'""""iftii f3'°<\ h-.... .iP .<^ ita"*<B".jf A,? ':--.,.c!e'-f'L^ft~~ 1^ HIGH COURTOF CHHATTISGARH: BILASPUR Division Bench : HON'BLE SHRI T.P.SHARWIA AND HON'BLE SHRI RAJESHWARJ-AL JHANWAR, JJ Cr. Appeal No. 1178 of 2003 Appellant (Injain Respondent Baharan Sinah @ Balak 'ft. './ -Veteus State of Chhattisgarh JUDGhflENT FOR CONSIDERATION Sd/- R.L. Jhanwar Judge HON'BLE SHRI JUSTICE T.P.SHARMA Sd/- T.P. Sharma PrOnouncement of Judgment : ZrLQ9.2010 Sd/- R.L. Jhanwar Judge ^..•^^!; -i""'^ HIGH COURTOF CHHATTISGARH AT BILASPUR Coram : Hoji'ble Shri T.P.Sharma and Hon'bleStiriRaieshwaLLal Jhanwar, JJ. ApBellant (InlaiD Respondent Criminal Appeal No. 1178 of 2003 Baharan Singh @ Balak, S/o Ramesar Verma, aged 48 years, R/o Karchua Chokii, Khandsara, Tahsil Bemetara, District Durg. Versus ^tate of Chhattisgarh, through P.S. 'Bemetara, District Durg. APPEA1, UNDER SECT10N 374 (21QFTHE CODE OF CRLM1NAL PROCEDURE Present : Shri Abhay Tiwari, counsel for the appellant. Shri Sandeep Yadav, Dy. G.A. forthe State. iBB:8S"tii« JUDGMENT (Passed on y^09.2010) The following Judgment of the Court was delivered by R.L.Jhanwar, J. Appellant - Baharan Singh stands convicted under Sections 376 and 506 Part lloffhe I.P.C.and sentenced to undergo life imprisonment with fine of Rs.50,000/- and in default to undergo further imprisonment for two years under Section 376 of the I.P.C. and to undergo six months rigorous imprisonment under Section 506 Part II of the I.P.C by the 3 Additional Sessions Judge (F.T.C.) Bemetara, Dist. Durg passed in Sessions Case No. 189 of 2003 videjudgmentdated 31.10.2003. Itisthis judgment, the appellant is before this Court in appeal. 2. Conviction of the appellantis impugned on the ground that without there being an iota of evidence against the appellant, the learned Court below convicted and sentenced the appellant and thereby committed illegality. 3. It is the case of the prosecution that the prosecutrix P.W.1 is the daughter in law pf the appellant. Proseeutrix P.W.1 on 25.08.2003 lodged an F.I.R. Ex.P.1 alleging therein that prior to four months of date 25.08.2003 at village the appellant committed forcible sexual intercourse A ^ »i':sl:',is-;:>aej«i Sl:i-"s!;ai;15aj-BiSSA '^.^.'-^-.^^i-SS^^f'S^-f5 with the prosecutrix and aftersuch commission of offence, the appellant also threatened to kill her if she would disclose about the incident to any third person. It was further alleged that taking the disadvantage of his son being admitted in hospital due to mental disorder, the appellant committed forcible sexual intercourse on her after finding her all alone in his house. On her report, investigation took place. Spot map was prepared by Patwari vide Ex.P.3. 4. P.W.1 prosecutrix wassent for medical examination toDr. Mrs. R. Deodhar P.W.2, who examined the prosecutrix on 27.08.2003 andupon examination found no marks pf injuries seen over any part of her body. No definite opinion could be given by^Dr.Mrs. R. Deodhar about the rape and opined that the prosecutrix was habitual for intercourse. During the investigation, the appellant was also taken in to custody on 26.8.2003 and was sent for medical examination to Dr. N.K.Tiwari P.W.5, who upon t\D\^ examination, opined that the appellant was incapable of doing intercourse. ^ His report is Ex.P.5. 5. After completiort of investigation, charge sheet has been filed against the appellant before the Court of Additional Chief Judicial Magistrate, Bemetara who in turn committed the case to the Court of Sessions. The learned Additional Sessions Judge received the case on transfer for trial. 6. In order to prove the guilt of the appellant/accused, the prosecution examined as many as 7 witnesses. The accused was also examined under Section 313 of the Cr.P.C. where he denied the circumstances appearing against him and pleaded his innocence and false implication. In his examination under Section 313 of the Cr.P.C., the appellant took defence that Prahlad, brother of the prosecutrix, borrowed some money from the appellant and upon being asked to repay such money, Prahlad roped the appellant intofalse case. 7. After affording opportunity of hearing to the parties, the learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned in paragraph 1 of this judgment. v) 8. Shri Abhay Tiwari, learned cbunsel for the appellant vehemently argued that prosecution has not been abte to prove the F.I.R. Ex.P.1, which has been lodged after inordinate delay of more than 4 months and S3'?l.f(».|aa« lt.^:a-i:^.;^g^^^? 7^^^':F^S^^:^S no sufficient explanation was also forthcoming by the prosecutrix in lodging the F.1.R. after more than a period of 4 months. While the appellant was committing jntercourse with, she did not even raise any alarrnnor did cry for help which shows the prosecutrix is a consenting party. Medical evidence vitiated the story of prosecution to the effect that the prosecutrix is habitual fdr intercourse. There are inconsistencies, which took place in thestatements ofthe prosecution witnesses especially in the statements of P.W.1 the prosecutrix and her mother P.W.2 Dukhiya Bai. Lastly, it was argued that the conviction of the appellant is too harsh and the appellant is in jail after his conviction. On these premises, he urged that the appellant be acqilitted of the charges. Learned counsel placed reliance in the matter of' Ra/'u' ancf others v. State of Madhya Pracfesh, (2009) 3 SCC (Cri.) 751, Radhu v. S(afe ofMadhya Pradesh, (2008 2 SCC (Cri.) 207, Jagannfvasan v. State of Kerala, 1995 Cri.L.J. 3239 and Shiv Raj Singh vs. State ofM.P., 2002 (II) MPJR SN 19. 