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NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.448 of 2010

Punauram @ Punuram S/o. Chaitram, Caste Lohar aged
about 36 years, Occupation Lohari Work, R/o. Village
Negiguda, Nayapara, PS Nagarnar, Distt. Bastar CG)
—- Appellant
Versus
State Of Chhattisgarh, Through Police Station A.Ja.Ka.
Jadgalpur, Distt. Bastar (CG)
—- Respondent

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For the appellant : Ms. Rajkumari Yadav, Advocate on
behalf of Shri Subhash Yadav,
Advocate
For the respondent/State: Shri Vinod Tekam, Panel Lawyer

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Hon’ble Shri Justice Ram Prasanna Sharma
Judgment On Board
04.12.2018.

1. This appeal is directed against the judgment dated

22.6.2010 passed by Sessions Judge under the Scheduled

Castes and the Scheduled Tribes (Prevention of Atrocities) Act,

1989 ( for short ‘the Act 1989’) Bastar at Jagdalpur (CG) in

Session Trial No.141/2009 wherein the said Court convicted the

appellant for commission of offence under Sections 457, 376(1) of

the Indian Penal Code and under Section 3(1)(xii) of the Act 1989

and sentenced him to undergo rigorous imprisonment for three

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

of R.500/-; RI for two years and to pay fine of Rs.500/- with default

stipulations.

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2. In the present case, prosecutrix is PW-4. As per the

prosecution case, on 03.9.2009 in the night the prosecutrix and

her one year old child were alone in the house situated at village

Negiguda. The appellant entered into the house in the night and

committed sexual intercourse with her without her will and

consent. As the prosecutrix is Bhatra by caste which belongs to

Scheduled Tribe, charges under the Act 1989 was also framed.

The appellant was charge sheeted and convicted as mentioned

above.

3. Learned counsel for the appellant submits that the date of

incident was in the intervening night of 03-04.9.2009 but the report

was lodged on 22.9.2009 and there is no explanation for the said

delay, therefore, version of the prosecution is doubtful. Version of

the prosecutrix and other witnesses are not reliable and conduct

of the prosecutrix and her husband after the incident is unnatural

therefore, the finding arrived at by the trial Court on the basis of

their evidence is not sustainable. The trial Court has ignored the

evidence which are favourable to the appellant. Therefore, the

judgment of conviction 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.

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

the date of incident about 3.00 am she was sleeping with her child
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aged about one year, at that time the appellant entered into her

room covering his face by cloth but she identified him as he was

her neighbour. She further deposed that after removing her cloth,

he committed sexual intercourse with her against her will and

consent. She narrated the incident to her mother-in-law, brother-

in-law (devar) who saw the appellant in her house. She further

deposed that when her husband returned she informed the

incident to him. She further deposed that due to fear of her

husband, she left the house and the matter was reported later on.

Version of the prosecutrix is supported by the version of

Goverdhan (PW-7) who is the husband of the prosecutrix. When

Jagannath (PW-6) reached on the spot after information the

appellant fled away by crossing the kitchen garden. All the

witnesses have been subjected to searching cross-examination

but nothing could be elicited in favour of the defence side.

6. From the evidence, presence of the appellant in the house

of the prosecutrix is established. Looking to the conduct of the

appellant it appears that he knew about the absence of the

husband of the prosecutrix in the house and that shows his bad

intention. If the prosecutrix would have been a consenting party

she would not have cried for help and would not have informed

the incident to her relatives. Conduct of the prosecutrix shows

that she was not a consenting party. True it is that there was

some minor contradictions in the statement of the witnesses but

the same do not go to the root of the case and are insignificant
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and therefore, minor contradictions have no adverse effect on the

entire case of the prosecution.

7. The statement of the prosecutrix is quite natural, inspire

confidence and merits acceptance. In the traditional non-

permissive bounds of society of India, no girl or woman of self

respect and dignity would depose falsely implicating somebody of

ravishing her chastity by sacrificing and jeopardizing her future

prospect. Evidence of the prosecutrix to be followed at par with

an injured witness and when her evidence is inspiring confidence,

no corroboration is necessary, but in the present case, there is

ample corroborative piece of evidence.

8. It is true that there is delay of 17 days in lodging the report

in the Police Station. Prosecutrix is a married woman, she was

fearful after the incident to her husband that is why she left the

house, but when her husband reached to her and found 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
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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. After reassessing the

evidence, this Court has no reason to hold that the appellant has

been falsely implicated.

9. Delay has no adverse effect in the facts and circumstances

of the case. The trial Court has evaluated the evidence

elaborately and this Court has no reason to substitute a contrary

finding. 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 for which the

trial Court has convicted the appellant and same is hereby

affirmed.

10. So far as offence under Section 3(1)(xii) of the Act is

concerns, which reads as under:

“3. Punishments for ofences of atrocities. – (1)
Whoever, not being a member of a Scheduled Caste
or a Scheduled Tribe,-

xxxx xxxx xxxx

(xii) 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;”

In the present case, the appellant was not in a position to

dominate the will of the prosecutrix because there was no

fiduciary relation between the prosecutrix and the appellant,
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therefore, offence under Section 3(1)(xii) of the Act is not made

out. Conviction of the appellant for the above said offence is not

sustainable and the same is set aside. Accordingly, he is

acquitted of the charges under Section 3(1)(xii) of the Act.

11. 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. Less than the minimum cannot be awarded,

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.

12. Accordingly, the appeal is allowed in part.

Sd/-

(Ram Prasanna Sharma)
JUDGE
Bini