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HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 30 of 2010

Reserved on : 05.09.2018

Delivered on : 19.09.2018

Hazari Patel, S/o Ghoor Singh Patel, Aged about 32 years, Resident
of Sakin Koni, Police Station- Masturi, District- Bilaspur (C.G.)
—- Appellant
Versus
State of C.G. Through – P.S. Center Masturi, District- Bilaspur (C.G.)
—- Respondent
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For Appellant : Mr. Arvind Shrivastava, Advocate.
For State/respondent : Ms. K. Tripti Rao, Panel Lawyer.

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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 12.11.2009

passed by Sessions Judge, Bilaspur (C.G.) in Session Case

No. 44/2009, wherein the said court convicted the appellant

for commission of offence under Sections 450, 323 376(1)

of IPC and sentenced to R.I. for 3 years and fine of Rs.

1000/-, R.I. for 6 months and R.I. for 7 years and fine of Rs.

1000/- respectively with further default stipulations.

2. As per version of prosecution, on 06.11.2008, the appellant

knocked on the door of the prosecutrix at about 10.00 p.m.

while she was sleeping with her child in the house. She

opened the door assuming that it was knock of her husband.

When she opened the door, the appellant pushed her to the

ground and then committed rape on her. While committing
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rape, she had been slapped by the appellant on her

resistance. Husband of the prosecutrix came to the hounse

when he heard cry of his wife and he saw that the appellant

was escaping by removing tin shed of the home. When

husband of the prosecutrix tried to get hold to the appellant,

the appellant pushed and slapped him and succeeded to run

away. The matter was reported and investigated and the trial

court convicted the appellant as mentioned above.

3. To substantiate the charge, the prosecution examined as

many as 10 witnesses. To nullify the charge, the defence side

examined one witness namely, Pramod Kumar Yadav (DW-1).

The prosecutrix (PW-4) deposed that she was sleeping in the

house at about 10.00 p.m. at night and her husband had gone

to watch TV in house of his brother. At that time, one knock

was there in the door of the prosecutrix and she opened the

door assuming that it was knock of her husband. At the same

time, the appellant pushed her on the ground and remove her

Sari Peticoat and committed rape on her. When she

resisted, the appellant slapped in cheek and she sustained

swelling in cheek and left hand. Version of the prosecutrix is

supported by version of her husband Premlal Sahu (PW-1). As

per version of this witness, on hearing cry of her wife, he

reached to the house and saw that the appellant escaping by

removing roof of his house. He further deposed that when he

tried to get hold of appellant, he pushed and slapped him and

succeeded to flee away. Version of this witness is again
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supported by version of Lalji Satnami (PW-2) who deposed

that on hearing cry, he went to house of the prosecutrix and

saw that the appellant was got hold there and he flee away

from the spot later.

4. Mahetru Sahu (PW-3) also supported version of the

prosecutrix and as per version of this witness, he saw the

appellant assaulting to husband of the prosecutrix namely

Premlal Sahu. He further deposed that the prosecutrix

informed him that rape has been committed by the appellant

with her. Version of direct evidence is supported by version of

medical expert Dr. Madhu Saxena (PW-8). As per version of

this witness, she examined the prosecutrix on 08.11.2008 at

Community Health Centre, Masturi, District- Bilaspur (C.G.).

Upon her examination, she found injuries on the body of the

prosecutrix as under:-

(i) Bluish Black Bruise over R-scapular region below thigh.

(ii) Bruise on the post aspect of left shoulder.

(iii) Swelling on left cheek, swelling diffuse in front of ear

between left eye and left ear.

(iv) Swelling diffuse along tenderma.

(v) Swelling on left palm.

5. As per version of this witness, all the injuries found in body of

the prosecutrix is probably caused by hard and blunt object

within 24 to 48 hrs. before examination. Opinion of the

medical expert is unshaken during cross-examination and
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there is no opinion of other medical expert to the contrary

opinion of this expert, therefore, it is established that injuries

as noted by the medical expert is found on body of the

prosecutrix. The matter is reported to police on next day i.e.

on 07.11.2008 and it is mentioned in FIR that since incident

happened in the night, the matter is reported next day

morning.

6. Learned counsel for the appellant submits that conduct of

husband of the prosecutrix is not natural because he did not

help wife but, called his father Mahetru after the incident,

therefore, version of the prosecution is doubtful. In view of this

Court, the argument is without substance. It is case of rape in

which testimony of prosecutrix is having decisive value, the

court should examine the broader probabilities of a case and

not get swayed by minor contradictions or insignificant

discrepancies in the statement of other witnesses. Different

people/witnesses react different under different situation, it

depends on individual. There cannot be any concept or

uniform rule of human reaction and to declare a piece of

evidence unnatural on the ground of his reaction, therefore, if

husband of the prosecutrix called his father after the incident,

there is nothing unnatural and the same is insignificant.

