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