Dilip Verma vs State Of Chhattisgarh
2022 Latest Caselaw 1763 Chatt

                                      1

                                                                        AFR

          HIGH COURT OF CHHATTISGARH, BILASPUR

                           CRA No. 257 of 2017

   • Dilip Verma S/o Ghanshyam Verma, Aged About 45 Years R/o Village
     Salhewara, Police Station Gatapar, District Rajnandgaon, Chhattisgarh.,

                                                               ---- Appellant

                                  Versus

   • State Of Chhattisgarh Through The Police Station Gatapara, District
     Rajnandgaon, Chhattisgarh.

                                                            ---- Respondent

For Appellant : Shri Shaleen Singh Baghel, Advocate.

For Respondent    : Shri BP Banjare, Deputy GA.


                  Hon'ble Shri Deepak Kumar Tiwari, J

                            Judgment On Board

01/04/2022 :

1. The appellant is challenging the judgment of conviction and order of

sentence dated 3.2.2017 passed by the Additional Sessions Judge,

Khairagarh, District Rajnandgaon in ST No.11/2014 whereby the

learned Additional Sessions Judge convicted the appellant under

Section 376 (1) of the IPC and sentenced him to undergo RI for 10

years and to pay a fine of Rs.1,000/-, in default of payment of fine to

further undergo additional RI for 1 month.

2. The prosecution case is that on 18th October, 2014, the prosecutrix (PW-

11), aged about 14 years, was residing along with two small children in

the house of her maternal uncle Churaman Verma (PW-1) at village

Salhewara, PS Gatapar. The appellant, who is known to the family,

came to the house and asked about her maternal uncle. When she

informed that all of them had gone to the field for cutting Soyabeen

crop, the appellant took the prosecutrix to the forest behind her house

and when she cried, the appellant stuffed her mouth with a piece of

cloth and committed rape. When Churaman Verma (PW-1) returned

from the field in the evening, he found that the victim was sleeping and

when they tried to wake her up, she did not respond and also blood was

coming from her private part. They thought that due to menstrual cycle

such bleeding was occurring. After 2 days of the incident, when the

victim returned from the hospital, she narrated the incident to Churaman

Verma, her maternal uncle. The maternal uncle consulted with the

father and mother of the victim and thereafter on 24 th October, 2014, a

written complaint (Ex.-P/9) was lodged by the prosecutrix and on that

basis FIR No.46/2014 (Ex.-P/10) was registered.

3. The prosecutrix was medically examined vide Ex.-P/7. Sub Inspector

Jitendra Kosle, IO, prepared the spot map (Ex.-P/6) and seized Kotwari

Register in which the date of birth of the prosecutrix was recorded as

7.7.99 (Ex.-P/5) and birth certificate (Ex.-P/4) was also seized vide Ex.-

P/3. (PW-6) Chhedilal Jangde, Patwari, has prepared the map

(Ex.-P/1). Statements of witnesses were recorded. The prosecutrix's

underwear and slides prepared during examination was seized vide Ex.-

P/11 and the same were sent to the Forensic Science Laboratory for

examination. On such examination, the stains of semen was not found

on the underwear of the appellant as also on the slides. The appellant

was also examined and he was also found capable to perform sexual

intercourse. The appellant was arrested on 25th October, 2014.

4. After completing the investigation, charge sheet was filed. In order to

prove its case, the prosecution has examined as many as 13 witnesses.

Statement of the appellant was also recorded under Section 313 of the

CrPC in which the appellant has stated that he has enmity with the

maternal uncle of the victim Churaman Verma (PW-1), therefore, he

has been falsely implicated. He has examined one Baldu (DW-1) in his

defence.

5. After conclusion of trial, the appellant was convicted and sentenced, as

mentioned above.

6. Learned counsel for the appellant submits that the FIR was registered

with an inordinate delay of 6 days and the appellant was falsely

implicated due to previous enmity which existed between the maternal

uncle of the prosecutrix and the appellant. The prosecution case is not

supported by the medical examination of the prosecutrix, therefore, the

trial Court has wrongly convicted the appellant. Learned counsel prays

to allow the Appeal and set aside the conviction.

7. On the other hand, learned State Counsel would support the impugned

judgment and would submit that the trial Court has properly appreciated

the evidence and the present Appeal has no substance and the same

deserves to be dismissed.

8. I have heard learned counsel for the parties at length and perused the

record.

