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Suklal Sana vs State Of Chhattisgarh 66 … on 14 November, 2018

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NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No. 483 of 2009
Suklal Sana S/o Natwar Sana, Caste Bengali, aged about 40
years, Occupation- Driver, R/o 18 Block Mana Camp Tahsil
District Raipur (CG)
—- Appellant
Versus
State Of Chhattisgarh Through Police Station Mana Camp,
Mana, District Raipur (CG)
—- Respondent

For Appellant : None

For State/ Respondent : Shri Vivek Sharma, Govt. Advocate

HON’BLE SHRI JUSTICE RAM PRASANNA SHARMA
JUDGMENT ON BOARD
14.11.2018

1. Shri Prateek Sharma and Ms. Sunita Jain, Advocates have been

engaged by the appellant for arguing the case on his behalf. Despite

repeated calls, they have not appeared when the case is called out

for final hearing, therefore, Ms. Sangita Mishra, Advocate, who is

present in the Court has been appointed as Amicus Curiae to argue

the case on behalf of the appellant.

2. This appeal is preferred against the judgment of conviction and

order of sentence dated 13.1.2009, passed by the 9th Additional

Sessions Judge (FTC), Raipur (CG) in S.T. No. 117/2008, wherein

the said Court has convicted the appellant under Sections 376, 454
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and 506 Part-II of the IPC and sentenced to undergo R.I. for 10

years and fine of Rs.5,000/-; R.I. for 3 years and fine of Rs.500/-

and R.I. for 3 years and fine of Rs.200/- with default stipulation. All

the sentences were directed to run concurrently.

3. In the present case, prosecutrix is PW1. As per version of the

prosecutrix, on the date of incident she was all alone in the house

while her mother and father were out for their work, at the same

time, the appellant entered into her house and pressed her mouth

and lied over her and committed rape on her. When her mother and

father returned from their work, she narrated the incident of rape to

them. Thereafter, her father slapped the appellant for his wrong

committed by him and report was lodged at the Police Station.

Version of this witness is supported by the version of Parimal Rai

(PW2), her father, who has supported the version of the prosecutrix.

Smt. Shobha Rai (PW3) is mother of the prosecutrix and she has

also supported the version of the prosecutrix. Again, version of the

prosecutrix is supported by the version of Reena Sarkar (PW5) who

asked the prosecutrix while she was weeping and in a question put

to her by this witness, she replied that the appellant has committed

rape on her. Again, version of the prosecutrix is supported by the

version of Shivani Malik (PW9) and Bhimdas (PW6) who have been

informed regarding the incident against the prosecutrix. All these

witnesses have been subjected to searching cross-examination, but

nothing could be elicited in favour of the defence. Looking to the
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entire evidence there is no material contradiction in the statement of

any of the witness which goes against the prosecution and the root

of the case. It is a settled law that minor contradictions are not

sufficient to discard the story of the prosecution, therefore, looking to

the ample evidence it is established that the appellant had

committed rape on the prosecutrix.

4. From the statement of Dr. Shishir Agrawal (PW12) it is established

that Ossification Test of the prosecutrix was conducted in which age

of the prosecutrix was found 14 to 16 ½ years. As per version of

Police Inspector, J.P. Dubey (PW15), undergarment article ‘A’ and

vaginal swab of the prosecutrix was seized as per Ex. D1 and D2

and same was sent to Forensic Science Laboratory for examination

and as per FSL report Ex. P21, semen was found on the

undergarment and slide of the prosecutrix which is corroborating the

evidence of rape. Dr. Amita Jha (PW7) who examined the

prosecutrix opined that rape was committed on the prosecutrix. Dr.

D.K. Jha (PW4) who examined the appellant opined that he was

physically fit to perform sexual intercourse.

5. In the present case, date of incident is 23.4.2008 and report was

lodged on the same day at Police Station Mana naming the

appellant as culprit, which is also a corroborative piece of evidence.

Looking to the direct evidence, medical evidence and documentary

evidence, the trial Court came to the conclusion that the appellant

committed rape on the prosecutrix which is an offence punishable
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under Section 376 (1) of the IPC. Again, house breaking/lurking

house trespass is an offence under Section 454 IPC for which the

trial Court has convicted the appellant and this Court has no reason

to record a contrary finding because reasoning of the trial Court is

based on relevant material placed on record and same is not based

on irrelevant or extraneous material. Accordingly, the conviction of

the appellant for commission of offence under Sections 376 (1) and

454 IPC is hereby affirmed.

6. From the statement of the prosecutrix, it is established that the

appellant threatened her that she should not tell the incident to

anybody, but threat was not regarding death or grievous hurt,

therefore, charge under Section 506 Part-II IPC is not made out.

The finding of the trial Court regarding offence under Section 506

Part II IPC is not sustainable and the same is hereby set aside and

the appellant is acquitted of the said charge.

7. Heard on the point of sentence.

The trial Court has awarded sentence for R.I. for 10 years under

Section 376 (1) IPC; R.I. for 3 years under Section 454 IPC which

cannot be termed as harsh or disproportionate or unreasonable

looking to the facts and circumstances of the case. The sentence

part is also not liable to be interfered with. Accordingly, the appeal

filed for conviction and sentence under Sections 376(1) and 454 IPC

is hereby dismissed.

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8. It is reported that the appellant has suffered full term of his jail

sentence and has been released from Central Jail, Raipur, after

getting remission, therefore, no order for arrest etc. of the appellant

is required.

Sd/

(Ram Prasanna Sharma)
JUDGE
sunita

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