (PW-7) is supported by version of mother-in-law

Dropadi Bai (PW-8) who accompanied the prosecutrix for

treatment from the appellant. Again, version of the prosecutrix

is supported by version of husband namely Radheshyam

Sahu (PW-9). All these witnesses have been subjected to

searching cross-examination, but nothing could be elicited in

favour of the defence. Version of the prosecutrix is supported

by version of medical expert- Dr. Sudesh Ratre (PW-5) who
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examined the appellant and found him capable to perform

intercourse.

6. True it is that delay of two days in lodging the report against

the appellant but the point is whether the delay is fatal to the

prosecution case. In the peculiar facts and circumstances of

the case, it is not an ordinary rape, it is exceptional one. It is a

case of betrayal by the appellant to whom the prosecutrix

trusted for treatment, has committed rape on her.

7. When FIR by a woman is to be lodged with regard to

commission of offence like rape, many questions obviously

grow up for consideration before finally deciding to lodge FIR.

In the facts and circumstances of the case, it is difficult to

participate in plight of victim who has been criminally

assaulted on such a manner. Obviously, the prosecutrix must

have also gone through turmoil. The delay in case of sexual

assault cannot be equated with case involved other offences.

There are several factors in the mind of the prosecutrix before

coming to the police station.

8. In a tradition bound non-permissive society more particularly

in the rural areas, it would be quite unsafe to throwout the

prosecution case merely on the ground that there is delay in

lodging FIR. Delay in lodging FIR cannot rest on ritualistic

formulae. In the facts and circumstances of this case and in

the considered view of this Court, delay in the present case is

not fatal to the prosecution.

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9. Arguments advanced on behalf of the appellant that case of

the prosecution is fabricated is not sustainable. A woman in a

tradition bound non-permissive society would be extremely

reluctant even to admit that any incident, which is likely to

reflect upon her chastity, had occurred, being conscious of the

danger of being ostracized by the society or being looked

down by the society. Her not informing anyone about the

incident in the circumstances cannot be detract from her

reliability. In normal course of human conduct, a woman would

not like to give publicity to the traumatic experience she had

undergone and would feel terribly embarrassed in relation to

the incident to narrate such incident.

10. Evidence of the victim of sexual assault if inspired confidence,

the conviction can be founded on her testimony alone. It is not

a case where there is any infirmity in the statement of the

prosecutrix who come forward and shown courage. She has

made a humiliating statement against her honour, any

suspicion will aid to her injury, therefore, argument advanced

on behalf of the appellant is not sustainable.

11. It is a case of betrayal by the appellant to whom the

prosecutrix trusted in treatment, therefore, version of the

prosecutrix cannot be seen under cloud. There is no material

contradiction in the statement of the prosecutrix which go to

the route of the case. Any minor contradiction which do not go

to the route of the case is insignificant and on the basis of any

minor contradiction, case of the prosecutrix cannot be
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doubted with, therefore, argument advanced on behalf of the

appellant is not acceptable.

12. The trial court has rightly evaluated the entire evidence and

this Court has no reason to record contrary finding.

Commission of rape by the appellant is offence punishable

under Section 376 (1) of IPC and threat to kill is offence

punishable under Section 506 (Part-II) of IPC for which the

trial court convicted the appellant and the same is not liable to

be interfered with and conviction of the appellant is hereby

affirmed.

Heard on the point of sentence

13. The trial court awarded jail sentence of 7 years and fine of Rs.

1000/- for commission of offence under Section 376 (1) of

IPC. Looking to the gravity of the offence, it cannot be termed

as harsh, disproportionate or unreasonable and the same is

not liable to be interfered with. The whole sentence part is

also not liable to be interfered with. Accordingly, the appeal is

liable to be and is hereby dismissed.

14. The appellant is reported to be on jail, therefore, no order for

his arrest etc. is required.

Sd/-

(Ram Prasanna Sharma)
Judge

Arun

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