HIGH COURT OF CHHATTISGARH AT BILASPUR SB: HON'BLESHRI R.N. CHANDRAKAR.^J Criminal Appeal No. 1383 of 2000 Appellant Fagu Ram Vs. Resoondent The State of Chhattisgarh. POST FOR PRONOUNCEMENT OF JUDGMENT sdrakar 'e h Appellant HIGH COURT OF CHHARTTISGARH AT BILASPUR Criminal Appeal No. 1383 of 2000 Fagu Ram, S/o. Dasrat Parathi, aged 29 years, occupation: Labourer, R/o. Village Khisora, Police Station: Saja, District Durg, Madhya Pradesh. Versus Respondent State of Madhya Pradesh (now Chhattisgarh) through District Magistrate, Durg, District Durg, CG. Cnmina!app_eALy/S^374_C2JoOj _CjLmLnALPro(ie(Jure_Code (SB: Hon'ble Mr. Ranganath ChandrakariJ. Present: Shri H.S.Patel, counsel for the appellant Shri R.V{ Jha, Dy. Govt. Advocate for the State. JUDGMENT (Delivered on this \\^<- day of November, 2009) \ Wss^gs'ss t ^^'^^^^•^"^t^''-^^^ 1) The appellant has preferred this appeal against the judgment of conviction and order of sentence dated 25-3-2000 passed by the Additional Sessions Judge, Bemetara, Dist. Durg, in Sessions Trial No. 38of 1997, wherebythe accused/appeltant has been convicted under Section 376 of the tndian Penal Code (for short, "IPC") and sentenced to undergo R.l. for seven years and to pay a fine of Rs.500/-, in default of payment of fine to undergo further R.l. for two months. 2) The facts of the case, in a nutshelt, are that on 15-12-1996 at about 6.00 p.m. the husband of the prosecutrix namely Chameli Lal (PW/3) went to Basti, village Kishora and the prosecutrix was alone in the house. At about 10.00 p.m., when the children ofthe prosecutrix were sleeping, the accused/appellant entered the house, caught hold of her hands, dragged her out of the house and committed rape on her in a hut near her house. After the act was finished, the husband of the \ prosecutrix came there on which the accused/appellant fled away from the spot. When the husband of the prosecutrix raised atarm, Sobharam (PW/7), Munni Bai (PW/2) and Panchu came to the spot to whom the incident was narrated. On the next day i.e., 16-12-1996 a Panchayat meeting was convened in the village in which both the prosecutrix and the accused were present. On 17-12-1996 the prosecutrix reported the matter at Police Outpost, Devkar vide Ex.P/2 thereafter, the report was forwarded to Police Station Saja, where the First Information Report (Ex.P/5) was registered and the matter was investigated. 3) After completion of investigation, charge sheet was fited in the competent court which, in turn.committed the case to the Sessions Court, Durg from where the case was received on transfer by the trial Court. The trial court framed charges under Sections 450 and 376 of the IPC against the accused/appellant, The accused abjured the guilt and claimed for trial. After recording of evidence of the witnesses, the statement of the accused/appellant was recordedunder Section 313 of the Cr.P.C., in which he denied the charges leveled against him and pleaded innocence and false implication. The trial Court, after appreciation of the evidence, convicted and sentenced the accused/appellant as noted above. 4) Learned counsel for the appellant submits that the impugned judgment is contrary to law and the evidence available on record. The trial Court erred in holding that the prosecution estabtished the charge under Section 376 of the IPC against the appellant. The learned trial Court ought to have held that the prosecution failed to prove the ingredients of the offence punishable under Section 376 of the IPC. On the basis of the evidence available on record, learned trial Court ought to have held that the act committed by the appellant, if any, was with the N( Kl .' •-'',:K'S"1'^. ^';.''"""ftiJ '^ •°fc:ill ''a 'flljfc j^ %z^V/ ^ :'^i--i"t 5) 6) consent of the prosecutrix, therefore, no offence under Section 376 of the IPC is made out. On the basis ofthe delay in lodging the FIR, the learned trial Court ought to have held that the prosecution case is false and concocted. He further submits that in view of the fact that the offence under Section 450 of the IPC has not been proved, the learned trial Court ought to have held that the prosecutrix was a consenting party and no offence has been committed by the appellant. The evidence of PW/1 Ramkali Bai goes to demonstrate that she herself accompanied the accysed and she was not forcibiy taken out from the house by the appellant. In view