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Lakhanlal vs State Of Chhattisgarh 34 … on 3 January, 2019

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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No. 541 of 2009

 Lakhanlal S/o Dhansingh Yadav aged about 46 years, R/o
village Kukrapani Police Station Bodla, District Kabirdham
(CG)
—- Appellant
Versus
 State of Chhattisgarh through Police Station, Bodla, District
Kabirdham (CG)
—- Respondent

—————————————————————————————-

For Appellant : Mr. Rakesh Pandey Advocate
For respondent/State : Mr. Vinod Tekam, Panel Lawyer

———————————————————————————

Hon’ble Shri Justice Ram Prasanna Sharma
Judgment on Board
03.01.2019

1. This appeal is preferred against the judgment of conviction

and order of sentence dated 26.6.2009, passed by the Sessions

Judge, Kabirdham (Kawardha) (CG), in Sessions Trial No. 48 of

2008 wherein the said Court has convicted the appellant for

commission of offence under Section 376 (1) of the IPC and

sentenced him to undergo R.I. for 10 years and fine of Rs.1000/-

with default stipulation.

2. In the present case, prosecutrix is PW5, who is daughter of

the appellant. As per version of prosecution, the prosecutrix was

all alone in the house on 22.3.2008 at about 3.00 pm because

other family members had gone to some other house. The

appellant who is father of the prosecutrix committed rape with the

prosecutrix. The matter was reported and investigated. After

completion of trial, the trial Court convicted and sentenced the

appellant as aforementioned.

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

i) In the FIR and statement recorded under
Section 161 Cr.P.C. the prosecutrix has not
stated anything about commission of rape by
the appellant, therefore, her version before the
Court is not acceptable.

ii) Prosecution has not given any explanation for
delay in lodging the FIR which is more than 4
days

Iii) The trial Court has overlooked the material
contradictions and omissions in the statement
of the prosecution witnesses, therefore,
prosecution story is not reliable

iv) As ingredients of Section 376 IPC are missing
the conviction recorded by the trial Court is
liable to be set aside.

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 (PW5) has deposed before the trial Court that

on the date of incident the appellant made her lie-down in the cot,

undressed and came over her and committed sexual intercourse

with her. She further deposed that after commission of rape the

appellant threatened her to kill if she will narrate the incident to

anyone. From the evidence of this witness, her maternal aunt

namely- Kamlabai entered into the house and she saw the
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incident. Version of this witness is supported by the version of

Kamlabai (PW2) who is an eye witness account to the incident

and as per version of this witness, she saw the appellant lying

over the prosecutrix in a cot and both were undressed. Version of

this witness is supported by the version of Dashrath (PW1) to

whom the incident was informed by Kamlabai. All the witnesses

have been subjected to searching cross-examination but nothing

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

is supported by the version of Dr. Pawan Kumar (PW4), who

examined the appellant and found him capable of committing

sexual intercourse.

7. True it is that commission rape is not mentioned in the FIR

Ex. P/1 or statement recorded under Section 161 Cr.P.C. of the

prosecutrix, but the fact remains that FIR and statement recorded

under Section 161 Cr.P.C. is not substantive piece of evidence.

Substantive piece of evidence is deposition before the Court

where defence side has all the opportunities to cross-examine the

witnesses. From the evidence of all the witnesses it is not

contradicted on material point from earlier version of the

prosecutrix and other witnesses, therefore, arguments advanced

on this count is not acceptable. There is no reason for the

prosecutrix to rope in a false case to her father and there is no

reason for Kamlabai (PW4) to depose against the appellant who

is her close relative.

8. It is true that there is delay of four days in lodging the report

at Police Station. But the fact remain that where report of rape is
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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 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. 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.

10. After re-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

prosecution witnesses.

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11. The trial Court has considered all the aspect whether

factual or legal elaborately and this court has no reason to

substitute a contrary finding. The arguments advanced on behalf

of the prosecution is not sustainable. Accordingly, conviction of

the appellant is hereby affirmed.

12. Heard on the point of sentence.

The trial Court hast awarded sentence for R.I. for 10 years

for the offence under Section 376 (1) IPC and looking to the

inhumaneness and gravity of the offence, the sentence awarded

by the trial Court cannot be termed as harsh, disproportionate and

unreasonable. The sentence part is also not liable to be interfered

with.

13. Accordingly, the appeal being devoid of merits is liable to be

and is hereby dismissed.

14. It is reported by the jail authorities that the appellant has

suffered full term of his jail sentence and has been released after

getting remission, therefore, no order for his arrest etc. is

required.

Sd/

(Ram Prasanna Sharma)
Judge

sunita
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