9. The prosecutrix (PW-11) deposed that on the date of incident at 12

noon, she along with two sons and a daughter of her maternal uncle

were present in the house. At that time the appellant came to the house

and asked the whereabouts of her maternal uncle. When she said that

they are not in the house, the appellant took her to the forest behind her

house. When she cried, the appellant stuffed her mouth with a piece of

cloth and removed her clothes and committed rape. Thereafter she

became unconscious. She gained consciousness at Rajnandgaon

hospital. Churaman Verma (PW-1) has stated that the victim is residing

with him from her childhood. On the date of the incident, he and his

wife had gone to the field for cutting Soyabeen crop and only the victim

and other children were in the house. When they came in the evening

from the field, they found that the victim was lying on the cot and blood

was coming from her private part. They thought it might be due to

menstrual cycle. On the next day, they had taken the victim to the

hospital at Rajnandgaon. 2 days thereafter the victim narrated the

incident. He consulted with the parents of the victim and lodged the

FIR.

10.(PW-3) Hirkunwar, grandmother of the victim has also stated in similar

terms that after coming from the field, they found that the prosecutrix

was lying unconscious. On the next day they had taken her to the Sai

Kripa Hospital, Rajnandgaon and after 2 days, the prosecutrix gained

consciousness and narrated the whole incident. Thereafter, they have

informed to the father (PW-2) and mother (PW-10) of the victim about

the incident. After getting such information they came to village

Salhewara and thereafter they lodged the report.

11.Father (PW-2) of the victim and her mother (PW-10) have also deposed

that at the time of incident they were at Raipur and (PW-1) Churaman

Verma informed that they are taking the prosecutrix to the Rajnandgaon

hospital. After gaining consciousness the victim informed about the

entire incident.

12.(PW-13) Jitendra Kosle, S.I., has registered the FIR on the basis of

written complaint (Ex.-P/9) which was prepared by the maternal uncle

(PW-1) of victim and on such basis report (Ex.-P/10) was lodged on

24th October, 2014. The prosecutrix (PW-11) has denied that due to

enmity with the maternal uncle, she has falsely implicated the appellant.

She further denied in her cross-examination that if her maternal uncle

had not asked to lodge the report, then she would not have reported the

matter. (PW-1) Churaman Verma denied that he was going for playing

Satta (Gambling) to the appellant. He has further denied that he was

liable to pay Rs.20,000/- to the appellant. He further denied that he has

threatened the appellant when he has demanded such money. He has

also denied that for such demand a meeting was also convened in the

village.

13.(DW-1) Baldu has deposed that he was Patel of the village and two and

half years ago, the appellant came to him and told that Churaman

Verma is not returning his money and whenever he makes the demand,

he threatened to kill him and also threatened to implicate him in a rape

case. Therefore, he convened a meeting. But this witness in the cross-

examination specifically admitted that no such meeting was called.

Hence Baldu (DW-1) has given contradictory statement in his

examination-in-chief, therefore, his testimony is not found reliable.

14.Other prosecution witnesses namely, PW-4, sister of the prosecutrix,

and mother of the prosecutrix have also categorically denied that due to

such enmity they have falsely implicated the appellant.

15.On minute examination of the defence taken by the appellant, it is not

found to be true and acceptable.

16.Dr. Leela Ramteke (PW-7) has examined the victim on 24.10.2014 i.e.

after 7 days of the incident and she has not found any injury over the

body of the victim and proved her report (Ex.-P/7).

17. In B.C. Deva v. State of Karnataka, {(2007) 12 SCC 122}, it was held

thus in para-18:-

"18.The plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though the report of the gynaecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted."

18.In Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204 , in para

38 it was observed as under:

38.In Parikh's Textbook of Medical Jurisprudence and Toxicology, the following passage is found: "Sexual intercourse.-- In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."

19.Though the FIR has been lodged after 6 days of the incident, however,

sufficient explanation has come on record, as the victim's father and

mother were residing in another city and at the time of incident the

victim was residing with her maternal uncle and after the incident, the

victim became unconscious and she was taken to the hospital for

treatment. After gaining consciousness, she unfolded the entire

incident. In this manner, the FIR was registered. The appellant, who is

45 years aged person, as also close to the family, often visited the

maternal uncle of the prosecutrix. When the appellant found that no-

one was present in the house, he took the prosecutrix and committed

such heinous crime.

20.In this regard, in the matter of Dildar Singh v. State of Punjab,

{(2006) 10 SCC 531} it was observed thus in para-6:

"6....................This Court has observed in several decisions that the courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. A girl in a tradition-bound non-permissive society would be extremely reluctant even to admit that any incident, which is likely to reflect upon her chastity, had occurred, being conscious of the danger of

being ostracised by the society or being looked down by the society. Her not informing anyone about the incident in the circumstances cannot detract from her reliability. In normal course of human conduct an unmarried girl would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate such incident. Overpowered, as she may be, by a feeling of shame her natural inclination would be to avoid talking to anyone, lest the family name and honour is brought into controversy. Thus, delay in lodging the first information report cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same on the ground of delay in lodging the first information report. Delay has the effect of putting the court on guard to search if any explanation has been offered for the delay and, if offered, whether it is satisfactory."

