^-{^sK^SW^StSiSS 3^ .,<^ HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No.664 of 2006 APPELLANT: (In Jail) RESPONDENT: Tadra, S/o Sukdu, aged about 26 years, Occupation Agriculture, R/o Village Chingpal, Bazarpara, P.S. Darbha, Distt. Bastar (C.G.) Versus State of Chhattisgarh, Through Aarakshi Kendra, Darbha, Distt. Bastar (C.G.) {Criminal appeal under Section 374 (2)of the Code of Criminal Procedure, 1973} Present: Mr. R.N. Jha, counse'l for the appellant. Mr. Sushil Dubey, Govt. Advocate for the State/respondent. Sin^e Bench: Hon'ble Mr. T.P. Sharma, J ORAL JUDGMENT (9-7-2009) 1. By this appeal, the appellant has ehallenged legality 8s propriety of the judgment of conviction 8s order of sentence dated 1-8-2006 passed by the Sessions Judge, Bastar at Jagdalpur in Sessions Trial No.87/2006, whereby 85 whereunder learned Sessions Judge after holding the appellant guilty for c&mmission of offence under Sections 456, 376 (1) & 323 of the I.P.C. sentenced him to undergo R.I. for one year, R.I. for seven years 6s R.I. for six months, respectively. 2. Judgraent of conviction 85 order of sentence are challenged on the gi-ound that the Court below has not considered the glaring discrepancies in the evidence and the F.I.R. lodged after 14 hours of the incident which has not been properly explained and thereby committed illegality. 3. I have heard learned counsel for the parties, perused the judgment impugned and record of the Court below. 4. Case of the prosecution, in brief, is that fhe prosecuta-ix (PW-1), aged about 12 years, was residing with her elder raother Dhanai (PW-2) at village Chingpal, Police Station Darbha, Distt. Bastar. Y' >1 ?'- ^A^ 2 llil KM 1)M While she was sleeping inside the rdom after bolting the door, at about 3 a.m. on 14-1-2006, the accused after pushing the door entered into her roQm, torn her underwear and committed sexual intercourse with her. She shouted for help whereupon her elder mother Dhanai (PW-2) and one relative Bhursuram (PW-7) who was also staying in her house came. The appellant abused the elder fflother of the prosecutrix, assaulted her and Hed away from the spot. On 14-1-2006 in the morning Dhanai (PW-2) convened Panchayat and on the advise of the Panchayat she lodged report on the same day at about 5 p.m. vide Ex.P-2. Blood stained towel was seized vide Ex.P-3. The prosecutrix (PW-1) was sent for medical examination and she was examined by Dr. (Smt.) Shashikala Thakur (PW-4) vide Ex.P-4. The doctor opined that age of the prosecutrix is 12 years, her secondary sexual characters were not developed, axillary hair not present, breasts were at developing stage, no extemal injury was found, hymen was slightly torn and admits only one finger. Two slides of vaginal smear were taken and seized. Spot map was prepared vide Ex.P-6. Torn underwear of the prosecutrix was seized vide Ex.P-9. Towel 85 underwear were examined by the doctor vide Ex.P-5. Slides were seized vide Ex.P-10. The accused was also examined by the doctor vide Ex.P-8 and he was found capable of cominitting sexual intercourse. His undenvear was seized vide Ex.P-11. Seized articles were sent for chemical analysis vide Ex.P-13. Ossification test for proving fhe age of the prosecutruc was conducted and her age was found to be below 12 years. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. 5. After corapletion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Jagdalpur, who in turn committed the case to the Court of Sessions, Jagdalpur. 6. In order to prove the guilt of fhe accused/appellant, the prosecution has examined as many as nine witnesses. Statement of the appellant/accused was recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him, pleaded innocence and false implication. The accused also 3 ^ti r n^^ examined defense witnesses Binde Nag (DW-1) & Samrath (DW-2) who have deposed that Dhanai has falsely implicated the appellant in the crime in question, Dhanai is in the habit of assaulting any person after consuming liquor and also in the habit of threatening the persons that she is Kotwarin of the village and she may falsely implicate them. 7. After affording opportunity of hearing to the parties, learned Sessions Judge convicted 85 sentenced the appellant in the aforesaid manner. 