HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 1214 of 2000
Judgment Reserved on 10-9-2018
Judgment delivered on 12-10-2018

• Neelchandra Satnami Nirali s/o. Shri Mahesh Satnami, aged
30years, r/o. Village Banskaatha, Tahsil Masamund, District
Mahasamund, MP (Now CG).
—- Appellant
Versus
• State of Madhya Pradesh (Now State of CG).
– Respondent

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For Appellant : Mr. J.A. Lohani, Advocate.
For Respondent/State : Ms. K. Tripti Rao, Panel Lawyer

Hon’ble Shri Justice Ram Prasanna Sharma

CAV JUDGMENT

1. This appeal is directed against the judgment of conviction

and order of sentence dated 1-5-2000 passed by 1st Additional

Sessions Judge, Mahasamund, Session Division Mahasamund

(CG) in Sessions Trial No. 285 of 1997 wherein the said Court

convicted the appellant for the commission of offence under

Section 376 (1) of the Indian Penal Code, 1860 and sentenced him

to undergo rigorous imprisonment for eight years and to pay fine

of Rs.3000/- with default stipulations.

2. In the present case, prosecutrix is PW/2. It is alleged that

on 3-5-1997 at about 9.00 am she went to her barn for making

cow-dung cake and at the same time appellant reached there and
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caught hold her. When she tried to make hue and cry, he shut her

mouth and thereafter he threw her on a bunch of straw and

committed rape on her and thereafter fled away by crossing the

wall of the barn. On cries of prosecutrix people of locality reached

there and thereafter the matter was reported at Police Station

Baghbahara. The matter was investigated. After completion of

the trial, the trial Court convicted and sentenced the appellant as

mentioned above.

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

i) It is not mentioned in earlier statement of the

prosecutrix (Ex.D/1) that appellant removed his

clothes and shut her mouth. Therefore, shutting of

mouth of the prosecutrix and removing clothes by

the appellants is false story and as prosecutrix

was free to move, version of the prosecutrix is not

reliable.

ii) Though prosecutrix deposed before the trial Court

that during incident she caused injury to the

appellant, but no injury was found on the body of

the appellant, therefore, statement of the

prosecutrix is not reliable.

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iii) Prosecutrix deposed that her bangles were not

broken and she did not hold clothe of the appellant

while he was fleeing, therefore, version of the

prosecutrix is not reliable. As per version of

prosecutrix, there were thorns in the field. If there

were thorns in the field, the appellant would have

suffered injury on his leg while crossing the wall

but no injury was found on the leg of the appellant

which shows that story is concocted.

iv) The person in whose house the appellant entered

after fleeing, has not been examined, therefore,

version of the prosecution is not reliable. The trial

Court has not evaluated the evidence of defence

which shows the grudge between the parties,

therefore, the finding of the trial Court is liable to

be reversed.

4. On the other hand, learned State counsel supporting the

impugned judgment would submit that the finding of the trial

Court is based on proper marshaling of evidence which is not

liable to be interfered while invoking jurisdiction of the appeal.
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5. I have heard learned counsel for the parties and perused

the record of the lower court in which impugned judgment has

been passed.

6. In the present case, date of incident is 3-5-1997 and report

was lodged on the same day at Police Station Baghbahara. The

place of incident is village Banskaatha which is situated at a

distance of 25 kms from Police Station Baghbahara where the

report is lodged by the prosecutrix in which name of the appellant

is mentioned as culprit and his act is also mentioned in the FIR

and she was examined by the prosecution before the trial Court

as PW/2. As per version of this witness, she had gone to her

barn for making cow-dung cake and at the same time appellant

reached there, caught hold her, removed his dress and thereafter

inserted penis into her vagina. She further deposed that when

she cried for help the appellant shut her mouth. As per version of

this witness after committing rape appellant fled away from the

spot. She further deposed that just after the incident her husband

reached to the spot and the persons namely Sriram, Bisahu,

Tetaku and Derha were working in their barn. Version of this

witness is subjected to searching cross examination, but nothing

could be elicited in favour of the defence on material point.

