HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 93 of 2009
Reserved on : 12.10.2018
Delivered on : 30.10.2018
Mohan Sahu, S/o Radheshyam Sahu, age 20 years, R/o Borsi,
Police Chowki Fingeshwar, Thana- Rajim, District- Raipur (C.G.)
State of Chhattisgarh, through the District Magistrate, Raipur (C.G.)
For Appellant : Mr. Sachin Singh Rajput, Advocate.
For State/respondent : Mr. Vinod Tekam, Panel Lawyer.
Hon’ble Shri Justice Ram Prasanna Sharma
1. This appeal is preferred under Section 374(2) of the Code of
Criminal Procedure, 1973 against judgment dated
24.12.20108 passed by Additional Sessions Judge
Gariyaband, District- Raipur (C.G.) in Session Trial No.
33/2008, wherein the said court convicted the appellant for
commission of offence under Section 376 of IPC and
sentenced to R.I. for 10 years and fine of Rs. 1000/- with
further default stipulations.
2. As per case of the prosecution, prior to 15 days of 12.07.2008,
the prosecutrix who is mentally challenged girl went to flour
mill of the appellant for grinding/ powdering of rice. The
appellant taking advantage of loneliness, committed rape on
her. When mother of the prosecutrix came to know about the
incident, she intimated the same to her husband and brother
and thereafter, the matter was reported to police. After
investigation, appellant was charge-sheeted and after trial, the
trial court convicted the appellant as mentioned above.
3. Learned counsel for the appellant submits as under:-
(i) The prosecution has failed to prove that the prosecutrix
is a mentally challenged girl. It could be a case of consent and
no rape has been committed on the prosecutrix.
(ii) The evidence adduced by the prosecution are not
reliable and the trial court has not appreciated the evidence in
its true perspective.
(iii) The judgment passed by the trial court is contrary to the
evidence on record and the same is liable to be reversed.
4. On the other hand, learned State counsel submits that the
finding arrived at by the trial court is based on proper
marshaling of evidence and the same does not warrant any
interference of this Court with invoking jurisdiction of the
5. The prosecutrix (PW-1) deposed that she went to flour mill of
the appellant for grinding of rice and at the same time, the
appellant dragged her in nearby spot of flour mill and inserted
his penis into her vagina and committed rape on her. Version
of the prosecutrix was subjected to searching cross-
examination, but nothing could be elicited in favour of the
defence. Story of physical relation of the prosecutrix with one
Manju has tried to develop, but the same is irrelevant for
decision of this case.
6. Though, the report is lodged after 15 days of the incident, but
delay itself is not sufficient to through over board the entire
case of the prosecution. Normally, the family members are
reluctant in lodging the report which is against chastity of a
woman of family and it may be bring down their reputation in
the eyes of people at large of the society. The delay is fatal
only when it is occurred to concoct a different version after
suppressing the truth. In the present case, the prosecutrix is
firm in stating to her mother the incident and there is no
grudge on the part of the family members against the
appellant to rope him in false charge. In absence of indication
of any fabrication of fact, delay in the present case is not fatal
to the prosecution.
7. Now the point for consideration is whether the appellant has
committed sexual intercourse with the prosecutrix and
whether the same is without her consent and against her will.
From evidence of the prosecutrix (PW-1), Dhaneshwari Bai
(PW-2) who is mother of the prosecutrix, Heeralal (PW-3) who
is father of the prosecutrix, it is established that rape was
committed by the appellant on her. All the witnesses was
subjected to cross-examination, but they were unshaken and
there is nothing to discard their testimony. The prosecutrix is
stable in her version since investigation of the case till her
examination before the court below.
8. There is clear and cogent evidence of the prosecutrix to prove
that there was penetration and as per law laid down by
Hon’ble the Supreme Court in the matter of Aman Kumar Vs.
State of Haryana reported in (2004) SCC 379, act of the
appellant falls within definition of rape as defined under
Section 375 of IPC. There is no material contradiction or
omission in the statement of the prosecutrix which go to the
route of the case. Any minor contradiction which do not go to
the route of the case are insignificant and the same is not
adversely affect the case of the prosecution. There is no
scope to say that it is a case of consent. For commission of
offence punishable under Section 376 of IPC for which the
trial court convicted the appellant, the same is not liable to be
interfered with and conviction of the appellant is affirmed.
9. The trial court awarded jail sentence of 10 years for
commission of offence under Section 376 of IPC which cannot
be termed as harsh, disproportionate or unreasonable and the
same is not liable to be interfered with. The sentence part is
also not liable to be interfered with. Accordingly, the appeal is
liable to be and is hereby dismissed.
10. The appellant is reported to be 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 29th January, 2019.
(Ram Prasanna Sharma)