21.(PW-5) Gulab, Kotwar, has proved the birth register of the prosecutrix.

In the said register, entry pertaining to year 1998-99 was recorded and

the prosecutrix' date of birth was recorded as 17 th July, 1999 and birth

certificate (Ex.-P/4) was issued which was duly proved by the PW-2,

father of the prosecutrix. He has also proved (Ex-P/5), extract of birth

register. Though the father of the prosecutrix in his cross-examination

admitted that the date of birth was recorded by his father in the school,

considering the document (Ex.-P/5) which was duly proved by (PW-5)

Kotwar and in his cross-examination, such entry being incorrect in any

manner was not proved. Hence, the trial Court has rightly accepted the

said document and on that basis, the age of the prosecutrix on the date

of the incident was found 15 years 3 months 1 day i.e. the prosecutrix

was below 18 years of age.

22.Arjun (PW-8) and Natwar (PW-9) have also supported the case of the

prosecution and stated that Churaman Verma has informed them about

the incident.

23.Though during investigation, the appellant was medically examined

about his potency test by Dr. Rituraj Singh, but during trial, the

prosecution did not care to examine the doctor and also not proved the

said document. During the course of final hearing, learned counsel for

the appellant, on instructions, not disputed the contents of such

documents and admitted the fact that on the date of incident medical

opinion recorded against the appellant that he was found capable to

perform sexual intercourse is not disputed. Moreover, in the

prosecution evidence also, no such challenge was made. Therefore, in

view of the admission made during the appellate proceeding, this Court

is of the view that on such score, no remand is necessary, as the

contents of medical examination of the appellant on 25.10.2014 at 10.30

am at PHC Padadah, Khairagarh, District Rajnandgaon is admitted by

learned counsel for the appellant.

24.In this regard, in the matter of Siva Vallabhaneni Vs. State of

Karnataka {(2015) 2 SCC 90}, the prosecution filed an application

under Section 53-A read with Section 173 (8) of the CrPC for

examination of a person accused of rape by a medical practitioner. The

Hon'ble Supreme Court observed that the accused must submit himself

for medical examination. Though in the present case, the accused was

medically examined, but the prosecution did not take care to prove such

document during trial. Therefore, the prosecution is expected to remain

vigilant to prove necessary evidence which is statutorily collected by

the prosecution agency under Section 53 of the CrPC.

25.In view of the aforesaid appreciation of evidence, this Court finds that

the version of the minor prosecutrix remains consistent through out,

natural and reliable. Other witnesses have also duly supported the

evidence of the prosecutrix. Therefore, the trial Court has rightly found

guilty and convicted the appellant under Section 376 (1) of the IPC.

Conviction under the aforesaid section is hereby affirmed.

26.With regard to the sentence, the trial Court has awarded 10 years of RI

under Section 376 (1) of the IPC. The offence took place on

18.10.2014 and the appellant is in jail since 25 th October, 2014 and thus

he has been in jail for more than 7 years. Considering the fact that the

offence took place in the year 2014 and amendment in Section 376 of

the IPC vide Act No.22 of 2018 came into force on 21 st April, 2018

whereby minimum sentence was prescribed as 10 years, the appellant

has already suffered minimum sentence which was prescribed at the

relevant time of commission of offence, this Court finds appropriate

that ends of justice would be served if the appellant is sentenced to the

period already undergone by him. It is accordingly ordered.

27.The appellant is in jail since 25 th October, 2014. He be released

forthwith unless required to be detained in any other case, on his

furnishing a personal bond for a sum of Rs.5,000/- with one surety in

the like sum to the satisfaction of the trial Court. The bail bond shall

remain in operation for a period of 6 months as required under Section

437-A of the CrPC. The appellant shall appear before the higher Court

as and when directed.

28.Consequently, the Appeal is partly allowed with the aforesaid

modifications in the sentence only.

29.Let a copy of the judgment along with record of the trial Court be sent

forthwith for necessary compliance.

Sd/-

(Deepak Kumar Tiwari) Judge Barve

HEADLINES

The appellant was medically examined during trial. The

prosecution neither examined the doctor nor proved the said document.

During the course of final hearing, learned counsel for the appellant, on

instructions, not disputed the contents of such documents and admitted

the contents thereof. Therefore, the prosecution is expected to remain

vigilant to prove necessary evidence which is statutorily collected by

the prosecution agency under Section 53 of the CrPC.

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