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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.)
—- Appellant
Versus
State of Chhattisgarh, through the District Magistrate, Raipur (C.G.)
—- Respondent
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For Appellant : Mr. Sachin Singh Rajput, Advocate.
For State/respondent : Mr. Vinod Tekam, 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

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
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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

appeal.

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.

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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.
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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.

Sd/-

(Ram Prasanna Sharma)
Judge

Arun