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HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 609 of 2009
Devlal S/o Shri Kunjalu Gond aged about 35 years, R/o Village –
Borid, P.S. Fingeshwar, District Raipur (CG)
—- Appellant
Versus
State of Chhattisgarh, Through: Fingeshwar District Raipur (CG)
—- Respondent
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For Appellant : Mr. M.K. Baeg, Advocate.
For State/respondent : Mr. Lav Sharma, Panel Lawyer.
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HON’BLE SHRI JUSTICE RAM PRASANNA SHARMA
JUDGMENT ON BOARD
10/12/2018
1. This appeal is preferred under Section 374(2) of the Code of
Criminal Procedure, 1973 against judgment dated 25.3.2009,
passed by the Additional Sessions Judge, Gariyaband, District
Raipur(C.G.) in Session Trial No. 7/2009, wherein the said court
has convicted the appellant for commission of offence under
Sections 376 (1) of IPC and sentenced to undergo R.I. for 10
years and fine of Rs.500/- with default stipulation.
2. In the present case, prosecutrix is PW1. As per the case of
prosecution, the prosecutrix is living in village Borid. On
29.10.2008, at about 3.00 pm the prosecutrix and her daughter
in law Budhiyarin Bai were at home and her husband has gone
to village Chingrau and her two sons were also not at home
and they had gone to earn their livelihood. At the same time the
appellant came into her home and asked her for bread when
daughter in law of the prosecutrix went away from the house,
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the appellant assaulted her sexually and raped her. On hearing
her cries, her daughter in law reached there, the appellant ran
away. The matter was reported and investigated and after
completion of trial, the trial court convicted and sentenced and
appellant as mentioned above.
3. Learned counsel for the appellant submits as under:-
(i) The statements of the prosecution witnesses are
contradictory and version of the prosecution is not reliable.
(ii) Ingredients of offence under Section 376 IPC is not made
out. The trial Court has ignored the material contradictions and
omissions, therefore, finding of 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 proper
marshalling of evidence and same is not liable to be interfered
with invoking jurisdiction of appeal.
5. I have heard learned counsel for the parties and perused the
record of the trial Court.
6. Prosecutrix PW1 deposed that when no one was in her house,
the appellant entered and removed her garments and
committed sexual intercourse with her. When she cried for help
daughter in law of the prosecutrix namely- Budhariyan Bai
rushed there, who saw the incident and thereafter, the appellant
ran away. Version of this witness is supported by the version of
Budhayarin Bai (PW2) who has seen the incident. Again, it is
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supported by the version of Rekhram (PW3), Mahesh Kumar
(PW4), Ashok Kumar Sahu (PW5) and Smt. Nirmala Bai (PW6).
Version of these witness is supported by the evidence of Dr.
D.P. Kudeshiya (PW8), who examined the appellant and found
him capable of doing intercourse. All these witnesses were
subjected to searching cross-examination, but nothing could be
elicited in favour of the defence.
7. In the present case, date of incident is 29.10.2008 and FIR is
lodged as per Ex.P1 at Police Station Fingeshwar next day i.e.
30.10.2008 in which name of the appellant is mentioned as
culprit and his act is also mentioned.
8. Looking to the entire evidence, it is established that the
appellant committed rape on the prosecutrix. There is no
material contradictions in the statements of the prosecutrix, her
daughter in law and other witnesses. Minor contradictions
which do not go to the root of the case are insignificant and
therefore, minor contradictions have no adverse affect to the
entire case of the prosecution. The 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 and when her evidence is
inspiring confidence, no corroboration is necessary.
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9. It is true that there is delay of 2 days in lodging the report at
Police Station. When report is 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 delay of 2
days in lodging the FIR. The delay in a case of sexual assault
cannot be equated with the case involving other offences. There
are several factors in the mind of the prosecutrix 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 delay in lodging FIR. 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.
10. After assessing the evidence, this Court has no reason to say
that the appellant has been false implicated. There is no
reason to disbelieve the evidence of the prosecutrix.
Considering all the facts and circumstances of the case, the trial
Court opined that the appellant has committed rape against the
prosecutrix. This Court has no reason to substitute a contrary
finding.
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11. Offence of rape is punishable under Section 376 (1) IPC, for
which, the trial Court has convicted and sentenced the appellant
and same is hereby affirmed.
12. Heard on the point of sentence:
The trial court has awarded jail sentence of R.I. for 10 years
and fine of Rs.500/- for commission of offence under Section
376 (1) of IPC and 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 sentence part is
also not liable to be interfered with.
13. Accordingly, the appeal being devoid of merits is liable to be
and is hereby dismissed. It is reported that the appellant has
suffered full term of his jail sentence and has been released,
therefore, no order for his arrest etc. is required.
Sd/
(Ram Prasanna Sharma)
Judge
sunita