^_^ HJGHCOURTQFCHHATTISGARH AT BILASPUR Single Bench : Hon'ble Shri Dilip Raosaheb Deshmukh, J- Cr. Appeal No. 1067 of 2008 Appellant (In iail) Kunjalal Respondent versus State of Chhattisgarh JUDGMENT Post for pronouncement of Judgment 1^-03-2009 1—' Sd/- DiUp Raosaheb Deshmukh Judge '^-} HIGH COURT OF CHHATTISGARH AT BILASPUR Before : Hon'ble Shri Dilip Raosaheb Deshmiukh, J ^ Criminal Appeal No. 1067 of 2008 APPELLANT fin iaill RESPONDENT Kunjalal @ Kunju S/o Nanheram Mahilang, aged about 60 years, R/o Telaga, P.S. Berala, Distt. Durg (C.G.) Versus The State of Chhattisgtarh, Through Police Station - Berala, District - Durg CRIMINAL APPEAL UNDEFtSECTI^N 37412} OF THE CODE CRIMII^AL PROCEOURE Present / = y : Shri S.C.Verma, counsel for the appellaht. ShriP^.Patankar, PanelLawyerfor the^tate. ^UDGMENT (Delivered on this (^davof March, 2009) This criminal appeal is directecj against the judgment dated 27.11.2008 delivered in Sessions case No.45/2008 by the Additional Sessions Judge, Bemetara, District Durg whereby the appellant was convicted under Section 354 and 506 Part II ofthe I.P.C. and sentenced to rigorous imprisonment for one year under Section 354 of thel.P.C. and to rigorous imprisonment for three years and six months under Section 506 Part-llofthel.P.C. 2. Admittedly, the prosecutrix is the widowed daughter-in-law of the appellant aged about 60 years. Wife of the appellant had also expired. The prosecutrix had 4 minor children.  3. Briefly stated the prosecution story is that on 27.05.2008 the prosecutrix was sleeping with her daughter - Manju and son. The appellant/father-in-law was sleeping in the adjacent room. At about 3.00 A.M., the prosecutrix went for call of nature. While she was returning to her room, the appellant held her hands, dragged her and forcibly made her lie on the cot. The appellant removed his underwear and asked the appellant to remove her while threatening to kill her if she did not. Thereafter, the appellant with intent to commit rape mounted upon her. At this juncture, son of the prosecutrix woke up. The appellant left the prosecutrix who went to her room. The appellant threatened to kill her if she disclosed the incident to anyone. 4. Undeterred by the threat, the prosecutrix went to Police Station Berala situated about 15 kilometers east and lodged F.I.R. at 12.30 P.M. on 25.07.2008 vide Ex.P.4. After completion of investigation, the appellant was prosecuted under Section 376 read with Section 511 and 506Partllofthel.P.C. 5. The appellant abjured the guilt, pleaded innocence and led no evidence in defence. 6. The prosecution examined the prosecutrix P.W.3 and her minor daughter Manju P.W.4, aged about 14 years and the investigating officer Assistant Sub-lnspector G.S.Thakur P.W.5. Relying upon the testimony of the prosecutrix, the learned Additional Sessions Judge convicted the appellant under Section 354 and 506 Part II of the I.P.C. and sentenced the appellant as shown in paragraph 1 (supra). 7. Shri S.C.Verma, learned counsel for the appellant argued that learned Additional Sessions Judge erred in relying upon the testimony of <s the prosecutrix which did not inspire confidence. It was argued that both the prosecutrix and the appellant had filed a claim case after the death of the husband of the prosecutrix. A dispute arose on that count between them. Therefore, the prosecutrix had falsely implicated the appellant. It was also argued that the testimony of the prosecutrix did not inspire confidence because she admitted that she did not shout at the time of occurrence. Lastly, it was contended that the offence under Section 506 Part II of the I.P.C. was not proved because the prosecutrix admitted in paragraph 7 that there was no threat to her life at the time of occurrence. Reliance was placed on Pandurang Sitaram Bhagwat vs. State of Maharashtra, (2005) 9 SCC 44 and Motilal vs. Stete of C.G., 2007 (2) C.G.L.J. 449. 8. On the other hand, Shri Padmanabh Ram Patankar, learned Panel Lawyer for the State while arguing in support of the impugned judgment urged that the testimony of the prosecutrix was wholly reliable because it was supported by a prompt F.1. R. lodged by her. Besides, she made no effort to implicate the appellant for committing rape on her which she could, had she wanted to falsely implicate the appellant. As regardsthe case of Pandurang Sitaram Bhagwat (supra), it was argued that in that case, it was borne out from the evidence that there was previous animosity between the parties and the prosecution had failed to substantiate the allegation as regards commission of offence under Section 323, 504, 506 read with Section 34 ofthe I.P.C. It was held that in view of the discrepancy as to the place and manner of the occurrence and also in view of the above facts it was not safe to rely upon the testimony of the prosecutrix. In the case of Motilal (supra), the testimony of the \ prosecutrix was not relied on because she did not raise any hue and cry at once when her father-in-law ravished her in his house at about 9.30 A.M. It was not the case of the prosecution that the prosecutrix was threatened by the father-in-law due to which she did not shout. Besides, there were improvements made by the prosecutrix in her testimony that her father-in- law had gagged her mouth with a piece of cloth which was not stated by her in the F.1.R. Lastly, the report of occurrence dated 27.02.2003 was lodgedafter delay on 30.03.2003. In the light of the above circumstances, the Court held