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)
State Of Chhattisgarh Through Police Station Mana Camp,
Mana, District Raipur (CG)
For Appellant : None
For State/ Respondent : Shri Vivek Sharma, Govt. Advocate
HON’BLE SHRI JUSTICE RAM PRASANNA SHARMA
JUDGMENT ON BOARD
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
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
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
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.
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
(Ram Prasanna Sharma)