8. Learned counsel for the appellant veheraently argued that the appellant is innocent and has not committed any offence, he has been falsely implicated in the crime in question. The prosecution has utterly failed to explain the delay in lodging the F.I.R. Even according to medical evidence, intercourse has not been comraitted upon the prosecutrbc only somebody else has attempted to comm.it intercourse, but this is a case of complete intercourse which falsifies the medical evidence. There are glaring discrepancies in the evidence of the prosecutrix (PW-1), Dhanai (PW-2) &, the F.I.R. lodged by Dhanai and they do not inspire confidence for arriving at a conclusion that the appellant has eommitted the crime in question. Lastly, learned counsel submits fhat the appellant is in custody since 24-1-2006 and has completed more than 3 years 5 months in jail which is sufficient sentence for him who was aged about 26 years on the date of incident. Learned counsel placed reliance in the matter of Rajeevan and another v. State of Kerala1 in which it has been held by the Apex Court that the prosecution is required to explain the delay in lodging F.I.R., if not explained it casts doubt on the genuineness of the F.I.R. 9. The appellant has not disputed the age of the prosecutrix substantially. On the other hand, age of the prosecutrix was ascertained as 12 years by the Court. The prosecutrix was examined by Dr. P.L. Mandavi (PW-9) to ascertain her age and on the basis of radiological test her age was ascertained to be below 12 years vide Ex.P-16. The prosecutrix was also examined by Dr. "-^S.CC 355 ...<<s (Smt.) Shashikala Thakur (PW-4) who has opined that age of the prosecutrix was 12 years on the basis ofher physique. Dr. (Smt.) Shashikala Thakur (PW-4) has specifically deposed that her rnenstrual cycle has not started and her secondary sexual characters are not developed. These are suggestive of the fact that the prosecutrix was below 14 years of age. 10.In order to establish complicity of the appellant in the crime in question, the prosecution has examined the prosecutru; (PW-1), Dhanai (PW-2) - elder mother of the prosecutrue, Jhumuklal (PW- 3), Dr. (Smt.) Shashikala Thakur (PW-4) who has examined the prosecutrK, Bhursuram (PW-7) & Dr.A.K. Jena(PW-S). ll.The prosecuta-bs (PW-1) has deposed that at the time of incident she was sleeping in her room after closing 85 bolting the door, at about 3 a.m. the accused pushed the door and entered into the room and after reraoving her undergarment he committed sexual intercourse with her. She cried for help whereupon one relative who was sleeping in her house 8s her elder mother Dhanai came and the accused fled away from the spot. The prosecutrix has also deposed that she does not knowwhat the accused has told to her elder mother Dhanai. But she has deposed that the accused has assaulted her mother Dhanai. She has also deposed that her undergarment and bloodstained towel were seized. 12.Dhanai (PW-2), elder mother ofthe prosecutrix, has deposed that after hearing the sounds of her daughter (the prosecutrix) she went to the room of the prosecutrbs, the door was open and bolt (Sankal) was broken, her daughter enlightened the chimney (lamp), the accused was standing there, the prosecutrbc told her that the accused has committed sexual intercourse with her after tearing her undergarraent. When she asked fhe accused, he did not said anything and fled away from the house. Second day she told the incident to Sarpanch and convened a meeting where the accused was consuming liquor wlth one Samrath and again the accused assaulted her. Finally she lodged the report. 13.The prosecutrbc was examined by Dr. (Smt.) Shashikala Thakur (PW-4) who has deposed that hymen of the prosecutrbc was lightly '% torn and the prosecutrix was complaining of pain over her private part. She has taken the slides of vaginal smear of the prosecutrbc. According to this witness, somebody has attempted to commit sexual intercourse with the prosecutrix. Her report is Ex.P-4. She has also examined the undergarment & towel vide Ex.P-5. In her cross-examination, she has adraitted that somebody has tried to commit rape on the prosecutrix, but she was not in a position to say whether the person has completed the intercourse or not. 14.The F.J.R. was lodged after 14 hours of the incident although on the same day vide Ex.P-2 in which cause of delay has been mentioned as calling the Panchayat meeting. The prosecutrix (PW-1) has not stated anything relating to Panchayat, but Dhanai (PW-2), who has lodged the report, has speciflcally deposed that she has convened the Panchayat meeting where the accused was sitting with Samrath and assaulted her. l5.In the matter