HIGH COURt OF CHHATTISGARH.BILASPUR APPELLANT/: (Accused) (InJail) Criminal Appeal No.246 of 2003 Gopal Dewar, aged about 45 years S/o Hinsaram, R/o Village Medha P.S. Dongargarh, Distt. Rajnandgaon (C.G.) Versus RESPONDENT: State of Chhattisgarh {Criminal appeal under Section 374 (2) ofthe Codeof Criminal Procedure, 1973} Present: Mr. Sunil Sahu, counsel forthe appellant. Mr. D.K. Gwalre, Govt. Advocate for the State/respondent. Division Bench: - Hon'ble Mr. T.P. Sharma & Hon'ble Mr. R.L. Jhanwar. JJ ORAL JUDGMENT (4-1-2010) T.P. Sharma. J: - 1. Challenge in this appeal is to the judgment of conviction &order of sentence dated 7-2-2003 passed by the Additional Sessions Judge, Rajnandgaon in Sessions Trial No. 102/2002, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of offence under Sections 376 & 506 Part-11 of the I.P.C., sentenced him to undergo imprisonment for life and to undergo R.l. for seven years & pay fine of Rs.10,000/-, in default of payment of fine to further undergoR.I. for one year, respectively. 2. Judgment is impugned on the ground that the prosecution has not proved its case beyondall reasonable doubts and the Court below has convicted& sentenced the appellant only on the ground of conjectures & surmises. 3. Case of the prosecution, in brief, is that the prosecutrix (PW-4), aged about 19 years, is daughter-in-law ofthe appellant/accused and she was residing in the house of the appellant with the appellant. Taking the benefit of his position, the appellant threatened her daughter-in-law and committed sexual intercourse on her against her will two months before 10-4-2002 and thereafter, committed 6-7 times sexual intercourse with her against her will. Finally, the prosecutrix left the house of the appellant, went to her father's house andlodged report vide Ex.P-4. Spot map was prepared by the Patwari vide Ex. P-3. The prosecutrix was examined by Dr. Shail Khare (PW-9) vide Ex.P-11 . The accused was also examined by Dr. A.K. Tamrakar (PW-1) vide Ex.P-1. The Investigating Officer prepared spot map vide Ex. P-9. Statements of the witnesses were recorded under Section 161 ofthe Cr.P.C. 4. After completion of investigation, charge sheet was filed before the Additional Chief Judicial Magistrate, Dongargarh, who in turn, committed the case to the Court of Sessions, Rajnandgaon, from where learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the appellant, the prosecution has examined as many as nine witnesses. The appellant was examined under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him, pleaded innocence and false implication. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge has convicted & sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellant vehemently argued that this is a case of peculiar nature in which daughter-in-law has levelled charge of rape on her father-in-law. According to the case of the prosecution, the appellant committed 6-7 times rape with the prosecutrix, on which the prosecutrix left the house of the appellant, but even after leaving the house of the appellant, the prosecutrix has not lodged report within time and has lodged report after one month. The appellant and father of the prosecutrix were in inimical terms and that is the cause for false implication of the appellant in the crime in question. Learned counsel further argued that evidence of the prosecutrix does not inspire confidence, it is not trustworthy and safe to rely upon. The appellant is in custody since 21-5-2002 and has completed more than 7 ^ years of imprisonment. This is not an exceptional case forawarding exemplary punishment. 9. On the other hand, learned State counsel opposed the appeal and submitted that case of the prosecution cannot be thrown away only on the ground of delay in lodging the F.1. R. The prosecutrix has satisfactorily explained the delay in lodging the F.1. R. Evidence of the prosecutrix is sufficient for drawing inference that the appellant is the person who has committed rape upon his daughter-in-law. 10.1n order to appredate the arguments advanced by the parties, we have examined the evidence available on record. 11.The prosecutrix (PW-4) has deposed in her evidence that two years prior ;t to the date of her examination in the Court, she married Sachin, son of the appellant, and was residing with the appellant in the house of the appellant. On the date of incident, at about 9.30 p.m. the prosecutrix was sleeping in her room, her husband was not present, somebody has knocked the door and under the belief that her husband has knocked the door, she opened the door, then the appellant entered into her room and committed rape on her forcefully by giving threat to kill her. The appellant repeatedly committed rape with her. She narrated the incident to her mother-in-law, but her mother-in-law told her that the same was not possible, then she left her matrimonial house and went to her paternal house and lodged the report vide Ex. P-4. 12.Case of the prosecution is based on the sole testimony of the prosecutrix. Patently, this is an exceptional case of rape alleged to have been committed by father-in-law of the prosecutrix, the prosecutrix has not lodged report promptly and even after leaving the house of the appellant, she has lodged the report after one month. In her detailed examination, she has deposed that she cried for help. She has admitted in her evidence that at the time of incident her two mothers-in-law were present in the house in different rooms. She has denied the suggestion that on the ground of previous dispute of the appellant with her father, she has lodged report against the appellant. 13.Age of the prosecutrix at the time of incident was 19 years. She is a married lady and no medical evidence would be possible in support of the case of the prosecution. She has specifically deposed that the appellant has committed rape on her under threat. The appellant is father-in-law of the prosecutrix and was in dominating position. Defence has not been able to elicit any specific instance of enmity which may be considered for lodging report that too relating to rape. The prosecutrix was residing with the appellant in a joint family. Evidence of the prosecutrix reveals that by misusing his dominating position, the appellant has committed sexual intercourse with the prosecutrix without her will & consent, but under family pressure she has not lodged the repprt immediately or has not reacted, but when it became habit of the appellant, she left the house of the appellant and lodged report against the appellant. The solitary statement of the prosecutrix inspires confidence. In case of rape especially the offence of like nature, immediate lodging of F.1.R. would not be possible and after considering r:/ all aspects of life, one may lodge report. Evidence of the prosecutrix cannot be thrown away only on the ground of delay in lodging the F.1.R. Her evidence is trustworthy and safe to rely upon. She has specifically deposed that the appellant has committed sexual intercourse with her under threat. 14.After appreciating the evidence available on record, the Court beiowhas convicted the appellant under Sections 376 & 506 Part-11 of the I.P.C. and sentenced him to undergo imprisonment for life and to undergo R.l. for seven years & pay fine of Rs.10,000/-, in default of payment offine to further undergo R.l. for one year, respectively. Conviction of the appellant is sustainable under the law. 15.As regards the question of sentence, taking into consideration the age of the appellant and nature of allegations, sentences imposed upon the appellant appear excessive and require reconsideration. 16.Consequently, the appeal is partly allowed. Conviction of the appellant under Sections 376 & 506 Part-11 of the I.P.C. is hereby maintained, however, sentences imposed upon him are modified. Instead of imprisonment for life and R.l. for seven years & fine of Rs.10,000/-, the appellant is hereby sentenced to undergo R.l. for seven years under Section 376 of the I.P.C. and to undergo R.l. for one year & pay fine of Rs.5,000/-,in defaultof payment of fine to further undergo R.l. for one year under Section 506 Part-11 ofthe I.P.C. Soma Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge