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NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.427 of 2009

Dauwa @ Damedas, S/o. Dev Sai Panika, aged about 21
years, R/o. Village Bade Damali, Police Station Darima,
District Surguja (CG)
—- Appellant
Versus
State Of Chhattisgarh, Through Police Station Darima,
Distt. Surguja (CG)
—- Respondent

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For the appellants :Shri Keshav Dewangan, Advocate
For the respondent/State: Shri Lav Sharma, Panel Lawyer

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Hon’ble Shri Justice Ram Prasanna Sharma
Judgment On Board
14.12.2018.

1. Shri Shrawan Agrawal, Advocate has been engaged by the

appellant, but despite repeated calls, none appeared, therefore,

Shri Keshav Dewangan, Advocate present in the Court is

appointed as amicus curiae to argue the matter on behalf of the

appellant.

2. This appeal is directed against judgment dated 30.5.2009

passed by Third Additional Sessions Judge (FTC), Surguja at

Ambikapur (CG) in Session Trial No.394/2006 wherein the said

Court convicted the appellant for commission of offence under

Sections 363, 366, 376(1) and 506 Part II of the Indian Penal

Code and sentenced him to undergo rigorous imprisonment for

seven years and to pay fine of 500/-; RI for seven years and to
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pay find or Rs.500/-, RI for ten years and to pay fine of Rs.1000/-

and RI for five years and to pay fine of Rs.800/- respectively with

default stipulations.

3. In the present case, prosecutrix is PW-2, who is minor. As

per the version of the prosecution, on 15.6.2006 at about 7.00 pm

the prosecutrix went to attend the call of nature where the

appellant caught hold her and upon her resistance threatened her

to kill and thereafter committed rape with her. Further case of the

prosecution is that the appellant took her to different villages

where also he committed rape with her. Father of the prosecutrix

lodged missing report at Police Station and after returning of the

prosecutrix the matter was investigated. The appellant was

charge sheeted and convicted as mentioned above.

4. Learned counsel for the appellant submits as under;-

(i) It is not established that the prosecutrix is minor and

her conduct is not fair.

(ii) The trial Court has not evaluated the conduct of the

prosecutrix, therefore the finding of the trial court is not

sustainable.

(iii) Medical report is not supporting the version of the

prosecution, therefore finding recorded by the trial Court is based

on conjectures.

(iv) The trial Court has overlooked the number of

omissions and contradictions in the statements of the prosecution
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witnesses. Therefore, finding of the trial Court is liable to be

reversed.

5. On the other hand, learned counsel for the State supporting

the impugned judgment would submit that the finding of the trial

Court is based on proper marshaling of the evidence and the

same is not liable to be interfered while invoking the jurisdiction of

the appeal.

6. I have heard learned counsel for the parties and perused

the record.

7. Dr. MK Jain (PW-1) is the Radiologist who examined the

prosecutrix on 29.6.2006 at District Hospital, Ambikapur. He

made detailed report and deposed before the trial Court that after

full examination of the prosecutrix he is of the opinion that the

prosecutrix is aged between 14-16 years. From the evidence of

this witness it is established that the prosecutrix was minor on the

date of incident. Version of this witness is unshaken during cross-

examination and there is no other medical expert opinion contrary

to the report of this expert. Therefore, it is established that the

prosecutrix was minor on the date of incident.

8. Prosecutrix (PW-2) deposed that on the date of incident at

about 8.00 pm, she came out of the house to ease herself and at

that time the appellant tried to pull her and when she resisted, he

threatened her to kill and thereafter he took her near a tree and

undressed her and also undressed himself and inserted his penis

into her vagina. She further deposed that the appellant took her
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to various places and there also he committed rape with her.

Version of the prosecutrix is supported by the version of Teejaram

(PW-3) who is the father of the prosecutrix. As per the version of

this witness when the prosecutrix did not return home he lodged

missing report and on the basis of missing report the police party

searched for the prosecutrix. Dr. BL Kosal (PW-5) deposed that

he examined the appellant and found him capable to commit

intercourse.

9. Looking to the entire evidence it is established that the

appellant took the minor prosecutrix out of keeping of lawful

guardian ship without consent of her guardian and he kidnapped

her with intent that she may be compelled to illicit intercourse.

Again it is established that the appellant raped the prosecutrix and

threatened her to kill.

10. Date of incident is 15.6.2006 and report was lodged after

returning of the prosecutrix at Police Station Darima that is why

FIR shows some delay in lodging the report. Where report of rape

is to be lodged many questions would obviously crop up for

consideration before one finally decides to lodge the FIR. It is

difficult to appreciate the plight of victim who has been criminally

assaulted in such a manner. Obviously prosecutrix must have also

gone through great turmoil and only after giving it a serious

thought, must have decided to lodge the FIR. Precisely this

appears to be the reasons for little delayed FIR. The delay in a

case of sexual assault, cannot be equated with the case involving
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other offences. There are several factors which weigh in the mind

of the prosecutrix and her family members before coming to the

Police Station to lodge a complaint. In a tradition bound society

prevalent in India, more particularly, rural areas, it would be quite

unsafe to throw out the prosecution case merely on the ground

that there is some delay in lodging the FIR.

11. statement of the prosecutrix is quite natural, inspires

confidence and merits acceptance. In the traditional non-

permissive bounds of society of India, no girl or woman of self

respect and dignity would depose falsely implicating somebody of

ravishing her chastity by sacrificing and jeopardizing her future

prospect. Evidence of the prosecutrix to be followed at par with

an injured witness and when her evidence is inspiring confidence,

no corroboration is necessary.

12. After assessing the evidence, this court has no reason to

say that the appellant has been falsely implicated. There is no

reason to disbelieve the evidence of prosecutrix and other

witnesses.

13. The trial Court has evaluated the evidence elaborately and

recorded a finding of conviction. This court has no reason to

substitute a contrary finding. The act of the appellant falls within

the mischief of various sections of IPC for which the trial Court

convicted him and the same is hereby affirmed. The trial Court

awarded sentence of ten years for rape with minor girl which
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cannot be termed as harsh, disproportionate or unreasonable

therefore, sentence part is not liable to be interfered with.

14. Accordingly, the appeals being devoid of merits are liable to

be and are hereby dismissed. As per the report, the appellant

has been released from jail after serving the full jail sentence

awarded to him and after remission granted to him by the jail

authorities. In view of this no further order is required for his

arrest.

Sd/-

(Ram Prasanna Sharma)
JUDGE
Bini