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Dularu Singh vs State Of Chhattisgarh 39 … on 11 October, 2018

HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 93 of 2010
Judgment Reserved on 25-9-2018
Judgment delivered on 11-10-2018

• Dularu Singh s/o. Moolchand Verma, aged 35 years, r/o. Baiji,
Police Station Bemetaqra, District Durg (CG).
—- Appellant.
Versus
• State of Chhattisgarh through the Station House Officer, Police
Station Bemetara, District Durg (CG).
—- Respondent

————————————————————————————————————–

For Appellant : Mr. Vishnu Koshta, Advocate.
For Respondent/State : Ms. K. Tripti Rao, Panel Lawyer.

Hon’ble Shri Justice Ram Prasanna Sharma

CAV JUDGMENT

1) This appeal is directed against the judgment of conviction

and order of sentence dated 28-1-2010 passed by Additional

Sessions Judge, Bemetara, District Durg (CG) in Sessions Trial

No. 47 of 2009, wherein the said Court convicted the appellant

for the commission of offence under Section 376 (1) of the

Indian Penal Code, 1860 and sentenced him to undergo

rigorous imprisonment for seven years and to pay fine of

Rs.500/- with default stipulations.

2. In the present case, prosecutrix is PW/1. It is alleged by the

prosecution that on 31-10-2009 at abut 5.00 pm prosecutrix was

cutting grass in her field and at the same time appellant reached
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there and committed forcible sexual intercourse with her after

throwing her on the surface against her will and against her

consent. The matter was reported and investigated. After

completion of the trial, the trial Court convicted and sentenced

the appellant as mentioned above.

3. Learned counsel for the appellant would submit as under:

i) It is stated by the prosecutrix that she informed the

incident to Dinesh and Dariya but they have not

been examined by the prosecution, therefore,

version of the prosecution is doubtful.

ii) Report is lodged after three days of the incident

and no explanation is given by the prosecution for

delayed FIR, therefore, version of the prosecution

is not reliable.

Iii) As per version of Dr. Rajshee Deodhar (PW/6),

one of the injuries found on the body of the victim

may be self-inflicted, therefore, injuries found on

the body of the victim has no bearing with the

crime in question.

iv) As per version of prosecutrix, she resisted the
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appellant during the incident and caused abrasion

on the face of the appellant, but no abrasion was

found on the body of the appellant as per version

of Dr. A.M. Shrivastava (PW/11) who examined

the appellant, therefore, version of prosecutrix is

not reliable.

v) Corroborative piece of evidence is also not

reliable,therefore, finding arrived at by the trial

Court is liable to be reversed.

He placed reliance on the decision of Hon’ble

Supreme Court in the matter of Narendra Kumar

Vs. State (NCT of Delhi), reported in AIR 2012

SC 2281.

4. On the other hand, learned State counsel supporting the

impugned judgment would submit that the finding of the trial

Court is based on proper marshaling of evidence which is not

liable to be interfered while invoking jurisdiction of the appeal.

5. To substantiate the charge, prosecution examined as many

as 12 witnesses. PW/1 prosecutrix deposed that on the date of

incident she was cutting grass in her field at about 5.00 pm, and

at the same time, appellant reached there and snatched sickle
4

from her hand and asked her to submit, when she denied the

appellant forcibly threw her on the surface and committed rape

on her. As per version of this witness, her bangles were broken

during course of incident and the same was seized by the Police

during investigation. This witness has been subjected to

searching cross-examination but nothing could be elicited in

favour of the defence side. This witness is firm about the incident

and her version is supported by FIR (Ex.P/1) recorded at her

instance in which name of the appellant has been mentioned as

culprit. She is firm to her previous statement recorded under

Section 161 of the Cr.P.C. Version of prosecutrix is supported by

the version of her husband namely Mahesh Vema (PW/2). As

per version of this witness he went to village Jiya to see his

mother-in-law who was ill and stayed there for three days. When

he returned to his village, his wife informed him about the

incident. After hearing the incident, he informed the same to his

father namely Manglu Verma and thereafter report was lodged.

Version of this witness is supported by version of Manglu Verma

(PW/3) who is father of Mahesh Verma and father-in-law of the

prosecutrix. Again version of Mahesh Verma is supported by the

statement of PW/4 Aarti Das, Kotwar. Statement of Manglu

(PW/9) is supportive piece of evidence. As per version of this

witness, broken bangles were seized from the spot and at the
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place of incident, crops were smashed. Direct evidence of the

prosecution is supported by the medical evidence.

