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Domara Prasad vs State Of Chhattisgarh 55 … on 11 April, 2019

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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 5-4-2019
Pronounced on 11- 4-2019
CRA No. 534 of 2003
(Arising out of judgment and order dated 31-3-2003 passed by the Additional Sessions Judge, Mungeli Sessions
Division Bilaspur, Distt. Bilaspur, CG in ST No. 16/2003)

Domara Prasad S/o Shobhit Ram, Aged about 50 years, R/o Village
Goindi, Police Station : Patharia, Dist: Bilaspur, C.G.
—- Appellant
Versus
State of Chhattisgarh through Police Station : Patharia, Distt: Bilaspur,
Chhattisgarh
—- Respondent

For appellant : Mr. Rajnish Shrivastava, Adv. Appears on
behalf of Mr. Amit Singh, Adv.

For State : Mr. Wasim Miyan, 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 31-3-2003 passed by the Additional
Sessions Judge, Mungeli Sessions Division Bilaspur, Distt. Bilaspur, CG
in ST No. 16/2003 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, IPC 7 Years Rs. 1,000/- 6 months RI
450, IPC 3 Years Rs. 1,000/- 3 months RI
506-B, IPC 1 Year Rs. 500/- 1 month RI

All the jail sentences have been directed to run concurrently.

2. This is admitted by the appellant that P.W. 7 Dr. P.K. Singh had
examined his genital organ.

3. In brief, the prosecution story is that at the time of alleged
incident prosecutrix was 26 years old. She was resident of village
Goindi. On 27-7-2002 at about 11-12 hours, prosecutrix was washing
utensils in her house. Appellant came in her house along with axe,
threatened her to kill, committed forcible sexual intercourse. When she
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tried to save herself, she sustained injury on her elbow and her bangles
were also broken. After sometimes, her brother-in-law Devnath came,
she informed him about the incident. On very day she gave an
application to PS Pathariya where an FIR was registered against him.
After completion of the investigation, a charge sheet was filed against
him for the offences punishable under Sections 323, 376, 506-B, 450,
of the Indian Penal Code (in brevity ‘IPC’). The trial Court framed the
charges against him under Sections 450, 376, 506(2) 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 2 witnesses in his defence. After conclusion of trial, the trial
Court convicted and sentenced him as mentioned above.

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

5. 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. All the prosecution witnesses are interested witnesses. Appellant
had given evidence against the husband of prosecutrix in a murder
case, in counter, the prosecutrix and her family members had given the
evidence against him. 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.

6. 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.

7. As per the alleged MLC report Ex. P-1, P.W. 1 Dr. Sushma
Agrawal had examined prosecutrix and found minor scratch was
present on both elbows, injury was simple in nature and caused by hard
and rough surface, no external injury was present on her vulva and
vagina, she was multi- parous women and habitual to sexual
intercourse, no definite opinion could be given regarding recent sexual
intercourse.

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8. 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.

9. As per the alleged seizure Ex. P-4, P.W. 8 L. Tigga, Sub
Inspector had seized 11 pieces of broken bangles from the spot.

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.

11. As per the alleged MLC report Ex. P-10, P.W. 7 Dr. P.K. Singh
opined that no injury was present on penis, smagma, and seminal
vesicle fluid was not present on penis, he was capable to perform
sexual intercourse.

12. There is no such evidence on record on strength of which it can
be said that Ex. P-10 is not believable. Thus, this Court believes on Ex.
P-10.

13. P.W. 4 Prosecutrix says in para 1 and 2 of her statement of given
on oath that she was washing the utensils in the house, appellant
entered into her house holding an axe. He threatened her to kill and
committed forcible sexual intercourse with her. When she tried to save
herself, she sustained injuries on her both elbows, her bangles were
also broken.

14. P.W. 2 Devnath says in para 2 of his statement given on oath that
when he returned back in his house prosecutrix told him that appellant
had come in the house and committed forcible sexual intercourse with
her.

15. P.W. 3 Bhagwati Bai who is the mother in law of the prosecutrix
says in para 1 of her statement given on oath that after returning back
from police station prosecutrix had told her that appellant came in the
house holding axe and committed rape with her.

16. P.W. 5 Bedram who is father in law of the prosecutrix says in para
2 of his statement of given on oath that when she returned back in his
house, she told him that appellant had come in the house and
committed forcible sexual intercourse with her.

17. D.W. 1 Domra Prasad- appellant says in para 1 and 2 of his
statement given on oath that in a murder case in which the husband of
the prosecutrix was accused, he had gone to Bilaspur court to give
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evidence against husband of prosecutrix, where P.W. 2 Devnath and
Prosecutrix requested and offered Rs. 10,000/- to him for not giving the
statement against husband of the prosecutrix. P.W. 2 Devnath had also
threatened him.

18. D.W. 2 Sukhmat Bai says in para 1 and 3 of her statement given
on oath that husband of the prosecutrix was convicted for the murder of
her husband Gopal at Bilaspur Court. At the time of recording of
evidence P.W. 2 Devnath had requested and offered Rs. 10,000/- to
appellant for not giving evidence against husband of the prosecutrix.

19. In the matter of Hari Obula Reddy -v- State of Andhra
Pradesh [1981 (3) SCC 675] Hon’ble Supreme Court has laid down
following judicial precedent –

“Even Partisan-ship by itself is not a valid ground for discrediting
or rejecting sworn testimony. Interested evidence can form basis
of conviction even it is not corroborated on material extent in
material particular by independent evidence. What is required is
that the evidence of interested witness should be subjected to
careful scrutiny and accepted with caution. If on such scrutiny the
interested is found to be intrinsically reliable or inherently
probable, the conviction can be based on the same.”

20. Looking to the aforesaid judicial precedent laid down by Hon’ble

Supreme Court in the matter of Hari Obula Reddy (supra), this Court

finds that aforesaid statements of P.W. 2 Devnath, P.W. 3 Bhagwati Bai,

P.W. 5 Bedram cannot be rejected solely on the ground of aforesaid

relation with prosecutrix. What is needed is that there should be close

scrutiny of aforesaid statements of said witnesses.

21. 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
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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.”

22. 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.

23. Hon’ble Supreme Court in the matter of Munna -v- Sate 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.”

24. 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.”

25. As per the Ex. P-1 , P.W. 1 Dr. Sushma Agrawal opined that no
injury was present on body of prosecutrix except aforesaid scratch.
Looking to the aforesaid judicial precedents laid down by Hon’ble
Supreme Court in the matter of Radhu (supra), Munna (supra), this
Court finds that in the absence of injury on body of prosecutrix except
aforesaid scratch, it cannot be said that prosecutrix was allegedly ‘free
consenting party’.

26. Though as per Ex. P-1, P.W. 1 Dr. Sushma Agrawal opined that
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prosecutrix was multi parous woman habitual to sexual intercourse, no
definite could be given regarding recent sexual intercourse, but looking
to the aforesaid judicial precedent laid down by Hon’ble Supreme Court
in the matter of Radhu (supra), this Court finds that said opinion is not
sufficient to disbelieve the aforesaid statements of P.W. 4 prosecutrix,
P.W. 2 Devnath, P.W. 3 Bhagwati Bai, P.W. 5 Bedram.

27. P.W. 4 prosecutrix says in para No.9 during her cross-
examination that this is true that she had not intimated about the
incident to village Kotwar or any other person. Looking to the above
judicial precedent laid down by Hon’ble Supreme Court in the matter of
Munna (supra), this Court finds that not informing alleged incident to
village Kotwar or any other person by the prosecutrix is not sufficient to
falsify the aforesaid statements of P.W.2 Devnath, P.W.3 Bhagwati Bai,
P.W.4 prosecutrix P.W.5 Badram.

28. P.W.4 prosecutrix says in Para No.14 that she had scratched
appellant. As per Ex.P-10 no injury was found on body of appellant.
These circumstances are not sufficient to say that prosecutrix was
allegedly ‘free consenting party’.

29. 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”.

30. P.W.2 Devnath says in Para No.4 during his cross-examination
that this is true that Megnath is in jail in murder case, a trial is going on
in Bilaspur Court, in that case appellant was witness, one month prior to
alleged incident appellant had given the evidence in that case. P.W.3
Baghwati Bai says in Para No.2 during her cross-examination that
Megnath is in jail in a murder case. P.W.4 prosecutrix says in Para
No.10 that, this is true that a murder case is pending in Bilaspur Court.
P.W.5 Badram says in Para No.4 during his cross-examination that a
murder case of Gopal is pending against Megnath who is in jail.

