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Hariram vs State Of Chhattisgarh 46 … on 28 November, 2018

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HIGH COURT OF CHHATTISGARH, BILASPUR

CRA No. 620 of 2010

Reserved on : 19.10.2018

Delivered on : 28.11.2018

Hariram, S/o Kushal, aged about 55 years, R/o Village- Sitagaon,
Police Station Aundhi, District- Rajnandgaon (C.G.)
—- Appellant
Versus
State of Chhattisgarh, Through: The Police Station Aundhi, District-
Rajnandgaon (C.G.)
—- Respondent
——————————————————————————————-

For Appellant : Mr. M.K. Bhaduri, Advocate.
For State/respondent : Mr. Lav Sharma, Panel Lawyer.

——————————————————————————————-

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 20.08.2010

passed by First Additional Sessions Judge, Rajnandgaon

(C.G.) in Session Trial No. 82/2009, 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 8 years and fine of Rs. 500/- R.I. for 1

year and fine of Rs. 500/- respectively with further default

stipulations.

2. In the present case, prosecutrix is PW-1 who is daughter-in-

law of the appellant/convict. The prosecutrix was married to

one Sanjulal Meshram in the year 2008 who is son of the

appellant. She was living with her husband- Sanjulal
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Meshram, mother-in-law, father-in-law/ appellant and sister-in-

law (Sister of husband). On 23.02.2009, she went to forest

with her father-in-law/ appellant for collecting fire wood where

the appellant forcibly committed rape on her and threatened

her to kill if she will disclose this incident to anyone.

Thereafter, the appellant repeatedly committed rape with the

prosecutrix. On 14.06.2009, she came to her parental house

and narrated the incident to her father mother as well as

villagers of parental village. Thereafter, report (Ex.P/1) was

lodged and investigated and after completion of trial, the trial

court convicted as mentioned above.

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

(i) The appellant has been falsely implicated due to

personal vindict and loan transaction which took place

between parents of the prosecutrix and the appellant.

(ii) The FIR is belated and there is no sufficient explanation

of delay in lodging the FIR, therefore, version of the

prosecution is doubtful.

(iii) The medical expert does not corroborate the incident,

therefore, case of the prosecution is under cloud.

(iv) The prosecutrix did not complain anyone for a long time

though, she had sufficient opportunity to disclose the fact,

therefore, her version is not reliable.

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(v) The so called extra judicial confession made by the

appellant is not legally admissible evidence, therefore, no

reliance can be placed on it.

(vi) Husband of the prosecutrix was prime witness to the

incident but, he has not been examined by the prosecution

though prosecutrix narrated the incident to her husband,

therefore, adverse inference could be drawn against the

prosecution.

(vii) There is material contradiction and omission in the

statement of the witnesses and conviction is a moral

conviction which is not liable to be sustained.

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-1) deposed that her marriage was

performed with Sanjulal Meshram who is son of the appellant.

She was living with the appellant, her husband, mother-in-law

and sister-in-law. On 23.02.2009 she went to forest for

bringing fire wood with the appellant in Kalangwahi Forest and

in that forest, the appellant made her lie down in surface

below one tree and committed rape on her. As per version of

this witness, the appellant threatened her to kill if she will

narrate the incident to anyone. She further deposed that she

informed about the incident to her husband, but he did not
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believe on her and on the contrary said that she is falsely

bringing down reputation of his father. She further deposed

that after 15 days, the appellant again committed rape on her.

She further deposed that whenever no member of family was

present in the home on any date, he committed rape on her.

When it was unbearable to her, she came to her parental

home where narrated story to her mother, father brother.

Villagers of the parental village gathered in which the

appellant made extra judicial confession regarding rape

against the prosecutrix. This witness has been subjected to

searching cross-examination, but nothing could be elicited in

favour of the defence.

6. Version of this witness is supported by version of

Dayashankar (PW-2) who is father of the prosecutrix to whom

she narrated the incident. This witness has also been

subjected to incisive cross-examination, but is stable to his

version. Mukesh Kumar Sahare (PW-3) is brother of the

prosecutrix and he also confirmed that the prosecutrix

informed him regarding rape by the appellant. He also

deposed regarding threat given by the appellant to the

prosecutrix. Krishna (PW-4) is a person who was present in

the meeting organized on the parental village of the

prosecutrix. As per version of this witness, the appellant made

extra judicial confession regarding his crime against the

prosecutrix.

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7. Dr. Mohan Tikam (PW-7) examined the appellant and found

him capable to perform intercourse. Baldev (PW-12) deposed

that the prosecutrix informed him regarding rape by the

appellant. This witness has also been subjected to searching

cross-examination, but remain unshaken.

8. True it is that delay is caused in lodging report, 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 where father-in-law in

whose custody the prosecutrix was living in the house, has

committed rape on her. The husband has not supported the

prosecutrix for the simple reason that he is also dependent on

his father. He is not having guts to challenge the father. When

no member of matrimonial home was supporting the

prosecutrix, it is natural that she will try to get support of

parental home. The prosecutrix informed the incident to her

father and mother and thereafter, report was lodged.

9. 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 by father-in-law on such a manner. Obviously, the

prosecutrix must have also gone through turmoil and after

support of father and mother decided to lodge FIR. The delay

in case of sexual assault that to by father-in-law cannot be
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equated with case involved other offences. There are several

factors in the mind of the prosecutrix before coming to the

police station.

10. 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.

11. In the present case, the prosecutrix was able to lodge report

only after support of father, mother and villagers otherwise

she would not have courage to go alone to police station. 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.

12. Arguments advanced on behalf of the appellant that the

appellant is falsely implicated on account of some loan

transaction is without substance. 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
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would feel terribly embarrassed in relation to the incident to

narrate such incident.

13. In the present case, it is father-in-law who overpowered her

and there is no reason for her to falsely rope her father-in-law

for charge of commission of rape. From any angle, it cannot

be said that report was lodged on account of any dispute of

loan transaction.

14. True it is that husband of the prosecutrix has not supported

her but the fact remains that he is first son of the appellant

and then he is husband of the prosecutrix and he has chosen

to be with father, therefore, his non-examination will not help

the defence side.

15. 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 against her

father-in-law. She has made a humiliting statement against

her honour and against her father-in-law which cannot be

seen with suspicion, this will aid to her injury, therefore,

argument advanced on behalf of the appellant is not

sustainable.

16. The case laws cited on behalf of the appellant in the matter of

Nandlal Yadav Vs. State of M.P. reported in 2002 (2) MPLJ

376 and Rajkumar another Vs. State of M.P. reported in

2001 (4) MPLJ 468, are distinguishable in the facts and

circumstances of the present case.

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17. 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

18. The trial court awarded jail sentence of 8 years and fine of Rs.

500/- 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.

19. 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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