that the testimony of the prosecutrix did not inspire confidence and conviction of the appellant under Section 376 of the I.P.C. on her sole testimony could not be sustained. Thus, the case law cited by the learned counsel for the appellant was distinguishable on facts. In the present case the prosecutrix made no effort to falsely implicate the appellant by lodging a false F.1.R. of rape against the appellant. The F.1.R. was promptly lodged on thesame day at about 12.30 P.M. at P.S. Berala which was situated 15 kilometers away from the place of occurrence. Nothing has been elicited in cross-examination of the prosecutrix to render her testimony unworthy of credit. The prosecutrix had denied that there was any dispute relating to sharing of the compensation receivable in claims case. On these premises, Shri P.R. Patankar, learned P.L. argued that the conviction ofthe appellant and the sentence awarded thereunder by the learned trial Judge did not call for any interference. 9. Having considered the rival submissions, 1 have perused the record with utmost circumspection. It is settled law that conviction under Section 354 of the I.P.C. can be founded on the sole testimony of the prosecutrix if @ ^ it inspires confidence and is without any embellishment or exaggeration. In the instant case, prosecutrix P.W.3 deposed that at 3.00 A.M. while returning from the call of nature the appellant held her hands and.dragging her forcibly made her lie on his cot and asked her to remove her underwear. On this conduct of the appellant, the prosecutrix became frightened and could not speak. She further deposed that the appellant had threatened to kill her if she did not remove the underwear. Upon such threat, the appellant was about to mount upon her but seeing her 3 year old son wake up, left her and again threatened to kill her if she told about the incident to anybody. There is not even an iota of material in her cross- examination to disbelieve her. 10. Manju P.W.3, a child witness, also deposed that her mother had told her in the morning that her grandfather had held her hand and she was going to the police station to lodge report. Nothing has been elicited to discredit the child witness in cross-examination. The conduct of the prosecutrix in lodging the prompt F.1.R. at P.S. Berala situated 15 kilometers away from the place of occurrence also inspires confidence. The F.1.R. Ex.P.4 fully corroborates the testimony ofthe prosecutrix. 11. The conduct of the prosecutrix in not shouting at the time of occurrence also appears to be natural. The prosecutrix is a widowed daughter-in-law of the appellant and her mother-in-law has also expired. The prosecutrix admitted that on one occasion, the appellant had severely beaten her because she had neglected to take care of her child. She also admitted that the appellant used to caution her to be careful about not visiting out alone and to protect her modesty. Manju P.W.4 also stated that the attitude of the appellant towards her was good. Thus, there is not -.- /^ even an iota of material to even show a semblance of possibility of false implication. It appears that the appellant suddenly felt a strong urge to have sex and grabbed his daughter-in-law i.e. the prosecutrix at night. 1 am of the considered opinion that the learned trial Judge rightly relied upon the testimony of the prosecutrix for convicting the appellant under Section354ofthel.P.C. 12. For constituting offence under Section 506 Part-B of the I.P.C. the intimidation offered by the appellant has to be such as would create a reasonable apprehension in the mind of the prosecutrix that if she did not remove her underwear or disclose the incident to anyone, her life would be in danger. In the present case, the prosecutrix categorically admitted that there was no threat to her life at the time of occurrence because the appellant did not hold any weapon in his hand. The appellant was aged 60 years. Had there been any apprehension of threat to her life, the prosecutrix would have been afraid to lodge a prompt F.1.R. at police station situated 15 kilometers away from her house. Nothing of this sort happened. Thus the prosecutrix did not apprehend danger to her life due to the threat given by the appellant. 1 am of the considered opinion that instead ofthe offence under Section 506 Part-11 ofthe I.P.C., the appellant oughtto have been convicted under Section 506 Part-1 ofthe I.P.C. 13. Having thus considered the evidence led by the prosecution in its entirety, conviction of the appellant and the sentence awarded thereunder by the learned trial Judge under Section 354ofthe I.P.C. is affirmed while modifying the conviction of the appellant under Section 506 Part II of the I.P.C. to Section 506 Part 1 of the I.P.C, and the sentence of rigorous imprisonment for three and half years to rigorous imprisonment for one 7 S3^ Anjani year. A sentence of rigorous imprisonment for one year for the offence under Section 506 Part 1 ofthe I.P.C. would meet the ends ofjustice. 14. In the result, the appeal is partly allowed. While affirming the conviction of the appellant under Section 354 of the I.P.C. and the sentence awarded thereunderconviction of the appellant under Section 506 Part II of the I.P.C. and the sentence awarded thereunder are modified and instead the appellant is convicted under Section 506 Part 1 of the I.P.C. and sentenced to rigorous imprisonment for one year. Both sentences shall run concurrently. Sd/- Dilip Raosaheb Deshmukh Judge