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Pawan @ Chamru @ Chaman vs State Of C.G. 2 Mcrc/2316/2018 … on 30 April, 2018

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR
SB: Hon’ble Shri Justice Ram Prasanna Sharma
Judgment reserved on 12-4-2018
Judgment delivered on -4-2018

CRA No. 741 of 2002
• Pawan @ Chamru @ Chaman s/o. Sudarshan Luday, age 36
years, r/o. Village Nangur, at present Nakapara, Chhota Dewda,
P.S. Parpa, District. Bastar (CG).
—- Appellant.
Versus
• State of Chhattisgarh through PS Tribal Welfare, Jagdalpur.
—- Respondent

For Appellant : Mr. R.N. Jha, Advocate.
For Respondent/State : Mr. Arvind Dubey, Panel Lawyer

CAV JUDGMENT

1. This appeal is directed against the judgment of conviction and

order of sentence dated 28-6-2002 passed by Special Judge

(Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act, 1989) (for short, “the Act, 1989”), Bastar at

Jagdalpur, in Sessions Trial No. 134 of 2002 wherein the said

court has convicted the appellant under Section 376 (1) of the

IPC and Section 3 (1)(xiii) of the Act, 1989 and sentenced him to

undergo RI for seven years and to pay fine of Rs.3,000/- and RI

for two years and to pay fine of Rs.1000/- respectively with
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default stipulations for committing rape on prosecutrix (PW/1) on

30-12-2001 at about 8.00 pm at village Chhote Devda and being

in a position to dominate the will of a prosecutrix belonging to a

Scheduled Tribe and used that position to exploit her sexually to

which she would not have otherwise agreed.

2. In the present case, prosecutrix is PW/1. As per version of the

prosecutrix on 30-12-2001 she went to ease herself at about

8.00 pm behind the field of one Sukhram and at the same time,

appellant came behind her, caught hold of her hand and had got

her laid down and thereafter committed sexual intercourse with

her without her consent and against her will. On hearing cries of

the prosecutrix, her husband namely Raghunath (PW/2) and

elder brother of her husband namely Sukhram (PW/3) reached to

the spot and the appellant fled away from the spot. It is further

case of the prosecution that the appellant left his towel and

chappals on the spot. Prosecutrix informed the incident to her

husband and elder brother of her husband just after the incident

and on the next day, the incident was brought to the knowledge

of the villagers. Panchayat was convened in the village but the

appellant did not turn up and then the matter was reported to

Police Station.

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

(i) Incident took place on 30-12-2001 whereas the
matter was reported to Police authorities on 2-
1-2002 and delay of three days in lodging FIR
is not properly explained which is fatal to
prosecution, because the same is concocted
and cooked up version of the prosecution.

(ii) The incident was put to the knowledge of
Sarpanch Tularam and Up Sarpanch Kamal,
but prosecution deliberately failed to examine
both of material witnesses and adverse
inference should be drawn against the
prosecution.

(iii) As per version of prosecutrix, she had been
thrown by the appellant, but she did not sustain
injury upon her body as per version of Dr. Smt.
Neela Kumare (PW/5) and want of injury
negatives the theory of rape.

(iv) Statements of prosecutrix (PW/1), Raghunath
(PW/2) and Sukhram (PW/3), are contradictory
which falsified the case of prosecution.

(v) No seizure of wearing clothes of victim and no
chemical report regarding seized materials, the
prosecution has failed to proved the alleged
offence under Section 376(1) of the IPC and
sentence awarded by the trial Court is
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excessive which deserves to be quashed.

4. Per contra, learned State counsel supporting the impugned

judgment of the trial Court has submitted that the finding arrived

at by the trial Court is just and proper and there is no illegality or

infirmity in it warranting any interference by this Court.

5. I have heard counsel for the parties and perused the material on

record.

6. In order to substantiate the charge, prosecution examined as

many as seven witnesses.

7. Prosecutrix (PW/1) deposed that she went to ease herself at

about 8.00 pm on the date of incident and while returning the

appellant came from back side and got her laid down and

committed forceful intercourse with her. She further deposed that

upon her cries, elder brother of her husband Sukhram (PW/3)

and her husband reached to the spot. Version of this witness is

supported by the version of Raghunath (PW/1), who is husband

of the prosecutrix and Sukhram (PW/3), who is elder brother of

her husband. These witnesses have been subjected to searching

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

defence.

8. True, it is that FIR is lodged on 2-1-2002 whereas the incident

took place on 30-12-2001 and there is delay of three days in
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lodging FIR, but the point for consideration is whether delay in

lodging FIR is fatal to the prosecution in the peculiar facts and

circumstances of the case. From the statements of above three

prosecution witnesses, it is established that the matter was

referred to Panchayat but the appellant did not turn up and

thereafter they lodged report in Police Station.

9. The delay in lodging FIR can occur due to various reasons. One

of the reasons is the reluctance of the victim or her family

members to go to the Police Station and to make a complaint

about the incident which concerns the reputation of the victim

and the honour of the entire family. In such cases, after giving

very cool thought and considering all pros and cons arising out of

an unfortunate incident, a complaint of sexual offence is

generally lodged either by victim or by any member of her family.

10. In the present case, the delay is not abnormal because on the

next day of the incident, Panchayat was convened in the village

where appellant did not turn up and thereafter prosecutrix

decided to lodge the complaint. Prosecutrix cried on the spot and

both other witnesses reached to the spot just after the incident.