of Rajeevan (supra), the Apex has held fhat "12. Another doubtful factor is the delayed lodging of FIR. The leamed counsel for the appellants highlights this factor. Here it is worthwhile to refer Thulia Kali v. State of T.N.2 wherein the delayed filing of FIR and its consequences are discussed. At para 12 this Court says: (SCC p. 397) "First information report in a criminal case is an extremely vital and valuable piece of evidence for fhe purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eyewitnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report nof only gets bereft of the advantage of spontaneity, danger creeps in of the r^ ^ ^1972 SCC (Cri) 543 •— w '-y introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in lodging of the first information report should be satisfactorily explained."" (emphasis supplied) 16.The F.I.R. is a vital piece of evidence and the prosecution is under obligation to prove its genuineness. Delay in lodging the F.I.R. should be satisfactorily explained, otherwise delay would be fatal for the prosecution. While dealing with the question of delay in lodging the F.I.R. in the case of rape, the Apex Court in the matter of Prithi Chand v. State of Himachal Pradesh3 has held that in the case ofrape F.I.R. lodged next day is not fatal. 17.In the present case, Dhanai (PW-2), who has lodged the report, has specifically stated that on second day of the incident i.e. in fhe morning she contacted the Sarpanch 85 other members of the Panchayat, at that time, the accused was consuming liquor with Samrath, the defence witness, and he assaulted her whereupon she lodged the report on the same day. The F.I.R. was lodged at 5 p.m. Distance of village Chingpal from the Police Station is 18 kms. Dhanai (PW-2) was examined by Dr. A.K. Jena (PW-8) on the same day who found contusion over her face vide Ex.P-15. Nothing has been asked by the defence to Dr. A.K. Jena (PW-8) relating to the aforesaid injury which corroborates the statement of Dhanai (PW-2) relating to second part of the incident. Dhanai (PW-2) is a rustic villager and has properly explained the delay in lodging the F.I.R. There are discrepancies in the statements of the prosecutrbi: (PW-1), Dhanai (PW-2) & F.I.R. Ex.P-2 especially relating to conversion of Dhanai and the accused. These village witnesses have been examined after four months of the incident and they have corroborated in material particulars. Discrepancies especially the aforesaid omissions are trivial in nature. Version of the prosecutruc (PW-1) is supported by the medical evidence of Dr. (Smt.) Shashikala Thakur (PW-4) who has noticed injury over hymen of the prosecutrbt which was lightly torn and same is suggestive of commission of sexual intercourse. ^ '^1 7 f/: ^-..S3^ 5 iS.Defence has also examined Binde Nag (DW-1) 85 Samrath (DW-2) who have deposed that Dhanai has never told them about any incident and has not convened any Panchayat, she is in the habit of consuming liquor and threatening the persons, Samrath (DW- 2) is the person who was consuming liquor along with the accused at the time of convening the meeting. Both the defence witnesses have deposed in their cross-examination that when Dhanai convened meeting at the same time, the accused was arrested and was sent to jail. 19.It appears from the evidence of these two defence witnesses that they are trying to conceal the truth. Verskin of the prosecutrix (PW-1) is corroborated by the version of Dhanai (PW-2), medical evidence and the F.I.R. lodged by Dhanai (PW-2). Bhursuram (PW-7) was also present at the time of incidenf, but he has not supported the case of the prosecution and the prosecution has declared him hostile. 20.Evidence of the prosecutrix (PW-1) supported by Dhanai (PW-2), medical evidence 8s the F.I.R. are sufficient for drawing inference that the appellant has commitfed rape on the prosecutrix and for commission of rape the appellant has committed house breaking by night, and also assaulted Dhanai and caused simple injury to her. 21.After appreciating the evidence available on record, leamed Sessions Judge has convicted & sentenced the appellant in fhe aforesaid manner. Conviction 85 sentences are sustainable under the law, same are based on clinching and reliable evidence, which inspire confidence. Judgment of eonviction 85 order of sentence does not call for any interference. 22.Consequently, the appeal is liable to be dismissed and it is hereby dismissed. __-^^^___^ Sd/- T.P. Sharma Judge -'aoing^