Version of this witness is supported by the version of PW/3

Lularam. As per version of this witness prosecutrix was crying for
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help and when he rushed to barn of the prosecutrix, he saw the

appellant fleeing towards barn of one Banshi. As per version of

this witness, prosecutrix informed him that the appellant

committed rape on her. Version of this witness is unshaken

during cross examination. PW/4 Derha has also supported the

version of prosecution who has seen the appellant moving from

the spot. Punitram (PW/5) has also supported the version of the

prosecutrix who has seen the appellant coming out from the barn

of the prosecutrix. Direct evidence of the witnesses mentioned

above find support by the evidence of Dr. B.P. Malani (PW/8). As

per version of this witness, he examined the appellant and found

that the appellant was capable to perform sexual intercourse.

7. Learned counsel for the appellant would submit that as per

version of Dr. B.P. Malani (PW/8) he did not find any injury on

the face of the appellant, therefore, it is a case of consent. In

view of this court, argument of the appellant is without

substance. The prosecutrix has informed the incident to the

people of the locality just after the incident and she cried during

the incident. If she is a consenting party, she would not have

cried for help of the people and did not have narrated the story to

the people at large. Her conduct shows that she is not a

consenting party that is why she cried for help during the incident

and narrated the incident to the people of the village just after the
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incident and reported the matter at Police Station, therefore, it is

not a case of consent.

8. Learned counsel for the appellant would further submit that

there is discrepancy in the statement of the prosecutrix,

therefore, her version is not reliable. As per the argument of

appellant, when appellant undressed himself, there was occasion

for the prosecutrix to flee away but that is not done. Again,

bangles of the prosecutrix were not broken and no injury was

found on the leg of the appellant when thorns were there in the

field where the incident took place. In view of this court, all these

facts are not material discrepancies in the statement of the

prosecutrix. As per statement of the prosecutrix, it is clear that

she has been thrown in the bunch of straw kept in the barn and

therefore, she was unable to flee away. Again, bangles are

broken when force is used on bangles. If bangles are not broken,

it means no force is used on bangles. It is also not clear in which

part of land thorns were there. If the appellant moved apart from

that place, then there is no occasion to sustain injury by thorn.

9. It is settled law that minor discrepancies which do not go to

the root of the case are insignificant and will not effect the fate of

the prosecution. Discrepancy shown by the defence side is not

material discrepancy. In case of rape, statement of the
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prosecutrix is sufficient to bring home the guilt because normally

woman is reluctant to expose anything against her chastity. In

the present case, prosecutrix is firm right from day of the incident

in lodging the report and she is stable to her version before the

court, her statement is of sterling quality which cannot be thrown

over board on insignificant omissions and contradictions.

10. One Bheerdas (DW/1) has been examined by defence side

who deposed that there is no talking terms between the appellant

and Tularam, but from his statement there is no scope to infer

that appellant was implicated on account of any grudge between

appellant and Tularam. Therefore, version of defence witness is

also not affecting the prosecution case. The trial Court has

elaborately discussed the entire evidence and this court has no

reason to substitute contrary finding.

11. The act of the appellant is intentional and forceful. From

the evidence of the prosecutrix, it is clearly established that the

appellant committed sexual intercourse with her without her

consent and against her will. It is not the case where the

prosecutrix has moved any where of her own will with the

appellant, therefore, the act of the appellant is not an act of

consent and his act is rape as defined in Section 375 of the IPC.

Commission of rape by the appellant is clearly established from
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the evidence adduced by the prosecution which is an offence

punishable under Section 376 (1) of the IPC for which the trial

Court has convicted the appellant and the same is hereby

affirmed. Offence under Section 376(1) of IPC is punishable with

imprisonment for life and minimum punishment that can be

awarded is seven years. The trial Curt has awarded sentence of

eight years which cannot be termed as harsh, disproportionate or

unreasonable. Sentence part is also not liable to be interfered

with.

12. Accordingly, the appeal is liable to be and is hereby

dismissed. The appellant is reported to be on bail. His bail bonds

shall stand cancelled. The trial Court will prepare super session

warrant and issue warrant of arrest against him. After his arrest

he be sent to concerned jail to serve out the remaining part of

the jail sentence. The trial Court to submit compliance report on

or before 11th January, 2019.

Sd/-

(Ram Prasanna Sharma)
JUDGE

Raju