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HIGH COURT OF CHHATTISGARH, BILASPUR

CRA No. 10 of 2011

Raghuvar Das (wrongly written as Raghubur Das) S/o Ratan Das
Ram, aged about 22 years, R/o village Amdipara, Police Chauki,
Bariyo, P.S. Dhaurpur, District Surguja (CG)
—- Appellant
Versus
State of Chhattisgarh, Through: The Police Chauki, Bariyo Police
Station Dhaurpur, District- Surguja(C.G.)
—- Respondent
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For Appellant : Mr. Shakti Raj Sinha, Advocate.
For State/respondent : Mr. Lav Sharma, Panel Lawyer.

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HON’BLE SHRI JUSTICE RAM PRASANNA SHARMA
JUDGMENT ON BOARD
03/12/2018

1. This appeal is preferred under Section 374(2) of the Code of

Criminal Procedure, 1973 against judgment dated 7.12.2010,

passed by the 3rd Additional Sessions Judge(FTC), Ambikapur,

District Surguja (C.G.) in Session Trial No. 434/2009, wherein

the said court has convicted the appellant for commission of

offence under Sections 376 (1) of IPC and sentenced to

undergo R.I. for 7 years and fine of Rs. 1000/- with default

stipulation.

2. As per the case of prosecution, prosecutrix is of undeveloped

brain and she was all alone on 6.6.2009 at about 11.00 pm in

her home situated at village Kakna, Nawapara, at that time the

appellant entered and performed sexual intercourse against her

will and without her consent. The matter was reported and
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investigated and after completion of trial, the trial court

convicted and sentenced and appellant as mentioned above.

3. Learned counsel for the appellant submits as under:-

(i) The prosecutrix has not been produced before the trial

Court and in absence of her statement, the theory putforth by

the prosecution is doubtful.

(ii) There is delay in lodging the FIR and prosecution has not

given any explanation for the said delay, therefore, version of

the prosecutrix is under cloud.

(iii) Version of other witnesses are not reliable, therefore, no

offence is made out against the appellant.

(iv) It may be a case where prosecutrix was a consenting

party and medical report is not supportive of the version of the

prosecution, therefore, finding of the trial Court is not liable to

be sustained and same deserves to be set aside.

4. On the other hand, learned State counsel submits that the

finding arrived at by the trial court is based on proper

marshalling of evidence and same is not liable to be interfered

with invoking jurisdiction of appeal.

5. I have heard learned counsel for the parties and perused the

record of the trial Court.

6. Dr. Sharda Pasari (PW10) examined the prosecutrix on

23.7.2010 at Medical College, Raipur in Clinical Psychology

Department and as per version of this witness, the prosecutrix
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was not mentally developed, the report is Ex. P13. Version of

this witness is unshaken during cross-examination and there is

no other psychologist report in the record contrary to the version

of this witness, therefore, it is established that the prosecutrix

was of undeveloped brain.

7. Sadhin Das (PW1) is an eye-witness to the incident. As per

version of this witness, when he entered in the house of the

prosecutrix at about 10.30 pm, he saw that the appellant was

committing sexual intercourse with the prosecutrix. He further

clarified that the appellant committed rape on the prosecutrix.

He further deposed that when he objected to the act of the

appellant, he fled away from the spot. On his cries, his father,

sister and brother-in-law reached there and neighbours also

gathered there. Thereafter, a meeting was convened in the

village where the appellant was called. Version of this witness is

supported by the version of Sonwa Das (PW2), Krishna Bai

(PW3) and Subhag Das(PW4). All the witnesses have deposed

in one voice that Sadhin Das (PW1) has seen the incident and

when he objected the act of the appellant, he fled away from the

spot. From the evidence of Subhag Das (PW4) (para 3) it is

clear that the appellant made extra judicial confession for

committing the wrong. All these witnesses have been subjected

to searching cross-examination, but nothing could be elicited in

favour of the defence.

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8. True it is that the incident is of 6.6.2009 and report was lodged

at Police Station Dhaurpur on 8.6.2009 and there is delay of 2

days in lodging the report, but the fact remains that 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 little delay of 2 days

in lodging the FIR. The delay in a case of sexual assault cannot

be equated with the case involving other offences. There are

several factors in the mind of the prosecutrix 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 delay in lodging FIR. 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.

9. True it is that the prosecutrix has not been examined in the

present case, but the fact remains that the case of the

prosecution is based on the evidence of Sadhin Das (PW1),

who informed the incident to his near relatives and people of the

locality which shows genuineness of the incident. Again, the

appellant has admitted his guilt before the gathering people,
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therefore, his extra judicial confession is also supportive piece

of evidence to the statement of Sadhin Das (PW1), therefore,

non-examination of the prosecutrix who was of undeveloped

brain has no adverse effect in the facts and circumstances of

the case.

10. The trial Court has evaluated the evidence elaborately and this

Court has no reason to substitute a contrary finding. Offence of

rape is punishable under Section 376 (1) IPC, for which, the trial

Court has convicted and sentenced the appellant and same is

hereby affirmed.

11. Heard on the point of sentence:

The trial court has awarded jail sentence of 7 years and fine of

Rs.1000/- for commission of offence under Section 376 (1) of

IPC and less than minimum cannot be awarded. Looking to the

gravity of the offence, it cannot be termed as harsh,

disproportionate or unreasonable and the same is not liable to

be interfered with. The sentence part is also not liable to be

interfered with.

12. Accordingly, the appeal being devoid of merits is liable to be

and is hereby dismissed. It is reported that the appellant has

suffered full term of his jail sentence and has been released,

therefore, no order for his arrest etc. is required.

Sd/

(Ram Prasanna Sharma)
Judge

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