NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR
SB: Hon’ble Shri Justice Ram Prasanna Sharma
CRA No. 510 of 2014

• Jansai Dhanuhar s/o. Dharau Dhanuhar, aged about 22 years,
r/o. Village Baigapara, Ghumandidah, Bango, District Korba, Civil
Revenue District Korba (CG).
—- Appellant.
Versus
• State of Chhattisgarh through Station House Officer, Police
Station Bango, District Korba (CG).
—- Respondent

For Appellant : Ms. Ashmita Shrivastava, Advocate.
For Respondent/State : Mr. Arvind Dubey, Panel Lawyer

Judgment on Board

(28-4-2018)

1. This appeal is directed against the judgment of conviction and

order of sentence dated 12-2-2014 passed by the Additional

Sessions Judge, Katghora, Sessions Division Korba, in Sessions

Trial No. 25 of 2013 wherein the said court has convicted the

appellant under Sections 450 and 376 (1) of the IPC and

sentenced him to undergo RI for five years and to pay fine of

Rs.500/- and RI for seven years and to pay fine of Rs.500/-

respectively with default stipulations for committing house
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trespass in the house of prosecutrix (PW/2) in order to commit

rape on her and for committing rape on prosecutrix.

2. As per prosecution case, prosecutrix was in her house on 16-1-

2013 at about 5.00 p.m., with her child aged about two years

namely Deendayal and at the same time appellant entered into

the house of prosecutrix and committed rape on her. On hearing

cries of the prosecutrix, her husband Ramayan came to the spot

from where appellant fled away after commission of offence

Ramayan tried to catch him, but the appellant anyhow managed

to escape. The matter was reported in Police Station Bango and

after completion of trial, the trial Court has convicted the

appellant as mentioned above.

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

(i) There is delay of two days in lodging first
information report which is fatal to prosecution,
but the trial Court overlooked this aspect of the
matter.

(ii) There is previous enmity between the parties,
but the trial Court did not appreciate the same
and came to a wrong conclusion.

(iii) There are material omissions and
contradictions in the statements of the

prosecution witnesses which do not warrant
conviction of the appellant, but the trial Court
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did not give due weightage to evidence in its
entirety.

(v) Independent witnesses have not supported the
case of prosecution but the trial Court has not
evaluated their version and conviction of the
appellant is bad in law. As per Doctor Namita
Waltar (PW/5), there was no internal injury on
the body of the prosecutrix, therefore, offence
under Section 376 (1) of the IPC is not made
out.

4. Per contra, learned State counsel supporting the impugned

judgment of the trial Court has submitted that the finding arrived

at by the trial Court is just and proper and there is no illegality or

infirmity in it warranting any interference by this Court.

5. I have heard counsel for the parties and perused the material on

record.

6. In order to substantiate the charge, prosecution examined as

many as eleven witnesses.

7. Prosecutrix (PW/2) deposed that on the date of incident at about

5.00 pm she was with her child in the house and at the same

time appellant entered into her house and committed rape on

her. Version of this witness is firm after searching cross

examination and nothing could be elicited in favour of defence.

PW/4 Ramayan is husband of the prosecutrix who deposed that
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on cries of his wife, he reached to the place of incident where the

appellant was committing rape on his wife. He tried to catch the

appellant on the spot, but anyhow he managed to flee away. He

further deposed that one blue colour Jean full pant and one

chappal were left by the appellant in his house. He further

deposed that he informed the matter to village Kotwar and the

other villagers who advised him to report the matter to police

authorities. Version of this witness is again supported by version

of Dheer Singh (PW/3) to whom prosecutrix and her husband

informed about the incident. Version of all these witnesses is firm

right from the day of lodging the report and there is nothing to

discard their testimonies.

