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Ishwer vs State Of Chhattisgarh 62 … on 4 January, 2019

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NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

CRA No. 548 of 2011
• Ishwer s/o Mhan aged about 30 years, occupation Bidi
Majdoor, r/o., Bazarpara Charama, Thana Charama,
District Kanker (CG).

—- Appellant
Versus
• State of Chhattisgarh through the District Magistrate,
North Bastar, Kanker, District Kanker (CG).
—- Respondent

———————————————————————————

For Appellant : Mr. Sunil Sahu, Advocate
For respondent/State : Mr. Vinod Tekam, Panel Lawyer

———————————————————————————

Hon’ble Shri Justice Ram Prasanna Sharma

Judgment on Board

4-1-2019

1. This appeal is preferred against the judgment of

conviction and order of sentence dated 28-05-2011 passed

by the Sessions Judge, Kanker, District North Bastar,

Kanker (CG) in Sessions Trial No.06 of 2011 wherein the

said Court has convicted the appellant for commission of

offence under Section 376 read with Section 511 of the IPC

and sentenced him to undergo rigorous imprisonment for

seven years and to pay fine of Rs.2000/- with default

stipulations.

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2. In the present case, prosecutrix is PW/2. As per version

of the prosecution, prosecutrix resides at Bazarpara

Charama with her parents and on 28-10-2010 appellant

called the prosecutrix and her friend namely Ku. Rukmani for

packing the Rangoli and thereafter he gave assurance to

provide fruits and after caught hold the prosecutrix removed

her clothes and tried to commit intercourse with her. The

matter was reported and investigated. After completion of

trial, the trial Court convicted and sentenced him as

aforementioned.

3. The appeal is preferred on the following grounds.

i) From the statement of the prosecutrix
offence of attempt to rape is not made out
and even if the statement is accepted as it
is, then offence under Section 354 IPC is
made out.

ii Dr. Smt. Deepti (PW/7) has not given any
report regarding rape or attempt to rape
who examined the prosecutrix on the same
day.

iii) Version of prosecution is not believable and
other witnesses are hearsay in nature,
therefore, finding arrived at by the trial
Court is not sustainable.

iv) There is enmity between the parties and
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due to that reason the appellant has been
falsely implicated, therefore, finding of the
trial Court is liable to be reversed.

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

supporting the impugned judgment would submit that the

finding of the trial Court is based on proper marshalling of the

evidence and the same is not liable to be interfered while

invoking the jurisdiction of the appeal.

5. I have heard learned counsel for the parties and

perused record of the court below in which impugned

judgment is passed.

6. Prosecutrix (PW/2) deposed before the trial Court that

the appellant allured her for giving fruits and thereafter took

her to his room, undressed her and made her laid down on

surface and committed bad work with her. She further

deposed that she sustained pain in her private part and she

informed the incident to her parents and her other near and

dears. Version of this witness is supported by version of

PW/1 Rajesh Kumar who is father of the victim. Smt. Sushma

Jha (PW/3) and Smt. Lalita ( PW/6). All the witnesses have

been subjected to searching cross examination but nothing

could be elicited in favour of defence. Version of this witness

is supported by Dr. Smt. Deepti Goutam (PW/4) whom

examined the victim and found reddishness and pain on
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private part of the prosecutrix. Again, it is supported by Dr.

O.P. Shankhwar (PW/8) who examined the appellant and

found him capable of intercourse. In the present case, date of

incident is 28-10-2010 and report was lodged on the same

day naming the appellant as culprit and his act of commission

of attempt to rape is also mentioned in the said report.

7. 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 with an injured witness and when her

evidence is inspiring confidence, no corroboration is

necessary.

8. There is no delay in lodging the report at Police

Station. Where report of rape is to be 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 delayed
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FIR. 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

and her family members 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 some delay in lodging the FIR.

9. After assessing the evidence, this court has no reason

to say that the appellant has been falsely implicated. There

is no reason to disbelieve the evidence of prosecutrix and

other witnesses, therefore, argument advanced on behalf of

the appellant is not sustainable. The trial Court has

considered the evidence elaborately led before it and

recorded the finding of conviction. This court has no reason

to substitute the contrary finding.

10. Attempt to rape is an offence under Section 376 read

with Section 511 of IPC for which the trial Court has

convicted the appellant and same is hereby affirmed.

11. Heard on the point of sentence.

The trial Court awarded RI for seven years looking to

attempt of rape, which cannot be termed as harsh or

unreasonable or disproportionate. Sentence part is also not

liable to be interfered with.

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12. Accordingly, the appeal being devoid of merits is liable

to be and is hereby dismissed. As per report of the jail

authorities, the appellant has suffered jail term and he has

been released from jail after remission, therefore, no further

order for his arrest etc., is required.

Sd/-

(Ram Prasanna Sharma)
Judge

Raju

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