6. Dr. Rajshee Deodhar (PW/6) examined the prosecutrix on

4-10-2009 at about 12.15 pm at Community Health Centre,

Bemetara and noticed the following injuries on her body.

I) Abrasion in the size of 5 cm long and .5 cm
width below scapula lateral to mid-line.

ii) Abrasion in the size of 2cm long above left
breast.

Iii) Abrasion in the size of 2 cm long on middle
part of left ring finger on palmar aspect.

iv) Abrasion in the size of 1 cm palmar aspect of
left index in lower part.

All injuries are simple in nature caused by
hard and rough object.

7. Injuries found on the back, chest and fingers of the

prosecutrix supporting the version of the prosecutrix show that

violence was committed on her and she has been subjected to

forcible intercourse without her consent and against her will.

8. True it is that though Dinesh and Dariya to whom the

prosecutrix narrated the story have not been examined, but the

same is not fatal to the prosecution looking to the entire evidence

on record. Offence of rape is normally committed in place of

secrecy, therefore, the evidence of prosecutrix is having decisive

value but other piece of evidence is only supporting piece of
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prosecution. Statement of prosecutrix itself is sufficient to bring

home the guilt if the same is of sterling quality. In the present

case, statement of the prosecutrix is wholly reliable because her

version is supported by other evidence and the evidence of

medical expert. Statement of other witnesses to whom the

incident is informed is only hearsay evidence and same is not

material evidence, therefore, it cannot be said that in the present

case, material witnesses have not been examined.

9. It is contended on behalf of the appellant that delay of

three days in lodging the FIR is not explained by the prosecution.

In the present case, from the statement of Mahesh Verma, who

is husband of the prosecutrix, it is clear that he had gone to

other village for three days to see his mother-in-law who was ill

and when he returned to his house incident was informed to him

by his wife and then decision to lodge the report is taken by

them. True it is that there is 3 days delay in lodging the FIR.

Case of sexual assault is dealt by the Hon’ble Apex court in the

matter of State of Himachal Pradesh vs. Presi Singh,

reported in (2009) 1 SCC 420 and it was held as under:

“6………the delay in a case of sexual assault,
cannot be equated with the case involving
other offences. There are several factors
which weigh in the mind of the prosecutrix
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and her family members before coming to the
police station to lodge a complaint. In a
tradition-bound society prevalent in India,
more particularly in 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. In the score, learned
counsel for the appellant is right that the High
Court has lost sight of this vital distinction”.

10. Further, it has been held by the Hon’ble Apex Court in the

matter of OM Prakash v. State of Haryana (2011) 14 SCC 309.

” 18. There is some delay in lodging the FIR
but the delay has been well explained. A
young girl who has undergone the trauma of
rape is likely to be reluctant in describing
those events to anybody including her family
members. The moment she told her parents,
the report was lodged with the police without
any delay. Once a reasonable explanation is
rendered by the prosecution then mere delay
in lodging of a first information report would
not necessarily prove fatal to the case of the
prosecution”.

Looking to the entire evidence, delay of 3 days in lodging the

FIR is not fatal to the prosecution.

11. It is contended on behalf of the appellant that no injuries

were found on th face of the appellant while prosecutrix deposed
8

that she resisted during the incident and caused injury on the

face of the appellant. In view of this court it is not necessary that

injuries must be found on the body of aggressor. The only issue

is whether she resisted during the incident. Looking to the

injuries found on the body of the prsecutrix it is clear that she

resisted during the incident that is why she sustained injuries on

her back, chest and fingers, therefore, argument on this count is

not sustainable.

12. Considering all the facts and material on record, this court

is of the view that the case law cited by learned counsel for the

appellant is clearly distinguishable from the facts of the present

case.

13. From the statement of the prosecutrix, other supportive

piece of evidence and the evidence of medical expert, it is clearly

established the guilt of the appellant which is punishable under

Section 376 (1) of the IPC for which the trial Court has convicted

and sentenced the appellant and the same is hereby affirmed.

The trial Curt awarded the minimum sentence and less than

minimum sentence cannot be awarded. Sentence part is also not

liable to be interfered with.

14. Accordingly, the appeal is liable to be and is hereby

dismissed. The appellant is reported to be on bail. His bail bonds
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shall stand cancelled. The trial Court will prepare super session

warrant and issue warrant of arrest against him. After his arrest

he be sent to concerned jail to serve out the remaining part of

the jail sentence. The trial Court to submit compliance report on

or before 11th January, 2019.

Sd/-

(Ram Prasanna Sharma)
JUDGE

Raju

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