7. Learned counsel for the appellant submits that it may be a

case of consent looking to the conduct of the prosecutrix. In

view of this Court, the prosecutrix clearly stated in her

statement that she resisted the appellant. The appellant
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slapped her and then pushed her. Version of the prosecutrix is

supported by version of medical expert who found injuries on

the right back, left soldier, left cheek, left elbow and left palm.

Presence of the appellant is also established by evidence of

Premlal Sahu (PW-1), Lalji Satnami (PW-2), Mahetru Sahu

(PW-3) Dhanbai (PW-4). Looking to the direct and medical

evidence, there is no scope to infer consent on the part of the

prosecutrix. She made cry at the time of incident, upon her cry

her husband and other persons reached to the spot where

appellant was trying to escape. Looking to the version of the

prosecutrix and looking to conduct of the appellant, it is not a

case of consent.

8. Learned counsel for the appellant submits that there is

omission and contradiction which is overlooked by the trial

court, therefore, version of the prosecution is doubtful. Now

point is whether there is any contradiction or omission, if any,

is sufficient to discard testimony of the witnesses. After going

through the statement of all the witnesses present on the spot,

there is no material contradiction in their statement regarding

commission of offence. Unless contradiction is of the material

dimension, minor contradiction will not render the evidence of

eyewitness unbelievable. There may be some discrepancies

between narration of different witnesses when they speak on

details but when the same is not related to basic of the

offence committed, it cannot be used to discard evidence in its

entirety.

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9. Learned counsel for the appellant submits that the trial court

was wrong in discarding the evidence of the defence

witnesses. In view of this Court, evidence of defence namely,

Pramod Kumar Yadav (DW-1) examined on 26.06.2009 i.e.

after 7 months of the incident. His version is based on

evidence what is told to him by Premlal. In this way, the

witness is hearsay witness who was not present on the spot at

the time of commission of offence or after the commission of

offence. Therefore, defence witness is of no help to the

appellant. In the matter of Kalyan Kumar Gogoi Vs.

Ashutosh Agnihotri reported in (2011) 2 SCC 532, Hon’ble

the Supreme Court has held as under:

“(a) the person giving such evidence does not feel
any responsibility. The law requires all evidence to be
given under personal responsibility, i.e., every
witness must give his testimony, under such
circumstance, as expose him to all the penalties of
falsehood. If the person giving hearsay evidence is
cornered, he has a line of escape by saying “I do not
know, but so and so told me”,

(b) truth is diluted and diminished with each repetition
and

(c) if permitted, gives ample scope for playing fraud
by saying “someone told me that………..”. It would be
attaching importance to false rumour flying from one
foul lip to another. Thus statement of witnesses
based on information received from others is
inadmissible.”

10. Learned counsel for the appellant submits that there is delay

in lodging FIR which creates a question mark on the
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prosecution story. In the present case, offence was committed

at night and matter was reported next day morning and it is

mentioned in FIR that due to night they could not lodge the

report. In the matter of Tulsidas Kanolkar Vs. The State of

Goa reported in (2003) 8 SCC 590, Hon’ble the Supreme

Court has held as under:

“The unusual circumstances satisfactorily
explained the delay in lodging of the first
information report. In any event, delay per se is
not a mitigating circumstances for the accused
when accusation of rape are involved. Delay in
lodging first information report cannot be used as
a ritualistic formula for discarding 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 a case if the
prosecution fails to satisfactory 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”.

11. In the present case, since matter is reported on next day

morning and there is no scope of embellishment or

exaggeration on the part of any of the evidence on count of

reporting next day, prosecution case could not be doubted.

Argument advanced on behalf of the appellant is not

sustainable.

12. House-trespass in order to commit offence punishable with

imprisonment for life is an offence under Section 450 of IPC;
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punishment for voluntarily causing hurt is an offence under

Section 323 of IPC and committing rape is an offence under

Section 376(1) of IPC, for which the trial court had convicted

the appellant and this Court has no reason to interfere with

the finding recorded by the trial court. Accordingly, the

conviction for the offences mentioned above are hereby

affirmed. Section 376(1) IPC is punishable with minimum

imprisonment for 7 years and less than minimum cannot be

awarded. Sentence part is also not liable to be interfered with.

Accordingly, the appeal is liable to be and is hereby

dismissed.

13. It is reported that the appellant is on bail and his bail bonds

are cancelled. The trial court will prepare super-session

warrant and issue warrant of arrest against the appellant and

after his arrest, he be sent back to the concerned jail for

serving out the remaining part of the jail sentence. The trial

court shall submit compliance report on or before 30.12.2018.

Sd/-

(Ram Prasanna Sharma)
Judge

Arun