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Narhar Verma vs State Of Chhattisgarh 72 … on 5 December, 2018

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NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.578 of 2006

Narhar Verma, S/o. Itwari Ram Verma, aged about 32
years, R/o. Village Kodwa, Police Station Dharsiva, District
Raipur (CG)
—- Appellant
Versus
State Of Chhattisgarh, Through District Magistrate, District
Raipur (CG)
—- Respondent

—————————————————————————————-

For the appellant : Shri Shivendu Pandya, Advocate
For the respondent/State: Shri Vinod Tekam, Panel Lawyer

—————————————————————————————-

Hon’ble Shri Justice Ram Prasanna Sharma
Judgment On Board
05.12.2018.

1. This appeal is directed against the judgment dated

28.6.2006 passed by 12th Additional Sessions Judge (FTC),

Raipur (CG) in Session Trial No.388/2005 wherein the said Court

convicted the appellant for commission of offence under Sections

450, 376(1) 506 Part-II of the Indian Penal Code, 1860 and

sentenced him to undergo rigorous imprisonment for seven years

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

R.500/-; RI for three years with default stipulations with a direction

to run the sentences concurrently.

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

prosecution case, on the date of incident i.e. 17.9.2005 at about

11.30 pm prosecutrix was in her home along with her husband.

The appellant knocked the door of her house, but she did not
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open the door. After some time at about 1.30 am, the appellant

entered into the house of the prosecutrix with knife in his hand

and threatened the prosecutrix and her husband to kill them and

thereafter caught hold the prosecutrix, threw her upon the bed and

forcibly committed rape with her. The matter was investigated,

the appellant was charge sheeted and convicted as mentioned

above.

3. The appeal is filed on the following grounds:-

(i) Evidence of the prosecutrix is not corroborating with

the evidence of her husband and other witnesses and

independent witnesses have not supported the version of the

prosecution and therefore, case of the prosecution is under cloud.

(ii) Story of rape is fabricated as husband of the

prosecutrix was present in the same house. But the trial Court did

not appreciate this important aspect of the matter. As per the

version of the medical expert Dr. (Smt.) A. Bose (PW-1) she did

not find any internal or external injury on the body of the

prosecutrix, therefore version of the prosecution is not supported

by the version of the medical expert.

(iii) Finding of the trial Court is based on the conjunctures

which 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 marshaling of the evidence and the

same is not liable to be interfered while invoking the jurisdiction of

the appeal.

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5. Prosecutrix (PW-4) deposed before the trial Court that the

appellant entered into her house with knife and threatened her

and her husband. Thereafter her husband left the place and

shifted to some other room. She further deposed that thereafter

the appellant removed his pant and lifted her sari and thereafter

committed rape on her. She further deposed that the appellant

threatened her that if she will cry, he will kill her. Version of this

witness is supported by the version of Karthik Ram Verma (PW-3)

who was present in the same house and is the husband of the

prosecutrix. Both the witnesses have been subjected to searching

cross-examination but nothing could be elicited in favour of the

defence side. Version of these witness is supported by the

version of Dr. (Smt.) A. Bose (PW-1) who found abrasion on both

the breasts of the prosecutrix measuring 1 to 5 cm x 5 to 1.5 cm

which was 3-4 days old. The expert examined the prosecutrix on

21.9.2005 at District Hospital Tatiband, Raipur and the date of

incident was in the night of 17.9.2005. Version of the medical

expert is supportive to the direct evidence of the prosecutrix.

Again Dr. Sushil Sharma (PW-12) examined the appellant who

found him capable to perform sexual intercourse. There is no

other expert opinion contrary to the opinion of the both the

medical experts and both the medical experts were unshaken

during their cross-examination therefore, their version is reliable

and the same is corroborative piece of evidence of the

prosecutrix.

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6. True it is that the report is lodged on 29.9.2005 i.e. delayed

by 12 days. Prosecutrix is a married woman, she was fearful after

the incident and after the support of the family she decided to

lodged the report. 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 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.

7. After assessing the evidence, this Court has no reason to

hold that the appellant has been falsely implicated. There is no

reason to disbelieve the evidence of the prosecutrix and other

witnesses. Again there is no material contradictions in the

statement of the witnesses, prosecutrix and other witnesses.

Minor contradictions which do not go to the root of the case are

insignificant and therefore, minor contradictions have no adverse

affect to the entire case of the prosecution.
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8. Considering the facts and circumstances of the case, the

Court is of the view that the finding arrived at by the trial Court is

based on proper marshaling of the evidence and this Court has no

reason to record a contrary finding.

9. House trespass in order to commit offence punishable with

imprisonment for life is an offence under Section 450 of IPC and

rape is punishable under Section 376(1) of IPC and threat to kill

with possession of knife is an offence under Section 506 IPC for

which the trial Court has convicted and the sentenced the

appellant and same is hereby affirmed.

10. Heard on the point of sentence.

The trial Court awarded RI for seven years for the offence

under Section 376(1) of the IPC which is minimum prescribed for

the offence. The sentence awarded to other offence are less than

the minimum sentence for offence under Section 376(1) IPC

which cannot be termed as harsh or unreasonable or

disproportionate. Therefore, sentence part is not liable to be

interfered with. As per the report, the appellant has been released

from jail after serving the full jail sentence awarded to him and

after remission granted to him by the jail authorities. In view of

this no further order is required for his arrest.

11. Accordingly, the appeal is dismissed.

Sd/-

(Ram Prasanna Sharma)
JUDGE
Bini

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