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NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No. 24 of 2010
Ramcharitra Kaser son of Mahajan Kaser, aged about 19
years, Resident of village Khodri, Police Station Udaypur,
District Surguja (CG)
—- Appellant
Versus
State Of Chhattisgarh Through The Police Station Udaypur,
District Surguja (CG)
—- Respondent

For Appellant : Shri Ashok Kumar Shukla, Advocate

For State/ Respondent : Shri Vinod Tekam, Panel Lawyer

HON’BLE SHRI JUSTICE RAM PRASANNA SHARMA
JUDGMENT ON BOARD
05/10/2018

1. This appeal is preferred against the judgment dated

9.12.2009 passed by the 3rd Additional Sessions Judge(FTC),

Surguja at Ambikapur (CG) in Sessions Trial No.317/2008, wherein

the said Court has convicted the appellant for commission of offence

under Sections 363, 366-A and 376(2)(f) read with Section 511 of

the IPC and sentenced to undergo R.I. for 7 years and fine of

Rs.500/-; R.I. for 10 years and fine of Rs.1000/- and R.I. for 10

years and fine of Rs.1000/- respectively with default stipulation. All

the sentences were directed to run concurrently.
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2. As per the prosecution case, the appellant enticed the minor

prosecutrix and procure her to go from other place knowing that she

will be seduced to illicit intercourse and attempted to commit rape

on her on 18.9.2008 at about 4.00 pm at village Khodri, Police

Station- Udaypur, District Surguja (CG). The prosecutrix aged about

4 years was playing in front of her house and at the same time, the

appellant took her away from the lawful guardianship of her parents

and she has been procured for providing to maize field and

thereafter, the appellant tried to commit rape on her. The matter was

reported and investigated and after completion of trial, the appellant

was convicted and sentenced as above.

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

record.

4. Learned counsel for the appellant submits as under :

(i) The prosecutrix has not been examined before the trial Court,

therefore, the charges are not established;

(ii) Though one eye-witness has been examined to establish the

guilt, but his version is full of contradictions and same is not a

reliable piece of evidence;

(iii) Even otherwise at the most it would be a case under Section

354 IPC and other charges are not proved by the evidence of the

eye-witness.

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5. On the other hand, learned counsel for the State supporting

the judgment submits that the finding arrived at by the trial Court is

based on proper marshalling of oral and documentary evidence

which is just and proper and the same is not liable to interfered with

invoking jurisdiction of appeal.

6. To substantiate the charge prosecution has examined as

many as 6 witnesses.

7. As per order sheet of the trial Court dated 25.9.2009, the

prosecutrix appeared before the trial Court, but as she was unable

to speak regarding the incident she was not examined. The case of

the prosecution is based on the statement of Anuj Kumar (PW3),

who is sole eye-witness of the incident and as per version of this

witness, he was playing with the prosecutrix in the house of

appellant. He deposed that the appellant came on the spot and

procured the prosecutrix for providing her to maize field and in his

kitchen garden, he made her lay down, removed her clothes and

committed bad work. As per version of this witness, the appellant

himself has removed his undergarments. This witness was

subjected to searching cross-examination, but from his entire

version it cannot be inferred that he is a tutored witness. He has

simply denied that he deposed against the appellant on account of

tutoring by his father or by the counsel.

8. In the present case, date of incident is 18.9.2008 and the

matter was reported to Police Station, Udaypur next day i.e. on
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19.9.2008, in which, name of the appellant is mentioned as culprit.

Version of Anuj Kumar (PW3) is recorded on next day of the incident

by the Investigating Officer in which he has stated about the incident

and he is firm to his version right from the day of incident to

deposition before the Court.

9. Dr. Lata Goyal (PW6), who has examined the prosecutrix has

opined that no injury mark was found on her body and on her private

part. Looking to the version of eye-witness and the medical

evidence, the trial Court opined that it is not a case of rape, but

looking to the act committed by the appellant, it is a case of attempt

to commit rape. An attempt may be described to be an act more

than mere preparation but falling short of actual consummation.

Considering the evidence of the eye-witness, it is established that

the appellant had shown progress for commission of offence and

therefore, finding of the trial Court regarding commission of attempt

to rape is based on direct and medical evidence and this Court has

no reason to record a contrary finding. Accordingly, conviction of the

appellant for commission of offence under Sections 363, 366-A and

376(2)(f) read with Section 511 IPC is hereby affirmed.

10. Heard on the point of sentence :

The appellant had suffered jail term from 22.9.2008 to

7.4.2011 i.e. more than 2 ½ years. Corporeal punishment awarded

by the trial Court is reduced to the period already undergone by him,

while the fine amount imposed by the trial Court shall remain intact.
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The appellant is reported to be on bail. His bail bonds shall

continue for a period of six months in view of Section 437-A Cr.P.C.

11. With these modifications, the appeal is partly allowed.

Sd/

(Ram Prasanna Sharma)
JUDGE

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