8. True it is that the incident took place on 16-1-2013 and first

information report was lodged after two days i.e., on 18-1-2013,

but the delay in lodging the first information report can occur due

to various reasons. One of the reasons is the reluctance of the

victim or her family members to go to the Police Station and to

make a complaint about the incident which concerns the

reputation of the victim and the honour of the entire family. In

such cases, after giving very cool thought and considering all

pros and cons arising out of an unfortunate incident, a complaint

of sexual offence is generally lodged either by victim or by any

member of her family.

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9. In the present case, the delay is not abnormal because the

incident was informed to villagers and thereafter the victim

decided to lodge the first information report which was lodged

just after the incident. In the present case, prosecutrix cried on

the spot and and on hearing her cries, her husband reached to

the spot when the appellant was committing rape on his wife. It

is not the case that the prosecutrix suppressed the fact to

anyone after the incident, therefore, delay of two days in lodging

FIR is not sufficient to discard the prosecution case in the facts

and circumstances of the case.

10. There is no force in the contention put-forth by the defence that

the report is lodged on account of enmity. In case of rape no self

respecting woman could come forward in a court just to make a

humiliating statement against her honour such as is involved in

the commission of rape on her. The inherent bashfulness of the

females and the tendency to conceal outrage of sexual

aggression are factors which are to be looked into.

11. Version of prosecutrix is firm and the same is supported by the

the version of witness who was on the spot and therefore, it is

not a case where any scope to infer that such an allegation is

made on account of any enmity. There is no material

discrepancy in the evidence of all three witnesses. It is settled

law that the discrepancies which do not affect the core of the
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prosecution case or credibility of a witness cannot be levelled as

omissions and contradictions. The evidence of all the three

witnesses as a whole, appears to have ring of truth and if any

witness defers in some details in relation to main incident, her/his

version cannot be rejected. In the present case, all the witnesses

are firm from the date of the incident and this Court has no

reason to reject their version.

12. Rape is committed in a place of secrecy, therefore, eye-

witnesses are seldom available. If the version of the prosecutrix

is reliable, then it needs no corroboration, therefore, theory of

corroboration by independent witness in case of rape is merit-

less. Dr. Namita Waltar (PW/5) examined the prosecutrix on 18-

1-2013 and noticed the following injuries on her body.

i) There was abrasion in the size of 1 x 2 cm
over back side of both the shoulders.

ii) Medral lesion of back abrasion in the size of
1 x 2 cm

iii) In both buttocks (5x 12 cm) inflammation and
tenderness on the side skin colour is bluish.

iv) In both sides, front of high anterior medical
aspect inflammation and tenderness in the
size of 4×10 cm in right thigh and 3x 8 cm
over left thigh.

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v) In vulva in vaginal opening two fingers
inserted in side of vaginal – vaginal
discharge and collected on glass slide, one
hair particle found in vagina, it preserves in
glass slide.

vi) Patient self pubic hair preserve in glass slide.

vii) Patient self blood sample preserve in glass
slide.

13. Looking to the injuries and after internal examination, the expert

opined that the intercourse is committed against the prosecutrix.

Even if no injury is found on the body of the victim, in case of

rape primacy is with the statement of the prosecutrix, but in the

present case, several injuries were found on the body of the

victim and the statement of the victim is of a sterling quality

which cannot be rejected. The argument advanced on behalf of

the appellant is not sustainable. House trespass in order to

commit rape is an offence under Section 450 of IPC and

commission of rape is punishable under Section 376(1) of IPC

for which the trial Court convicted the appellant and the same is

not liable to be interfered.

14. Heard on the point of sentence.

The trial Court awarded RI for seven years for offence

punishable under Section 376(1) of IPC which is minimum
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punishment and less than minimum cannot be awarded.

Sentence part is also not liable to be interfered.

15. Accordingly, the appeal is liable to be and is hereby dismissed.

The appellant is reported to be in jail, therefore, no further order

for his arrest etc., is required to be passed.

Sd/-

(Ram Prasanna Sharma)
JUDGE

Raju