31. There is no such evidence on record on strength of which it can
be said that prosecutrix had given application Ex.P-6, P.W. 2 Devnath
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had made aforesaid statements of Para No.2, P.W.3 Baghwati Bai had
made aforesaid statement of Para No.1, P.W.4 prosecutrix had stated
aforesaid statement of Para No.1 and 2, P.W.5 Badram had stated
aforesaid statement of Para No.2, merely because husband of
prosecutrix was facing criminal trial for the murder of Gopal in Bilaspur
Court, in this case appellant had given the evidence against husband of
prosecutrix ultimately he was convicted, knowingly that appellant had
not committed any crime. Moreover, it is absurd that on account of
giving evidence by appellant against husband of prosecutrix in murder
case who was convicted by the Court, P.W.2 Devnath, P.W.3 Baghwati
Bai, P.W.4 prosecutrix, P.W.5 Badram would falsely involve appellant in
alleged crime. 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.

32. No such omissions and contradictions have been dealt during the
cross-examination of P.W.-2 Devnath, P.W.3 Baghwati Bai, P.W.4
prosecutrix, P.W.5 Badram which can adversely affect the testimony of
P.W.2 Devnath in Para No.2, P.W.3 Baghwati Bai in Para No.1, P.W. 4
Prosecutrix in Para No. 1 and 2 and P.W.5 Badram in Para No.2.

33. 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 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] .”

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34. 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.”

35. In Ex. P-6 it has been mentioned that the appellant holding an
axe entered in the house of prosecutrix, threatened her to kill and
committed forcible sexual intercourse with her, during to save herself
she sustained injuries on elbow and her bangles were also broken.

36. The alleged incident took place on 27.07.2002 at about 11:12
a.m. Ex.P-6 was given on very day. As per the Para No.8 of prosecutrix
she had given Ex.P-6 at about 1:00-1:30 p.m. in alleged FIR in Ex.P-7 it
has been mentioned that the reason for delay is that prosecutrix was
alone in the house. As per the aforesaid statements of P.W.2 Devnath,
P.W.3 Bhagwati Bai, P.W. 4 prosecutrix, P.W.5 Bedram, prosecutrix was
alone in the house. Moreover, in such a situation it is normal and
natural human conduct that prosecutrix allegedly become upset. Thus,
this Court finds that delay in giving Ex. P-6 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 giving Ex. P-6 is not fatal to the prosecution case.

37. There is no such evidence on record on the strength of which it
can be said that Ex. P-6 is fabricated or concocted to falsely implicate
the appellant in alleged offences.

38. This has been earlier decided that prosecutrix was not a free
consenting party. After the appreciation of the evidence discussed
herebefore, this Court finds that aforesaid statements of para No.2 of
P.W. 2 Devnath, Para 1 of P.W.-3 Baghwati Bai, Para 1 and 2 of
prosecutrix, para No.2 of P.W.-5 Badram 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
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P.W. 4 Prosecutrix.

39. In the case in hand, the aforesaid statements of para 1 2 of
prosecutrix gets corroboration from the aforesaid statements of para 2
of P.W.2 Devnath, Para No.1 of P.W.-3 Baghwati Bai, Para No. 2 of
P.W.5 of Badram, Ex.P-1, Ex.P-4, Ex.P-6, Ex.P-10.

40. After the appreciation of the evidence discussed herebefore, this
Court believes on para 2 of P.W. 2 Devnath, Para 1 of P.W.3 Baghwati
Bai, Para 1 and 2 of prosecutrix, Para 1 of P.W.5 Badram.

41. After the appreciation of the evidence discussed herebefore this
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, and gave threats to kill
her, which are punishable under Section 450, 376 506(2) of the IPC
respectively. Thus, this Court affirms the judgment of conviction passed
by the trial Court.

42. As regards sentences awarded to the appellant for offences
punishable under Sections 450, 376(1) 506(2) 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 450,376 506(2) of the IPC.

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

44. 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. 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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