9. On the other hand, Shri Sandeep Yadav, learned Deputy Government Advocate opposed the appeal and submitted that the evidence of prosecutrix P.W.1 itself is suffi^ient for conviction of the appellant. He placed reliance in the matter of S(a(e of Himachal Pradesh v. ShreeKant Shekari, AIR 2004 SC 4404. 10, We have heard learned counsel for the parties at length and have perusedthe impugned judgment including the record ofthe Court below. 11. tn order to appreciate the arguments advanced by the parties, we have examined minutely the evidence adduced by the prosecution. In this case, conviction of the appellant is based on the evidence of P.W.1 prosecutrix, P.W.3 Dukhiya Bai, mother of the prosecutrix and P.W.6 Prahlad, brother of the prosecutrix. P.W.1 the prosecutrix has stated in her evidence that she was married with Surendra, who is the son of the appellant. Since Surendra is suffering from mental disorder, the present appellant sent her to Kewchi, maternal home of the victim. Thereafter, the appellanttook Surendra to Bhilai for his treatment. Two or three days thereafter, her father in law i.e. the present appellant came to Kewchi and took her to Karchua, her matrimonial house. Thereafter, the appellant sent Jalwanti Bai and Dedhsas (sister of the husband) Urvashi Bai to Bhilai. Therefore, they were also not present on the spot. According to the prosecutrix she along with her children and father-in-law at village 'v\ ..•r Karchua and on thedate ofincident she was sleeping in her room and her father-in-law at Verandah. Near about 11.00 at night, the accused came to her and tried to open her ^loths, upon which she tried to raise alarm but the accused/appellant gagged her mouth and threatening her to kill eommitted rape upon her. After commission of rape, the appellant went out and she was under grip of fear as such she was unable to tell the incident to anybody not abje to report the matter. According to her evidence in paragraph 5 and F.I.R. Ex.P.1, it is clear that after the incident, her father-in-law went to Bhilai and her brother Prahlad came to her and with him she came to her, maternal home. It was further deposed in her evidence that after recbvery from mental disorder when her husband came to takealong wifh him; she refused to go with him, upon which her mother and father asked the reason then she has stated about the incident which took place prior to 4 months ago. Thereafter F.1.R. vide Ex.P.1 was lodged and she was sent for medical examination. In her cross-examination, she denied the fact that brother Prahlad borrowed a sum of Rs.7,000/-from her father-in-law and as he was not in a position to repay, therefore, her brother falsely irnplicated her father-in-law. In her cross-examination she has specifically stated thatwhen shewas going to her maternal home the appellant threatened her to kill if she would disclose about the incident to anybody and due to that she was unable to tell about the incident to her mother and father immediately after reaching her maternal home by seeing the condition of her family. 12. Having thus discussed the above evidence, it is dear that the accused is the father-in-law of the prosecufrix. The appellant had committed rape on her in the absence of other family members. The prosecutrix had lodged the F.1.R. after a delayof more than 4 months and was unaware if F.I.R. islodged after such delay. Normally, a woman in a tradition bound non-permissive society of India would be extremely reluctant even toadmit that any incident which is likely to reflect on her chastity had ever occurred. She'would be conscious of the danger of being ostracized or being looked down bythe society including her own family members, relatives, friends and neighbours. She would face the risk of losing the love and respect of her own husband and near relatives and of her matrirrionial home and happiness being shattered. It would almost inevitably and almost invariably result in mental torture and suffering to herself. The fear of being taunted by others will always haunt 'o. her. She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition bpund society where by and large 3ex is taboo. The fearofthe victim herselfbeing considered to be promiscus or in some way responsible for the incident regardless of her innocence would always remain there. The prosecutrix in this case looking to social status of her family members and fearing.fhatshe would face the risk of losing respect ofherown husbandand near relatives, did not lodge report immediately to the police nor tell anyb'ody about the incident taking note that the accused is her father-in-law. In a traditiooal bound society, it would not be possible for a wpman to lodge repprt ortb bring the notice of others about the rape committed on her by the culprit and as soon as she gainedconscious and felt herself dare; such incidents of rape will have come in limelight. In the present case also, no doubt she did not raise