Version of the prosecutrix is firm right from the day of incident till

her evidence is recorded before the trial Court. It is not the case

that the prosecutrix suppressed the fact to anyone after the

incident, therefore, delay of three days in lodging FIR is not
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sufficient to discard the prosecution case in the facts and

circumstances. True it is that Sarpanch Tularam and Up-

Sarpanch Kamal were not examined by the prosecution to whom

the incident was informed, but they are not witnesses of the

incident or the witnesses who reached on the spot just after the

incident. Prosecution has examined the victim who is

undoubtedly a competent witness under Section 118 of the

Indian Evidence Act, 1872 and her evidence must receive the

same weight as is attached to an injured in cases of physical

violence. There is no rule of law which requires corroboration for

the statement of the prosecutrix. On the contrary, Section 114-A

of the Indian Evidence Act, 1872 says that “in a prosecution for

rape under clause (a) or clause (b) or clause (c) or clause (d) or

clause (e) or clause (g) of sub clause (2) of Section 376 of the

Indian Penal Code (45 of 1860), where sexual intercourse by the

accused is proved and the question is whether it was without the

consent of the woman alleged to have been raped and she

states in her evidence before the Court that she did not consent,

the Court shall presume that she did not consent”. At the most

Sarpnch and Up-Sarpanch may be termed as hearsay evidence

and their non-examination is not affecting the case of

prosecution any way.

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11. True it is that Dr. Neela Kumare (PW/5) did not find any injury on

the body of the prosecutrix but where eye-witnesses or the

evidence of the victim account is found credibility and

trustworthy, the same cannot be discarded merely because no

injury was found on the body of the victim. In cases of rape,

primacy is with the statement of the prosecutrix for the reasons

mentioned as below

i) In case of rape no self respecting woman
could come forward in a court just to make a
humiliating statement against her honour
such as is involved in the commission of
rape on her;

ii) The inherent bashfulness of the females
and the tendency to conceal outrage of
sexual aggregation are factors which the
court should not overlook;

iii) Seeking corroboration of victim of rape as a
rule in such cases amounts to adding insult
to injury;

iv) It must not be overlooked that a woman or a
girl subjected to sexual assault is not
accomplice to the crime but is a victim of
another person’s lust and it is improper and
undesirable to test her evidence with a
certain amount of suspicion, treating her as
if she were an accomplice.

12. In the present case, it has been established by the evidence that

the appellant reached to the spot from back side of the

prosecutrix and caught hold her from back side and got her laid

down and thereafter committed forceful sexual intercourse, with

her, therefore, it was not compulsory that her body sustained
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injury and want of injury is not a factor to reject the prosecution

case.

13. There is no material discrepancies in the evidence of all three

witnesses. It is settled law that the discrepancies which do not

affect the core of the prosecution case or credibility of a witness

cannot be levelled as omissions and contradictions. The

evidence of all the three witnesses as a whole, appears to have

being of truth and if any witness defers in some details in relation

to main incident, her/his version cannot be rejected. In the

present case, all the witnesses are firm from the date of the

incident and this Court has no reason to reject their version.

14. To constitute an offence of rape, it is not necessary that there

should be rupture of the hymen, FSL report to corroborate

emission of semen is not necessary. Offence of rape can be

established without producing any injury and without rupture of

hymen. The argument advanced on behalf of the appellant is not

sustainable. For commission of offence of rape, trial Court has

rightly convicted appellant under Section 376 (1) of the IPC.

15. The trial Court has also convicted the appellant under Section

3(1)(xiii) of the Act, 1989 which may be mentioned as under:

“Being in a position to dominate the will of a woman
belonging to a Scheduled Caste or a Scheduled
Tribe and uses that position to exploit her sexually
to which she would not have otherwise agreed”.

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16. Now the point for consideration is whether the appellant was in a

position to dominate the will of prosecutrix. Will is not dominating

without there is fiduciary relationship and active confidence

exists between the parties. For example, relation between the

parties subsists such as landlord and tenant, guardian and ward,

agent and principal, doctor and patient, spiritual adviser and

disciple, trustee and beneficiary, husband and wife, master and

servant, employer and management, creditor and debtor. There

is no evidence on record to show that the victim and the

appellant are having fiduciary relation of active confidence, but

the incident took place all of a sudden and attack was made from

behind the victim and it is not a case where the appellant was in

a dominating position and used his position to exploit the victim

sexually. In absence of evidence, offence under Section 3(1)(xii)

of the Act,1989 is not made out and the conviction/sentence

recorded by the trial Court on this count is not sustainable and

the appellant is acquitted of the charge framed against him under

Section 3 (1)(xii) of the Act, 1989.

17. The trial Court awarded minimum sentence to the appellant for

commission of offence under Section 376(1) of the IPC, which is

seven years and less than minimum cannot be awarded.
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Conviction and sentence awarded to the appellant by the trial

Court under Section 376 (1) of the IPC is hereby affirmed.

18. Accordingly, the appeal is dismissed to the extent indicated

above. It is reported that the appellant is on bail His bail bonds

shall stand cancelled. The trial Court/Special Court, Bastar at

Jagdalpur will prepare supersession warrant and thereafter will

issue warrant of arrest against the appellant. After his arrest, he

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

the jail sentence.

Sd/-

(Ram Prasanna Sharma)
JUDGE

Raju

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