of the aforesaid, no offence is made out against the appellant. Learned counsel further submits that the prosecutrix is a married lady aged about 25 years and the medical evidence does not support the prosecution case. The prosecution has not proved its case beyond all reasonable doubts. He lastly submits that considering all the facts and circumstances of the case, the judgment of conviction and order of sentence passed by the trial court be set aside and the appellant be acquitted of the charge. Per contra, learned counsel appearing for the respondent/State argued the matter in support of the judgment and findings arrived at bythe trial Court. He also submitted that a mere delay in lodging the FIR cannot be a ground by itself for throwing the entire prosecution case overboard. The court has to seek an explanation for delay and test the truthfulness and plausibility of the reason assigned. If the delay is explained to the satisfaction of the Court, it cannot be counted against the prosecution. I have heard learned counsel for the parties, perused the record as well as the impugned judgment of the trial court. The prosecution in order to prove the guiit of the accused/appellant examined as many as 12witnesses. "~.^1 ^- /y 7) The conviction of the accused/appellant is based on the evidence of prosecutrix Ramkali Bai (PW/1) and Chameli Lal (PW/3), husband of the prosecutrix. The other witnesses PW/6 Govind Ram and Mannu (PW/11) though turned hostile, Govind Ram admitted his diary statement Ex.P/6 in leading questions put by the prosecution while Sobharam (PW/7), Vinod Kumar (PW/12) are hearsay witnesses who were the members of the meeting convened in village Panchayat. 8) Ramkali Bai (PW/1) the prosecutrix stated in her deposition that on the date of incident at about 10.00 p.m., her husband was out of the house and the appellant (brother-in-law of the prosecutrix) was present there. The appellant removed her clothes, threw her on the ground and committed rape on her. During the ineident she tried to make outcry but the appellant shut her mouth with his hand. She further stated that in the meantime, her husband came to the spot and saw them in compromising position. Seeing her husband, the accused/appellant fled away from the spot. She further stated that her husband beat both of them. Munni (PW/2) Panchu, Panch Bai and Sobharam (PW/7) saw the appellant mnning away from the spot. The incident was narrated to Sarpanch and Kotwar of the village who forbade her to lodge the report but she did not yield and thereafter lodged the report of the incident vide Ex.P/2. She admitted her consent obtained by the Police vide Ex.P/1 for medical examination and seizure of her petti- coat vide Ex.P/3. She was cross examined at length but nothing contrary to her statement was elicited by the defence on the basis of which her testimony could be disbelieved. 9) In her cross examination, she categorically stated that the appellant was residing with her in the same house along with his family. She further stated that she was dragged by the appellant holding her saree to a hut nearby the house where nobody was living. She denied the ^ '"~\ ^) SSB:Slilsi suggestion that being asked by the appellant, she herself laid down there and herself stated that she was forcibly made to lay down by the appellant. Her mouth was gagged, therefore, she could not make outcry. She specifically stated that "Maine Abhiyukt se kaha ki tu mera devar hai aur aisa hath kyon lagata hai lekin abhiyukt nahi mana". She also admitted that a meeting regarding incident was convened in the village. She denied the suggestion that in the meeting she was found guilty. She further denied the suggestion that she and the appellant both were found guilty. She herself stated that it was the appellant who was found guilty by the Panchayat. She further stated that because of the meeting the report was lodged in Police Station after two days. Thus, looking to the consistency of the prosecutrix, her testimony appears to be reliable and trustworthy. It also appears that she was not a consenting party. 