any alarm while the appellant was committing rape on her nor did report the matter for some time. It could be one of the reasons that the appellant happened to be his father in law; threatened her not to disclose about the incident and if she would disclosethen should be killed. Looking to these circumstances, she was not able to speak for some time and thereafter lodged F.1.R. It would be much difficult for a woman to involve her own relative falsely. The appellant might have committed rape on her then only she implicated the appellant or otherwise Why she has implicated the applicant falsely by lodging the report after a period of more than 4 months. The evidence of the prosecutrix is alsocorroborated by her mother Dukhiya Bai P.W.3 and Prahlad Kumar P.W.6, mother and brother of the prosecutrix. 13. The learned Court below has also discussed the same thing in its judgment about the social status. Therefore, the fact that inordinate delay took place in lodging the F.I.R. looking to the relation that the accused is her father-in-law has no much relevance. In Sta(e ofHimachal Pradesh v. Shree Kant Shefcari (supra) the Apex Court has held that delay in lodging FIR per se is not a mitigating circumstance for accused when therewas accusation. In the said case, the prosecutrix was the student of accused/appellant, who is a teacher and due to that relationship she was not able to disclose the fact earliest possible and was late in lodging the report. Therefore, the Apex Court has held that mere delay in lodging FIR does not render proseeution version brittle and found the evidence of the prosecutrix to be reliable and in defence, which was taken by the accused, liSiitite y ^) false implication was not proved, therefore, the Apex Court held that the conviction of the appellant is proper. In the instant case, the accused is father in law of the prosecutrix and the relationship betweentHe prosecutrix and the appellant is much close, due to that, as discussed above, she was unable to lodge FIR immediately because she was threatened by the appellant an'd after lodging of FIR she has adduced her evidence completely and her evidence inspires confidence, worth credence and is fully reliable. Therefore, the learned Court below has properly convicted the appellant. Thus, the contention of learned counsel for the appellant that in lodging the F.1.R., inordinate delay took place has also no force looking to thefacts atid circumstances of the present case. 13. It is also evident from the evidence of the prosecutrix that she was threatened by the appellant not to disclose the fact of incident before any person and if she would disclose the factof incident then should be killed, and therefore, she did not disclose the fact of incident of rape for some time. Thus, it is clear that afterconsidering the above fact, the learned Court below has rightly convicted the appellant under Section 506 Part II ofthe I.P.C. and sentencedhim to only six months Rl, which we are offhe view, is proper and does not call for interference. 14. So far as the medical evidence is concerned, no doubt upon examination of the prosecutrix Dr.Mrs. R. Deodhar P.W.2 was unable to find any sign of rape but the evidence of doctor is of no use in this case because the proseeutrixis married lady. Absenceof medical evidence or the delay in lodging the F.I.R. would not in any manner weaken the truthful version of the prosecutrix. 15. We, therefore, hold that the prosecutrix is a reliable witness and her testimony inspires eonfidence. The evidence led by the prosecution establishes that the appellant had, to satisfy his lust, committed rape on the prosecutrix in the absence of any family member. The learned Court below has rightly appreciated the evidence on record and thus convicted the appellantunder Section 376 ofthe I.P.C. 16. So far as the case law cited by the counsel for the appellant, the facts in the above citations are fully distinguishable to the facts of the present case, therefore, they are not applicable. 17. Sp far as fhe sentence of the appellant under Section 376 of the I.P.C. is concerned, the learned Court below has sentenced him to life imprispnment with fin6 of Rs.50,000/- and default to undergo further imprisonment of two years. We firid no reason in the approach of the Court below in sentencing him to life imprisonment with fine of huge amount. Even we do not find any reason in sentencing him two years imprisonment in defaulfof payment by the Court below. We are of the yiew that the sentence of the appellant under Section 376 of the I.P.C. is on higher side and it should be reduced. Accordingly, we modify the sentence part under Seetion 1376 of the I.P.C. to the effect that sentence of life imprisonment is reduced to\10years R.l. with fine of Rs.20,000/-. In default of payment Qffine, he shall undergo further simple imprisonment of one year. 18. In the result, the appeal is partly allowed. Conviction of the appellant under Section 376 of the I.P.C. is maintained. However, sentence of the appellant under the said section is modified to the extent indicatedin paragraph 1^. Conviction ofthe appellant under Section 506 Part II of the I.P.C. dnd the sentence awarded thereunder is also maintained. Sd/- T.P. Shartna Sd/- R.L. Jhanwar