10) PW/3 Chameli Lal, husband of the prosecutrix corroborating the version of his wife, prosecutrix (PW/1) stated in his deposition that on the date of incident at about 10 p.m. when he returned from village (Basti), he saw the appellant committing the offence with his wife. Seeing him, the appellant fled away from the spot and the prosecutrix was weeping whom he scolded. He was stated out by the prosecutrix that she was forcibly raped by the appellant. Thereafter, he narrated the incident to Sobharam (PW/7). On the next day, a panchayat meeting was convened in the village inwhich the prosecutrix was asked not to lodge the report but the prosecutrix stated that she would lodge the report as she was forcibly raped by the appellant. Thereafter, the report was lodged at Police Station by the prosecutrix. He admitted his consent given vide Ex.P/4 for medical examination of the prosecutrix. He also admitted the spot map prepared by the Police. The witness remained consistent in his cross examination and f 1;; ^^^IKL.;;^ h. "^. ">>s;.,,iSFi? teiwl nothing could be pointed out by the defence by which his testimony can be held unreliable or untrustworthy. 11) Theevidence ofthe prosecutrix (PW/1) and her husband (PW/3) are also corroborated by Munni Bai (PW/2), Sobharam (PW/7) and Vjnod Kumar (PW/12). These witnesses clearly stated that the incident was narrated to them by the prosecutrix and her husband. From the evidence of Sobharam (PW/7) and Vinod Kumar (PW/12), it is also clear that a meeting regarding the incident was convened in the village which goes to prove that the offence was committed by the appellant and delay in lodging the FIR was caused due to the meeting held in the village. 12) On perusal of the testimonies of Doctor Madhu Shrivastava and Doctor D.K. Gupta (PW/8) and their reports Ex.P/7 and Ex.P/8 respectively, it is clear that neither any injury nor anysign of recent intercourse was found on the body of the prosecutrix but the appellant was found competent to perform sexual intercourse. But, in view of the fact that the FIR waslodged after two days of the incident and thereafter, the prosecutrix was examined, the medical report cannot be expected to be positive. It is also evident that the prosecutrix was a married lady having four children, so non-finding of injuries on her body does not make her version doubtful. On the other hand, the appellant was found competent to perform sexual intercourse by the Doctor and the prosecutrix has made clear and categorical statement regarding commission of offence by the appellant as also regarding the delay in lodging the FIR. Thus, the delay in FIR has also been satisfactorily explained as deposed by the prosecutrix and her husband. It is also pertinent to mention here that the appellant, in hisstatement recorded under Section 313 of the Cr.P.C. failed to explain his false implication and any enmity with the prosecutrix. .^s&el '^l^ 1 ^ s -...^/ !ftfiEISI"F 13) In view of the aforesaid discussion, it is found that the prosecutrix has made clear statement against the appellant which finds corroborated by her husband also and the delay, if any, in lodging FIR wasdue to the meeting convened in the village regarding incident as has been proved by other witnesses. Looking to the consistency of the prosecutrix, the case of the prosecution cannot be thrown overboard on the ground of delay in lodging the FIR and non-corroboration by medical evidence. In a catena of judgments, Hon'ble the Supreme Court has held that in cases of rape, the conviction can be based on the sole testimony of prosecutrix, if it inspires confidence and no corroboration is required. 14) Learned counsel for the appellant in support of his arguments has placed reliance in the matters of Nawar Dewangan vs. Stateof CG , Stateof M.P. vs. Narendra Kumar^, Sudhari @ Shivdhari Singh vs. Stateof CG3, Ramesh vs. State of M.P , Jitendra Kumarvs. State of M.P.5, Dameshwar Kumar vs. State of IVI.P. and Jinish Lal Sah vs. State of Bihar . 1 perused the aforesaid case laws and found that the same are not applicable to the peculiar facts and circumstances of the present case. 15) Considering all the facts and circumstances of the case, l am of the considered opinion that the trial Court has rightly convicted and sentenced the accused/appellants under Section 376 of the IPC and no interference is called for by this court in this appeal. 16) For the foregoing, the appeal deserves to be and is accordingly dismissed. Sd'- R.N. GhaR'drakar Judge ' 2006 (3) CGLJ 198 2 MPWN 2000 (1) Note No.156 32006(2)CGLJ328 4MPWN2003 (1)Note No.137 5 MPWN 1998 (1) Note No.210 6 MPWN 1998 (1) Note No.200 7 2003 (1) CGLJ 138 iia'Bp lltiMl^lldtil